P L D 1955 FEDERAL COURT 240

(Appellate Jurisdiction)

Present : Muhammad Munir, C. J., A. S. M. Akram, A. R. Cornelius, Muhammad Sharif and S.

A. Rahman, JJ

(1) FEDERATION OF PAKISTAN,

(2) MUHAMMAD ALI,
(3) CHAUDHRI MUHAMMAD ALI,
(4) MAJOR GENERAL ISKANDER MIRZA,
(5) M. A. H. ISPAHANI,
(6) DR. A. M. MALIK,
(7) DR. KHAN SAHIB
(8) GENERAL MUHAMMAD AYUB KHAN,
(9) GHYAS-UD -DIN PAIHAN AND
(l0) MIR GHULAM ALI TALPUR
Appellants
versus

Moulvi TAMIZUDDIN KHAN-Respondents Constitutional Civil Appeal No. 1 of 1955, decided

in Pakistan v, April 1955.

(On appeal from the judgment and order of the Chief Khan Court of Sind at Karachi, dated the
9th February 1955, in -- Writ Petition No. 43 of 195--- P L D 1955 Sind 96). Indian
Independence Act, 1947, Ss. 5. 6 (3), 8 (I), 223-A , C J Assent of Governor-General necessary to
all legislations of Constituent Assembly, including those making provision as to the Constitution
of the Dominion under S. 8 (I)-Constituent Assembly acting under S. 8 (I) acts as the
"Legislature of the Dominion"-S. 223-A, Government of India Act, 1935, invalid for want
of .such assent-Rule 62, Rules of Procedure of Consti tuent Assembly-Dominion
Status-Independent Dominion History fsand background-Governor-General part of Legisla
ture-King's Prerogative-Constituent Assembly, whether sovereign-Contemporanea Expositio and
argument ab incon venienti-Assent need not be in writing.

The Constituent Assembly of Pakistan was dissolved by the Governor-General by a

Proclamation dated the 24th of October, 1954 and a re-constituted Council of Ministers was set
up. The President of the Constituent Assembly, Moulvi Tamizuddin Khan (respondent)
thereupon put in a Writ Petition (under section 223-A, Government of India Act, 1935) in the
Chief Court of Sind against the Federa tion of Pakistan and the members of the re-constituted
Council of Ministers (appellants) praying that a writ in the nature of mandamus be issued against
the appellants restrain ing them from implementing the Proclamation of the 24 th October, 1954
and from interfering with the exercise of res pondent's functions as President of the Constituent
Assembly, and another writ in the nature of quo warranto with a view to determining the validity
of appellants' appointment as members of the Council of Minister.
The appellant's reply inter alia was that the dissolution of the Assembly was valid and that the
Chief Court has no jurisdiction to issue the writs, because section 223-A was not validly enacted
for want of assent of the Governor General to the enactment (Government of India (Amendment)
Act, 1954), inserting that section in the Government of India Act, 1935.

The Chief Court issued the writs prayed for, holding that the Acts of the Constituent Assembly,
when it did not function as the Federal Legislature did not require the Governor-General's assent.
The Federation of Pakistan and the re-constituted Council of Ministers appealed to the Federal
Court.

Held, (Per Muhammad Munir, - C. J., A. S. M. Akram, Muhammad Sharif and S. A. Rahman, JJ.
agreeing ; Cornelius, J., contra).-The Constituent Assembly when it functions under subsection
(I) of section 8 of the Indian Independence Act, 1947, acts as the Legislature of the Dominion
within the meaning of section 6 of that Act, and under sub section (3) of the latter section the
assent of the Governor General is necessary to all legislations by the Legislature of the
Dominion. Since section 223-A of the Government of India Act under which the Chief Court of
Sind assumed jurisdiction to issue the writs did not receive such assent, it was not yet law, and
that therefore that Court had no jurisdic tion to issue the writs.

In view of this conclusion, the Court did not go into the other issues in the case.

The main conclusions supporting the above opinion were :

The position of the Constituent Assembly is that it is the Legislature of the Dominion when it
makes laws for the constitution of the Dominion and the Federal Legislature when it functions
under the limitations imposed upon it by the Government of India Act, 1935.

The Crown is a constituent part of Parliament in the United Kingdom and of all Dominion
Legislatures either because it is expressly so stated in the constitutional statutes or because the
Crown appoints the Governor-General who is empowered to give or withhold assent to the
legislation of the Dominion. The same was the position, under the Government of India Act,
1935, i. e. the Governor-General, was a part of the Federal Legislature. It is this common
restriction that exists on the Dominion legislation which subsection (3) of section 6, Indian
Independence Act, 1947 intended to enact when it provided that the Governor-General of the
Dominion shall have full power to assent in His Majesty's name (including the power to withhold
assent) to the laws of the Legislature of the Dominion.

The restrictions are illustrative of the constitutional position that assent to the Dominion
legislation by the Crown or its representative is indispensable and has in no instance ever been
dispensed with by the Crown. [ibid]C

The provisions in Constitutions of other Dominions relating to assent do not create in tile Crown
or to its representative a new right, but confirm an existing right and merely provide the manner
in which that right is to be exercised. Thus if the right to withhold assent to Dominion legislation
is inherent in the . Crown .and the statute that legislates on that right merely says that a bill after
it has been passed by the popularly elected House or Houses shall be presented for - assent to the
Governor-General, , who will give assent to that bill or withhold it there from, the statute does
not create the right to withhold assent but merely describes the manner in which that right is to
be exercised. Similarly the provisions in the Government of India Act which give to the
Governor-General the right to withhold assent from legislation do not confer on, or create a new
right in, the Crown ; on the contrary, they implicitly recognise such right and regulate the manner
in which it is to be exercised. 1t is for this reason that fiction. of making the Crown a consti tuent
of the legislature is resorted to, because neither the King nor his representative, the
Governor-General, is a member of the legislature like other members: The King or the
Governor-General is a part of the Legislature only in the sense that all bills passed by the
Legislature are presented to him, so that he may exercise his right of giving or withholding
assent. Thus subsection (3) of section 6 produces the same result by giving to the
Governor-General full power to assent in His Majesty's name to any law of the Legislature of the
Dominion. It makes the Governor-General a constituent part of the legislature inasmuch as the
right, to give assent necessarily includes in it the right to withhold assent. Every bill must
therefore be presented to him to provide him an occasion to exercise that right, and unless a bill
is so presented a constituent part of the Legislature does not function and the proposed
legislation does not become law. There is, therefore, no distinction between those constitutions
where the Crown is a constituent part of the Legislature and the Legislature of the Dominion of
Pakistan whose functions are being exercised by the Constituent Assembly and to whose
legislation assent is enacted by subsection (3) 'of section 6 as a necessary condition.

"The powers of the Legislature of the Dominion" in subsection (1) of section 8 ' refer back to the
powers of the Legislature of the Dominion defined in section 6, which the Constituent Assembly
was to exercise in its capacity of Legislature of the Dominion.

The provisions of section 6 are applicable to the powers given to the Constituent Assembly by
subsection (1) of section 8 and the restriction as to the Governor-General's assent to legislation
by the Legislature of the Dominion, whatever may be the character of that legislation, is
applicable when the Constituent Assembly exercised the powers of the Legislature of the
Dominion under subsection (1) of section 8. That subsection does not say that the constitution of
the Dominion shall be made by the Constituent Assembly. It assumes that the powers of the
Legislature of the Dominion include the power to make provision as to the constitution of the
Dominion, declares that those powers shall be exercis able in the first instance by the Constituent
Assembly and directs that references in the Act to the Legislature of the Dominion shall be taken
as references to the Constituent Assembly. The plain words of subsection (1) of section 8 that
"reference in this Act to ' the Legislature of the Dominion shall be construed accordingly" have
the effect of substituting the 'Constituent Assembly for the. words "the Legislature of each of the
new Dominion" in subsections (1) and (3) of section 6. That being the position, there can be no
escape from the conclusion that the Governor-General's assent to the laws made by the,
Constituent Assembly is an necessary as his assent to any future Legislature of the Dominion
brought into existence by the Constituent Assembly to replace itself.

Legislation is the exercise of a high prerogative power and even where it is delegated by statute
or charter to a legislature, in theory it is always subject to assent whether that assent be given by
-the King or by a person nominated by the King. In the British system there is not a single
instance to the contrary. That necessity was enjoined in the case of Pakistan so long as it
continued to be a Dominion, though it was open to that Dominion, if the Governor-General gave
assent to a bill of secession to repudiate its Dominion status. The force of the words `full power
to assent' would be realised if a situation arose where a bill of secession came up before :the
Governor-General for assent. So far as His Majesty was concerned he had given full powers to
his Governor-General to assent to any legislation of the Dominion ; but the Governor-General,
though he was a representative of the King, was also the representative of the Dominion in the
sense that he was a person in whom the majority party of the Assembly had confidence. He
would, therefore, have no hesitation, and would also have the requisite authority to give assent.
If, however, he withheld assent, his' immediate recall by His Majesty would have been
successfully insisted upon by the Assembly and the assent could then have been obtained from
his successor.

The word `law' in subsection (3) of section 6 has been used in a general sense, namely, any
proposed legislation which has not as yet received the assent of the Governor General.

The legislation of the, Constituent Assembly under sub section (1) of section, 8 is a part of the
government of the Dominion within the meaning of section 5 arid 'the whole scheme of the
Government of India Act proceeds on the assumption that the Governor-General represents the .
Crown when he assents in Her Majesty's name to the laws, of the Federal Legislature. Therefore
it seems to me to be an im possible proposition to assert that the .making of laws is not a part of
the government of the Dominion, and that being so no reason whatsoever has been suggested
why the making of constitutional laws should not be a part of the Government of the Dominion.
If the Governor-General represents the Crown for the purposes of the government of the
Dominion when he gives assent to the laws passed by the Federal Legislature, it must a fortiori
follow that he represents the Crown for the same purpose when he assents to constitutional laws,
because in a State like ours it is impossible to conceive of a Government without there being a
constitution.

Rule 62 of the Rules of Procedure of the Constituent Assembly, which provides that when a bill
is passed by - the ,Assembly a copy thereof shall be signed by the President and it shall become
law on being published in the official Gazette of Pakistan under the authority of the President, is
a mere rule of procedure which cannot amend the Constitution Act.

The rule of Contemporanea expositio and argument as inconvenient does not apply to the present
case inasmuch as there is no doubt as to the true meaning of sections 6 and 8 as a whole, and
there is no estoppel.

As for the question whether the Constituent Assembly is a sovereign body it is a mistake to
suppose that sovereignty in its larger sense was conferred upon the Constituent Assembly, or that
it could function outside the limits of the Indian Independence Act. The only power given to that
Assembly was the, power to make laws, constitutional or federal. In the former case, it exercised
the power to make provision as to the constitution of the Dominion which had been included in
the generality of the powers conferred by section 6 on the Legislature of the Dominion, and in
the later. it acted as the Federal Legislature with all the limitations to which that Legislature was
subject. Apart from these powers, it had no other power and it lived in a fool's paradise if it was
ever seized with the notion that it was the sovereign body in the State. It had, of course,
legislative sovereignty as the Legislature of the Dominion but then the Governor-General was a
constituent part of the Legislature. Every. Act passed by it required the Governor General's
assent, consistently with the position that prevails throughout the Dominions,. the Colonies. and
the Possessions, settled or ceded or conquered, where the Crown still retains to itself or has
delegated to its representative the high preroga tive right of assenting to bills.

Any attempt to construe the Governor-General's power to withhold assent, as a veto on

legislation proceeds on a misapprehension and cannot be made a ground for the inference that
that power is an infringement of the legislative sovereignty of the Legislature of the Dominion
and - thus of the Constituent Assembly.

We are not concerned with the consequences, however beneficial or disastrous they may be, if
the undoubted legal position was that all legislation by the Legislature of the Dominion under
subsection (3) of section 8 needed the assent of the Governor-General. If the result is disaster, it
will merely be another instance of how thoughtlessly the Constituent Assembly proceeded with
its business and by assuming for itself the position of an irremovable legislature to what straits it
has brought the country.

The Governor-General is appointed by the King or Queen and represents, him or her for the
purposes of the government of the Dominion (section 5 of the Indian Independence Act). The
authority of the representative of the King extends to the exercise of the royal prerogative in so
far as it is applicable to the internal affairs of the Member, State or Province, even without
express delegation, subject to any contrary statutory or constitutional provisions.

History and background of Dominion Status discussed from pp. 258to 267.
Incidents of an Independent Dominion indicated from pp. 306 to 313.
Assent need not be in writing.

M. A: Khuhro v. The Federation of Pakistan P L D 1950 Sind 49, dissented from.

Khan Iftikhar Hussain Khan of Mamdot v. The Crown (1951) F C R 24-P L D 1930 F C 15, not
applicable.

Stockdale v. Hansard 1839-9-A ' & E 1, Ndlwana v. Hofmeyer 1937 A D 229 and Campbell v.
Hall XX How-St. Tr. 239 ref.

Per A. S. M. Akram, J.-Reading section 6 (3) and the 1st part of section 8 (1) together the
conclusion which I am able to draw is that the Governor-General has full power to give assent to
any kind of law proposed by the Legislature of the Dominion and that the Constituent Assembly
which in the first instance is to make provision -for the constitution of the Dominion is to
exercise the power of the Legislature of the Dominion for that purpose. As a result, the assent of
the Governor-General ' becomes necessary for the validity of even constitutional laws. In my
opinion the words "full power to assent" in the context carry with them full liberty to refuse
-assent as power' conferred does. not mean liability imposed or, obligation. created.
In the interpretation of laws and statutes plain words, should, as a rule, be given their plain
meaning and a laboured construction should not be put ; upon them to bring into prominence
some kind of a remote signification.

The effect of conferring Dominion Status was that certain rights and liabilities as between the
Dominion and the United Kingdom came into existence, for instance, if the Dominion by its
legislation negated allegiance to the Crown or severed' connection with it, such a legislation
perhaps could not be considered as legally valid or justified. The expression, "Independent
Dominion" has, therefore, been purposely used in the Independence Act in order to give to the
Dominion a freedom of choice either to remain or to refuse to remain within the British
Commonwealth of Nations.

I am of the view that in the absence of any express or implied provision in any enactment to the
contrary, the assent of the Governor-General is necessary before any constitutional measure
framed under section 8 (1) of the Independence Act, 1947; can pass into law.

Per Cornelius, J. (Contra).-The Indian Independence ,Act, 1947, possessed in several respects the
same character as the Statute of Westminster, 1931, but with one major difference . . . .. . . . the
extent of freedom accorded to the countries which, as Dominions, were to replace the Indian
Empire, was in very material degree greater than that which the older Dominions had gained in
1931. That, in my view, is the circumstance which justifies the application of the special
description "Independent Dominions" to the two new States which were brought into existence
by means of this highly effective instrument.

The Governor-General owes nothing to the British Sovereign except his warrant of appointment,
issued upon the recommendation of the Government of Pakistan. No duty of any kind is
prescribed which he owes to Her Majesty, except that of being "faithful", appearing in the oath
which Her Majesty is pleased to accept. The appointment, by its terms affirms and emphasises
that the Governor-General's duty, or as it might be termed "allegiance", is to the Constitu tion, as
in existence from time to time.

The Constituent Assembly was, as a body, not a creation of the British Parliament. It is, in my
opinion, to be regarded as a body created by a supra-legal power to discharge the supra-legal
function of preparing a Constitution for Pakistan. Its powers in this respect belonged to itself
inherently, by virtue of its being a body representative of the will of the people in relation to their
future mode of Government. In relation to constitutional provisions, it (Constituent Assembly)
exercised the powers of the British Parliament, which were in that respect, untrammelled by any
laws.

With respect to the necessity of assent by the Governor. General to laws of a constitutional
nature passed by the Constituent Assembly, this doubt arose at a very early stage. The Court is
indebted to the learned Advocate-General of Pakistan for the assertion, made on more than one
occasion, that the Late Ministry of -the Government of Pakistan (by which was meant the body
of permanent officials constituting the staff of the Ministry under the Law Minister) had
consistently advised the Minister that -such assent was sine` qua non. On the other hand, the
Constituent Assembly had throughout maintained the view that assent was not necessary, and
acting on that view had made and promulgated a rule, No. 62 in the Rules of the Constituent
Assembly, to give formal expression to that view.

The major limb (Constituent Assembly) of the three great limbs of the autonomous State of
Pakistan had clearly expressed in 1948 its view on this question, which has now assumed so high
an importance. I place the Constituent Assembly above the Governor-General, the Chief
Executive of the State, for two reasons, firstly that the Constituent Assembly, was a sovereign
body, and secondly because the Statutes under and in accordance with which the Governor-
-General was required to function, were within the competence of the Constituent Assembly to'
amend.

The second great limb of the State, namely the Executive 'Government of the Federation, has
never, until after the event of the 24th October 1954, shown any sign, of doubt on this point.

The Government of Pakistan, composed of the Governor General and his Ministers, , have,
throughout the relevant period, been aware that the Constituent Assembly had formally declared
that its constitutional laws became law under its own Rule 62, without the need of the
Governor-General's assent.

In illustration of the view of the third great limb of the State, His Lordship referred to the three
cases : M. A. Khuhro v. The Federation of Pakistan 1950-51 F C R 24= P L D 1950 F C 15.
Khan Iftikhar Hussain Khan of Mamdot v. The Crown, P L D 1950 Sind 49, ex-Major-General
Akbar Khan and Faiz Ahmad Faiz v. The Crown P L D 1954 F C 87 and observed

For the first seven years of Pakistan's existence, the three great limbs of this new "autonomous
community" exhibited complete harmony of view in regard to the point this Court is now. called
upon to decide.

The Constituent Assembly . . . . . . was a supra-legal body, not acting in its constitution-making
capacity within the Constitution. It was not to be presumed that,' in this capacity, its proceedings
and decision were subject to the qualified negative of the Governor-General, who was a statu
tory authority, owing existence - to the interim Constitution.

With reference to the argument ab inconvenienti His Lord ship observed : -

The present is not a case where a mere "departmental construction", or even a judicial or
legislative construction is put forward, as a caution against lightly disturbing .that which has
been accepted and acted upon as settled law for a period, leading to development of vested
rights. The rule of stare decisis is altogether too small in its content to fit the case. Here, the
greatest organs and agencies of the State have been consciously and unanimously holding a
certain belief, and have been acting upon it, in numerous respects affecting the most fundamental
rights of the entire people, It is difficult to imagine a law which affects so large a pro portion of
the public as does a law designed to grant adult suffrage, and to determine the composition of
Provincial Legislatures on that basis. The Delimitation of Constituencies (Adult Franchise) _Act,
1951, was procured by the Federal Government, was passed by 'the Constituent Assembly, was
put into operation by the combined labours of the Federal and Provincial Governments, and has
borne fruit in the shape of new Legislative Assemblies, which have been, busy ever since
passim; .new laws and in other ways; regulating the lives of the people. It is beyond conception
to tabulate all the vested . rights and interests which have been developed in conseclimice of this
law. And there are many other laws which have produced 'extensive effects, which cannot
possibly be ascertained with exactness. These circumstances should; in my opinion, furnish an
argument of almost insuper able character, in favour of. upholdihg what has been the practice
hitherto in regard to assent to constitutional laws,

The effect of section 6 (3) read with section 8 (1) and section 5 of the Indian Independence Act,
1947 was stated thus by His Lordship The Constituent Assembly being designed to be a
sovereign body and to exercise sovereign power, including power to alter the Constitution
subject to which the Governor-General was intended to act, it would clearly be inconsistent with
that design and purpose if the "qualified negative" of assent by the Governor-General were
imposed upon its constitutional laws. Secondly, it being within the complete power of thg
Constituent Assembly to determine the constitution of the "Legislature of the ~ Dominion", or
Union Legislature, and to determine the scope of its legisla tive competency as well as the mode
in which its laws should be enacted, the British Parliament could' not affect to prescribe the
requirement of assent, as an essential formality, in respect of the laws made by such a
Legislature. This would be to usurp the functions of the Constituent Assembly. To impose such a
requirement upon laws of a constitutional nature made by the Constituent Assembly would be a
direct affornt to the position and authority of that body. Hence the careful use of expressions in
section 8,- Indian Independence Act, to indicate that the necessary powers of legislation should
be exercisable by the Constituent Assembly. The words signify the courtesy owed by one
sovereign body to another. There was no direct imposition of obligations, but the need being
indicated, it was indicated also that the Con stituent Assembly, as previously agreed upon by the
pleni potentiaries in the negotiations between' the United Kingdom Government and the
representatives of the Indian people, might fulfil the need.

Section 5, Indian Independence Act, cannot operate to confer any right to grant assent beyond
that conveyed by the relevant words in section 6 (3). Therefore, to draw the right of assent from
section 5 seems to me to be impossible.

In the context, (of section 6 (3) "any law" must mean "any law requiring assent for it to become
operative", i.e., any Bill passed by the "Legislature of the Dominion", which under any provision
of law required to be presented to the Governor-General for his assent, and to receive assent
before it could become operative.

The term "Legislature of the Dominion", cannot be, and was not intended to be, regarded as
equivalent, at any time, to the Constituent Assembly.

Neither the British Sovereign nor the Governor-General, as such, was a part of the Constituent
Assembly.

His Lordship arrived at the conclusion

There is nothing in section 6 (3), Indian Independence Act, or in the status of Pakistan as a
Dominion which creates the obligation that all laws made by the Constituent Assembly, of a
constitutional nature, require the assent of the Governor-General, for their validity and operation.

Per S. A. Rahman, 'J,. (agreeing with the. leading judg ment).-After a comparison of 'sections 6
and 8 the infer ence seems to be irresistible that during the interregnum prior to the promulgation
of a fresh' constitution, . the Constituent Assembly in fact functions as the Legisla ture of the
Dominion. It is only thus that full meaning can be given to the words 'of subsection (1) of section
8 "references in this Act to the Legislature of the Dominion shall be construed accordingly" and
to the provision contained in subsection (3) of section 8. The plenary law-making powers of the
Legislature of the Dominion mentioned in section 6 had to be divided into two compartments for
transitional period, in order to keep the legislative machinery of the Government of India Act,
1935, in working order, with all its limitations, side by side with the enactment of a new
Constitution. For the purpose of functioning as the Federal Legislature under the Government of
India Act, 1935, the Constituent Assembly as the Legislature of the Dominion, should be deemed
to have placed the incident limitations on itself, under the provisions of subsection (6) of section
6 read with subsection (3) of section 8. I confess I am unable to follow the process of reasoning
which seeks to give a different meaning to "Legislature of the Dominion" occurring in subsection
(3) from that possessed by the expression in other subsections of section 6. The attempt seems to
be directed towards investing the Constituent Assembly with all the powers under section 6,
without attracting the restric tion (if restriction it really be) regarding assent, provided for in the
same section. The two submissions made that subsection (3) is confined to the Federal
Legislature functioning under the Government of India Act, 1935, and that the sub section would
also be applicable to laws passed by the future Legislature of the Dominion, appear to me to be
mutually contradictory. The word `law' or `laws' - used in subsec tion (3) obviously includes
laws of a constitutional character as a reading of the whole of section 6 shows and must clearly
mean enactments passed by the Legislature and awaiting assent of competent authority.

The words "full power" (in section 6 (3) ) amply connote discretion to give or withhold assent,
beside indicating freedom from extraneous control, in full measure. The pre sumption is implicit
in the subsection that all such laws shall be submitted to the Governor-General for his assent.

A reading of sections 5 and 6 together, would lead to the inference that henceforth the
prerogative of the Crown as respects assent, would, in the case of each new Dominion, be
exercised by the Governor-General as representing His Majesty.

Op the doctrine of "Departmental Construction" as applied to the interpretation of statutes His

Lordship observed A practice in contravention of a constitutional provision'
contained in a statute, can never ; abrogate or repeal a rule of strict law, with which alone the
Courts are concerned.

Faiyaz Ali, Advocate-General of Pakistan and Kenneth Diplock, Q. C. Abdul Haq, Advocate,
Federal Court, with them) instructed by Iftikhar-ud Din, Attorney for Appellants.

L I. Chundrigar and Nazir Ahmad Khan (Mahmud Ali, Sharifuddin Pirzada and Manzar-e-Alam
with them) instructed by M. Siddiq, Attorney for Respondents.
Dates of hearing: March 1, 2, 3, 4, 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, and 21, 1955.

JUDGMENT

MUHAMMAD MUNIR, C. J.--This is a constitutional appeal from the judgment of the Chief
Court of Sind, dated the 9th February, 1955, directing writs of mandamus and quo warranto to
issue against the appellants, the Federation of Pakistan and certain Ministers of the Central
Government, on the application of the respondent Mr. Tamizuddin Khan. The application was
heard by a Full Bench of five Judges of whom Mr. Justice Hassanally Agha retired during the
hearing and, therefore, gave no opinion. The remaining four Judges were unanimous in their
findings. The leading judgment was written by Constantine, C. J., with which Muhammad
Bachal, J., agreed, while Vellani and Muhammad Bakhsh A. Memon, JJ., delivered separate
judgments.

Pakistan came into existence as an independent Dominion and a member of the British
Commonwealth of Nations on the 15th August, 1947, with a provisional constitution of the
Federal pattern, under the Indian Independence Act, 1947 (10 & 11 Geo. VI, Ch. 30) hereinafter
also referred to as the Act of 1947. Under that Act, until a new Constitution was framed., the
Government of Pakistan was to be carried on under the Government of India Act, 1935 (26 Geo.
V, Ch. 2), here inafter referred to wherever necessary as the Act of 1935, subject to such
adaptations and modifications as were con sequential on her attaining the status of an
independent Dominion. A Governor-General was to represent His Majesty for the purposes of
the government of the Dominion. The functions of the Legislature of the Dominion, including
the making of a constitution, were to be performed by a Con stituent Assembly which had also to
function as the Federal Legislature under the adapted Act of 1935. At the relevant time the
respondent wad the President of that Assembly. The Assembly had not made any constitution
when on 24th October, 1954, it was dissolved by the following proclamation of His Excellency
the Governor-General :-

"The Governor-General having considered the political crisis with which the country is faced,
has with deep regret come to the conclusion that the constitutional machinery has broken down.
He, therefore, has decided to declare a state of emergency throughout Pakistan. The Constituent
Assembly as at present constituted has lost the confidence of the people and can no longer,
function.

The ultimate authority vests in the people who will decide all issues including constitutional
issues through their representatives to be elected afresh. Elections will be held as early as
possible.

Until such time as elections are held, the administration of the country will be carried on by a
reconstituted Cabinet. He has called upon the Prime Minister to reform the Cabinet with a view
to giving the country a vigorous and stable administration. The invitation has been accepted.

The security and stability of the country are of paramount importance. All personal, sectional and
provincial interests must be subordinated to the supreme national interests."
The reconstituted Council, of Ministers which was an nounced in an extraordinary issue of the
Gazette of Pakistan, on the 26th October, 1954, consisted of :-

(1) Mr. Muhammad Ali,

(2) Ch. Muhammad Ali,

(3) Major-General Iskander Mirza,

. (4) Mr. A. H. Espahani, ,

(5) Dr. A. M. Malik,

(6) General Muhammad Ayyub Khan,

(7) Mr. Chyasuddin Pathan, and

(8) Mir Ghulam Ali Talpur.

Dr. Khan Sahib was included in the Council a few days later.

On the 7th November, 1954, the respondent put in an application, Writ Petition No. 43 of 1954,
on the Extraordinary Special Jurisdiction Side of the Chief Court of Sind. The respondents to this
petition were the present appellants, namely, the Federation of Pakistan, the aforesaid members
of the Council of Ministers, and the Estate Officer of the Govern ment of Pakistan. After stating
the facts leading to the setting up of the Constituent Assembly and the coming into force of the
Act of 1947, the application alleged that the 4th appellant, Major-General Iskander Mirza, had
informed the respondent on the 26th October, 1954, that the Constituent Assembly had been
dissolved ; that the respondent and members of the Constituent .Assembly had been forcibly
prevented from entering the premises of the Constituent Assembly Building in Karachi on the
27th October, 1954 ; that on the 30th October, 1954, the Estate Officer of the Govern ment of
Pakistan has addressed a letter to the respondent intimating to him that as he had ceased to be the
President of the Constituent Assembly the allotment in his name of Bungalow No. 3, Bath
Islands, had been cancelled with effect from the 8th November, 1954, and requesting him to
vacate the said premises by 8th November, 1954 -,. that the appellants were contending that in
pursuance of the alleged proclamation the Constituent Assembly had been dissolved and were
inter fering with the duties of the ,respondent as the President of the Assembly and preventing
him from exercising his functions ; that for the reasons stated in the application the alleged pro
clamation and the appointment of appellants 2 to 16 as members of the Council of Ministers
were unconstitutional, illegal, ultra vires, without jurisdiction, inoperative and void ; that in any
case the inclusion of appellants 4, 5, 7, 8 and 10 in the Council was contrary to the provisions of
the Act of 1935 inasmuch as they were not the members of the Federal Legis lature ; and that
there resided in the respondent a legal right to the performance of legal duties 13y the appellants
which was of a public nature. The application concluded with the prayer that a writ in the nature
of mandamus be issued against the appellants, their agents, servants and all persons claiming and
acting through or under them restraining them from imple menting or otherwise giving effect to
the proclamation of the 24th October, 1954, and. from interfering, directly or indirectly, with the
exercise of the respondent's functions and duties. as the President of the Constituent Assembly ;
and ,that another writ in the nature of quo warranto be issued against appellants 4, 5, 7, 8 and 10
with a view to determining the validity of their appointment as members of the Council of
Ministers. A joint reply to this application was filed by the Advocate General of Pakistan on
behalf of appellants, raising some preliminary objections and opposing the application on the
merits. The reply alleged that the Sind Chief Court had no jurisdiction to issue either of the
writs ; that the dissolution of the Assembly was valid ; that the writs prayed for could not, in any
case should not, issue'; and that the grounds men tioned in the proclamation for the dissolution of
the Assembly were true, and if any proof was needed the appellants were prepared to show that
the constitutional machinery had broken down, that the Constituent Assembly had lost the
confidence of the people, and that it could no longer function in accordance with the provision of
the -Act of 1947. In the arguments before the Chief Court several questions which the
application and the reply gave rise to were debated, but the main points which received the
attention of that Court and which were argued before us on behalf of the appellants were :-

(1) that since the Government of India (Amendment) Act, 1954, by which on 16th July, 1954,
section 223-A, which empowered the High Courts to issue writs to mandamus and of quo
warranto, was inserted in the Act of 1935, had not received the assent of the Governor-General,
it was not law, and that therefore .the Sind Chief Court had no jurisdiction to issue the writs ;

(2) that the prayer for a writ of quo warranto must also fail on the ground that section 10-A of the
Act of 1935, which imposed on members of the Council of Ministers the qualification of being
members of 'the Federal Legislature, and which was inserted in that Act by the Government of
India (Fifth Amendment) Act, 1954, was not law because that Amendment Act also had not
received the assent of the Governor-General ;

(3) that the Governor-General was competent to dissolve the Constituent Assembly and in the
circumstances had rightly dissolved it ; and

(4) that the direction to issue either of the writs should not be exercised in favour of the
respondent.

The Chief Court held' that the Acts of the Constituent Assembly, when it did not function as the
Federal Legislature, did not require the Governor-General's assent and that the dissolution of the
Assembly was illegal. It, therefore, issued the writs prayed for.

In order to appreciate the nature of the issues raised and the implications flowing from their
determination one way or the other it is necessary to preface this judgment with some
observations of a general character before stating the precise constitutional position that the Act
of 1947 brought about and deciding the main issue, the determination of which is in my opinion
sufficient to dispose of the appeal. The words demo cracy, democratic institutions, sovereignty,
political sovereign ty, legislative sovereignty, independent dominion etc., have been freely used
in the arguments before us. I, therefore propose-to give a general idea of these terms but only to
the extent that it, is necessary for the purpose of this judgment.
DEMOCRACY AND ENGLISH POLITICAL INSTITUTIONS
The word `Democracy' is now used at least in three different senses. It is the name given to a
philosophy of life, to the means requisite to live up to that philosophy and lastly to the principles
which determine those means. In the first sense democracy is a subjective attitude. by which the
members of the community secure to every one his rights, look upon all fellow citizens without
distinction of colour or race .as brethren in a common enterprise and give spontaneous support to
projects which enhance the-civic excellence and promote the general welfare. It is thus a way of
life; based contrary to the ancient Greek, conception, upon -the fundamental assump tion of
equality of" all .individuals and of their equal rights of life, liberty of action, thought and
expression and pursuit of happiness. It is. essentially an attitude towards life, and a definite
conception of man's place in society, and of the ends of life. As a mode of government,
democracy involves a study of the basic principles on which political institutions ought to be
founded as well as of the actual mechanism to be employed in particular conditions. The basic
idea on which such form of government rests is that of self-rule of the people of freely elected
representative institutions and of an executive responsible to the people. The fundamental in
stitution in modern democracy is the constitution, whether this be a written or an unwritten one.
The constitution performs three functions : it expresses the consent by which the people actually
establish the state itself : it sets up a definite form of government ; and it grants and at the same
time limits the power which that Government possesses. It is the people who give the
constitution and the appointed ruling agency is held in its administration within the rigid limits of
its letter, subject to the right of the people at any time by appropriate means to enlarge or
constrict the power it had granted. Since democracy is that form of government which represents
the common will, political institutions under that form of government, whatever may be the form
of the constitution, must be based on principles without which democratic ends cannot be
realized. In no modern state can the people now like the City States of ancient Greece, directly
assume legislative functions, the number of population ahd size of the country making it
impossible for them to meet in an assembly for purposes of legislation. Therefore in a nation of
any size it is necessary to find some means by which people could rule without taking part in
every immediate step of the process of authority. Thus the principle has now been firmly
established of choosing a certain number of agents or representatives, who are numerous enough
to speak for the whole people and few enough to meet at one place. The first essential of
democratic constitution therefore is that the entire people must be represented in the Legislature
by their nominees to be elected periodically by them. The object being that the popular will
should be reflected in the Legislature, the only means known to _modern democracy of
achieving this result is election of the people's representatives who on being elected constitute
the popular assembly, whether it be called by the name of Parliament, the House of Commons,
House of Representatives, the House of People or by any other name.

The second and by far the most important requirement of a democratic constitution is the need
for periodic account ability of the representatives to their electors. In modern times within a few
years political events of great and un anticipated importance may happen in a country and the
mental horizon of the whole people may change by a sudden international or domestic event, the
importance and implica tions of which may not have been present to the minds of the people
when elections were hold. It is, therefore, necessary that old representatives should seek
re-election either because of their having ceased to reflect in the Legislature the progres sive or
changing outlook of the people or because of their having ceased to represent the views of the
people on a particular issue. The principle, therefore, is fundamental that in every democratic
constitution there must . exist a provision for holding elections after. a few years, so that the
House may continue to be representative of the varying aspirations and needs of the people. It is
unnecessary to discuss here the position of a representative after he has been elected, whether he
is an agent or trustee of the people or a mere messenger. . The basic principle is that no
-representative body can continue indefinitely and that its composition must admit of change
from time to time by means of an appeal to the people. An irremovable Legislature is the very
antihesis of democracy and no democratic constitution is known in the world where elections are
for, life or for an indefinitely long time.

It may incidentally be mentioned here that in the Act of 194 7 there was no express provision for
the dissolution of the Constituent Assembly, and it was alleged before us by Mr. Chundrigar on
behalf of the respondent that the only way to get rid of the Assembly if it did not dissolve itself,
may force or revolution, thus admitting that extra legal acts like revolution, coup d'etat and other
unconstitutional acts become legal concepts where the people, deprived of political sov ereignty
which in a democracy is their birthright, seek to assert that right against an indissoluble
Assembly. .

This is what Sir William Blackstone said in 1765 about a perpetual Legislature

"Lastly, a Parliament may be dissolved or expire by length of time. For if either the legislative
body were perpetual ; or might last for the life of the Prince who convened, them, as formerly ;
and were so to be supplied, by occasionally filling the vacancies with new representatives ; in
these cases, if it were once corrupted, the evil would be past all remedy ; but when different
bodies succeed each other, if the people show cause to disapprove of the present, they may
rectify its faults in the next." (Commentaries on the Laws of England, Book I, Chapter 2, p.
189.)"

The requirement of periodic accountability of a representa tive Assembly to the electors is so

basic that in the United Kingdom the Crown, which since long has ceased to exercise its
discretion in opposition to the advice of the Ministry, will be considered to be justified in
exercising its reserve powers of withholding assent or .directing dissolution if Parliament ever
attempted to prolong its own life indefinitely. The reason for it is that in a democratic
constitution the ultimate or political sovereignty resides in the people, while the popular
assembly, where the constitution does not impose any limita tion on its powers, exercises
legislatives sovereignty only during its term. Since sovereignty as applied to States imports the
supreme, absolute, uncontrollable power by which a State . is governed, and democracy
recognises all ultimate power as resting in the people, it is obvious that in the case of a conflict
between the ultimate and legal sovereign, the latter must yield. An irremovable Legislature,
therefore, is not only a negation of democracy but is the worst calamity that can befall a nation
because it tends to perpetuate an oligarchic rule which, while it has none of the advantages, has
all the disadvantages of a dictatorial rule. An oligarchy, while it lacks the determination, the
singleness of purpose and the clarity of vision of a dictator, is subject to all the temptations to
which a dictator may be exposed. - If, therefore, the Constituent Assembly was an irremovable
Legislature, it was a form of oligarchy and not a body of representatives subject to periodic
accountability. The reason for it may be' that the framers of the Act of 1947 expected that
constitution would be framed within a reasonable time and that the Consti tuent Assembly would
thus dissolve itself. They may not have imagined that the Assembly to which they were
confiding all legislative powers would not complete the constitution even for seven years and, on
the contrary, would assume the role of an irremovable and irresponsible Legislature.

As Government is the responsibility of the executive in a constitution, it- is an indisputable

corollary of the democratic principle that the executive must be responsible to the Legislature for
its acts. The executive discharges its duty of day to day administration without the popular
Assembly enquiring into it but there may come an occasion, and this sometimes does happen,
when on some important issue, executive or legislatve, ` there ensues a conflict between the
executive and the Assembly. In such a case, if the Assembly does not support the executive, the
Government must take it to mean that it has ceased to be the representative of the House, and on
the principle of responsible Government must make way ,for those who have the support of the
Assembly. The same is the effect of a general vote of no confidence, which is intended to declare
to the Government that it no longer enjoys the confidence of the House. In that case, too, the
Government, if it wishes to stay on, has one means of asserting its will against the will of the
Assembly. , If it is sure that the Assembly itself has ceased to be representative of the people and
that in fact the Government has the popular support on that issue, it may ask for a dissolution of
the House however recently the House might have been elected, though this course will
constitutionally not be adopted where elections were held on the specific issue on which the
Government insists to, take a particular stand. To meet such a situation and to enable the popular
will to be reflected in the Assembly it is necessary that, apart from the provisions relating to
periodic dissolution; there should exist in the constitution some power competent to dissolve the
Assembly, if, before the expiry of a normal life, it adopts on a particular issue an attitude which
is not the attitude of the electors. Every democratic constitution, therefore, written or unwritten,
gives to the Head of the State the power to dissolve the Assembly in the contingency just
mentioned.

The next basic fact in a democracy of the British pattern, which has a constitutional monarch at
the head; is that of ministerial responsibility. This doctrine proceeds on the assumption that the
sovereign himself belongs to no party, that he does nothing on his own individual responsibility,
and that every act, of his is backed by ministerial advice. If there be no clash between the
Government and the Assembly, and a measure be brought up by Government which the
sovereign feels would be resented or disliked by the people, he is entitled to dismiss the Ministry,
to form a Ministry from amongst the members of the opposition, and then on the advice of the
new Ministry, to order dissolution. This power undoubtedly rests in the British Monarch, though
it has not been exercised since the time of William IV, the established convention now being that
by dismissing a Ministry, which represents the House of Commons whose life has not yet
expired, the Monarch must be deemed to have taken active interest in party politics, and thus
foregone his claim to the respect and affection which every one in the realm owes to him because
of his aloof and lofty' position. It will have been noticed that the principles mentioned above can
operate in full force only where there are organised parties in the country and at least two parties
in the Legislature, namely, the Treasury Benches and the Opposition, so that in case the existing
Government be dismissed the Opposition may be called upon to form a new Government.

Another means possessed by the British Monarch of appealing to the electorate against the
House of Commons and the Government which enjoys the confidence of that House is that of
withholding his assent to a bill. This power was last exercised in the time of Queen Anne and is
now stated to be as dead as the dodo. But as late as the reign of King George V. there were
suggestions, when the House of Commons twice passed the Irish Home Rule Bill, that the
Sovereign could withhold his assent from the bill and appeal to the country. The King was
himself inclined to accept this view and Sir William Harcourt had to tell him in a personal
interview that, if he dissolved the House of Commons, in the ensuing elections Sir William
would not mention the issue of Home Rule but that elections would be fought on the issue

"Is the country governed by the King or by the people?" and that every Minister would then
attack the King personally.

Thus the necessary mechanism in a normally functioning democratic constitution of the British
principle consists of :-

(1) a free and independent electorate, willing to give, when necessary, what is called an
"electoral mandate";

(2) a popularly elected Legislature ;

(3) an executive responsible to the Legislature ;

(4) the Head of the State, with a legal right not only to dissolve the legislature but also to
withhold assent to bills The question in what circumstances these powers of the King are to be
exercised is an entirely different question and has nothing to do with the legal powers of the
King, though clearly defined conventions have come to be recognised which the King can,
ignore only if he wishes to take the responsibility of ceasing to be a constitutional monarch. But
these conven tions 'cannot be enforced by the Courts, though they will undoubtedly be taken
cognizance of in the interpretation of written constitutions. The only issue that the Court is
required to determine in such cases is whether the legal power existed or not, and not whether it
was properly and rightly exercised, which is a purely political issue.

POSITION OF ME DOMINIONS

As the principal argument which is to be found in the judgment of the learned Judges of the.
Chief Court of Sind and which has been reiterated before-us is founded on the conception of an
`independent dominion' and the alleged sovereignty of the Constituent Assembly, it becomes
necessary to ascertain the meaning of the words `independent dominion' and to have a clear
comprehension -of the powers that the Governor-General of a ,Dominion exercised in 1947,
when the Indian Independence Act was passed. For that purpose we shall have to go far back in
history and to trace the origin and subsequent development of the British Empire itself.
Up to the date. of the passing. of 'the Statute of Westminster in 1931 there was no distinction
between a Colony and a Dominion. Section 18 of the Interpretation Act, 1898, had a colony - as
"Any part of His Majesty's Dominions exclusive. of the British Islands and of British' India, and
where parts of such Dominions are both under a Central and a local Legislature, all parts under
the Central Legislature shall, for the purposes, of this definition, be deemed to be one colony."

By section 11 of the Statute of Westminster the definition of a colony was not to include in any
Act of the Parliament of the United Kingdom passed after the commencement of the Statute, a
dominion or any province or state, forming part of a "dominion" which was defined by section 1
of the Statute as meaning the Dominion of Canada, the Common wealth of Australia, the
Dominion of New Zealand, the Union of South Africa, the Irish Free state and Newfoundland.

Colonies in America and other parts. of the globe were obtained in three ways :-

(1) by treaty of cession ;

(2) by conquest ; and
(3) by taking possession and peopling them where they were found uninhabited.

On the well-recognised doctrine of. Constitutional Law that all acquisitions of sovereignty by a
subject are on' behalf of the Crown, all ceded or conquered colonies were under the Common
Law of England held of the Crown. The relationship between such colonies and countries which,
the King did not hold in right of his British Crown, as for instance, the German territories, was of
a fundamentally different character because those territories during the union of the two Crowns
had no connection with England or its laws.

Where a colony was acquired by treaty, the King could not legally disregard or violate the
articles on which .the country was ceded and such articles were sacred and inviolable according
to their true intent and meaning. Subject to this qualification, there -was hardly any distinction
between a colony acquired by treaty or by conquest. Thus in the case of a territory, whether
acquired by conquest or treaty, the King, subject to the terms of the treaty, possessed an
exclusive prerogative power over it and could entirely change or new model, the whole or part of
its laws and political form of government and govern it by Letters Patent or orders-in Council.
But because a country acquired by British arms became a dominion of the King in right of his
Crown, it was necessarily subject to the Legislature of Great Britain and consequently the King's
legislative powers over it, as conqueror, were subordinate to his own authority in Parlia ment, so
that the King could not make any new change contrary to fundamental principles or exempt the
inhabitants from the power of Parliament. The King could preclude himself from the exercise of
his prerogative legislative authority in the first instance over a conquered or ceded territory by
promising to vest it in an , elected Assembly of the inhabitants and the Governor or by any other
measure of a similar nature by which the King did 'not claim or - reserve to himself that
important prerogative. But the grant of representative institutions, without the reservation of a
power of concurrent legislation, precluded the exercise of the prerogative only while the
legislative institutions continued to exist.
If an inhabited country was discovered and peopled by English subjects, they were supposed to
possess themselves of it for the benefit of their Sovereign and such of the English laws then in
force as were applicable and necessary to their situation were immediately enforced on the
principle that wherever an Englishman goes he carries. with him as much of English law and
liberty as . the nature of the situation will allow. In the case of such colonies the Crown never
had the prerogative of legislation. The distinction, between ceded or conquered territories and
settled colonies was clearly brought out by the Privy Council in Sammut v. Strickland, (1938 A
C 678) where Lord Maugham L. C. delivering the judgment of the Board said

"The line of distinction here has always been based on the circumstance that English settlers
wherever they went carried with them the principles of English Law, and that English common
law necessarily applied in so far as such laws were applicable to the conditions of the new
colony. The Crown clearly had no prerogative right to legislate in such a case. Where, however,
the territory was acquired by cession or conquest, more particularly where there was an existing
system of law, it. has always been considered that there was an absolute power in the Crown, so
far as was consistent with the terms of cession (if it was a case of that kind), to alter the existing
system of law, though until such interference the laws remained as they were before the territory
was acquired by the Crown.".

But it was a common characteristic of all colonies, ceded, conquered or settled, ,that they were
subject to the legislative sovereignty of Parliament. .

I have already observed that the King cannot vary from any treaty which he has entered into on
the Acquisition of a country and may preclude himself from the exercise of his prerogative
powers of legislation in the first instance over an acquired or ceded territory by vesting it in an
elected Assembly of the inhabitants and a Governor. It is, therefore the most important principle
that though the King may keep in his own hands the power of regulating or governing
inhabitants, he cannot infringe or depart from the provisions of the Charter by which he has,
though voluntarily, granted them any liberties or privileges. Thus in every question which arises
between the King and his colonies respebting the prerogative, the first consideration is the
Charter granted to the inhabitants. If that be silent on the subject, it cannot be doubted that the
King's prerogatives in the colony are precisely those prerogatives which he may exercise in the
mother country. Where the Colonial Charter affords no criterion or rule of construction, the
Common Law of England with respect to the rule or prerogative is the, common law of the
territory. Rut whether a, colony was ceded or conquered territory to which representative
legislative institutions were granted by Letters Patent or Order-in-Council or a settled colony
governing itself under a constitution granted to it by Parliament, the King in no instance
delivered himself or was divested of the prerogative to withhold assent to colonial legislation.
And this prerogative has always been considered to be so material to the existence of the King's
real or formal sovereignty, that there can scarcely be imagined a case in which such power could
not be exercised. True, the King did not exercise this power himself, but only through his agent
or representative, but that the power was exercised by the Governor or the Governor-General on
the King's behalf has always remained undoubted: In every sense of the term the
Governor-General has remained a constituent part of the, local Legislature.
STATUTE OF, WESTMINSTER DOMINIONS

In exercise of its right to legislate for the colonies settled, ceded or conquered-the British
Parliament provided a constitution for the Dominion of Canada in 1867, for the Commonwealth
of Australia in 1900, for South Africa in 1909, for New Zealand in 1852; and for Newfoundland
in 1809. In the case of Ireland the Constitution framed by Dail Eireann, sitting as a Constituent
Assembly, was recognised by 'the Irish Free State Agreement to which statutory effect was given
by the Irish Free State Constitution Act, 1922. These constitutions defined the Legislative
powers of the Legislatures in these Dominions and worked under a Governor or a
Governor-General who represented the King and exercised on behalf of the King the power of
giving assent to or withholding assent from bills or of reserving them for the signification of His
Majesty's pleasure. The Governor-General or the Governor had also the power to prorogue,
adjourn or dissolve the Legislature of which he himself as representative of- the King was a
necessary constituent. Though originally these Dominions were subjected to British control
through the Governor-General, and the British Parliament had the authority to legislate for them,
the development of the system of responsible Government in them was so steady and consistent
that they began to claim for themselves complete autonomy and an equal status with Great
Britain. Accordingly, an Imperial Conference was held in London on the 25th October, 1926, in
order to investigate some of - the questions affecting interimperial relations. This Conference
was attended by the representatives of Great Britain, Canada, Australia, New Zealand, Union of
South Africa, Newfoundland, the Irish Free State and India. Among the resolutions passed at the
Conference was one which defined the mutual position and relation of Great Britain and the
Dominions. It stated "They (Dominions) are autonomous communities within the British Empire,
equal in status, is no way subordinate one to another in any respect of their domestic or external
affairs, though united by a common allegiance to the Crown, and freely associated as members
of the British Common wealth of Nations."

It was recognised at the Conference that every self-governing member of the Empire was the
master of its own destiny and that in fact, if not always in form, it was subject to no com pulsion
whatever. Regarding the position of the Governor General it was declared :-

"In our opinion it 'is an essential consequence of the equality of status existing among the
members of the British Commonwealth of Nations that the Governor-General of a Dominion is
the representatives of the Crown holding in all essential respects the same position in relation to
the administration of public affairs in the Dominion as is held by His Majesty the King in Great
Britain, and that he is not the representative or agent of His Majesty's Government in Great
Britain or of any Department of that Government."

The attention of the Conference was also called to various points in connection with the
operation of the Dominion Legislation which, it was-suggested, required clarification, the
particular points involved being

(a) the practice under which Acts of the Dominion Parliaments were sent each year to London,
and it was intimated, through the Secretary of State for Dominiori Affairs, that "His Majesty will
not be advised to exercise his powers of disallowance" with regard to them ;
(b) the reservation of Dominion legislation, in certain circumstances, for the signification of His
Majesty's pleasure which was signified on a advice tendered by His Majesty's Government in
Great Britain ;

(c) the difference between the legislative competence of the Parliament at Westminster and of the
Dominion Parlia ment in the Acts passed by the latter operated, as a general rule, only within the
territorial area of the Dominion con cerned and ;

(d) the operation of legislation passed by the Parliament at Westminster in relation to the
Dominions. In this connection special attention was called to such statutes as the Colonial Laws
Validity Act. It was suggested that in future uniformity of legislation as between Great Britain
and the Dominions could best be secured , by the enactment of reciprocal statutes based upon
consultation and agreement.

The Conference gave .to these matters the best consider ation possible but came to the
conclusion that the issues involved were so complex that there would be grave danger in
attempting any immediate pronouncement other than a state ment of certain principles which
underlay the whole question of the operation of the Dominion Legislation. It felt that for the rest
it would be necessary to obtain expert guidance as preliminary to- further consideration by the
Governments in Great Britain and the Dominions. With regard to the dis allowance and
reservation of Dominion Legislation the Con ference placed on record that, apart from the
provisions embodied in the Constitutions or in specific statutes expressly providing for
reservation, it is recognised that-it was the right of the Government of each Dominion to advise
the Crown in all matters relating to its own affairs. Secondly, that it would not be in accordance
with constitutional practice that any advice should be tendered to His Majesty by His Majesty's
Government in Great Britain in any matter appertaining to the affairs of the Dominion against
the view of the Government of that Dominion:

On the question raised with regard to the legislative com petence of members of the British
Common wealth of Nations other than Great Britain and in particular to the disability of those
members to legislate with extra-territorial operation; the Conference thought that it should
similarly be placed on record that the constitutional practice was that . legislation by the
Parliament at Westminster applying to a Dominion would only be passed with the consent of the
Dominion concerned. The Conference recommended that steps should be taken by Great Britain
and the Dominions to set up a committee to enquire into, report upon, and make
recommendations con cerning :-

(1) the statutory provisions requiring reservation of Dominion Legislation for the assent of His
Majesty or authorising the disallowance of such legislation ;

(2) (a) the position as to the competence of Dominion Parliaments to give their legislation
extra-territorial opera tion ;

(b) the practicability and most convenient method of giving effect. to the principle that each
Dominion Parlia ment should have power to give extra-territorial operation to its legislation in all
cases where such operation is ancillary to provision for the peace, order and good government of
the Dominion ;

(3) the principles embodied in or .underlying the Colonial Laws Validity Act, 1869, and the
extent to which any provisions of that Act ought to be repealed, amended, or modified in the
light of the relations between the various members of the British Commonwealth of Nations, At
the Imperial Conference of 1930 the report of the Con ference of 1929 on the operation of the
Dominion Legislation was considered and it was recommended that a statute be passed by the
Parliament at Westminster embodying certain specific provisions. Accordingly in 1931 there was
passed by the Parliament of the. United Kingdom a statute called the Statute of Westminster
which gave effect to the resolutions of the Imperial Conference of 1930. This statute referred to
the declarations and resolutions set forth in the report of the Imperial Conferences held in 1926
and 1930, and attended by the delegates of the .Government in the United Kingdom, the
Dominion , of Canada, the, Commonwealth of Australia, the Dominion of New Zealand, the
Union of South Africa, the Irish Free State and Newfoundland, and considered it to be meet and
proper to set out by way of Preamble that the. Crown is the symbol of the free association of the
members of the British Commonwealth of Nations, and that as they were united by a common
allegiance to the Crown it would be in accordance with established constitutional position of all
the members of the Commonwealth in relation to one another that any alteration in the law
touching the succession to the throne or the Royal Style and Titles shall hereafter require the
assent as well of the Parliaments of all the Dominions as of the Parliament of the United
Kingdom, and .enacted the resolutions of the Imperial Conferences in 12 sections. Section ,2 of
that Act declared that the Colonial Laws. Validity Act, 1865 was, not to apply to any law made
after the commencement' of the Act by the. Parlia ment of a Dominion, that no law and no
provision of any law made after the commencement of the Act by the Parlia ment of a Dominion
shall be void or inoperative on the . ground that it was repugnant to the law of England or to
provisions of any existing or future Act of the Parliament of the United Kingdom or to any order,
rule or regulation made under any such Act and that the powers of the Parliament of a Dominion
shall include. the power to repeal or amend any such Act, _ order, rule or regulation in so far as
the same was a part of the law of the Dominion. The Colonial Laws Validity Act which was
declared by the Act not to be applicable to any law made by the Parliament of a Dominion had
declared in section 2 .that any Colonial Law which was or shall be in any respect repugnant to
the provisions of any Act of Parliament extending to the Colonies to which such law may relate
or repugnant to any order or regulation made under the authority of such Act of Parlia ment, or
having in the Colony the force or effect of such Act, shall be read subject to such Act, order or
regulation, and shall to the extent of such repugnancy, but not otherwise, be. and remain
absolutely, void and ineffective. Section 3 of the Statute gave to the Parliament of a Dominion
full powers to make laws having extra-territorial operation. Section 4 declared that no Act of
Parliament of the United Kingdom passed after the commencement of the Act shall extend, or be
deemed td extend, to a Dominion as part of the law of that Dominion unless it was expressly
declared in that Act that that Dominion had requested, and consented to, the enactment thereof.
Section 5 dealt with the powers of the Dominion Parliaments in relation to merchant shipping
and 'section 6 with their powers in relation to Courts of Admiralty. Sections 7 and 8 enacted that
nothing in the Act was to be deemed to apply to the repeal, amendment or alteration of the
Constitutions of the Dominion- of Canada, the Commonwealth of Australia and New Zealand or
the distribution of legislative powers between the Parliament of Canada and the Legislatures of
the Provinces of . that Dominion.

Some important constitutional practices which had been firmly established between the
Dominions and the United Kingdom before the passing of the Statute of Westminster have to be
fully understood with a view to appreciating the constitutional position existing at the time of the
passing of that Statute. The first of these relates to the position of the Governor-General.
Originally under the Constitution Acts of the Dominion the Governor-General had substantial
powers of interference in the administration of the Dominion. He was not a representative of the
Dominion but a person appointed by the British Government who was responsible to that
Government. Under the Constitution he exercised his powers of control by withholding his
assent from and reserva tion of bills or by dissolving the Legislature, powers which were
expressly vested in him. These powers could be exer cised by him even in opposition to the
advice of the Ministry, But by 1926, when the Imperial Conference met in London, his position
had become that of a constitutional Governor General; he had ceased to be an agent of the British
Govern ment and become a representative of the King, exercising in relation to the affairs of the
Dominion the same powers as were exercised by the King in the United Kingdom. In other
words, the principle of ministerial' responsibility hack been firmly established in the Dominions.
This constitutional position was affirmed by the ruling of 3rd December, 1915, in the New South
Wales constitutional crisis of 1926 when in reply to a request for instructions regarding some
appoint ments to the Legislative Council, Mr. Amery, the Secretary of State, informed the
Governor that , established constitu tional principles require that the question should be settled
between the Governor and the Ministry. Consequently I do not feel able to give you (i. e. the
Governor) any instruction". He re-affirmed this attitude in the House of Commons on March
15th, 1926, and said

"Since there seems to be some misconception as to the position of the Secretary of State in
relation to matters of this kind, I should like to take this opportunity of making it clear that; in
my view, it would not be proper for the Secretary of State to issue instructions to the Governor
with regard to the exercise of his constitutional duties."

Stating his final conclusion on the issue, which was conveyed by his letter, dated the 14th July,
1926, to the Attorney-General, he said that if Ministers at home purported to intervene in the
internal affairs of New South Wales, that would be wholly incompatible with the status of New
South Wales within the Empire, and that the matter in dispute as to the Legislative Council
appointments was essentially one to be settled in New South Wales, and not in London. (pp. 127
and 128 of Evatt's `The King And His Dominion Governors', 1936 Edition).

After the post-Statute-of-Westminster controversy between Sir Philip Game and the Lang
Ministry of New South Wales in 1932, Sir Alexender. Hore-Ruthven, Sir Philip Game's
successor, announced on his arrival that "The Governor can advise his advisers. He can suggest.
He can warn. But as long as Ministers are chosen representatives of the people, he must defer to
their advise and assist them to the best of his ability in their deliberations, no matter what may be
his private view or personal conviction." (Evatt, The `King And His Dominion Governors', p.
152). These are only two of the several incidents in the history of Dominion Government which
confirm the principle that the, position of 'a Governor General or a Governor qua ' a Dominion
Government is precisely the same as that of the British Monarch qua the Government in London.

A much more important constitutional incident of the office of the Governor-General is that his
appointment and dismissal actually rest with the Dominion Government and not with the home
Government, and that if he ever comes in conflict with the Government of the Dominion, that
Govern ment can successfully insist on his recall by the King. Speaking generally, he has ceased
to possess the right of exercising the reserve powers of the King against the wishes of the
Dominion Government. Stating the position as it exists after the Imperial Conferences of 1926
and 19'30, Evatt at pp. 192 and 193 of his book "The King And His Dominion Governors" says
"Other aspects of these decisive declarations are of supreme importance, but, for present
purposes, it has to be noted that the decisions of the two Conferences assert the general principle
that the King proceeds upon the advice of responsible Ministers. Moreover, the general doctrine
of Ministerial responsibility in its application to the affairs of a Dominion does not except from
its operation, but definitely includes, the appointment of the King's representative therein. Such
matter thus becomes a Dominion affair, and a very important and vital one The declarations of
1926 and 1930, despite their great significance in the other respects, do not contain any final
solution of the various problems of the reserve. power, although it is recognised that the general
principle of Ministerial responsibility (illustrated by the Harcourt decision in the Tasmanian case
of 1914) governs the actions of the King and Governor-General alike ; and also that in the
appointment of the latter the relevant Ministers are those of the Dominion concerned".

And Jenks states at p. 21 of the Cambridge Law Journal (1927) Vol. 3, "Who then is to advise
the King upon the appointment of the Governor General, say, of Canada, Australia, or New
Zealand ? The answer (I may be wrong) seems as a matter of principle to me to be reasonably
plain, namely, that, just as the King in matters affecting the United Kingdom takes the advice of
his Prime Minister, in London, , so in matters affecting Canada he will take the advice of his
Prime Minister in the Dominion, and in the case of Australia that of his Prime Minister in the
Commonwealth of Australia, and so forth. And I see .no difficulty in applying the principle in
that way". Resuming the discussion at p. 196 of his book Evatt again says : "For paragraph VI of
the Report of the 1930 Conference certainly secures to the Dominion Ministers direct access to
the King himself for the purpose of the King's. acting on their advice in relation to the
appointment of the Governor-General, His Majesty's Government in Great Britain being neither
inter ested nor concerned in such appointments. And the new method of appointing the
Governor-General, exclusively upon the advice of Dominion Ministers, has been adopted in
appoint ments since 1930".

The Strickland-Holman controversy of 1916 which resulted in the recall of Sir-Gerald.

Strickland, : the Governor of New South Wales, in something like disgrace is a very apt
illustration of the power of the Dominion Government to insist on the recall of a Governor who
does 'not act according to the advice of the Ministry. The implications of the Imperial
Conference Resolutions and Declarations are thus stated by Evatt :-

"Now Jenks logical inference from the 1926 Report, that the appointment of a Governor-General
is . exclusively a matter of Dominion concern, seems to justify the further inference-equally
logical-that the termination of the appoint ment of a Governor-General is also a matter
exclusively of local or Dominion concern. So far as the position of strict law is concerned, it is
well-established that, in the absence of a controlling statute, a person _ holding such a position as
that of Governor or Governor-General holds it at the pleasure of the Crown. It would seem,
therefore, that Dominion Ministers must possess sufficient constitu tional authority to approach
His Majesty directly, i.e., without any intervention by Ministers in Britain, for the purpose of
advising the King that the appointment of the Governor-General should be terminated. This
course was apparently the procedure adopted when the De Valera Government of the Irish Free
State secured the termination of Mr. McNeill's appointment as Governor-General in the year
1932".' (The King And His Dominion Governors.

Under the Constitutions of the Dominions the Governor General had the power of withholding
his assent from bills or reserving them . for the signification of His Majesty's pleasure. But
before the Imperial Conference of 1926 he had ceased to exercise these powers in opposition to
the wishes of the Dominion Government, unless under some Act of the British Parliament he was
bound to reserve a particular bill for the signification of His Majesty's pleasure. This was is
consonance with the principle of ministerial responsibility, according to which his discretionary
powers in all matters were to be exercised in accord ance with the advice of the Dominion
Ministry. His position had, therefore, become precisely that of a consti tutional monarch in the
United Kingdom, and this was recognized by the representatives of the United Kingdom who
took part in the deliberations of the Imperial Con ferences in 1926 and 1930. The resolutions of
those Conferences relating to the position of the Dominions and the powers of the .
Governor-General were therefore a factual statement of the constitutional position. In fact, the
position was so clearly understood by all concerned that the Statute of Westminster said nothing
about it and took for granted the well-recognized convention that the Governor-General was not
in a position effectively to interfere with the administration of a Dominion contrary to the wishes
of that Dominion. Thus, at the time the Statute of Westminster was passed there were only a few
legal restrictions on the legislative sovereignty of the Dominion Parliaments. They could not pass
laws having extra-territorial operations ; any Dominion laws which were repugnant to the law of
England were invalid ; and the United Kingdom Parliament could still legislate for, those
Dominions. All these restrictions were removed by -the Statute of Westminster.

PRE-INDEPENDENCE INDIA

Nowhere else is the common law principle that the acquisition of political power in a_ foreign
land accrues for the benefit , of the Crown better illustrated than by the history of the
Government of India. By the Charter of 1600 A. D. granted to it by Queen Elizabeth, the East
India Company was authorised to make reasonable laws, constitutions, orders and ordinances,
not repugnant to English Law, for the good government of the Company and the management of
its affairs. But when consequent on the grant of the `Diwani' to the Company by the help less
Moghal Emperor, Shah Alam, on 12th August 1765, presistent scandals relating to -the conduct
of the officers of the Company began to reach England, the British Parliameit stepped in and
claiming the right to interfere with the exercise of political powers by the Company passed the
Regulating Act of 1773. The subsequent Acts,, namely, the Amending Act of 1781, Pitt's India
Act of 1784, the Act of 1793, the Charter Acts of 1830 and 1833 and the Act of 1854, were all
based on the claim that the Company held the Indian territories in trust for the Crown. By the
Charter Act of 1858, the British Crown formally assumed responsibility for the- Government of
India and Lord Canning came to India as the first Viceroy and Governor-General Eighteen. years
later . Queen Victoria assumed the title of "Empress of India" by the Royal Titles Act of 1876.
This addition to the Royal Titles was indicative of the sovereignty of the Crown in India. The
controversy between the Viceroy, Lord Northbrook, and the Secretary of State, Lord Salisbury,
during Disraeli's Ministry resulted in an emphatic pronounce ment by the latter that it was "not
open to question that Her Majesty's Government are as much responsible to the Parliament for
the Government of India as, they are for any of the, Crown Colonies of the Empire", and section
33 of the Government of India Act, 1915, imposed upon the Governor-General in Council a
constitutional obligation of paying true obedience to all such orders as he received from. the
Secretary of State, thus 'securing the supervision of British Parliament over Indian affairs.

The element of responsible government in the Government of India was first introduced by the
Act of 1919, which was passed on the recommendations contained in the Montague Chelmsford
Report. This Act introduced in the sphere of Provincial Government the system of diarchy ,
which was based on the principle that Ministers, without being answerable for the Reserved
Departments or for the policy on the reserved side, were jointly responsible to the popularly
elected Legis lature in respect of the Transferred Departments. The system was extended by the
Act, -of 1935, so as to cover, with some important exceptions, the whole field of Govern ment.
But though the element of responsibility had been considerably enlarged, the basic constitutional
position still was that the ultimate responsibility . for the administration of Indian affairs still
vested in the United Kingdom Govern ment. As the Indian Independence Act 1947, brought
about a complete change in the government and transferred all responsibility for the government
of the Indo-Pakistan sub-continent to the two new Dominions, it is necessary, to have a thorough
grasp of the main principle which underlay the Act of 1935 in order to be able to appreciate the
fundamental change that wag effected by the Act of 1947.

GOVERNMENT , OF INDIA ACT, 1935

Section 2 of the Act of 1935 asserted that all rights, authority and jurisdiction heretofore
belonging to His Majesty the King, Emperor of India, which appertained and were incidental to
the government of the territories in India for the time being vested in him, and all rights,
authority and jurisdiction exerciseable - by him in or in relation to any other territories in India,
were exercisable by His Majesty, except , in so far as it was otherwise' provided by or under the
Act, or as it was otherwise directed by His Majesty, provided that any powers connected with the
exercise of the functions of the, Crown in its relation with the Indian States was, if not exercised
by His Majesty, to be exercised only by, or, by persons acting under the authority. of, His'
Majesty's representative for -the exercise of those functions of the Crown. The said rights,
authority and jurisdiction were to include any rights, authority or jurisdiction hereto fore
exercisable in, or in relation to, any territories in India by the Secretary of State, the Secretary of
State-in Council, the Governor-General, the Governor-General-in Council, any Governor or any
local Government, whether by any delegation from His Majesty or otherwise. Sections 5 and 6 of
the Act contained provisions for the establishment of a Federation and .the accession of the
Indian States to that Federation. Section 8 defined the extent of the execu tive authority of the
Federation and section 9 provided for the administration of the Federal affairs. The Council of
Ministers to be set up under subsection (1) of sec tion 9 was to aid and advise the
Governor-General in the exercise of his functions, except in so far as he was required by the Act
to exercise those functions or any of them in his discretion and the proviso to the subsection
stated that nothing in that subsection was to be construed as preventing the Governor=General
from exercising his individual judgment in any case whereby or under the Act he was required so
to do. Subsection (3) of that section declared that if any question arose whether any matter was
or was not a matter as respects which the Governor-General was under the Act required to act in
his discretion or to exercise his individual judgment, the decision of the Governor General in his
discretion would - be final and that the validity of anything done - by the Governor-General was
not to be called in question on the ground that he ought or ought not to have acted in his
discretion or exercised his indi vidual judgment. Under section 10 the Ministers were to be
chosen or dismissed, by the Governor-General in his discretion. Section 11 enumerated some of
the functions of the Governor-General which were. to be exercised by him in his discretion,
while section 12 defined his special responsibilities in the discharge of which he was to exercise
his individual judgment. Under section 13 the Secretary of State was, with the approval of the
Parliament, to issue an instrument of instructions to the Governor-General but the validity of
anything done by the Governor-General was not to be called in question on the ground that it
was done otherwise than in accordance with that instru ment. Where the Governor-General acted
in his discretion or in exercise of his individual judgment, he was placed by section 14 udder the
general control of the Secretary of State. Chapter III made provision for a Federal Legis lature.
The Governor-General had the power to summon, prorogue and dissolve the House of Assembly,
one of the three constituents of the Federal Legislature. When a bill was passed by the chambers
(the Council of State and the House of Assembly) it had to be presented to the Governor General
who . was in his discretion to declare either that he assented in His Majesty's name to the bill or
that he withheld assent there from or that he reserved the bill for the signification of His
Majesty's pleasure, and a bill was not to become an Act unless and until within 12 months from
the date on which it was presented to the Governor General, he made known by public
notification that His Majesty had assented thereto. An Act assented to by the Governor-General
could be disallowed by His Majesty within 12 months from the date of the Governor-General's
assent.

Under sections 42 and 43 the .Governor-General had the power to promulgate ordinances during
the recess of the Legislature, and with respect to certain subjects at any time. In any such" case
he acted either in his discretion or in exercise of his individual judgment. He could also enact
Acts in relation to matters in which he was required to act in his discretion or in exercise of his
individual judgment. By section 45 he had the power to assume to himself all or any of the
powers vested in or exercisable by. any Federal body or authority if he was satisfied that a
situation had arisen in which the government of the Federation could' not be carried on in
accordance with the provisions of the Act, and in this matter he was to act in his discretion.

The position in the Provinces was similar to that at the Centre. The Governor was appointed, like
the Gover nor-General, by His Majesty by a Commission under the Royal Sign Manual. He was
also to have a Council of Ministers and in certain specified matters was required to act in his
discretion or in exercise of his individual judgment, and when so. acting he was subject to the
general control of the Governor-General. He had the power to summon, prorogue or dissolve the
Assembly. He could withhold assent to bills of the Provincial Legislature or, reserve them for the
consideration of the Governor-General, who could either assent to the bill or withhold his assent
therefrom or reserve it for the signification of His Majesty's pleasure thereon. Apart from this,
His Majesty had the power to disallow Acts passed by the. Provincial Legislature. The Governor
could either in his discretion or in exercise of his individual judgment promulgate ordinances
during the recess of the Legislature, and with respect to certain sub jects at any time. He could
also enact Acts concerning matters, which were within his discretion or his individual judgment.
If at any time he was satisfied that a situation had arisen in which the government of the Province
could not be carried on in accordance with the provisions of the Act, he could by proclamation
assume to himself all or any of the powers vested in or exercisable by any Provincial body or
authority.

As the scheme underlying the Government of India Act was that of a federal pattern of
government the Act had defined in List . I matters with respect to which the Federal Legislature
could make laws, in List II matters with respect to which the Provincial Legislature could, make
laws and in List III matters in "which the Federation and the Provinces, subject to certain
restrictions, were both competent to make Laws. Residual powers were to be assigned by the
Governor-General to the Federal Legislature or to the Provincial Legislature by, public
'notification. In the cases specified in section 99, the Federal Legislature could make laws having
extra-territorial operation.

Under section 108, unless the Governor-General in his discretion thought fit to give his previous
sanction, no bill or amendment could be introduced into or -moved in either Chamber of the
Federal Legislature which inter alia : (a) repealed, amended or was repugnant to any provision of
any Act of Parliament extending to British India ; (b) repealed, amended or was repugnant to any
Governor General's or Governor's Act or any ordinance promulgated in his discretion by the
Governor-General or a Governor ; and (c) affected matters as respects which the Governor- F
General was required by the Act to act in his discretion. , There were similar restrictions on the
chambers of the Provincial Legislature.

Section 110 enacted that nothing in the Act was to be taken to affect the power of Parliament to
legislate for any part of British India ; or to empower the Federal Legislature or any Provincial
Legislature to make any law affecting the Sovereign or the Royal family or the sovereignty,
dominion or - suzerainty of the Crown in any part of India or the law of British nationality ; or to
make any law amending any provision of the Act.

Under section. 91 His Majesty could at any time by Order-in-.Council direct that a specified area
.shall be an excluded area or, partially excluded area and on such direc tion no Act of the Federal
Legislature or the Provincial, Legislature was td apply to it unless the Governor by public
notification so directed in his discretion.

To summarize, the position under the Act of 1935 was that though in matters in which the
Governor-General .was not empowered to act in his discretion or in exercise of his individual
judgment,. the Ministers could take action, which as a matter of. convention was not to be
questioned by the Governor-General, there still remained a large sphere of action in which either
the Governor-General did not consult the Ministers or he was not bound by their advice. In
matters lying within that sphere he was responsible solely to the British, Government through the
Secretary of State. Though he was appointed by the King, he was a nominee of the British
Government and subject to the control of the Secretary of State who was one of the members of
the British Cabinet, which was ultimately responsible to Parliament for the Government of India.
The Indian Legislature was not a sovereign Legislature and limitations on its powers were not
only imposed by the Act but the Governor-General could withhold assent to its legislation. It was
wholly . incompetent to legislate on certain matters, and ` the United Kingdom Parliament had
not only full authority specifically to legislate for British India but the laws made by that
Parliament could extend to British India.

It was in fact in exercise' of this legislative sovereignty that the Indian Independence Act was
passed. These restric tions on legislation and the .external control on government had, therefore,
to be removed if India was to become independent.

Now for a country to be independent it is necessary-

(1) that it should have a Legislature with' authority to legislate on all matters without any
restriction, including matters relating to the making of a constitution ;

(2) no law made by it should be invalid by reason of its being repugnant to the law of any other
country ;

(3) no other country should have any authority to legislate for it and no law made by any other
country should extend to it ;

(4) its government should be responsible only to its own people or to itself and not to any outside
authority ;

(5) if independence is to be granted by the law of `a dominant country, that law must provide 'for
the freed country a provisional constitution including ' a sovereign Legislature and a government
so that the withdrawal of control may not be followed by chaos and confusion, and if the
constitution with which the freed country starts its independence is .a Federal Constitution, the
Legislature of the country must accept limitations on its powers if it has also to function as the
Federal Legislature..

Limitations on the sovereignty of a Legislature can be imposed by itself as well as by yin

external authority if it is the creation of such authority. Thus the dominant country, which grants
the constitution of an independent country to a dominated country, can by that constitution
impose limita tions on the powers of the Legislature of the independent country, provided it also
leaves powers to that Legislature to remove those limitations. Limitations on the powers of a
Legislature may also be imposed by itself, as for instance, where it has defined fundamental
rights or has converted itself into a Federal Legislature with defined powers. Even in the case of
a country with a unitary constitution, its Legislature may impose future limitations on its power
if it precludes itself from legislating on defined subjects or from making certain laws.

INDIAN INDEPENDENCE ACT

It is in the light of these principles that the Indian Independence Act has to be examined when it
came into force on the midnight of the 14th August ' 1947. The principles mentioned above
underline the whole scheme of that Act whose true scope and significance can be understood and
appreciated- only if those principles are borne in mind. The scheme of that Act for our present
purposes will be apparent from the following sections of the Act :-

The Governor-General of the New Dominions-

5. For each of the, new Dominions, there shall be a Governor-General who shall be appointed by
His Majesty and shall represent His Majesty for the purposes of the govern ment of the
Dominion :-

Legislation for the new Dominions-

6. (1) The Legislature of each of the new Dominions shall have full power to make laws. for that
Dominion, including laws having extra-territorial operation.

(2) No law and -no provision of any law made by the Legislature of either of the new Dominions
shall be void or inoperative on the ground that it is repugnant to the law of England, or to the
provisions of this or any existing or future Act of Parliament of the United Kingdom or to any
order, rule or regulation made under any such Act, and the powers of the Legislature of each
Dominion include the power to repeal or amend any such Act, order, rule or regulation in so far
as it is part of the law of the Dominion.

(3) The Governor-General of each of the new Dominions shall. have full power to assent to any
law of the Legislature of that Dominion and so much of any Act as relates to the disallowance of
laws by His Majesty or the reservation of laws for the signification of His Majesty's pleasure
thereon of the suspension of the operation of laws until the significa tion of His Majesty's
pleasure thereon shall not apply to laws of the Legislature of either of the new Dominions.

(4) No Act of Parliament of the United Kingdom passed on or after the appointed day shall
extend, or be deemed to extend, to either of the new Dominions as part of the. law off' that
Dominion unless it is extended thereto by a law' of the Legislature of the Dominion.

(5) No Order-in-Council made on or after the appointed day under any Act passed before the
appointed day, and no order, rule or other instrument made on or after the appointed day under
any such Act by any United Kingdom Minister or other authority, shall extend, or be deemed to
extend, to either of the new Dominions as part of the law of that Dominion.

(6) The power referred to in subsection (1) of this section extends to the making of laws limiting
for the future the powers of the Legislature of the Dominion.
Consequences of the setting up of the new Dominions-

7. (1) As from the appointed day-

(a) His Majesty's Government in the United Kingdom have no responsibility as respects the
government of any of the territories which, immediately before that day, were included in British
India ;

(b) the suzerainty of His Majesty over the Indian States lapses, and with it, all treaties and
agreements in force at the date of the passing of this Act between His Majesty and the rulers of
Indian States, all functions exercisable, by His Majesty at that date with respect to, Indian States,
all obli gations of His Majesty existing at that date towards Indian States or the rulers thereof,
and, all powers, rights, authority or jurisdiction exercisable by His Majesty at that date in or in
relation to Indian States by treaty,, grant, usage, suffer ance or otherwise; and

(c) there lapse also any treaties or agreements in force at the date of the passing of this Act
between His Majesty and any persons having authority in the tribal areas, any obliga tions of His
Majesty existing at that date to any such persons or with respect to the tribal areas, and all
powers, rights, authority or jurisdiction exercisable at that date by His Majesty in or in relation to
the tribal areas by treaty, grant, usage, sufferance or otherwise

Provided that, notwithstanding anything in paragraph 1(b) or paragraph (c) of this subsection,
effect shall, as nearly as may be, continue to be given to the provisions of any such agreement as
is therein referred' to which relate to customs, -transit, and communications, posts and
telegraphs, or other like matters, until the provisions in question are denounced by the ruler of
the Indian State or person having authority in the tribal areas on the one hand, or by the
Dominion or Province or other part thereof concerned on the other hand, or are super seded by
subsequent agreements.

(2) The assent of the Parliament of the United Kingdom is hereby . given to the omission from
the ' Royal Style and Titles of the words `Indiae Imperator' and the words `Emperor of India, and
to the issue by His Majesty for that purpose of His Royal Proclamation under the Great Seal of
the Realm.

Temporary Provision as to government of each . of the new Dominions-

8. (1) In the case of each of the new Dominions, the powers of the Legislature of the Dominion
shall; for the purpose of making provision as to the constitution of the Dominion, be exercisable
in the first instance by the Constituent Assembly of that Dominion, and reference in this Act to
the Legislature of the Dominion shall be construed accordingly.

(2) Except in so -far as other provision is made by or in accordance with a law made by the
Constituent Assembly of the Dominion under subsection (1) of this section, each of the new
Dominions and all Provinces and other , parts Thereof shall be governed as nearly as may be in
accordance with the Government of India Act, 1935 ; and the provisions of that Act, and of the
Orders-in-Council, rules and other instruments made thereunder, shall, so far as applicable, and
subject to any express provisions of this Act, and with such omissions, additions, adaptations and
modifications as may be specified in orders of the Governor-General, under the next succeeding
section, have effect accordingly Provided that-
(a) the said provisions shall apply separately in relation to each of the new Dominions and
nothing in this sub section shall be construed as continuing on for after the appointed day any
Central Government or Legislature common to both the new Dominions

(b) nothing in this subsection shall be construed as con tinuing in force on or after the appointed
day any form of control by His Majesty's Government in the United Kingdom over the affairs of
the new -Dominions or of . any Province or other part thereof ;

(c) so much of the said provisions as requires the Governor-General or any Governor to act in his
discretion or exercise his individual judgment as respects any matter shall cease to have effect as
from the appointed day ;

(d) as from the appointed day, no Provincial Bill shall be reserved under the Government of
India Act, 1935, for the signification of His Majesty's pleasure, and no Provincial Act shall be
disallowed by His Majesty thereunder ; and

(e) the powers of the Federal Legislature or Indian Legislature under that Act, as in force in
relation to each Dominion, shall, in the first instance, be exercisable by the Constituent
Assembly of the Dominion in addition to the powers exercisable by that Assembly under
subsection (1) of this section.

(3) Any provision of the Government of India Act, 1935, which, as applied to either of the new
Dominions by sub section (2) of this section 'and the orders therein referred 'to, operates to limit
the power of the Legislature of the, Dominion shall, unless and until other provision is made by
or in accordance with a law made by the Constituent Assembly of the Dominion in accordance
with the provisions of sub section (1) of this section, have the like effect as a law of the
Legislature of the Dominion limiting for the future the powers of that Legislature. '

Orders for bringing this Act into force-

9. (1) The Governor-General shall by order make such provision as appears to him to be
necessary or expedient-

(c) for making omissions from, additions to, and adaptations and modifications of the
Government of India Act, 1935, and the Orders-in-Council, rules and other ins truments made
there under in their application to the' separate new Dominions.
Interpretation, etc.-
19. (3) References in this Act to the Constituent Assembly of a Dominion shall be construed as
references-

(b) in relation to Pakistan, to the Assembly set up or about to be set up at the date of the passing
of this Act under the authority of the Governor-General as the Constituent Assembly for
Pakistan.
Provided that nothing in this subsection shall be construed as affecting the extent to which
representatives of the Indian States take part in either of the said Assemblies, or as
preventing-the filling of casual vacancies in the said Assemblies, or as preventing the
participation in either of the said Assemblies in accordance with such arrangements as may be
made in that behalf, of representatives of the tribal areas on the borders of the Dominion for
which that Assembly sits, and the powers of the said Assemblies shall extend, and be deemed
always to have extended, to the making of provision for the matters specified in this proviso.

Thus by section 1 Pakistan became an Independent Dominion. Because it became a Dominion, it

had to be connected by a legal link' with the United Kingdom and the other Dominions. Section
5, therefore, provided that there shall be for the Dominion a Governor-General, who shall be
appointed by His Majesty and who shall represent His Majesty for the purposes of the
government of the Dominion.

And because the status of Pakistan was that of an Independent Dominion, its Legislature' should
possess .full power to make laws for that Dominion, including laws having extra territorial
operation, laws limiting for the future the powers of the Legislature of the Dominion, and laws
making provision for its constitution. None of its laws should, be void on the ground that it is
repugnant to the past or future laws of another country ; and it should have full power to alter
any provision of the -provisional constitution with which it started. There must also exist in that
Dominion an authority competent to give assent to its laws and no law of the dominant . country
relating to disallowance, suspension or reservation of laws should be applicable to, it. Nor should
any law of the dominant country passed after the attainment of independence be applicable to it.
These propositions were all recognised by section 6 of the Indian Independence Act which
followed closely the scheme of the Statute of Westminster; subsection (1) of the former
corresponding to section 3 of the latter, subsection (2) to subsection (2) of section 2, sub section
(3) to sections 5 and 6, subsection (4) to section 4 and subsection (6) to sections 7 and 8. Thus
section 6 ' of the Act of 1947 practically, adopted every important provision of the Statute of
Westminster. This section is the most important section in the Act because it gives to the
Legislature of the Dominion full power to make any law that it likes, including laws making
provision for the constitution, because laws- having extra-territorial operation which this section
mentions as being .within the competence of the Legislature of the Dominion are often
constitutional laws while laws repugnant to or repealing or amending the Government of India
Act, 1935, or the Indian Independence Act itself, which are -mentioned in subsection (2) and
laws limiting for the future the powers of the Legislature of the Dominion are necessarily
constitutional laws. The words of the first subsection `the Legislature of each of the new Domi
nions shall have full power to make laws for that Dominion are thus wide enough to
include .laws of every description. The exact meaning of the words `Legislature of the
Dominion' that occur in this section in several places has been the subject matter of some
discussion before us, counsel for the respondent contending that these words are used in the Act-
in several different senses. Any such possibility would, in " my opinion, entirely take away
the artistic ,value and destroy the under lying scheme of the Act, leaving it a jumble of confused
ideas and full of inconsistencies and contradictions. Thus Mr. Chundrigar's contention that the
words "Legislature of that Dominion" and "Legislature of either pf the new, Dominions" that
occur in subsection (3) refer only to Federal Legislature and not to the Legislature of the
Dominion which is mentioned in subsection (1) is entirely devoid of substance because, as I have
pointed- out, the laws which .the Legislature. of the Dominion may make include in three places
expressly and in the whole , of the section by necessary implication what are essentially
constitutional laws. There can be no difficulty in understanding this section if it be borne in mind
that the words `Legislature of the Dominion' are used in this section to indicate the future
Legislature which was to make all laws. for the ,Dominion. When the Act. was passed, the
Legislature of the Dominion was an abstract conception which was to be applicable to the future
sovereign Legislature of the Dominion, including the Legislature that came into existence on the
15th August, 1947, without any limitations on its power. ' The section is a power-giving section
and must be read as such to be intelligible in all its implications. The power to make all laws.
was given to the Legislature of the Dominion while the power to give assent to those laws was
given to the Governor General, who thus became a constituent part of the Legislature and was to
occupy the same position as the Sovereign in the United Kingdom in respect of the prerogative
of giving or withholding assent.

The next important provision in the Act is section 8 which make's temporary provision as to the
government of each of the new Dominions. The first subsection of that section provides that in
the case of each of the new Dominions the powers of the Legislature of the Dominions shall, for
the purpose of making provision as to the constitution of the Dominion, be exercisable, in the
first instance, by the Constituent Assembly of that Dominion and that references in the Act to the
Legislature of the Dominion shall be construed accordingly. The important point to remember
about this subsection is that it refers to the powers of the Legislature of the Dominion which had
been defined in section 6 and which included the power to make constitutional laws. The sub
section, however, provides that so far as the powers for the purpose of making provision as to the
Constitution of the Dominion are concerned, they shall be exercisable in the first . instance by
the Constituent Assembly which for the purposes of the Act shall be construed to be the first
Legislature of the Dominion. The subsection is a machinery provision as the words in the
marginal note to the section "temporary provision as to government of each of the new
Dominions" show and not a power-giving .provision except in so far as it states that immediately
on coming into force of the Act the Constituent Assembly shall, in the first instance, exercise the
~ powers of the Legislature of the Dominion. Another important point not to be overlooked in
construing subsection (1) of section 8 is that the Constituent ,Assembly can make a provision as
to the constitution of the Dominion only by "law". This is clear from the second subsection
which says that the Dominion shall be governed in accordance with the ,,Government of India
Act, 1935 "except in so far as other provision is made by or in accordance with a law made by
the Constituent Assembly of ,the Dominion under subsection (1) of this section."

The second subsection to section 8 also provides a provisional constitution for' the new
Dominions and that constitution is the Government of India Act, 1935, as adapted in exercise of
the authority given to the Governor-General by section 9 of the Indian Independence Act. The
subsection has five provisos, of which proviso (c) declares that Any provision of Government of
India Act which requires the Governor-General or any Governor to act in his discretion or
exercise his individual judgment shall cease to have effect ; and proviso (d) states that no
Provincial Bill shall be reserved under the Government of India Act, 1935, for the signification
of His Majesty's pleasure nor any Provincial Act disallowed by His Majesty there under. Both
these provisos were necessary deductions from the main provision enacted in section 7, that from
the appointed day His Majesty's Govern ment in the United Kingdom shall have no
responsibility as respects the government of any of the territories which immediately before that
day were included in British India and from proviso (b) to subsection (2) of section 8, that
nothing in subsection (2) shall be construed as continuing in force on or after the appointed day
any form of control by His Majesty's Government in the United Kingdom over the affairs of the
new Dominions or of any Province or other part there of. The principle that His Majesty's
Government in the United Kingdom had no responsibility for and had relinquished all control
over the government of the Dominion made necessary the enactment of section 7 which declares
that from the appointed day the suzerainty of His Majesty over the Indian States lapses, as well
as all treaties and agreements in force between His Majesty and any person having authority in
the Tribal areas, and that words `Indiae Imperator' and `Emperor of India' which represented the
sovereignty of the King over Indian territories shall be omitted from the Royal Style and Titles.

Under the temporary constitution provided by section 8 a Federal Legislature had to come into
existence and some one from the appointed day had to - exercise its functions under that
constitution. Proviso (c) to subsection (2) of section 8 therefore declares that the powers of the
Federal Legislature or the Indian Legislature under the Government of India Act, 1935; as in
force in relation to each of the Dominions, shall, in the first instance, be exercisable by the
Constituent Assembly of the Dominion in addition to the powers exercisable by that Assembly
under subsection (1) of that section. Thus the Con stituent Assembly became on the 15th August
1947, not only the Legislature of the Dominion for the purposes of section 6, fully competent to
make provision as to the constitution of the Dominion but also the first Federal Legislature under
the scheme outlined in the Government of India Act, 1935, which with necessary adaptation
came into force on the same date. Accordingly the position of the Constitutent Assembly is that
it is the Legislature of the Dominion when it makes laws for the constitution of the Dominion
and the Federal Legislature when it functions under the limitations imposed upon it by the
Government of India Act, 1-,35. This position may be explained in the form of a mathematical
proposition and that is this :-

(1) Constituent Assembly minus the fetters to which it is subject as a Federal Legislature is equal
to the Legislature o1 the Dominion ; and

(2) Constituent Assembly plus the fetters to which it is subject under the Government of India
Act, 1935,- is equal to the Federal Legislature.

This situation is, clearly brought out in subsection (3) of section 8 which says that any provision
of the Government of India Act, 1935, which, as applied to either of the new ` Dominions by
subsection (2), operates to limit the powers of ; the Legislature of that Dominion shall, unless
and until other 5 provisions made by or in accordance with a law made by the Constituent
Assembly of the Dominion in accordance with the provisions of subsection (1) of the section,
have the like effect , as a law of the Legislature of the Dominion limiting for the future the
powers of that Legislature. Thus subsection (3) recognises the principle I have mentioned earlier
that the Legislature of a Dominion may impose limitations on it for the future. The Constituent
Assembly had under subsection (1) of section 8 the authority to exercise all the powers given to
the Legislature of the Dominion by section 6 but because that Assembly had also to function as
the Federal Legislature, the provisions of the Government of India Act which operated to limit
the powers of the Legislature of the Dominion were to have the same effect as a law of the
Legislature of the Dominion limiting for the future the powers of that Legis lature. In other
words, the Constituent Assembly by functioning, as the Federal Legislature had by law imposed
future limits on its power, but under section 6 it had full authority to remove those fetters from
itself at any time after the midnight of ' 14th August, 1947, and this position was recognised
expressly both by subsection (2) and subsection' (3) of section 8, to indicate which the former
uses the words "excepting in so far as other provision is made by or in accor dance with a law
made by the Constituent Assembly of the Dominion", and the latter the words "unless and until
other provision is made by or in accordance with a lave made by the Constituent Assembly of the
Dominion in accordance with the provisions or subsection (1) of this section". Thus Pakistan
became independent because (I) in law, on the midnight of the 14th August, 1947, if the
Constituent Assembly made a law and the Governor- General assented to it, it could secede from
the Common wealth and become a completely independent State, its citizens owing no allegiance
to the Crown and not being British subjects ; and ,

(2) it was not subject, as Canada and Australia were, to any disability to change its constitution.
It could have any constitution or form of government she liked, having no connection with the
Commonwealth or the Crown or the Governor-General as the representative of the Crown.

But so long as it did not secede from the Commonwealth, it was a Dominion because

(a) it was linked with the Commonwealth by allegiance to a common Crown ;

(b) its citizens were internationally British subjects ;

(c) its laws needed the assent of His Majesty or his repre sentative, the Governor-General ;

(d) the King's prerogative existed here except to the extent that it was utilized by parliament in
the Indian Inde pendence Act because the King had placed .his ' prerogatives and interests at the
disposal of Parliament only "so far - as concerned the matters dealt with by the bill"; and

(3) it could make any law it liked, constitutional or other wise, and no law of the
dominant ,country was to extend to it.

LACUNA

There is, however, one obvious lacuna in the Indian Inde pendence Act which is otherwise a
masterpiece of draftsman ship-it contains no express provision as to what was to happen if the
Constituent Assembly did not or was unable to make a constitution,. or resigned en bloc, or
converted itself into a perpetual Legislature. It may be that any such contingency was beyond the
imagination of the authors of the Act, but the more probable reason seems to be that they thought
that any such contingency had .ceased to be their headache. and was purely a concern of the
"independent" Dominion. So long, as the responsibility for the government of the country was
that of the Government in London, a provision to meet such a situation appeared in the
constitution, but that responsibility having been disclaimed by the Indian Independence Act, the
necessity for relating any such provision also disappeared from the constitution. If a breakdown
came, it seems to have been thought, it was for the Dominion itself to reset the tumbled down
machinery. A third explanation has been suggested by the learned , counsel for the appellants
and that is that section 5, in view of its wide terms, was supposed to contain a solution of the
difficulty .by the exercise by the Governor-General of his prerogative powers as representative of
the. King.

ROYAL ASSENT

We are now in a position to approach the , question whether the Sind Chief Court had the
jurisdiction to issue the writs in question. The point sought to be made on behalf of the appellants
is, that section 223-A of the Government of India Act, 1935, which gives to a High Court the
power to issue writs in the nature of habeas corpus,- mandamus, prohibition, quo warranto and
certiorari and which was inserted in that .Act by the Government of India (Amendment) Act,
1954, is not a part of the law because the amending Act did not receive the assent of the
Governor-General as required by subsection (3) of section 6 of the Indian Independence Act. The
answer to the question raised depends upon the true construction of .that subsection but before I
come to that it is necessary briefly to refer to the English Constitutional Law and the law in force
, in the Dominions on the Subject.

ASSENT IN BRITISH AND DOMINION LEGISLATION .

The necessity of the King's assent to all legislation in England has its origin in a remote period in
British history. Not only was Kingship the great central institution around which the English
constitution grew, but monarchy has always been the most deeply rooted and enduring part of
that constitution and the whole course of English constitutional history is a story of the ever
varying concept of King , the Crown, the Sovereign and His or Her Majesty. Though these words
often represent-a political abstraction and are not necessarily significant- of any judgment or
discretion to be exercised by the person who for the time being happens to occupy the throne,
nevertheless they hide in themselves a .political doctrine of profound practical importance which
must be thoroughly understood in order to comprehend the essential characteris tics , of
democractic institution of the British pattern. Kingship was not imported in Britain from the
forests of Germany but is an essentially indigenous institution which first came into importance
by the domination of the Heptarchy by Wessex. The emergence of a single kingship and his
`Council of wise men' called the `Witenagernot' lies at the root of present political institutions
and the theory of the Royal prerogative. The King issued his orders with the advice of the
`witen'; his acts were limited by the customs of the people ; and though he was the supreme
judge, the `witen' sat with him when he held his supreme court of justice.

Though the British people were jealous of the power of the King, and they even beheaded one,
except for a few brief periods they never ceased to associate his name with legisla tion, however
strong and independent the Parliament became. He was always an integral part of Parliament and
even now the enacting part of every Act begins with the words "Be it enacted by the King's most
Excellent Majesty by and with the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by the authority of the same." The power to
give assent to bills or withhold it therefrom continued to remain for a long time one of the
personal prerogatives of the King which he could use to veto bills passed by Parliament, and
though the last exercise of this power was in the time of Queen Anne, several eminent
constitutional. writers referred to this reserve power of the King to control legislation as recently
as 1913 in the contro versy that arose over the passing of the Irish Home Rule Bill, Professor
Dicey, the celebrated constitutional writer, writing to `The Times' in the course of that
controversy declined to enter on the academic enquiry whether during that political crisis the
King could rightly or wisely refuse assent to the Home Rule Bill after it should for a third time
have been passed by the House of Commons and rejected by the House of Lords but he agreed
with the following words of Burke :-

"The King's negative to bills is one of the most undisputed of the royal prerogatives, and it
extends to all cases whatso ever. I am far from certain that if several laws which I know had
fallen under the stroke of that sceptre the public would had had a very heavy loss, but it is not the
propriety of the exercise which is in question. It repose may be the preservation of its existence
and its existence might be the means of saving the constitution itself on an occasion worthy of
bringing it forth.

Mr. Disraeli in 1852 expressed the view that the Crown's right to refuse assent 'to legislation was
still outstanding and was not an empty form. "It is not difficult", he said, "to con ceive an
occasion when, supported by the sympathies of a loyal people, its exercise might defeat an
unconstitutional ministry and a corrupt parliament." Frederic Austin Ogg in his `English
Government and Politics' asserts that the royal assent, though given indirectly and perfunctorily,
is indispens able to legislation and then reproduces the following graphic account of the
ceremony from Sir Courtenay Ilbert's book 'Parliament':-

"The assent is given periodically to batches of bills, as they are passed, the largest batch being
usually at the end of the session. The ceremonial observed datos from Plantagenet times, and
takes place in the House of Lords. The King is represented by Lord Commissioners who sit in
front of the throne on a row of armed chairs arrayed in scarlet robes and little cocked hats . . . . . .
.At the- .bar of the House stands the Speaker of the House of Commons who has. been sum
moned from that House. Behind him stand such members of the House of Commons as have
followed him through the lobbies. The Clerk of the House of Lords reads out in sonorous voice
the commission which authorises the assent to be given. The Clerk of the Crown at one side of
the table reads out the title of each bill. The Clerk of the Parliament on the other side making
profound obeisance s, pronounces the Norman French formula by which the King's assent is
signified : The Little Peddington Electricity Supply Act. (Le Roy le Veult.)

Between the two voices six centuries lie."

Mr. Chundrigar in all seriousness raised what appeared to me to be a novel contention that royal
assent is not indispens able even in the United Kingdom legislation, and in this connection he
drew our attention to some episodes in English history when the country had to carry on the
business of legislation without a King, and referred to the following passage from Anson's "Law
and Custom of the Constitution", Fifth Edition, p. 333
"3. We have still to consider the action of the Crown as a party to legislation, and looking back at
the history of this matter, and noting, as we have had to do, the large, share of legislative power
which the Crown once possessed, we are apt to forget that laws have been passed to which no
royal assent was given ; we are apt to forget the .episode of the Commonwealth ; the restoration
of Charles 11 ; . the resolu tion of the Lords and Commons that the Crown, should be offered, on
the abdication of James II, to William and Mary ; the strange conclusion at Which Lord
Chancellor Thurlow arrived during the insanity of George III, in 1788, that he could put the great
seal to a Royal Commission, empowering him to give the royal assent to Acts of Parliament."

He, however, omitted to read the very next passage at page 334 of the book which contains the
following explanation of this anomalous position :-

"We may leave out of consideration the make-shifts to which constitutional lawyers may be
reduced when the throne is vacant or its occupant insane. All that can be done under such
circumstances is to supply, as soon as may be, the deficiency in the constitution. Apart from
catastro phies which need to be dealt with as may best suit the circumstances of each case, we
may safely join with the second Parliament of Charles II in holding that there is no truth in the
`opinion that both Houses of Parliament, or either of them, have a legislative power without the
King', an opinion the expression of which rendered its holder liable, by the same statute, to the
penalties of a praemunire."

As far therefore as English law is concerned, there has never been, and cannot be any doubt that
a bill cannot become a law in the absence of the royal assent, and the House of Lords case in
Stockdale v. Hansard (11839-9-A & E 1) expressly rules that no Resolution of the House of
Commons is a law unless it is passed by the other House and receives the royal assent. There is a
South African case, Ndlwana v. Hofmeyer (1937 A D 229) com menting upon which at page Iii
of his Introduction to Dicey's `Law of the Constitution' Wade says :-

"The Court refused to regard the procedure of Section 152 as binding and held that the
legislature could pass any measure by joint or separate sessions at their option provided that the
bill received the royal assent, it was binding on the Courts who would accept the King's Printer's
copy as conclusive evidence."

In that case Stratford A. C. J. had thus stated the point --

"This is not a case where one of the constituent elements of Parliament has not functioned. The
contrary is clearly to be inferred from the royal assent and promulgation. A resolution of one of
the Houses of Parliament, in an example of such a case : it is not an Act of Parliament, and a
court of law would not enforce it." '

The assent of the King is also necessary to all Dominion legislation, and before their independent
status was recognised by the convention of non-interference, the Governors-General of the
Dominions utilized their reserve powers to withhold assent if as representatives of the British
Government they thought that the legislation in question was contrary to imperial interests. A
similar power rested with the Governors of Colonies and Possessions. But before the Imperial
Con ference of 1926 the Governor-General's power to veto Dominion legislation had practically
fallen into disuse and its removal was not therefore insisted upon at that conference. Thus the
Statute of Westminster, 1931,, which recognised the independent status of certain Dominions,
did not, except in relation to Merchant Shipping and Colonial Admiralty . Courts, contain any
provision for the removal of this legal restriction ; but this was not because these restrictions
were not in law limitations on their sovereignty but because they had not since long been used
and it was mutually understood that they shall not in future be used. Of course under sub section
(2) of section 2 of that Statute these limitations could be removed by the Dominion concerned
because under that subsection no law and no provision of any law made after the commencement
of the Statute by the Parliament of a Dominion could be void or inoperative on the ground that it
was repugnant to the law of England or to the provisions of any existing or future Act of
Parliament of the United Kingdom or to any order, rule or regulation made under any such Act,
and the power of the Parliament of a Dominion were to include the power to repeal or amend any
such Act, order, rule or regula tion in so far as the same was a part of the law of the Dominion ;
and the reason that they 'have not yet been so removed is that in practice they had become
inoperative and no Governor-General who is appointed and' is liable to dis missal at the instance
of the Dominion concerned call now possibly think of bridging them into use, whatever his
'personal view or inclination may be.

Mr. Mahmood Ali was obviously labouring under some misapprehension when he attempted to
apply to the present case the principle that the- right to withhold assent exists only where there is
a power to legislate and that where the latter does not exist the former cannot. Stated as an
abstract pro position, the principle is correct but I do not see how it is applicable here, Mr.
Mahmood Ali read long passages from Lord Mansfield's judgment in Campbell v. Hall (XX
How-St. Tr. 239) which lays down no more than that where the King has surrendered his
prerogative of legislation to a popular Assembly in a conquered country, he himself cannot
legislate. That case is considered by constitutional lawyers as an authority for the deduction that
freedom once granted cannot be taken back. But how can that principle be applied to the present
case ? The Indian Independence Act does not take away anything which had been previously
granted.. On the contrary, it confers full freedom on the Dominion and gives to the legislature-of
the Dominion powers which under the Act of 1935 it was incom petent to exercise. If Mr.
Mahmud Ali assumes that the Crown had parted with the power to withhold its assent to
legislation in India, he is clearly mistaken because under the Act of 19:5 the Governor-General
and the Governors were entitled not only to give assent to bills in His Majesty's name but also to
withhold assent therefrom in their discretion. It is, therefore, wholly incorrect to . suppose that
the right to control legislation by withholding assent did not exist before the Indian Independence
Act came into force and that that Act, if it-retains the Governor-General's power to withhold
assent, has the effect of taking away something which had previously been granted. The Crown
is a constituent part of a Parlia ment in the United Kingdom, and of all. Dominion Legislatures:
either -because it is expressly so stated in the constitutional statutes or because the Crown
appoints the Governor General who is empowered to give or withhold assent to the legislation of
the Dominion. The same was the position under the Act of 1935, where the King's
representative, i.e., the Governor-General, was a part of the Federal Legislature. It is this
common restriction that exists on the Dominion legis lation which subsection (3) of section 6
intended to enact when it provided that the Governor-General of the Dominion shall have full
power to assent in His Majesty's name (includ ing the power to withhold assent) to the laws of
the Legis lature of the Dominion.

On this part of the case Mr. Chundrigar's argument was that the right to withhold assent to bills
was retained in the adapted Act of 1935 because it had existed in the original Act and that it was
not a necessary deduction from the provisions of subsection (3) of the Act of 1947 ; but in
adopting this position he contradicted his other proposition, vehemently urged, that the right to
withhold assent to bills is an arbitrary control on legislation and therefore a restriction on the
legislative sovereignty of ' the Constituent Assembly. If the power to withhold assent derogates
from the legislative supremacy of the Legislature of the Dominion, i.e., the Constituent
Assembly, it is obvious that sections 32, 75 and 76 of the adapted Act of 1935 which still retain
for the Governor-General the right to withhold assent are incompatible with the otherwise
limited legislative sovereignty of the Federal Legislature whose power also are exercised by that
Assembly, and that such restrictions being inconsistent with the conception of full freedom could
only be retained or inserted if they were authorises and followed from the provisions of
subsection (3). The restrictions are, therefore, illustrative of the constitutional position that assent
to the Dominion legislation by the Crown or its representative is indispensable and has in no
instance ever been dispensed with by the Crown. Elsewhere in this judgment I have pointed out
that Mr. Chundrigar' contention that the right to withhold assent is an effective restriction on the
legislative activity, of a Dominion Parliament is wholly unfounded. and that no
Governor-General o Governor of a Dominion can continue to occupy his office he does not act
on the advice of the Ministry to assent to an important legislation: This is certainly the position
under the adapted Government of India Act because the appointment and dismissal of the
Governor-General being a matte on which the advice of the Dominion Government would
invariably be accepted by the Crown, it is impossible for the Governor-General to withhold
assent from a bill to which the Ministry advises him to assent. Mr. Chundrigar urges the in the
case of the Constituent Assembly the , position .: different because the Assembly has no Cabinet
and no Prim Minister, but he forgets the basic position that the Constituent Assembly as also the
Federal Legislature and virtually choose a Cabinet and a Prime Minister and that in case of a
difference between the Governor-General and the Constituent Assembly the Assembly as the
Federal Legislature can always have the Governor-General recalled.

Equally incorrect is the contention of Mr. Chundrigar that the requirement as to assent in the
other constitutions is the creation of the statutes granting those constitutions. The true position is
that the provisions of those statute relating to assent do not create in the Crown or in its represen
tative a new right, but confirm an existing right and merely provide the manner in which that
right is to be exercised. Thus if the right to withhold assent to Dominion ., legislation is inherent
in the Crown and the statute that legislates o that right merely says that a bill after it has been
passed by the popularly elected House or Houses shall be presented for assent to .the
Governor-General, who will give assent to that bill or withhold it there from, the statute does not
create the right to withhold assent but merely describes the manner in which that right is to be
exercised. Similarly the provision in the Government of India Act which give to the Governor
General the right to withhold assent from legislation do no confer on, or create a new right in, the
Crown ; on the con trary, they implicitly recognise such right and regulate the manner in which it
is to be exercised. It is for this reason that the fiction of making the Crown a constituent of the
Legislature is resorted to, because neither the King nor hi representative, the Governor-General,
is a member of the Legislature like other members. The King or the Governor General is a part
of the Legislature only in the sense that all bills passed by the Legislature are presented .to him,
so that he may exercise his right of giving or withholding assent. Thus subsection (3) of section 6
produces the same result by giving to the Governor-General full power to assent in His Majesty'
name to any law of .the Legislature of the Dominion. It makes the Governor-General a
constituent part of 'the legis lature inasmuch as the right to. give assent necessarily includes in it
the right to withhold assent. Every bill must therefore be presented to him to provide him an
occasion to exercise that right, and unless a bill is so presented a constituent par of the legislature
does not function and the proposed legisla tion does not become law. There is, therefore, no
distinction between those constitutions where the Crown is a constituent part of the legislature
and the Legislature of the Dominion o Pakistan whose 'functions are being exercised by -the
Constituent Assembly and to whose legislation assent is enacted by subsection (3) of section 6 as
a necessary condition.

Let us now revert to subsection (3) of section 6, the true question on which the decision of the
case depends being whether the first part of that subsection which says that the
Governor-General of each of ' the new Dominions - shall have full power to assent in His
Majesty's name to any, law of the legislature of that Dominion has the effect of enacting the
necessity of assent of the Governor-General to all laws made by the Legislature of that Dominion
and whether the Constitu ent Assembly when acting under subsection (1) of section 8 is a
Legislature of the Dominion within the meaning of subsec tion (3) of section 6. It should be
noticed that the marginal note to section 6 is . `Legislation for the New Dominions', which means
that the provisions relating to the assent of the Governor-General relate to legislation by the
Legislature of the Dominion. If the power to assent includes in it the legal right to withhold
assent, which it does as held by Muhammad Bakhsh, J., then the subsection must be held to
mean that the Governor-General has the right to withhold' assent to any law of the Legislature of
the Dominion. The plain meaning of this provision is that, as representative of His or Her
Majesty, the Governor-General has full power of himself giving assent to laws which otherwise,
on the common law doctrine that a law made by the legislature of a Dominion is not law unless it
receives the royal assent, would require the royal assent. If the law gives to a person the power to
do a thing, the necessary implication is that; he heed not exercise that power. and that he has the
right of refusing to exercise such power A power is not a duty or an obligation and it is only if
the words "shall have full power to assent" are read to mean "shall be under an obligation to
assent", that the discretion to withhold assent can disappear, though even then the legal necessity
of a formal assent would remain. Mr. Chundrigar has referred to section 32 of the Interpretation
Act, 1889, but that section in no way supports him because it not only draws the distinction
between a power and a duty but also declares that where a power is given to a person to do a
certain thing, that power may be exercised . from time to time. In the debates on the Indian
Independence Act in the House of Commons, Mr. Molson speaking on clause (d) of the Proviso
to subsection (2) of section 8 suggested that under that clause instead of His Majesty disallowing
legislation on the advice of the Secretary of State for India, it would under the Act be done by the
Governor-General. In replying to this, the Attorney-General said:

"The second point raised by the Honourable Member was in regard to the provision in clause 8
(2) (d) as to reserva tion. That corresponds in the case of the Provincial Legis lature with the
provisions under clause 6 (3) with regard to the reservation of laws passed by the Central
legislature. That was dealing with reservation until His Majesty's pleasure was known and that
was a form of reservation which enabled the Governor-General to withhold assent to a Bill until
His Majesty could be advised by the Government of the United Kingdom about the matter. That
provision would have been a wholly inappropriate one to retain and obviously would have
involved a derogation from the sovereignty we are now giving to the Dominion. No doubt, the
Governor-General will provide immediately, as the eventual Constitution will have to provide
that there will be some sort of power of that kind vested in the Governor-General or provided for
in the provisions of the new Constitution, but that will be a matter for the new Constituent
Assembly." (440 H. C. Deb., 5th Series 1946 47, column 122).

It is quite clear from these observations of the Attorney-General that in place of the provisions
which did away with reservation and disallowance by the insertion of clause (d) some sort, of
control on the Provincial Legislature was con templated to be given to the Governor-General in
the provisional constitution. Such. control was actually given by providing in section 75 of the
adapted Act of 1935 that the Governor shall declare either that he assents to a bill or that he
withholds assent therefrom or that he reserves the bill for the consideration of the
Governor-General, as well as by providing in section 76 that -when a bill is reserved by a
Governor for :he consideration of the Governor-General, the Governor-General shall declare that
he assents in His Majesty's name to the bill or that he withholds his assent therefrom. In the same
way section 32 of the . adapted Government of India Act gives to the Governor-General the
power to with hold assent from a bill. This power to withhold assent could, however, be given
only if it was implied in the provision in subsection (3) of section 6 that the Governor -General of
each of the new Dominions shall have full power to assent in His Majesty's name to any law of
the; Legislature of that Dominion. The position, therefore, is that the words of the provision in
question give to the Governor-General the power to with hold assent ; the sponsors of the Indian
Independence Bill thought that this power was implied in this provision ; and the experts who
adapted the Government of India Act, 1935, took this provision to mean that the power to
withhold assent is implied in the power to give assent. If the power to withhold assent had not
been included in this provision, its insertion in sections 32, 75 and 76 of the adapted Government
of India Act would have been entirely without authority.

I have already pointed out that the words "the powers of the Legislature of the Dominion", in
subsection (1) of section 8 refer back to the powers of the Legislature of the Dominion defined
in. section 6, which the Constitutent Assembly was to exercise in its capacity of Legislature of
the Dominion pertinent reference to section 6 is to be found in the Attorney-General's speech in
column 118 of 440 H. C. Deb. 5th Series, 1946-47 ; where referring to section 8 he said that that
section was to provide for a temporary constitution and that subsection (1) of section 8 gave the
necessary legislative power to a Constituent Assembly and attracted the provisions of clause 6.
This .could only mean that section 6 was the power-giving section while subsection (1) of
section 8 made those powers exercisable by the Constituent Assembly. If this relation of the two
provisions was correctly stated by the. Attorney-General, as I think it was, it could only mean
that the provision of section 6 were applicable to the powers given to the Constituent Assembly
by sub section (l) of section 8 and that the restriction as to the; Governor-General's assent to
legislation by the Legislature of the Dominion, whatever may be the character of that legislation
was applicable when the Constituent Assembly exercised the powers of the Legislature of the
Dominion! under subsection (1) of section S. That subsection does not say that the constitution
of the Dominion shall be made by then Constituent Assembly. It assumes that the powers of the
Legislature of the Dominion include the power to make provision as to the constitution of the
Dominion, declares that those powers shall be exercisable in the first instance by the Constituent
Assembly and directs that references in the Act to the Legislature of the Dominion shall be taken
as references to the Constituent Assembly. It was contended both byl Mr. Chundrigar and Mr.
Mahmud Ali that the Constituent Assembly, though it exercises the powers of the Legislature of
the Dominion, is not itself the Legislature of the Dominion. This to my mind is tantamount to a
refusal to read sub section (1) of section 8, the only purport of which can be that the Constituent
Assembly shall be the first Legislature of the Dominion, competent to exercise all the powers
give to that Legislature by section 6 including the power to make laws as to the constitution of
the Dominion. Learned counsel for the appellants therefore rightly contended that the plain
words of subsection (1) of section 8 that "reference in this Act to the Legislature of the Dominion
shall be construed accordingly" have the effect of substituting the Constituent Assembly for the
words "the Legislature of each of the new Dominions" in subsections (1) and (3) of section 6.
That being the position, there can be no escape from the conclusion that the Governor-General's
assent to the laws made by the Constituent Assembly is as necessary as his assent to any future
Legislature of the Dominion brought into existence by the Constituent Assembly to replace itself.
It was conceded before us that if the Constituent Assembly dissolved itself after creating another
Legislature of the Dominion and everything else remained as it is today, the provisions of section
6 would be applicable to such Legislature, including the provision in subsection (3) relating to
the assent of the Governor-General, and if that be so, I do not see why the provisions of that
subsection should not have been applicable to the Constituent Assembly itself when under the
express words of subsection (1) of section, 8 it became the Legislature of the Dominion on the
coming into force of the, Indian Independence Act.

The necessity of the Governor-General's assent to legislation-is, as I have already said, based on
a well-understood principle which is known to every constitutional lawyer conversant with
constitutional practice in the United Kingdom and the Dominions. Legislation is the exercise of a
high prerogative power and even where it is delegated by statute or charter to a Legislature, in
theory it is always subject tai assent whether that assent be given by the King or by a person
nominated by, the King. In the British system there; is not a single instance to the contrary. That
necessity was, enjoined in the case of Pakistan so long as it continued to be, a Dominion, though
it was open to that Dominion, if the Governor-General gave assent to a bill of secession to
repudiate its Dominion status. The force of the words `full power to assent' would be realised if a
situation arose where; a bill of secession came up before the Governor-General for assent. So far
as His Majesty was concerned he had given full powers to his Governor-General to assent to any
legisla tion of the Dominion ; but the Governor-General; though he was a respresentative of the
King, was also the representative of the Dominion in the sense that he was a ,person in whom the
majority patty of the Assembly had confidence. He, would, therefore, have no hesitation, and
would also have the requisite authority to give assent. If, however, he withheld assent, his
immediate recall by His Majesty would have been successfully insisted upon by the Assembly
and the assent could then have been obtained from his successor.

Confused and clearly contradictory, though they. are said to be alternative, arguments have been
addressed to us as to the construction of this subsection which consists of two distinct parts, the
first declaring that the Governor-General of the Dominion shall have full power to assent in His
Majesty's name to any law of the Legislature of the Dominion and the second saying. that so
much of any Act as relates to the disallowance of laws by His Majesty or the reservation of laws
for the signification of His Majesty's pleasure thereon or the suspension of the operation of .laws
until the signification of His Majesty's pleasure thereon shall not apply to the laws of the
Legislature of the Dominion. I have already shown that if the power to assent includes, as in my
opinion it does, the power to withhold assent, then the true import of the first part ,trust be that
the . Governor-General, since he has the power to withhold assent, is a necessary part of the
Legislature in precisely the -same sense as under the old Government of India Act he was a
constituent part of the Federal Legislature because no bill could become law unless he gave his
assent thereto. The argument of Mr. Chundrigar and Mr. Mahmud Ali is that the word `law' as it
first occurs in the subsection means a bill to which the assent of .the Governor-General has been
given and which has thus become a law. In this connec tion the language of the subsection is
compared with clause (d) of the proviso to subsection (2) which speaks of bills and .not laws. No
inference. from this comparison can, however, be drawn because clause' (d) uses the language of
the Govern ment of India Act when it refers to the reservation of the Provincial bills for the
signification of ' His Majesty's pleasure, or when it refers to an assented bill as a `Provincial Act'.
The word `law' in the subsection has been used in a general sense, namely, any proposed
legislation which has not as ye t~ received the assent of the Governor-General ; otherwise the
subsection would lead to this absurd result that a legislative proposal which has already received
the assent of the Governor-General would need a second assent. The assent of the Governor-
General in respect of a proposed legislation, which by the Government of India Act is described
as a bill, is needed only once and it is ridiculous to say that the Governor-General of the 'new
Dominion shall have full power to assent to any bill to which assent has already been given by
him..

The second contention of Mr. Chundrigar is that when this subsection says that the
Governor-General of the Dominion shall have full Dower to assent in His Majesty's name to any
law of the Legislature of the Dominion, it empowers the Governor=General to give assent only
in cases, which are mentioned in the second part of the subsection, namely, where a law may be
disallowed by His Majesty or reserved for the signification of His Majesty's pleasure or
suspended until the signification of such pleasure. This con tention has to be rejected
for ,several ,reasons. Firstly, on that construction the first part of the subsection becomes wholly
superfluous, because it is undoubtedly within the competence of the Legislature of the Dominion
to say under subsection (t) of section 6 that to a particular' law the provisions of any Act of the
Parliament of the United Kingdom relating to disallowance, reservation or suspension shall not
apply ; secondly, the plain terms of the first part of the sub section do not limit its application to
the cases specified in the second part ; and thirdly, the words `reservation of laws' cannot
possibly relate to laws which have already received the . assent of the Governor-General. When
asked to paraphrase the first part of the subsection in order to give to it the meaning contended
for, Mr. Chundrigar attempted the following substitution for it : the powers of the Governor
General to assent in His Majesty's name to any law of the Federal Legislature, which previously
were not full, shall hereafter be full in the. sense that , the, Governor-General shall be competent
to give his assent in His Majesty's name in cases where a law could be disallowed by His
Majesty or reserved for the signification of His Majesty',s pleasure or suspended until the
signification of such pleasure. Comment on this strained paraphrase is superfluous. There is no
warrant for substituting `Federal Legislature' for `Legislature of the Dominion' ; nor for limiting
the operation of the first part only to cases contemplated in the 'second part ; and the words used
are clearly inapplicable to `reservation' of laws.

Our attention was drawn to some Acts which provide for disallowance, reservation or
suspension, but none of these Acts contemplates reservation after the proposed legislation has
been assented to by the Governor-General or the Governor of a Dominion or a Colony. I have
already pointed out that the second part of the subsection corresponds to sections 5 and 6 of the
Statute of Westminster which specifically refer to the Merchant Shipping Act and the Colonial
Courts of Admiralty Act. Section 735 of the Merchant Shipping Act, 1894, enacts :-

"The Legislature of any British Possession may by any Act or Ordinance, confirmed by Her
Majesty in Council, repeal wholly or in part, any provision of this Act relating to ships registered
in that Possession ; but any such Act or Ordinance shall not take effect until the approval of Her
Majesty has been proclaimed in the Possession or until such time thereafter as may be fixed by
the Act or Ordinance for the purpose."

It is obvious that the intention of this section is that even where an Act or Ordinance of any
British Possession has received the assent of the Governor-General or the Governor, it shall not
be law until it has been confirmed by . Her Majesty in Council and Her Majesty's approval of
that Act or Ordinance has been proclaimed in the Possession. Similarly, section 736 of that Act
says :-

"The Legislature of a British Possession may, by any Act or Ordinance, regulate the coasting
trade of that British Possession, subject inter alia to the condition that the Act or Ordinance shall
contain a suspending clause providing that the Act or Ordinance shall not come into operation
until Her Majesty's; pleasure thereon has been publicly signified in the British Possession in
which it has been passed."

Though the language used in' this section is different from that of section 735, the principle
underlying both of them is the same, inasmuch as section 736 instead of requiring confirmation
and its proclamation enjoins on the Legislature concerned that the Act or Ordinance itself shall
contain a suspending clause providing that it shall not come into force until Her. Majesty's
pleasure thereon has been publicly signified. Thus though subsection (3) of section (6) may
apply to section 736, it does not in terms apply to confirmation, or approval mentioned in
section, 735.

Section 4 of the Colonial Courts of Admiralty Act, 1890, relates to reservation of Colonial laws
for Her Majesty's assent. It provides that certain Colonial laws shall, unless previously approved
by Her Majesty through a Secretary of State, either be reserved for the signification of Her
Majesty's pleasure thereon,- or contain a suspending clause providing that such law shall not
come into operation until Her Majesty's pleasure thereon has been publicly signified in the
British Possession in which it has been passed. Here again the section relates . to approval,
reservation and suspension, and though the second part of subsection (3) may be applicable to
suspension, it does not . apply to approval and is clearly inapplicable to reservation in the sense
which Mr: Chundrigar and Mr. Mahmud Ali attach to it, because the section clearly enjoins the
assenting authority not to assent to it but to reserve it for the signification of Her Majesty's
pleasure. Similarly. the reference to section 1 of- the Colonial Evidence Act, 1843, is beside the
point because what that section enacts is

"No law or ordinance made or to be made by the Legislature of any British colony for the
admission of the evidence of any such persons as . aforesaid in any Court or before any
magistrate within any such colony shall be or be deemed to have been null and void or invalid by
reason of any repugnancy or supposed repugnancy "of any such enactment to the law of
England, but every law or ordinance made or to be made by any such Legislature as aforesaid,
for the admission before any such Court or magistrate of the evidence of any such .persons as
aforesaid on any con ditions thereby imposed, shall have such and the same effect, and shall be
subject to the confirmation or disallowance of Her Majesty is such and the same manner, as any
other law or ordinance enacted for any other purpose by any such colonial Legislature",

but subsection (3) of section 6 contains no reference to con firmation.

It will be apparent from what I have said above that it is a contradiction in terms to speak of the
Governor-General as giving assent to a proposed legislation which has already received his
assent, and unless this impossible position be accepted, the construction of this subsection put
forward for the respondent, namely, that the word `law' where it first occurs in subsection (3)
refers to cases where the assent of the ' Governor-General has already been given, cannot be
accepted. Again, the- word `law' has to be distinguished from the word `Act' because while the
first part of the subsection says that the Governor-General shall have the power to assent to any
law, the second part speaks of an Act relating to disallowance, reservation or suspension. This
clearly means that the second part of the subsection applies to Acts relating to disallowance,
reservation or suspension and that the word `Act' there is used in a sense different from that in
which the word "law' has been used in the first part, namely, in the sense of a bill or legislative
proposal which has been passed by the Legislature but which has not received the assent of the
Governor-General. Faced with this difficulty Mr. Mahmud Ali shifted his position and asserted
that the word `law' in the first 'part of the subsection means an Act or Ordinance. But any such
construction would lead to the absurd result that an Ordinance or Act which has been passed by,
or received the assent, of the Governor-General would need a second assent by him. Thus none
of the various constructions suggested on behalf of the respondent fits in with the plain language
of the subsection, which shows that the word "law" in the first part of the subsection is used in a
general sense and not in the sense of a bill which has already received the assent of the
Governor-General. Evidently the words "so much of any Act" used in the second part of the
subsection were intended to refer not. only to those provisions of the Act of 1935 which had
required the Governor-General to reserve . bills for the signification of His Majesty's pleasure or
enabled His Majesty to disallow Acts, but also to those provisions of the other Acts of
Parliament of the United Kingdom which related to reservation, disallowance or suspension of
laws in the Dominions, Colonies or Possessions. The power to withhold assent has not been
specifically mentioned in subsection (3) and the subsection, as it stands, cannot be taken as
enacting that the Governor-General shall not have the power . to with hold assent to legislation.
The power to withhold assent appeared in the Act of 1935, and has also been retained in the
adapted Act. Unless, therefore, the power to assent neces sarily included in it the power to
withhold assent, and this result followed from subsection (3), it could not have found place in the
adapted Act either in regard to Federal' legislation or in regard to Provincial legislation. Mr.
Chundrigar's argu ment that it has been retained in the adapted Act because it appeared in the
original Act .being based, as already pointed out, on an obvious fallacy.

The argument seriously advanced on behalf of the respon dent and which was readily accepted in
the Chief Court that the words "Legislature of the Dominion" in subsection (3) refer only to the
Federal Legislature must be rejected on the short ground that; as already pointed out, the laws
which the Legislature of the Dominion is empowered by section 6 to make may be constitutional
laws which are not within the competence of the Federal Legislature as, for .instance, laws
repealing or amending the . Indian Independence Act, or the adapted Government of India Act,
and laws limiting for the future the powers of the Legislature of the Dominion. If the reference in
section 6 had been only to the Federal Legis lature, one would have expected for the present
phraseology of subsection (3) some provision similar to proviso (d) to sub= section (2) of section
8.

The next point taken by Mr. Chundrigar was that sub section (3) of section 6 must be read with
section 5 which says that the Governor-General represents the Crown only for the purposes of
the government of the Dominion, the inference sought to be drawn being that because the
Governor -General represents the Crown only for the purposes of the government of the
Dominion he can have no say in constitu tional legislation by the Constituent Assembly. This
argument appeared to be unanswerable to one of the learned Judges of the Sind Chief Court who
thought that. the words `govern ment of the Dominion' only meant government under the adapted
Government of India Act as provided by sub section (2) of section 8. When questioned whether
government also includes the administration of constitutional laws Mr. Chundrigar replied in the
affirmative, but he asserted that so far as the making of constitutional laws is concerned it is not
a part of the government of the Dominion and the Governor General does not come in there. I do
not understand how if the administration of constitutional laws is a part of the government of a
Dominion, their making is not. The marginal note to section 8 "temporary provision as to the
government of each of the new Dominions" shows that the legislation of the Constituent
Assembly under subsection (1) of section 8 is a part of the government of the Dominion and the
whole scheme of the Government of India Act proceeds on the assumption that the
Governor-General represents the Crown when he assents in Her Majesty's name to the laws of
the Federal Legislature. Therefore it seems to me to be an impossible proposition to ,assert the
making of laws is not a part of the government of the Dominion, and that being so no reason
whatsoever has been suggested why the making of constitutional laws should not be a part of the
government of the Dominion. If the Governor-General represents the Crown for the purposes of
the government of. the Dominion when he! gives assent to -the laws passed by the Federal
Legislature, it must a fortiori follow that he represents the Crown for the same purpose when he
assents to constitutional laws, because in a State like ours it is impossible to conceive of a govern
ment without there being a constitution.

It is next contended on behalf of the respondent that rule 62 of the "Rules of Procedure of the
Constituent Assembly,. which provides that when a bill is passed by the Assembly copy thereof
shall be signed by the President and it shad, become law on being published . in the official
Gazette Pakistan under the authority of the President, has the effect Q fi validly dispensing with
the Governor-General's assent. This rule has a history which should be mentioned. In its original
form the Rule, when passed on the 24th February, 1948, in meeting presided over by the
Quad-i-Azam who was thin the President of the Constituent Assembly, was as follows :-

"When a bill is passed by the Assembly a copy there shall be signed by the President."
In the meeting of the 22nd May 1948, under the presidentship of the respondent, Sardar Abdur
Rab. Khan Nishtar moved the following amendment :-

"That for rule 62 of the Constituent Assembly Rules, tie following be substituted, namely :-

"Assent to Bills.-When, a bill has been passed by the Assembly, it shall be presented to the
President for his assent'."

Khan Sardar Bahadur Khan, however, moved the following amendment for that moved by
Sardar Abdur Rab Khan Nishtar :-

"That for rule 62 of the Constituent . Assembly Rules, the following be substituted When a bill is
passed by the Assembly, a copy thereof shall be signed by the President and it shall become law
on being published in the official Gazette of Pakistan under the authority of the President."

This amendment was accepted by Sardar Abdur Rab Khan Nishtar and was adopted without
discussion. The confusion as to the scope and nature of the rule is apparent from the
amendments. Sardar Abdur Rab Khan Nishtar's amendment related to assent to bills while that of
Sardar Bahadur .Khan related to their authentication. The former aimed at substituting the assent
of the President for that of the Governor General without an amendment of section 6 of the
Indian Independence Act while the latter said nothing about assent and sought to provide for
authentication. of the bills and as to when they became law. The latter amendment suc ceeded
and is now Rule 62 of the Rules of Procedure.

There is no specific provision in the Act of 1947 empower ing the Constituent Assembly to make
its own Rules of Pro cedure but that does not mean that it was incompetent to . flake such Rules.
Such power is inherent to a Constituent Assembly and must be presumed to vest in it. The
question, however whether Rule 62 is a mere rule of procedure or law in the Sense that it
overrides the provision in the constitution that tense bill of the Legislature of the Dominion
requires the Governor General's assent. It will be noticed that the Rule says nothing about assent
and relates only to authentication. It is, there fore, not inconsistent with the constitutional
provision that a bill in order to become law must be assented to- by the Governor General, and is
quite capable of the construction that it assumes a bill to have been assented to by the
Governor-General before it is signed by the President and published in the Gazette. In the second
place, it cannot. be said to be a law governing the decision of the present question. It may be that
if a legal right can be founded on a Rule of Procedure, the breach of that rule may provide to the
person in whom that right vests a cause of action. to come in Court, but no such rule can become
law so long as the constitutional provision which conflicts with it is not repealed. Under the
Assembly's own rules, all amendments to the Constitution have to follow the procedure of bills
which is' prescribed by Rules 43 to 62 and it is admitted that the amendment which gives its
present form to the Rule did not comply with that procedure. This shows that even the
Constituent Assembly did not consi der the Rule to be a constitutional provision, much less a pro
vision overriding or repealing a specific constitutional provision. If the Assembly intended to
change the law relating to assent, it was necessary for it to amend section 6 of the Indian Inde
pendence Act in such a manner as to dispense with the necessity of the Governor-General's
assent. A mere Rule of Procedure cannot amend the Constitution Act any more than a Resolution
by the Assembly that a person named shall be stoned to death for an act that is not an offence
under the substantive law of crimes and without his being tried in accordance with the law
relating to criminal procedure. Lastly, even if this Rule be assumed to be a constitutional
provision, it itself required the Governor-General's assent and, in the absence of such assent, is
wholly invalid.

Contemporanea Expositio and argument ab inconvenient

I may notice here Mr. Chundrigar's argument that because for several years no assent to an Act
of the Constituent Assembly, while sitting as a constitution-making body under subsection (1) of
section 8, was ever obtained, and that some important Acts passed by the Assembly were treated
as law by every one concerned, though they had not received the assent of the Governor-General,
subsection (3) bf section 6 must be so interpreted as not to be applicable to the legisla tion passed
by the Constituent Assembly . under sub section (1) of section 8. In this connection, he read to us
some passages from pages 399-401 of Crawford's "Statutory Construction", 1940 Edition, and
pages 144, 146, 147, 148 and 150 from Cooley's First Volume of "Constitutional Limita tions",
Eighth Edition. The rule enunciated in these passages is the principle of Contemporanea
Expositio which also applies to the construction of documents. The principle as applied to
documents may be stated to be as follows in order to explain, but not to contradict, ancient
(documents whose meaning is doubtful, the acts of the parties, even before the execution of the
instrument, or the mode in which property has since been held and enjoyed thereunder, as well as
constant modern user may be given in evidence. Such. evidence, however, seems now admissible
not only in the case of ancient, but also of modern documents, and whether the ambiguity be a
curable patent ambiguity or a latent ambiguity. On the other hand, where the meaning of the
words is not ambiguous, the subsequent acts of the parties are not admissible to construe it,
whether the document be ancient or modern (Sue Phipson's Evidence, 7th Ed., 605 and Taylor,
Evidence Sections 1204=1205.).

In its application to constitutional statutes, the rule is thus stated by Cooley at page 144 of his
book :-

"Contemporaneous interpretation may indicate merely the understanding with which the people
received it at the time, or it may be accompanied by acts done in putting the instrument in
operation, and which necessarily assume that it is to be construed in a particular way: In the first
case it can have very little force, because the evidences of the public understanding, when
nothing has been done under the provision in question, must always of. necessity be vague and
indecisive. But where there has been a practical construction, which has been 'acquiesced in for a
consider able period, considerations in favour of adhering to this construction 'sometimes present
themselves to the Courts with a plausibility and force which it is not easy to resist. Indeed, where
a particular construction has been, generally accepted as correct, and especially when this has
occurred contemporaneously with the adoption of the constitution and by those who had
opportunity to understand the intention of the instrument, it is not to be denied that a strong
presumption exists that the construction rightly interprets the intention."

In all the cases where observations of this kind have been made, the true intention of the
particular provision in the constitution was ambiguous or doubtful, and I know of no instance
where the words of the constitution being clear and consistent with a reasonable interpretation,
any Court ever went to the extent of misconstruing its true purpose merely because somebody
else had, taken a mistaken view of it. There is no question of estoppel in such cases, the correct
description of 'the reasoning employed being argument ab . inconvenienta. This mode of
construction of written constitu tions is, therefore; - subject to an overriding consideration which
has thus been stated by . Cooley himself at pages 149-150:-

"Contemporary construction . . . . . can never abrogate the text ; it can never fritter away its
obvious sense ; it can never narrow down its true limitations ; it can never enlarge its natural
boundaries. While we conceive this to be the true. and only safe rule, we shall be obliged to
confess that some of the cases. appear, on first reading, not to have observed these limitations . . .
...

"It is believed, however-, that in each of these cases an examination of the Constitution left in the
minds of the Judges sufficient doubt upon the question of its violation to warrant their looking'
elsewhere for aids in interpretation, and that the cases are not in conflict with the general rule as
above laid down. Acquiescence for no length of time can legalize a clear usurpation of power,
where the people have plainly expressed their will in the Constitution, and appointed judicial
tribunals to enforce it. A power is frequently yielded to merely because it' is claimed,, and it may
be exercised for a long period, in violation of the constitu tional prohibition, without the mischief
which the Constitu tion was designed to guard against appearing or without anyone being
sufficiently interested in the subject to raise the question ; but these circumstances cannot he
allowed to sanction an infraction of the Constitution. We think we allow to contemporary . and
practical construction its full legitimate force when we suffer it, where it is clear and uniform, to
solve in its own favour the doubts which arise on reading the instrument to be construed."

Therefore to apply the principle of contemporaneous and practical exposition to the present case,
we shall first have to say that there is a doubt in our mind as to the true meaning of sections 6
and 8 as a whole, and particularly as to the meaning of subsection (3) of section 6 and subsection
(1) of section' 8.

I think we should be mutilating the-Act and misunderstanding in its true purpose and scheme if
we were to hold that the words of subsection (1) of section 8 "for the purpose of making
provision as to the constitution of the Dominion" do not refer to the power which section 6 gives
to the Legislature of the Dominion, including the power to alter, repeal, or amend the two
Constitution Acts themselves or that the power to give assent to which the third subsection of
section 6 . refers does not include the power to withhold assent. In my opinion, it is a mistake to
suppose that sovereignty in its larger sense was conferred upon the Constituent Assembly, or that
it could function outside Vie limits of the Indian Indepen dence Act. The only power given to
that Assembly was the power to make laws, constitutional or federal. In the former case, it
exercised the power to make provision as to the constitution of the Dominion which had been
included in the generality of the powers conferred - by section 6 on the Legislature of the
Dominion, and in the latter it acted as the Federal Legislature with all the limitations to which
that Legislature was subject. Apart from these powers, it had no other power and it lived in a
fool's paradise if it was ever seized with the notion that it was the sovereign body in the State. It
had, of course,

Legislative so , as the Legis lature of the Dominion but then the Governor-General was a
constituent part of legislature. Every Act passed by it required the Governor-or-General's went,
consistently with the position that prevails throughout the Dominions, the Colonies and the
Possessions, settled or ceded or conquered, where the Crown still retains to itself or has
delegated to its representative the high prerogative right of assenting to bills. If this basic
position was misunderstood or misconstrued, there is neither any estoppel nor is the argument ab
inconvenienti applicable. On its interpretation of the Indian Independence Act, the Constituent
Assembly attempted to function outside the Constitution, and it was the right not only of the
Governor-General to object to such, unconstitutional activity, but the right of every citizen in the
State to demand that the Assembly .must function within its constitutional limits. The members
of the Assembly before they undertake the duties of their office take the oath of allegiance to the
constitution of Pakistan, and they are subject to all the limitations of that Constitution. Having
taken that oath, they cannot subsequently forswear themselves and assert that they are the only
sovereign body in, the State and that their will is the law whether the Governor -General endorses
or do no endorse that will.

DISASTER

It has bean suggested by the learned Judges of the Sind Chief Court and has also been
vehemently urged before us that if the view that I take on the question of assent be correct, the
result would be disastrous because the entire legislation passed by the Constituent Assembly, and
the acts done and orders passed under it will in that case have to be held to be void. On this part
of the case I do not wish to say anything more than that the sole question before us is whether the
Governor-General's assent was obtained to the Government of India (Amendment) Act of 1954,
which, inserted section 223-A to the Government of India Act, and nothing said here should be
deemed to be applicable to any other Act. In England the assent is given by the King to a bill in
person or by commission. It is ceremonial act and has to be formally recorded. Mr. Chundrigar
is, however, right in the contention that in Pakistan no particular form for assent is
prescribed, .and- that it need not be in writing. It may be that where the Governor-General has
taken some action as, for example, where he has issued some rules in exercise of the authority
given to him by the Act or taken some other step, his assent to the proposed legislation may by
inferred. . That question is not before us and I do not decide it. We are concerned in the present
case only with the validity of the Government of India (Amendment) Act of 1954, and so far as
that Act is concerned, it is common ground that it was not presented to the Governor -General for
assent, and that he has not done anything under this Act which might be taken as~ indicatives of
his having assented to 'it. I am quite clear in my mind that we are not concerned with the
consequences, however beneficial or disastrous they may be, if the undoubted legal position was
that all legislation by the Legislature of the Dominion under subsection (3) of section 3 needed
the assent of the Governor-General. If the result is disaster, it will merely be another instance of
how thoughtlessly the Constituent 'Assembly proceeded with its business and by assuming for
itself the position of an- irremovable Legislature to what straits it has brought the country. Unless
any rule of estoppel require its to pronounce merely, purported legislation as complete and valid
legislation, we have no option but to pronounce it to be void and to leave it to the relevant
authori ties under the Constitution or to the country to set right the position in any way it may be
open to 'them. The question raised involves the rights of every citizen in Pakistan, and neither
any rule of construction nor any rule estoppel stands in the way of a clear pronouncement.
Consistently with the practice that has grown up since his sad demise, of citing Quaid-i-Azam's
alleged oral sayings as authority for a particular proposition, it has been alleged before us that the
practice of not obtaining the assent of the Governor-General to acts of the Constituent Assembly
had, come into existence during the Quaid's time and had his support. We have no record of any
ruling having been given by him on this point, nor any legal opinion obtained by the Assembly
from anyone has been produced before us: Reference has been made to two Acts which during
the Quaid's Presidentship of the Assembly were published in the Gazette "under the authority of
the President of the Consti tuent Assembly" and it is alleged that they were never placed before
the Quaid for purposes of assent: But during those days the Quaid was not only the President of
the Assembly but also the Governor-General and it is quite possible that he might have thought
that since the bills were passed under his own Presidentship it was unnecessary again to place
them for his assent as Governor-General. Be this as it may, the conduct of one Governor-General
in a matter like this does not relieve his successor of * the duty of demanding compliance with
the Constitution. Wheare, while discussing the efficacy of non-legal rules as - a medium of
constitutional change, says at page 18 of the Fifth Edition of his book "The Statute of
Westminster and Dominion Status": "In the first place, they (non-legal rules) cannot always
nullify or modify a rule of strict law. In the second place, though they may nullify, a rule of strict
law, . they do not and cannot, abolish it. They may paralyse a limb of the law but they cannot
amputate it." Can practices and conventions override an express statutory provision merely
because nobody attempted or cared to under stand it and its implication ?

I now proceed to examine the case on which. Mr. Chundrigar relied. The first of these is the Sind
. case, M. A. Khuhro v. The Federation of Pakistan (P L D 1950 Sind 49) in which Hassanally
Agha J. held that the meaning of subsection (3) of section 6 of the Indian Independence Act is
that the assent of the Governor-General is required only where the assent of His Majesty is
necessary under the Constitution. These, however, are not the words of the subsection which
speaks of the "Legislature of the Dominion" in which expression subsection (1) of section 8
expressly includes the Constituent Assembly, and says that the Governor-General of the
Dominion shall have full power to assent in His Majesty's name to the laws of the Legislature of
the Dominion, which power necessarily implies the power to withhold assent. In Khan Iftikhar
Hussain Khan of Mamdot v. The Crown ((1951).FCR24-PLD195UFC15) the Crown was
intervener, but there the sole question to be determined, was whether the Public and
Representative Offices (Disqualification) Act, 1949, fell within the powers of the Constituent
Assembly as the Federal Legislature or within. the powers of the Legislature of the Dominion
competent to make constitutional provisions, it being assumed by every one concerned that the
assent of the Governor-General was necessary only where the Con stituent Assembly functioned
as the Federal Legislature. The question whether when the Constituent Assembly acts under
subsection (1) of section 8 and exercises the powers of making provision as to the constitution of
the Dominion, the assent of the Governor-General under subsection (3) of section 6 is necessary
for its Legislation, was neither raised,. nor discussed, nor decided. That case therefore is no
authority for the proposition that the Governor-General's assent is. not necessary under
subsection (3) of section 6 to legislation by the Constituent Assembly when it functions as the
Legislature of the Dominion..

In the Irish case Ryon v. Lennon (1935 1 R 170.) extracts from which are reproduced at pages
377 to 383 of Sir Ivor Jennings' book "Constitutional Laws of the Commonwealth"., 2nd Edition,
the question involved was entirely different, namely, whether the amendment by the Oireachtas
to the constitution set up by the Third Dail, sitting as Constituent Assembly, was ultra vires,
though .there are some observations there in the arguments of counsel, Mr. Gavan Duffy, that the
constitution was proclaimed in the name of the people' by Dail Eireann (Third Dail) as an act of
supreme authority and that it did not require any -assent. The all-important fact which must not
be forgotten about the Irish instance is that the Constitu tion of the Irish Free State , (Saorstat
Eireann) Act, 1922, made by the Third Dail (Dail Eireann) was recognised by the Irish Free State
(Constitution) Act. 1922, passed by the Parliament of the United Kingdom just as the
Constitution of India made by the Constituent Assembly which, if the information supplied to us
by Mr. Chundrigar is correct; had not received the assent of the Governor-General, was
recognised by the Parliament by the India (Consequential Provision) Act, 1949 (11, 13 and 14
Geo. 5 c. 92)
Sovereignty of Constituent Assembly

Mr. Chundrigar's next contention was that this interpre tation of subsection (3) should be rejected
on the principle of reductio and absurdem inasmuch as it affects the sovereignty of the
Constituent Assembly by recognising outside that Assembly an authority which has the power to
veto all legisla tion by it. He also relies on the omission of the words `in his discretion' in the
adapted Government., of India Act by virtue of clause (c) to the Proviso to subsection (2) of
section 8 and the disappearance of the practice of , issuing instructions to the Governor-General,
as factors, in favour of a contrary construction. Illustrating the point, he argues that on this
construction of the subsection the Crown may appoint any one it likes as the Governor-General
of the Dominion and the person so appointed may be hostile to Pakistan, as for instance, a retired
officer of the old Civil Service with Congress sympathies and anti-Pakistan views who may not
only refuse assent to all material legislation but also withhold assent from any legislation
removing the office of the Governor-General himself or declaring Pakistan as an independent
country. No construction of this subsection, he says, should be accepted which would be
completely incom patible with the independence of Pakistan as a Dominion and introduee into
the legislation of the Dominion effective control by the Crown or by the . Crown's representative.
The argument proceeds on an obvious fallacy and a clearly mis taken assumption. In the first
place, the Indian Independence Act nowhere says that .the Constituent Assembly shall be the
sovereign of the new Dominion. It gives to it only the power of the Legislature of the Dominion
and' nothing more. The expression sovereignty of Constituent Assembly was repeated before us
ad nauseam but as has been observed elsewhere when we pointedly asked Mr. Chundrigar
whether apart from legislative functions it had any other powers, under the Indian Independence
Act, the hesitating reply was, and rightly, in the negative. Now if it be held as a matter of
construction that the Governor-General _ is assigned a necessary part in the legislation of the
Dominion, the legal sovereignty of the Constituent Assembly is reduced to a myth, because on
that construction the Assembly cannot effectively function alone. But that does not mean that its
legislative sovereignty cannot be converted into an actuality in exactly the same way as in the
other constitutions, namely, by having a Governor-General who is acceptable to the Assembly,
who will not resist legisla tion by the Assembly, and who can be recalled if he goes against the
advice of the Ministry. The rule has worked well for a long time in all self-governing Dominions.
1f, therefore, a similar provision has not in any way affected the indepen dence of the other
Dominions where well-established conventions have been responsible for a smooth working of
the con stitution, there is no reason why. the Pakistan Constitution could not have been and
should not have been worked in that manner. To illustrate the point, suppose that the Constituent
Assembly. 'decides . to secede from the Commonwealth and to declare Pakistan as an
independent republic. On my interpretation of subsection (3), the Governor-General's assent to
such legislation would be necessary. But there cannot be the slightest difficulty in obtaining his
assent. If the Governor General refuses assent a request for his recall addressed by the Prime
Minister to the Secretary of Her Majesty would be sufficient for the purpose because the matter
would not go to Her Majesty's Government in the United Kingdom, that Government having
relinquished all responsibility for the government of this country, and Her Majesty xhe Queen in
such matters normally acts on the advice of the Ministry of the. Dorhinion provided that the
ministry represents the people of the .Dominion as ministries in other Dominions do. She herself
takes no more part in the politics of a Dominion as she does in the United Kingdom and it is
wholly erroneous to suppose that contrary to her attitude in home politics she would assume the .
role of a partisan in the internal politics of any of her Dominion. On having the
Governor-General recall ed, the Constituent Assembly can recommend for appointment another
person who would be willing to give his assent to the bill of secession.

I have already pointed out that the necessity of the assent of the King to legislation by the House
of Commons and the House of Lords was at one time one of the most important reserve powers
and was actually used in Britain by the Crown in and before the reign of Queen Anne to veto
objectionable legislation and in the Dominions by the Governor-General to defeat legislation
which appeared to him adversely to affect the Imperial interests .or to be otherwise unpopular.
Now the generally accepted position in this respect, however, is that this power can be exercised.
in the United Kingdom only on the advice of Ministry and in the Dominions oar the advice of the
Ministry of the Dominion. The issue has not actually arisen in recent times because the throwing
out of an important Government bill by the House of Commons in England or by the Legislature
in a Dominion amounts to a vote of no , confidence in the Ministry and is thus a valid
constitutional ground for the Ministry to resign or to ask for a dissolution and not for advising
the King or the Governor General to withhold assent. But whatever may be the position, it cannot
possibly be said in the case of Dominions including Pakistan' that the Governor-General is in a
position to exercise this power in opposition to the wishes of a Ministry which represents the
people of the Dominion, Though the Governor-General is supposed to be a representa tive of the
king, in fact he is a representative of the Dominion concerned, because his appointment and
dismissal depend on the advice of the Ministry of the Dominion which on the convention of
non-intervention is always accepted by the Crown. If, . therefore, the Governor-General
withholds his assent to any legislative measure to which he is required to give his assent by the
Ministry of the Dominion, the Ministry is generally in a position to have .him immediately
recalled oar removed. He cannot, therefore, exercise the power of with ' holding assent contrary,
to the wishes of the Ministry or in order to veto legislation against the advice of the Ministry. It
follows from this that the provisions empowering him to give his assent are in no sense a fetter
on the sovereignty or the independence of the Dominion, and' in Pakistan they certainly do not
amount to an encroachment on the legislative sovereignty of the Legislature of the Dominion.
Even in the case of Federal legislation the Governor-General has the power to give or withhold
assent, but he cannot, if the Constitution is functioning in normal times and in its true spirit,
withhold assent contrary t0 the wishes of the Ministry And this is so, not because the words `in
his discretion' which occurred is the Act of 1935 have been omitted from the adapted relevant
provisions but because the withholding of assent to such legislation, when the Ministry requires
him to give his assent, can raise -a constitutional issue which can only end in the recalling or
removal of the Governor-General. Any attempt therefore to construe the Governor-General's
power to withhold assent as a veto on legislation proceeds on a mis apprehension and cannot be
made a ground for the inference' that that power is an infringement of the legislative sovereign ty
of the Legislature of the Dominion and thus of the Constituent Assembly. ,

NODDING AUTOMATON OR AUTOCRAT?

From the fact that the Governor-General is the head of the State, it must not tie inferred that in
matters of legislation his position is either that of a nodding automation or that of an autocrat. He
is appointed by the King and represents the King for the purposes of the Government of the.
Dominion, .but that does not mean that he is an unrestrained autocrat, and purporting to act on
behalf of the King, can in normal times take an active part in the actual administration of the
country: Since the Imperial Conference of 192.) he has generally been a man of the Dominion
and a representative of that Dominion just as the Prime Minister is. As a constitutional
functionary, it is his duty to give his assent to all reasonable and necessary legislation by the
Legislature. But there may be occasions, however remote their conception may be, where the
Governor- General would be entitled to withhold his assent from a particular legislation. In the
United Kingdom, if the House of Commons passes a law -which strikes at the very .foundations
of the constitution, as for instance, where Parliament indefi nitely prolongs its life or trifles with
the right of the electors to vote, the Sovereign may, and perhaps would, whe ther the Ministry
advise it or. not, exercise his reserve powers of withholding assent or dissolution. The same is
the position of the Governor-General in the Dominions Leslie Stephen, while illustrating the
omnipotence of the Legislature, says at page 143 of the 1882 edition of his Science of Ethics: "If
a Legislature decided that blue-eyed babies should be murdered, the preservation of blue-eyed.,
babies would be illegal; but legislators must go mad 'before they pass such a law and subjects be
idiotic before they submit to it." If a similar law were passed by the Constituent Assembly, and
this of course is an extreme case which is being mentioned merely to explain the point, I have no
doubt that it would be the duty of the Governor-General to. withhold his assent from such
legislation not because he has any instructions in the matter from the King, but because he
represents the Dominion and in such matters he is supposed to be able rightly to gauge the public
feelings and sentiments. Similarly, if the Con stituent Assembly decided to make a law - that all
adults; shaven or unshaven as it chose to say, shall be deprived of the rights of citizenship in
Pakistan, the Governor-General will undoubtedly withhold assent from such legislation. Or take
the instances mentioned by Mr. Faiyaz Ali before the learned Judges of the Chief Court to
illustrate his theory of checks and balances. "I have given your Lordships," said Mr. Faiyaz Ali,-
"one, example of a possible misuse of these powers, namely, that the Constituent Assembly
could, if absolutely uncontrolled, legislate that everyone of its members was to get a -salary of
one lac of rupees per month, enjoyable for life and heritable from generation to generation. What
was there to prevent it 'from doing so ? But let us take a more probable and less extravagant
instance. Suppose the Constituent . Assembly. in the exercise of its absolute powers decided to
impose a Soviet Constitution on Pakistan. Suppose they said.: ' It is our will that there shall
henceforth be no God. in Pakistan and no Religion. Let Religion and God both be ejected from
Pakistan and. a Constitution based on the purely economic doctrine of Karl Marx be framed ' and
suppose they did all this against the will of the people and in open defiance of. their views and
sentiments. What would have happened in such a case ? The - Assembly, if it had absolute and
uncon trolled powers, could very w 11 impose such a Constitution on Pakistan. What could the
people do ? What could be their remedy ?" And surprisingly enough the reply to it 'by one of the
learned Judges was "If the majority of the members are for it that means the people are for it."
Comment on this reply is unnecessary beyond saying that it overlooks the doctrine, which is a
fundamental doctrine in democracy, that the mere fact that the majority of the members of a
Legislature are in favour of a measure does not necessarily mean that the .people are for such
measure. The second instance cited by Mr. Faiyaz Ali was precisely the instance where if the
question arose in the United Kingdom the King' would exercise his reserve powers of dissolution
or of withholding assent. In the circum stances supposed, the Governor-General here will act in
precisely the same way,. namely, he will withhold his assent from such legislation, not because
he represents the King but because he represents, the people of the Dominion and in such matters
acts on their behalf in the belief that his action will have their approval. '

An instance may also be cited from the history of the Constituent Assembly itself. It is alleged
before us in an affidavit put in by the attorney of the appellants that at the time the Constituent
Assembly decided to repeal the Public and Representative Offices (Disqualification) Act, 1 949,
proceedings under that Act were contemplated against ten members of the Constituent Assembly
itself. The law repealing the Act which is said to have been passed in undue haste could have
been attributed by the Governor-General to a desire on the part of the Constituent Assembly to
screen its own members from prosecution, and few people could have objected if he had
withheld his assent from the repealing bill. It will, therefore, be seen that in this respect tha
Governor-General occupies a very important constitutional position. By withholding assent to an
unpopular measure he cari create a constitutional crisis of the first magnitude, and though
eventually he himself may have to go, he can in appropriate cases rivet the attention of the
country to the caprice, cupidity or folly of the Legislature.

In the course of arguments before us, a question arose, similar to the one mooted before this,
Court in Khan Iflikhar Husain Khan of Mandot v. The Crown (1950-51 F C R 24=P L D 1950 F
C 15), namely, whether if the Constituent Assembly passed a law, which was within its
competence as the Federal Legislature, it could be held to be ultra vires on the ground that it did
not receive the assent of the Governor-General. The point was not decided in that case, but Mr.
Chundrigar appeared to suggest before us that is such a case because the Constituent Assembly is
a sovereign body, the Court could . not inquire into the ultra vires of, any law purporting to have
been passed by it under subsection (1) of section 8 of the Act of 1947. If Mr. Chundrigar's claim
is valid, does it not follow from it that the Constituent Assembly ,can dispense with the necessity
of all assent even in regard to laws which fall within the Federal List merely by purporting to
pass such laws in exercise of the powers conferred on it by subsection (1) of section 8? The
question whether a law falls within the Federal List or relates to the constitution of the Dominion
being one for the Constituent Assembly .to deter mine and not for the Courts to decide, the
Assembly could at its will do away with the. necessity of assent to all Federal legislation merely
by not placing a bill before the Governor General for his assent.

For the foregoing reasons I hold that so long as the provision in subsection (3) of section 6,
giving full powers to the Governor-General to assent to any law of the Legislature of the
Dominion stands, every bill passed by the Legislature of the Dominion which has the effect of
amending the existing constitution as contained in the Government of India Act and the Indian
Independence Act must be presented for the assent of the Governor-General, and this assent is as
necessary to the validity of legislation as the law which requires a document to be under seal 'or
registered. It is a formality which cannot be dispensed with except by a proper amendment of the
Constitution. In view of this it is wholly unnecessary to go into the other issues, and nothing said
in this judgment is to be taken as an expression of opinion on anyone of them.

INDEPENDENT DOMINION

I now proceed to notice some of the incidents of an independent dominion which were referred
to in the arguments before us by the parties. These incidents are connected with allegiance,
Royal Style and Titles, nationality, assent to legislation and Prerogatives.

INDEPENDENT

The words `independent dominion' first received statutory recognition in the Act of 1947. The
speakers in the House of Commons who took part in the debates on the bill had different
conceptions of an independent dominion. There were also proposals that these words be
substituted by some more expressive words. Thus Mr. Godfrey Nicholson sug gested the
amendment "two independent States within the British Commonwealth of nations, hereinafter to
be known for the purposes of' this Act as the new Dominions", because he thought the word
"Dominion" was subject to several misconceptions. Mr. Wilson Harris supported Mr. Nicholson
and said

"I think that we need the word `Dominion' here and that it was a stroke of genius on the part of
Lord Mountbatten to apply the possibility of Dominion Status to the two halves of India. I cannot
help thinking, however, that the term `Independent Dominion' involves a certain contradiction.
Dominions as between themselves are interdependent and not independent. I would very much
prefer the use of the words `autonomous Dominions'. In the famous language of 1926, the
Dominions are not subordinate one to another in any internal or external affairs, but they are not
entirely independent. They do not stand completely apart from one another, indeed they have the
right to secede from the. Com monwealth in which case they would, achieve complete
independence. It seems to me the word `independent' ought to be used for that status. It would be
more desirable to speak of autonomy in this case and to use the words `autonomous Dominions'
rather than `independent Dominions'.

Replying to this criticism,. the Prime Minister, Mr. Atlee, said :-

"With regard to the term `independent Dominions', I think you need the word Dominions here.
We .do under stand what Dominion Status means under the Statute of Westminster. .Whatever
alteration there may be in the future in the Statute of Westminster, that statute today does define
this position. It does mean complete autonomy. With regard to the word `independence', that
again one may quarrel over, but one has to consider both history and psychology in this matter
and it is a fact that it is not generally realised throughout the world, that although it is quite
properly said that there is interdependence there is complete independence in the Dominions
from any control, whether from Whitehall .or from Parliament. That is the important point that
needs to be stressed. It is not perhaps quite the same as if this were being formed from some'
country adjoining, which had never been in the position of being under this Parliament and under
Whitehall. I think that is what the- Indians really want to have emphasised. I think they quite
accept the position and they know the advantages of being in the Dominions. People, who have
long been under the tutelage of Whitehall and under the control of this Parliament, feel that now,
at last, they are independent of that control."

The essential characteristics of an independent Dominion were rightly brought out by Mr. Atlee
when he said that the independence of a Dominion implied freedom from all control by the
Government in London and the British. Parliament. If the Government of the United Kingdom
has no right to inter fere in the affairs of a Dominion and the Legislature of that Dominion can
pass any law that it likes, including the law relating to its own future constitution, and the
authority of the Parliament of the United Kingdom to legislate for it comes to an end, we have a
true conception of the independence that was intended to be conferred on the Dominions of India
and Pakistan. In this sense the Dominions. of Canada, Australia and New Zealand cannot be said
to be independent because under the Statute of Westminster, their Legislatures are in competent
to amend their Constitution Acts. India and Pakistan, however, could frame their own
constitutions as independent countries and -entirely secede from the Common wealth.

DOMINION

ALLEGIANCE TO THE CROWN

But though independent in the .sense just explained, Pakistan, is a Dominion and therefore
certain incidents attach to it by reason of that status. The first feature that is common to the
Dominions which are members of the British Common wealth 'of Nations is common allegiance
to the Crown. This common feature, as pointed out by Wade and Phillips at page 443 of 4th
Edition of their Constitutional Law is the one legal link which joins members of the
Commonwealth (except India) and Empire, though it is no longer regarded as indis pensible for
membership of the former. In the Commonwealth Declaration of April 1949 made by the Prime
Ministers of the United Kingdom, Canada, Australia, New Zealand, South Africa, India, Pakistan
and Ceylon and the Canadian Secretary of State for External Affairs, it was declared that their
countries were united as members of the British Common wealth of Nations and owed a
common allegiance to the Crown which - was also a symbol of their free association. The
Declaration was made on the occasion of receiving India as a member of the Commonwealth
view of the new Republican Constitution she was about to adopt. In the resolutions of the
Imperial Conference of 1926, common allegiance to the Crown was stated to be one of the.
bonds that united the participating Dominions: This position received a recognition by the
Statute of Westminster, 1930, the preamble of which states that the Crown is the symbol of the
free association of the members of the British Commonwealth of Nations and that they are all
united by, a common allegiance to the Crown. Halsbury describes common allegiance to, the
Crown as a common law doctrine (Laws of England, 3rd Edition, Volume V, paragraph 1024). It
is for this reason that the Statute of Westminster requires that any alteration in the law touching
the succession to the Throne or the Royal Style and Titles must have the assent of the
Parliaments of the Dominions as well as the Parliament of the United Kingdom.

So important is the connection of a common Crown and common allegiance that in the case of
Canada, Australia and New Zealand, it cannot be broken by local legislation, and General Smuts
consistently maintained that even the King himself could not with due regard to his duty assent
to a measure of a Dominion Parliament purporting to destroy the connection with the Crown.
Writing .in 1932, Keith in his
Constitutional Law of the British Dominions (page 61) thought that to effect a separation there
would in law be necessary an Imperial as well as a Dominion measure .and that under the
principle enunciated by the Statute of Westminster the concurrence of the other Dominions
would also be re quisite. This relation is very different from the mere personal union between the
United Kingdom and Hanover where the connection could be, and was broken as a result of the
different laws of descent of the Crowns of the two territories when Queen Victoria succeeded to
the throne in 1837. He says at page 62 of the book :-
"Closely connected with the question of the common Crown is that ' of a common alligiance. The
issue might rest, of course, on the old decision in Calvin's case, after the union of the Crowns of
England and Scotland in the person of James I, that person born in Scotland after the union were
natural born in English subjects, despite the absolutely distinct character of the two kingdoms.
The same doctrine was applied during the period of the union of the Crown of England with the
Electorate '.of Hanover, Even were each of the Dominions to be regarded as an absolutely
distinct kingdom, the subjects of the King therein would on . that doctrine be subjects in the
United Kingdom".
These observations were of course not applicable to the two Dominions created by the Indian
Independence Act because each of them was declared to be fully competent to secede. But so
long ast either of them remains a Dominion; assent to its legislation is necessary both under the
common law doctrine and the statutory provision in subsection (3) of section 6. So strict is this
rule that even if a dominion in tended to secede from the Commonwealth and repudiate
allegiance to the Crown, it could do so only by an extra-legal act. But if it intended -to - proceed
constitutionally such secession would itself require the assent of the Queen or her representative,
or legislation by the Parliament of the United Kingdom. Such. assent was given when Burma
became inde pendent under the Burma .. Independence Act, 1947. And though in the case of
India no such assent seems to have been requested or given, the . . connection between India and
the United Kingdom had to be . recognised by a statute of the British Parliament, India
(Consequential Provision) Act, 1949, to retain India as a member of the Commonwealth.

ROYAL STYLE AND TITLES

Though by subsection (2) of section 7 of the Act of 1947 the words `Indiae Imperator' and the
words `Emperor of India' were omitted from the Royal Style and. Titles by a Royal Proclamation
under the Great Seal of the Realm, the words "of Great Britian, Ireland and British Dominions
beyond the Seas, Queen" continued to be used. In December, 1952, after consultation between
the Governments of members of the Commonwealth it was agreed that ' in place of the existing
Titles which had ceased to be, fully appropriate each member should adopt for its own purpose a
form of Title suitable to its particular circumstances but including a substantial common element.
A separate Title has accordingly been adopted for use in the United Kingdom (including the
territories for whose foreign relations the United Kingdom Government is respon sible). This
Title, which was adopted in pursuance of section 1 of the Royal Titles Act, 1953 (1 and 2 Eliz. 2
c. 9), is "Elizabeth the Second, by the Grace of God of the United Kingdom of Great Britain and
Northern Ireland and of Her other Realms and Territories, Queen, Head of the Common wealth,
Defender of the Faith". In Canada, Australia and New Zealand, the Title adopted, in each case by
a local enact ment, is . "Elizabeth the Second, by the Grace of God of the United Kingdom
(Canada or Australia of New Zealand) and Held other Realms and Territories, Head of the
Common wealth". In South Africa the Title adopted by the Royal Style and Titles Act, 1953
(local) is "Elizabeth the .Second, Queen of South Africa and Her other Realms and Territories,
Head of the Commonwealth". In Ceylon the Title is the same as for South Africa with
substitution of `Ceylon' for `South Africa'. A few days before her Coronation, the Queen re
ceived the Prime Ministers of the United Kingdom, Canada, Australia, New Zealand and Ceylon
who submitted for her signature the proclamations relating to the Royal Style and Titles for their
countries. In Pakistan, the Title signed by the Governor-General, and published simultaneously
in the Commonwealth capitals on the 29th May, 1953, was "Elizabeth the Second, Queen of the
United Kingdom and of Her. other Realms and Territories, Head of the Commonwealth". It
should be noted that under subsection (4) of section 6 of the Act of 1947 no Act. of the' United
Kingdom passed on or after the appointed day -was, to extend or be deemed to extend to the
Dominion of Pakistan as a part of the law of the Dominion unless it was extended thereto by a
law of the Legislature of the Dominion. No such law adopting the Royal Title was passed by the
Legislature of the Dominion and the Title was published by a proclamation signed by the
Governor-General. The words `Her other Realms -and Territories' in the Title were evidently
considered to embrace Pakistan because on the occasion of the 'Coronation of Her Majesty on
the 2nd June, 1953, the oath that was administered to her by the Archbishop. of Canterbury was

"Will you solemnly promise and swear to govern the peoples of the United Kingdom of Great
Britian and Northern Ireland, Canada, Australia, New Zealand, the Union of South Africa,
Pakistan and Ceylon and of your possessions and the other Territories to any of them belong ing
or pertaining, according to their respective laws and customs ?"

The commission that was issued by His Majesty's command appointing the Governor-General of
Pakistan described His Majesty'as "George VI, by the Grace of God of Great Britian and the
British Dominions beyond the Seas, King, Defender of the Faith", and the oath that the
Governor-General takes is :-

"I do solemnly affirm true faith and allegiance to the Constitution of Pakistan as by Law
established and I will be faithful to His Majesty (or Her Majesty), his heirs and successors in the
Office of the Governor-General of Pakistan. "

The point sought to be made by Mr. Chundrigar is that in this oath the allegiance that is sworn is
to the Constitution of Pakistan and not to the Crown ; but if allegiance to the Crown is a
necessary incident of the Constitution of Pakistan, the allegiance to that Constitution obviously
implies allegiance to the Crown. Further it - does not make the slightest difference whether the
Queen is described as the Queen of Pakistan or the Head of the Commonwealth of which
Pakistan is a member. ,

NATIONALITY

From the common law doctrine of common allegiance it must follow that those who owe
allegiance to the same Crown or common subjects. In United Kingdom law, citizens of the
United Kingdom and the Colonies and citizens of other Commonwealth countries, including
Pakistan, are British subjects and Commonwealth citizens, and by section 2 of the Pakistan
Citizenship Act, 1951, read with section 1 of the British Nationality Act, 1948, a Commonwealth
citizen, as for instance a citizen of Pakistan, is a British subject. Thus the second incident of
Pakistan being a Dominion is that her citizens are for international purposes British subjects.
Under section 262, subsection (4) of the adapted Government of India Act, no person who is not
a British subject is eligible to hold any office under the Crown in Pakistan, and under subsection
(1) of section 298 of that Act no subject of His Majesty domiciled in Pakistan shall, on grounds
only of religion, place of birth, descent, colour or any of them be ineligible for office under the
Crown in Pakistan. '

PREROGATIVE

The Governor-General of Pakistan is appointed by the King or Queen and. represents him or her
for-the purposes of the Government of the Dominion (section 5 of the Indian Independence Act).
The authority of the representative of the King extends to the exercise of the royal prerogative' in
so far as it is applicable to the internal affairs of the Member, State or Province, even without
express delegation, subject to any contrary statutory or constitutional provisions. In Canada and
the Union of South Africa the full external prerogatives are exercisable by the Governor-General,
who, is invariably invested with the duties of Commander-in-Chief of the armed forces, is
authorised to appoint Judges, Minis ters and other Crown servants, to summon, prorogue and
dissolve Parliament, assent to legislation, and grant pardons oil ministerial advice. Mr. Mahmud
Ali's contention that in Pakistan the Governor-General does not exercise any of the prerogatives
of the King is clearly wrong because here, even under the adapted Act of 1935, the
Governor-General appoints -the Governors of . Provinces, the Commanders-in- Chief of the
Pakistan Army, Royal Pakistan Navy and the Royal Pakistan Air Force, and Judges of the
Federal Court and the High Courts. Ambassadors to foreign countries are accredited and
ambassadors from foreign countries are received by, the Governor-General. The defence and
civil services in Pakistan are services of the Crown and appointments to them are made by. the
Governor-General while in the Pro vinces the appointments to the services of the - Province are
made by the Governors. In defence services 'the Governor General has the power to grant
commissions. Every person who is a member of the Civil Service of the Crown in Pakistan or
holds any post under the. Crown holds office during His Majesty's pleasure. And assent to - all
legislation under the adapted Act of 1935 is given in His Majesty's name, in the case of bills of
the Federal. Legislature by the Governor General, and in the case of Provincial bills by the
Governor: Criminal prosecutions are initiated and conducted in the name of the Crown. In the
face of these constitutional provisions I do ,not see how Mr. Mahmud Ali finds it possible to
assert that in Pakistan the Royal Prerogative is not exercised by the Governor-General.
I am conscious that in thus interpreting the Constitution of Pakistan and emphasising the,
incidents that attach to it as a Dominion I am going against a layman's idea of an "inde pendent
dominion", the implications of which were not fully understood even by the wise and
experienced members of the Constituent Assembly, though some of them were pro minent
members of the legal profession. But- I am quite clear in my conscience what the duty of a Judge
in such cases is. That duty is rightly to. expound the law in complete indiffer ence to any popular
reaction. The status .of which I have described the main incidents was accepted by our leaders
under a gentlemen's agreement which received statutory re cognition in the Act of 1947. If they
had been so minded, they need not have accepted that status and like Burma could have complete
independence. And if the legal incidents of association with the Commonwealth under a common
head hurt their pride or were offensive to thier susceptibilities, and the Constituent Assembly,
shared that feeling, it could have done away with all these so-called indicia of inferiority within a
day. It is not that the Constituent Assembly was unaware of these incidents. I had drawn their
attention to them by my judgment in the Full Bench case of Sarfraz Khan v. The Crown (1950
P .L R (Lah.) 658=P L D 1950 Lah. 384) as far back as May 1950. But the only action taken by
the Assembly on that judgment was to delete the words "in His Majesty's name" from subsection
(3) of section 6 of the Act of 1947 and those provisions of the adapted Act of 1935 where these
words occurred in respect of the Governor-General's assent to bills. This tinkering with the
provisional constitution merely showed that the Con stituent Assembly was unwilling to take big
decisions, and they can hardly have any grievance if, on the present occasion, that position is
restated to them. In this connection it will be interesting to mention here the history of an
incident from a High Court file. In 1951 some one appears to have sent to the Prime Minister of
Pakistan a High Court Notice which began with the words "George VI, by the Grace of God of
Great Britain and Northern Ireland and of the British Dominions beyond the Seas, King,
Defender of the Faith". The Prime Minister. appears to have been surprised at the heading of this
Notice and the Cabinet Secretariat, through the Secretary to the Governor, Punjab, drew the
attention of the High Court to this Notice by a letter in which the view was expressed that while
the inclusion of the name and Titles of the King in the Notice was constitutionally and legally
correct, it did not appear to be legally necessary and was liable to misinterpretation. The letter
also com municated the Prime Minister's desire to omit these words from the Court Notices if
there was no objection. The matter was discussed in a meeting of the Judges of the Lahore High
Court when I was the Chief Justice of that Court. In reply, the High Court pointed out that the
Letters Patent Seal of the Court also contained the Royal Arms and suggested that the Seal of the
Court be changed. That reply went from the High Court on the 19th March, 1952, but since. an
amendment of the Letters Patent, however simple it might appear to be, involves some study and
thought, the matter is still under consideration, and the High Court writs, though they no longer
run in the name of "Elizabeth the Second, Queen of the United Kingdom and of her other Realms
and Territories, Head of the Commonwealth", continue to issue under a seal containing the Royal
Coat of Arms.

JUDGMENT OF THE SIND CHIEF COURT

All that remains to notice now is the judgment of the Sind Chief Court. That judgment which
was delivered after 19 days of argument and 25 days of deliberation, is a dis appointing
document. In the lengthy arguments before us, extending over three weeks, hardly any reference
was made to it by either party. On the vital point in the case, repeatedly urged by Mr. Faiyaz Ali
before the learned Judges, namely that the power of making provision as to the constitution of
the Dominion which the Constituent Assembly was to exercise in the first instance under
subsection (1) of section 8 was included in the powers conferred by section 6 on the Legislature
of the Dominion, there is not one word in the judgment. Nor is there in any of the opinions
delivered even a remote reference to the basic question, which .I am not deciding because the
respondent was not called upon to reply to it, but. which must undoubtedly have stated the
learned Judges in the face, namely, whether it is a wise exercise of discretion for the judiciary to
re-install in power a deposed government by issuing enforceable writs against a de facto
government. .

On the question on which we are disposing of this appeal Constantine, C. J. merely followed the
opinion of Hassanally Agha, J. in a previous case and thought that the provision requiring the
Governor-General's assent to legislation by the Legislature of the Dominion was inconsistent
with indepen dence. He overlooked-the obvious fact that if the Governor General is a man from
the Dominion and is appointed and dismissed on the advice of the Dominion Government, the
legislative sovereignty of the )Legislature is not at all affected by the provision relating to assent.
Nor, in the absence of a finding that some sort of estoppel operated or that there was an
ambiguity in the Act, was he entitled to let his judgment be swayed by the consideration that the
Law Officers of the Crown on previous occasions did not considers assent necessary, and that the
objection was novel and, if accepted, would upset a consistent course of practice and
understanding. I should incidentally mention here that it was stated before us by Mr. Faiyaz Ali,
Advocate-General of Pakistan, -that on the point now raised the Law Ministry has consistently
been taking the view that assent to constitu tional legislation by the' Constituent Assembly is
necessary, As regards the point that assent is needed only with respect to legislation by the
Federal. Legislature and that there is no corresponding provision in the Act of 1947 in respect of
legislation by the Constituent Assembly as Legislature of the Dominion; it is sufficient to say
that the argument begs the whole question because the essential question that has to be
determined is whether subsection (3) of section 6 does or does not have the effect of requiring
assent to all legislation by the Constituent Assembly when it functions as the Legis lature of the
Dominion under subsection (I) of section 8 to exercise the powers given to it by section 6. The
ground on which Mr. Justice Vellani's judgment proceeds is somewhat more remarkable
inasmuch as that learned Judge merely contents himself by asserting that the Constituent
Assembly was- a' supreme body, subject to no agency or instrument to give its laws validity, and
that the provision requiring the Governor General's assent to its legislation would make the
Governor- General truly a Viceroy. He should have seen that other Dominions are independent,
though similar provisions relating to assent exist in their constitutions, that the Governor
General, though a representative of the King, is a leading public man from the Dominion and
certainly not the agent of the Government of the United Kingdom, and that the provision as to
assent is not in the nature of a veto, because if the Constitution is properly worked as the
Constitutions of the other Dominions are, the Governor-General is not in a position to veto any
legislation by the Legislature of the Dominion unless he withholds his assent from some
outrageous legislation, in which case, whatever may be the legal position, the final law would be
the will of the people and not the will of the 'Constituent Assembly. The finding of Mr. Justice
Muhammad Bakhsh Memori that the word `law' occurring in subsection (3) of section 6 of the
Act of 1917 refers to laws made by the Federal. Legislature amounts to a plain misread ing of
that: provision and his view that the action of the Privy Council in transferring certain appeals to
the Federal Court under the Privy Council (Abolition of Jurisdiction Act, 1950, and their receipt
by the Federal Court amounts to "law declared" within the meaning of section 212 of the Act of
1935, amounts to misunderstanding of how law is declared. He was not concerned with the
consequences, if on a true construction of the Act, he had come to the conclusion that assent was
necessary. The validity or otherwise of other Acts was not before him, the only question that he
was called upon to decide being whether the impugned amend ment to the Government of India
Act was valid. He also begs the question when he finds that Rule 62 of the Constituent Assembly
Rules is law, and whether that Rule did or did not receive the assent of the Governor-General, it
can override the express provisions of subsection (3) of section 6.

CONCLUSION

For the reasons given, I hold that the Constituent Assembly when it functions under subsection
(1) of section 8 of the Indian Independence Act, 1947, acts as the Legislature of the Dominion
within the meaning of section 6 of that Act, that under subsection (3) of the latter section 'the
assent of the Governor-General is necessary to all legislations by the Legislature of the
Dominion, that since section 223-A of the Government of India Act under which the Chief Court
of Sind assumed jurisdiction to issue the writs did not receive such assent, it is not yet law, and
that therefore, that Court had no jurisdiction to issue the Writs. In view of this conclusion we
cannot go into the other issues in the case whatever their general importance may be.
I would, therefore, accept the appeal, set aside the Judg ment of the Chief Court of Sind, and
recall both the writs. Parties will bear their own costs throughout.

Before concluding I should like to express our apprecia tion of the assistance rendered by
counsel in the decision of this case, of Mr. Faiyaz Ali's vigorous all round argument, Mr.
Diplock's masterly analysis of the Acts of 1935 and 1947 and Mr. Chundrigar's brave fight in
defence of the sovereignty of the Coustituent Assembly.

AKRAM J.-I agree in the order allowing the, appeal. I, however, desire to say a few words of
my own in support of the order. The facts of; the case are set out in detail in the judgment of my
Lord the Chief Justice and need not be repeated. As regards the preliminary question : "Whether
the assent of the Governor-General is necessary before any constitutional legislation by the .
Constituent Assembly under section 8 (1) of the Independce Act, 1947, can pass into law?", the
answer to it seems to me to' depend upon a true construction of the relevant provisions of the
Independence Act itself. Section 6 (3) and the Ist part of section 8 (1) of the Act are as follows :-

"6 (3)-The Governor-General of each of the new Dominions shall have full power to assent to
any law of the Legisla ture of that Dominion and so much of any Act as relates to the
disallowance of laws by His Majesty or the reservation of laws for the signification of His
Majesty's pleasure thereon or the suspension of the operation of laws until the signification of
His Majesty's pleasure thereon shall no apply to laws of - the Legislature of either of the new
Dominions. -
8 (1) (1st part)-In the case of each of the new Dominions, the powers of the Legislature of the
Dominion shall for the purpose of making provision as to the constitution of the Dominion, be
exercisable in the first instance by the Constituent Assembly of that Dominion, and references u
this Act to the Legislature of the Dominion shall be construed accordingly."
Reading section 6 (3) and the 1st part of section 8 (1; together the conclusion which I am able to
draw, is that the Governor-General has full power to give assent to any kind of law proposed by
the Legislature of the Dominion and that the Constituent Assembly which in the first instance is
to make provision for the constitution of the Dominion is to exercise the power of the Legislature
of the Dominion for that purpose. As a result, the assent of the Governor-General become
necessary for the validity of even constitutional laws. In my opinion the words "full power to
assent" in the context carry with them full liberty to refuse assent as power conferred does not
mean liability imposed or obligation created. I am unable to construe section 6 (3) in the manner
suggested by counsel for the respondent and to hold that the assent of the Governor General is
not necessary so far as constitutional laws are concerned. I have carefully considered the
arguments which he has advanced- in its support,. namely :-

(a) That in case the assent of the Governor-General is regarded as essential to the validity of
constitutional laws, then the result will be that the form of the Constitution will depend on the
views of the Governor-General rather than those of the Constituent Assembly in contravention of
section 8 (1) of the Independence Act-

(b) That under section 5 of the same Act, the Governor General is to represent His Majesty for
the purposes of the government of the Dominion, but this cannot confer on the Governor-General
authority to nullify constitutional legisla tion by withholding assent.

(c) That all along, the Government itself, the - people and the Courts, proceeded on the same
view as is now pressed for by the respondent, namely, that the assent of the Governor-General is
not necessary for constitutional legisla tion under section 8 (1) of the Independence Act.

(d) That in section 6 (3) reference to ' the Dominion Legislature is only notional as no Dominion
Legislature exists or existed before ; that in reality the reference is to the Federal Legislature
functioning under section 8 .(2) - of the Independence Act ; that "law" in the subsection (3) is
used in a broad and comprehensive sense in order to cover not only proposed legislative bills but
also enactments which require confirmation by His Majesty under section 736 of the Merchant
Shipping Act and section 4 of the Colonial Courts of Admiralty Act ; that the expression "full
power to assent" has been used because the power of disallowance, reservation or suspension
which existed under section 32 of the old Government of India Act, 1935, is done away with ;
that the two parts of subsection (3) are to be read in close conjunction with each other in order to
bring out the real meaning of the subsection; that "full power to assent" can not be interpreted as
full option to refuse assent.

(e) That section 8 (1) is not to be read with section 6 (3); there is no connection between the two.

(f) That there is no provision anywhere for the presenta tion of a constitutional legislation by the
Constituent Assembly to the Governor-General for his assent.

But these arguments, though ingenious and interesting, do not seem to me to be so cogent and
convincing as to prevail over the clear meaning of section 6 (3) read with section 8 (1) of the
Independence Act. In the interpretation of laws and statutes plain words should, as a rule, be
given their plain meaning and a laboured construction should not be put upon them to bring into
prominence some kind of a remote significa tion. I see no justification for any embroidery upon
the plain and simple language of the subsections. Certain decisions in support of the respondent's
contention were also cited but they do not appear to me to be precisely in point- and need not be
referred to. But apart from the reasons given by me, while interpreting sections .6 (3) and 8 (1) of
the Independence Act, if we look to the statement of His Majesty's Government, dated the 3rd
June 1947; para. 20 and take into 'consideration the conditions and the circumstances existing at
the time of the passing of the Independence Act, the plan and the purpose which the Legislature
had' in view will not, perhaps, be far to seek. Paragraph 20 of the statement aforesaid runs as
follows:

"Accordingly, as the most expeditious, and indeed the only practicable way of meeting this
desire,-'His Majesty's Government propose to introduce legislation during the current session for
the transfer of power this year . on a Dominion Status basis to one or two successor authorities
according to the decisions taken as a result of this announce ment. This will be without prejudice
to the right of the Indian Constituent Assemblies to decide in 'due course whether or not the part
of India, in respect of which they have authority, will remain within the British Common
wealth."

"Dominion Status", it appears, had already acquired a techni cal meaning ; it implied, according
to the declaration of the Imperial Conference held in London in 1926, "autonomous communities
within the British Empire, equal in status; in no way subordinate one to another in any respect of
their domestic or external affairs, though united by a common allegi ance to the Crown and
freely associated as members of the British Commonwealth of Nations". Indeed, the Dominions
were virtually distinct kingdoms united by a common King and a common allegiance and their
inter-Imperial relations were in no sense regarded as international.

Thus the effect of conferring 'a Dominion Status was that certain rights and liabilities as between
the. Dominion and the United Kingdom came into existence, for instance, if the Dominion by its
legislation negated allegiance to the Crown or severed connection with it, such a legislation
perhaps could not be considered as legally valid or justified. The expression, "Independent
Dominion" has, therefore, been' purposely used in the Independence Act in order, to give to the
Dominion freedom of choice either to remind or to refuse to remain) within the British
Commonwealth of Nations as envisaged in para. 20 of the statement of His Majesty's
Government quoted above. It is clear that by the Independence Act the intention was to give a
constitutional form of Government modelled on the pattern of the British Government pending
the setting up of a final constitution by the Dominion itself. According to English Constitutional
theories, the Sovereign, who is the Executive Head of the State; is always a constituent part of
the supreme legislative power and as such has the legal right not only of giving assent but also of
refusing assent in case he considers a' provision to be inexpedient or injurious. The power to give
or to refuse assent is one of a great variety of royal prerogatives and cannot be abrogated or
curtailed without clear statutory provision to that effect made with the royal concurrence. See (a)
Blackstone on the Laws of England, Volume I, Fourth Edition, Chapter VII, page 221 :-

He, (the Sovereign) may reject what bills may make what treaties, may create what peers, may
pardon what offences he pleases : unless where the constitution has expressly, or by evident
consequence, laid down some excep tion or boundary: declaring; that thus far the prerogative
shall go, and no further."

(b) Keith's' Constitutional Law, Seventh Edition (1946 Reprint), page 201 :-
"The prerogative of the King is the privilege of his subjects; that is the King must exercise his
-prerogative not for his own benefit but for the protection of his subject in accordance with the
advice of his constitutional legal advisers. The King in Council is the Executive; the King in
Parliament is the Legislature ; the King in his Courts administers justice; and thus the Crown
binds together every department of the State."

(c) Constitutional law by Wade and Phillips, Third Edi tion, page 95-.-

"Parliament cannot legislate without the concurrence of all its parts, and therefore the assent of
the King is required. The King not only summons Parliament and can dissolve Parliament, but
must give his consent before any legislation can take effect."
(d) Stephen's Commentaries on the Laws of England, Eighteenth Edition (By Edward Jenks),
Volume I, page 176;-

"In legal theory, the King is .capable of refusing-to give his ,assent to a Bill; and, if he did so
refuse, 'the Bill, although it had passed both Commons and Lords, could not become law. But .
for over two centuries, no monarch has placed himself in opposition to the wishes of the people
as expressed through their representatives. The Spirit of the Constitu tion is, that the Government
is carried do by the Houses of Parliament (since 1911 one may say by one House only), and that
the King's functions in legislation are purely formal. The last occasion when the royal assent was
refused was when Queen Anne rejected the Scotch Militia Bill in, 1707; and it is unlikely that the
words `le roys' avisera' will ever be spoken in the House of Lords again."

Such being the English constitutional theories, it would be a strange supposition to make that the
British Parliament, while framing an interim Constitutional Act for Pakistan, acted in a manner
contrary to its own principles and traditions and deprived the Executive Head of the Dominion of
power to give or to withhold assent as respects constitutional laws. For the reasons stated, I am
of the view that in the absence of any express or implied provision in any enactment to the
contrary, the assent of the Governor-General is , necessary before any constitutional measure
framed under section 8 (1) of the Independence Act, 1947, can pass into law.

CORNELIUS, J.-It is proper that, realising the grave issues which are involved in this case, I
could commence with an expression of -my sincere regret at being unable to agree with the view
on one part of the case, which has commended itself to my Lord the Cheif Justice and my
learned brothers, in consequence of which the appeal has been allowed. It will be the principle
concern in this judgment .to indicate with such clarity and brevity as may be possible to me, the
reasons which have compelled me to come to a different conclusion. The resolution of a question
affecting the interpretation of important provisions of the interim constitu tion of Pakistan in
relation to the very high matters which are involved, entails a responsibility going directly to the
oath of office which the constitution requires of a Judge, namely, to bear true faith and allegiance
to the Constitution of Pakistan as by law established and faithfully to perform the duties of the
office to the best of the incumbent's ability, knowledge and judgment. The reasons I am about to
set out have the effect of determining my humble judgment in one way and one way only,
namely, that in the given circumstances, there is nothing in the law which makes the grant of
assent bar the Governor-General to Acts of the Constituent Assembly, which make provision as
to the Constitution of the country, a sine qua non, so that the absence of assent has the effect of
invalidating all laws which have been passed in that mode, i.e., without the Governor-General's
assent. Since the questions to be dealt with relate in essence to the period immediately prior to
the 24th October 1954 when the Proclamation was made by His Excellency the
Governor-General, as a consequence of which the Constituent Assembly was deemed to have
been dissolved, the argument will of necessity proceed upon. the assumption that the Constituent
Assembly is still in being. The assumption cannot of course affect the factual position.

A brief recital of the facts is necessary, and may appro priately commence with the enactment by
the Constituent Assembly of two Acts in the year 1954, amending the Government of India Act,
1935. The first of these Acts is described as the, . Government of India (Amendment) Act, 1954,
and purported to insert a new section ' 223-A in the Government of India Act, which reads as
follows :-

"223-A. Every High Court shall have power throughout the territories in relation to which it
exercises jurisdiction to issue to any person or authority, including in appropriate cases any
Government within those territories, writs including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari or any of them.

The second Act was described as the Government of India (Fifth Amendment) Act, 1954, which
inter alia inseited a new section 10 to replace the existing sections 10, 10-A and 10-B. The
relevant provision in the new section 10, for the purpose of the present case, is contained in
subsection (1) which reads as follows :-

"10. (1)-The Governor-General shall appoint a Member of the Federal Legislature who
commands the confidence of the majority of the Members of the Federal Legislature as Prime
Minister. The other Ministers shall be appointed by the Governor-General, from amongst the
Members of the Federal Legislature in accordance with the advice of the Prime Minister."

The previous provision on this subject was that "the Governor-General's Ministers were chosen
and summoned by him, and that a Minister who for any period of ten conse cutive months was
not a member of the Federal Legislature, should at the expiration of that, period, cease to be a
Minister.
Both these Acts were passed by the Constituent Assembly and were signed by the President, by
way of authentication and in the belief, based upon rule 62 of the Rules of Procedure of the
Constituent Assembly of Pakistan which I reproduce below' that by such authentication and
subsequent publication these Acts became law without the necessity of the Governor General's
assent. Rule 62 reads as below

"When a Bill is passed by the Assembly, a copy thereof shall be- signed by the President and it
shall become law on being published in the official Gazette of Pakistan under authority of the
President."
Shortly after the making of the Proclamation, Maulvi Tamiz-ud-Din Khan; who was President of
the Constituent Assembly, filed a' writ petition in' the Chief Court of Sind, citing as respondent
the Federation .of Pakistan and nine Ministers who had been sworn in as Ministers of the Federal
Government. The reliefs claimed were inter alia, .a writ of mandamus against all the respondents,
their agents, etc., to prevent them from giving effect to the Proclamation and from interfering
with the exercise by Maulvi Tamiz-ud-Din Khan of his functions and duties as President of the
Constituent Assembly, and a separate writ of quo warranto against each of the respondents who
were Ministers in the newly-constituted Government to determine the validity of their
appointments. The respondents contested the petition raising preliminary objections as well as
objections on the merits. The first preliminary objection was that section 223-A (which has been
reproduced above) had not yet become law in Pakistan by reason of absence of the
Governor-General's assent which was sine qua non for the purpose. The other preliminary
objections were to the effect that, even if section 223-A was held to be valid, in the existing
'circumstances, no writ as claimed could issue. The objections on the merits related to the
dissolution of the Constituent Assembly and set out that in view of the fact that Pakistan is
expressly constituted as " one of the dominions of the Crown of the United Kingdom, a power to
dissolve the Legislature was furnished by the common law and also lay in the prerogative which
the Governor General could exercise". After lengthy arguments, a Bench of four Judges of the
Sind Chief Court held unanimously that the conditions requisite for the issue of the writs claimed
were shown to exist, and accordingly they directed that the writs should issue. Three of the
learned judges wrote separate judgments, the fourth learned judge expressing agreement with the
judgment written by the learned Chief Judge. It is not necessary to state in detail all the findings
recorded by the learned .Judges or the reasons which they have furnished in support of each
finding, for the reason that in this Court the decision has been confined to the single question of
necessity for the Governor-General's assent iii relation to laws made by the Constituent
Assembly containing provisions as to the Constitution of Pakistan. On the latter point, the
reasons which guided the learned judges of the Court below may be shortly stated as under :-

(1) The key to the Indian Independence Act, 1947, is the independence of Pakistan, and the
purpose of section 6 of that Act is to efface the supremacy of the British Parlia ment.

(2) Subsection (3) of section 6, which provides that "the Governor-General shall have full power
to assent to any law of the Legislature of the Dominion" does not impose the requirement of
assent for all laws made by the "Legisla ture of the Dominion", but merely provides that if assent
were necessary, the Governor-General should have full power in that respect. Express provision
was retained in the Government of India Act, 1935, for the necessity of assent to Acts of the
Federal Legislature only, and therefore section-6 (3) applies only to such Acts.

(3) The Crown is not named in the relevant Constitu tional Instruments. viz., the Indian
Independence Act and the Government of India Act, 1935, as sharing in the power of legislation
and the clear implication was that the Crown was excluded from such power.

(4) On the Constitution-making side the Constituent Assembly had sovereign power, equal to
that of the King, and therefore, no assent of the King was necessary.
(5) That the Constituent Assembly could have repealed section 6 (3) and even the whole of the
Independence Act; it was impossible to think that such a law would require the assent of the
Governor-General.

(6) That all authorities in Pakistan, executive, legislative and judicial, had for many years past
interpreted the Constitution in this way, i.e., that constitutional enactments by the Constituent
Assembly became law without the assent of the Governor-General.

Accordingly, the learned judges held that section 223-A by which they were empowered to issue
writs was good law, and proceeded thereafter to consider the question whether the
Governor-General had the power to dissolve the Constituent Assembly, and whether in the given
circum stances, the writs claimed could properly issue. They answered the first question in the
negative and the second in the affirmative as against the Federation and five of the Ministers.
The reasons for these findings have been given at great length, but do not require mention for the
purpose of this judgment.

The respondents appealed in this Court against this decision under section 205 of the
Government of India Act, on a certificate issued by the Court below as required by that section.
In support of the appeal, the Court heard addresses from the Advocate-General of Pakistan who
was followed by Mr. Kenneth Diplock Q. C. of the English Bar. On the question of assent, the
argument of the learned Advocate General was confined to showing that such a requirement
could be construed out of the provisions of section 6, subsection (3) of the Indian Independence
Act, and that rule 62 made by the Constituent Assembly had no validity in law, though not
having been made in the proper form viz., by presentation as a Bill and consequential
proceedings, and also though its lacking the assent of the Governor-General.

The learned Advocate-General urged that in order to produce the result which rule 62 was
designed to achieve, the Constituent Assembly should have amended section 6 (3) of the Indian
Independence Act, which they had full power to do, subject to the assent of the
Governor-General. The argument presented by Mr. Kenneth Diplock was lengthy and elaborate.
The resume which I proceed to attempt may, therefore, be incomplete in some respects. He
started with the proposition that although when the King has once transferred legislative powers
to representative institutions in one of his realms or territories, he cannot thereafter take back that
power, yet, in every such realm r territory, at every stage of its development, the King remains an
integral part of the law-making machinery. In this connection, he referred to the decision of the
Privy Council in the case of The Liquidator of the Maritime Bank of Canada v. The
Receiver-General - of new Brunswick (1892 A C 437). The question there raised was that the
British Sovereign had no direct connection with a Province of the Dominion of Canada after the
passing of the British North America Act, 1867. The Privy Council overruled the contention,
having found that the Lieutenant-Governor of a Province was appointed by the Executive
Government of the Dominion which was expressly vested in the Queen, that all public properties
and revenues in the Province were also vested in the Queen, and that the Queen was part of the
Legislature. The relevant observations, which relate to the last-mentioned finding, may be
reproduced verbatim :-
"It would require very express language, such as is not to be found in the Act of 1867, to warrant
the inference that the Imperial Legislature meant to vest in the Provinces of Canada the right of
exercising supreme legislative powers in which the British Sovereign was to have no share."

Next, Mr. Diplock urged that the key to the Indian Independence Act was not the independence
of Pakistan, as had been concluded by the learned Chief Judge of the Sind Chief Court, but the
formation of an independent Dominion of Pakistan, and he argued that in all essential respects,
Pakistan was on the same footing as any of the other Dominions. Dominion Status was virtually
undistinguishable from independence, for it was recognized that the Dominions were Sovereign
States in the eye of international law, since they enjoyed independent treaty-making powers. the
right of separate representation in the United Nations, and the right to appoint their own
ambassadors in foreign. countries. Such was the degree of independence they enjoyed, that even
a declaration of war against a foreign country by His Majesty's Government in the United
Kingdom did not operate in relation to any Dominion of its own force. The Dominions were free
to accept the British Sovereign in relation to themselves, with such royal titles as they might
them selves determine. Yet, as is stated in the Preamble to the Statute of Westminster, 1931, "the
Crown is the symbol of the free association of the members of the British Common wealth of
Nations and . . . . . they are united by a common allegiance to the Crown." Both as a symbol of
such free association and as recognition of the allegiance owed to the British Sovereign, it was
the invariable practice in all Dominion countries to seek the assent of the Sovereign from his
representative in the Dominion, namely, the Governor General, in relation to Dominion laws.
This was an inherent feature of Dominion Status, and could not be avoided unless by express
words or necessary intendment. The right of assent was a prerogative right of the Sovereign and
although it could be taken away either by the British Parliament, where it retained the capacity to
legislate or by the "Legislature of the Dominion" itself, following the rule applicable to
prerogatives of the Crown, it could not be taken away except by express words or necessary
intendment.

On this foundation it was argued that subsection (3) of section 6 of the Indian Independence Act,
so far from excluding the royal prerogative, was founded upon the assumption that the
prerogative of assent was to apply in relation to all laws of the "Legislature of the Dominion".
although the. "Legislature of the Dominion. " was not constituted by any provision in the Indian
Independence Act, and the intention was that its constitution and powers should be settled by the
Constitution to be drawn up by the Constituent Assembly, yet the provisions of the Indian
Independence Act when read together could lead to only one conclusion, namely, that, pending
the promulgation of a new Constitution, the Constituent Assembly was, to all legal intents and
purposes, the "Legislature of the Dominion". Therefore, until such time as the country ceased to
be a Dominion, or a new Constitution came into force which avoided the requirement, assent on
behalf of the British Sovereign was a necessary requisite to validity of all laws made by the
Constituent Assembly including laws of a constitutional nature. The latter conclusion was
unavoidable in view of the provision in subsection (6) of section 6, Indian Independence Act,
that the "Legislature of the Dominion " should have power to make laws limiting its own powers
for the future, and such laws were undeniably constitutional in their nature.

Mr. Diplock also argued at length that a power of dissolution of the Constituent Assembly could
be found in favour of the Governor-General from the words of section 5 of the Indian
Independence Act which provide that "the Governor-General shall represent His Majesty for the
purposes of the government of the Dominion", coupled with the proposition, firstly, that a power
of dissolution vests in the Crown in the United Kingdom by virtue of the preroga tive, and
secondly, that after the grant of legislative institutions to an overseas possession, the Crown
acting through its Governor-General, stands in the same relation to the Legislature of that
possession as it does to the British Parlia ment. The force of this argument was materially
impeded by two powerful considerations,-viz., that in the case of every other Dominion and
possession, the power of dissolution was vested in the Governor or. Governor-General by
express provision in the Constitution, and secondly, by the circumstance that a power of
dissolution of the Federal Legislature which was contained in section 32, Government of India
Act, 1935, had been deliberately taken away in the course of adapting the Government of India
Act to the conditions which were to obtain after the creation of the independent Dominions. By
section 8 (2), proviso (e) of the Indian Independence Act, it was enacted that the powers of the
Federal Legislature or the Indian Legislature, as set out in the Government of India Act, should
be exercisable in the first instance by the Constituent Assembly, and it is all too plain that to
allow the Governor-General to dissolve the Federal Legislature, would in effect be to allow him
to dissolve the Constituent Assembly. The second part of Mr. Diplock's argument on this point
was, to my mind, the more attractive, namely, that the Governor-General of Pakistan is the
virtual head of the State and under the maxim salus populi est suprema lex, he has not only the
power but also the duty to act, in face of any great national disaster; threatening the country, in
such a way-as to avert that disaster. His action, when purporting to be taken in exercise of this
power anti duty, would be above the law, and, consequently, not justiciable. I found it
impossible, however, to accede to Mr. Diplock's further claim that if, in such a threatening
situation, the Governor-General should fail to act, the British Sovereign, by virtue of the
relationship of allegiance, would have power to intervene and to take action for the safety and
security of the country in accordance with the express wishes of the people of the country. Such
a possibility has never so far as I am aware been present to the minds of any persons in Pakistan
who have ever had occasion to examine the incidents of Dominion Status, and it is easy to
imagine that any such action by the British Sovereign, as distinguished from the Government of
the United Kingdom, would be beset by practical difficulties in relation to a country such as
Pakistan, some of which would appear at first sight to be insuperable.

The main reply to these arguments on behalf of the petitioner was made by - Mr. Chundrigar. He
stressed that the point for consideration was the validity of the practice of a Sovereign
Constitution-making body. while engaged in making provision as to the Constitution. Both as to
the practice as well as in relation to its validity, the right of decision vested in the
Constitution-making body alone. In that view of the matter the expressed will of the Constituent
Assembly as declared in rule 62 of the Rules of Procedure must be regarded as final. The rule in
its original shape merely provided for authentication of the Bill by the President. It was made at a
meeting of the Constituent .Assembly held on the 24th February 1948, which was presided over
by the late Quaid-i-Azam, who combined in himself the offices of first Governor-General of
Pakistan and first President of the Constituent Assembly of Pakistan. The rule was amended and
brought to its present shape at a meeting of the Constituent Assembly held on the 22nd May
1948, under the Chairmanship of Mr. Tamiz-ud-Din Khan, then Deputy President of the
Constituent Assembly of Pakistan, deputizing for the Quaid-i-Azam in his absence. It must be
assumed that the rule was made in its final shape to the knowledge of the then
Governor-General.

On the point of assent, as a requisite derivable 'from the considerations (a) that the country
possessed Dominion Status and (b) that it owed allegiance to the King, Mr. Chundrigar argued
that Pakistan and India were constituted not as mere Dominions, but as "Independent
Dominions" and the differ ence was very strong and very material. Each of these new Dominions
was provided, at its very birth, with an apparatus, namely, the Constituent Assembly composed
of elected representatives of the people for equipping itself with a Constitution of its own choice,
even one which could take it out of the oversight of the British Sovereign altogether. No other
case of the same kind was known in the history of development of the British Commonwealth. It
was, he urged, in consequence of this enormous difference that a great change was brought about
in the oath which the Governors General of Pakistan are required to take upon assuming office.
The previous oath was one to be faithful, and bear true allegiance to His Majesty the King etc.".
but from the very inception of Pakistan the oath has been to bear true allegiance to the
Constitution of Pakistan, and to be faithful to His Majesty the King, etc. Allegiance to a
Constitution which, although effective to create a Dominion, could have been changed by the
Constituent Assembly at any time, could not be construed as acceptance by the
Governor-General of the King as liege lord, or to constitute the Governor-General as liege-man
of the King. Between allegiance and faithfulness, as forms of human relationship, there was a
vast difference. The position is further emphasised by the fact that, upon the accession of the
present British Sovereign, Her Majesty Queen Elizabeth II, the title relevant to Pakistan which
was accepted by Pakistan was not that of Queen of Pakistan but only that of "Head of the
Commonwealth". The materiality of the difference appears from the fact that the other Indepen
dent Dominion created in 1947, namely, India, became by virtue of a Constitution passed by the
Constituent Assembly of that country, which was set up in precisely the same circumstances, a
Republic. That Constitution did not receive the assent of the then Governor-General, and in India
also the practice throughout was that constitutional Acts of tile Constituent Assembly were
sufficiently passed into law by authentication of the President, and assent of the Governor
General was never obtained. India also, after becoming a Republic, has accepted the British
Sovereign only in the capacity of "Head of the Commonwealth". Therefore, in the existing
conditions, no bond of allegiance could be deemed to exist between the Governor-General of
Pakistan as head of this State on the one side and the British Sovereign on the other. (It was
emphasised that even the acceptance of the title "Head of the Commonwealth" had been effected
not by an expression of the will of the country's Legislature but only by a proclamation made by
the Governor-General, whose status under section 5 of the Indian Independence Act is that of
representative of the British Sovereign.)

Mr. Chundrigar then pointed out that the Constitutional Instruments relevant to Pakistan are
devoid of any expression such as might have the effect of making tile British Sovereign a part of
any Legislature in Pakistan. ' This has been achieved by gradual steps. The provision in the Act:
that the Federal Legislature of India should consist of the British Sovereign represented by the
Governor-General and two Chambers was radically altered in the cause of adaptation to the new
conditions which were expected to develop from the date of establishment of the new
Dominions. The new section merely set out in different words the provisions of section 5, sub
section (2), proviso (e) of the Indian Independence Act, viz., that the powers of the Federal or
Indian Legislature should be exercisable by the Constituent Assembly. The Constituent
Assembly had thereafter been at pains, by amendment of the Indian Independence Act and the
Government of India Act to remove references to the grant of assent to legislation by the
Governor. General and by. Governors of Provinces in Ibis Majesty's name,, thereby emphasising
the actual, independence of the Governor-General and the Governors in respect of the grant of
the assent. Where the interim Constitu tion provided that the head of the Government should be a
part of the legislative machinery, it said so explicitly, e.g., in section 60 of the Government of
India Act which declares that "there shall for every Province be a Provincial Legislature, which
shall consist of the Governor, and one Chamber". This was in 'accordance with the practice in
every other Dominion, and, therefore, since the Government of India Act and the Indian
Independence Act are wholly devoid of any words which could make the Governor-General a
part of the Constituent Assembly, either in the capacity of Federal Legislature or in its higher
Constitution-making capacity, the conclusion must be that the Governor-General as such was not
a part of the law-making machinery of the Dominion.

Next, Mr. Chundrigar put forward the argument that assent is a form of control over legislation,
and referred to the history of the grant of independence to the sub continent of India for the
purpose of showing that in relation to the preparation of new Constitutions for the two countries,
it was impossible to suppose that any control was intended to be imposed. The constitutional
documents relevant to the grant of independence showed a clear intention on the part of His
Majesty's Government in the United Kingdom to fulfill the wish of the Indian people to attain
freedom, and to assist the Indian people to achieve freedom in a form which they should freely
decide for them selves, by helping to establish the necessary machinery. Although the hope was
expressed that the new countries would remain within the Commonwealth, and emphasis was
laid upon the advantages of such a position, contrasted with the perils of isolation in the modern
world, it was nevertheless repeatedly stated that the Constitution would be settled by Indians for
Indians. It was said that His Majesty's Government had "no intention of attempting to frame any
ultimate Cons titution for India; this is a matter for the Indians themselves". The argument for the
appellants had been that the power of assent included necessarily the power to withhold assent
and the implication was that insistence upon assent by the appellants was tantamount to
insistence upon the acceptance of a control. The conditions which His Majesty's Govern ment in
the United Kingdom created in India and in Pakistan before they themselves relinquished all
responsibility for the Government of these territories, clearly militated against the presence of
any such control.

With reference to section 6 (3), Indian Independence Act, the contention was that its terms did
not render assent to constitutional laws necessary, but, on the other hand, if the express terms
imposing the necessity of assent which are contained in the Constitution of every other
Dominion existing in 1947, be compared with this provision, the necessary con clusion must be
that no provision requiring assent to constitu tional law made by the Constituent Assembly, had
been made by the British Parliament. The necessity for assent to Federal legislation arose out of
the statutory provision under section 32, Government of India Act, 1935. The Constituent
Assembly which in the interim period exercised the powers of the Federal Legislature could have
amended section 32 to remove the requirement of assent, which was in the nature of a control,
but it chose of its own free will not to do so. The added powers of legislation which were to vest
in the Dominions through the relinquishment of such power by the British Parliament were
conveyed by the Indian Independence Act, and if it was the intention of Parliament, which was
fully aware that such vested powers were being conveyed away, to impose upon the exercise of
such powers, the control implicit in assent, they would certainly have done so in explicit terms.
That had been done by the same Parliament in the case of every other Dominion, and its
omission from the Indian Independence Act could only lead to the conclusion that Parliament
intentionally avoided making such a provision, and that it did so in view of the plenary powers
which were being allowed in favour of the Constituent Assemblies of the Dominions, to prepare
a wholly new Constitution for each Dominion. If there was to be any such control imposed upon
the Constituent Assembly's power, that control must be left to the Constituent Assembly itself to
impose ; having declared the Constituent Assembly to be fully unfettered in this particular
respect. the British Parliament could not thereafter have concerned itself with the imposition of
control of any kind, whether exercisable from the United Kingdom or from within the new
Dominion of Pakistan.

Consequently, section 6 (3), Indian Independence Act, was to be construed as a provision which
broke down with one stroke all pre-existing restraints imposed from the United Kingdom,
whether by virtue of His Majesty's prerogative, or by Act of the British Parliament, upon the
Governor-General's power to grant assent to laws which might for the future be made so as to
have effect throughout the new Dominion, sup posing that it remained a Dominion. It had been
made clear that this would depend upon the free choice of the Constituent Assembly, and
therefore to suppose that section 6 (3) had the effect of making assent sine qua non was
impossible, since that would be to fetter the powers of the Constituent Assembly.

It was next urged that the Indian Independence Act did not purport to set up a Legislature for
either of the two independent Dominions that were to be formed. Here also, the Indian
Independence Act furnishes a sharp contrast with every other law of the British Parliament,
creating Dominions. No body of persons was specified which would constitute the "Legislature
of the Dominion". The expression was indeed used in a completely abstract sense, as is clear
from the fact that the only aid furnished by the Act to the formation of any idea as to the nature
and quality of the "Legislature of the Domi nion" was by references to things which the
"Legislatures of the Dominions" might do, which were mentioned in a number of sections in the
Act, notably subsection (1) of section 8, which refers to "the powers of the Legislature of the
Dominion for the purpose of making provision as to the constitution of the Dominion". On the
other hand, the Constituent Assembly was 'referred to throughout as a specific body, and indeed
on the appointed day, the Constituent Assembly of Pakistan was already in being. In section 8,
Indian Independence Act, which has reference to the exercise of legislative powers of the
Dominion, the Constituent Assembly is mentioned three times and each time as a distinct body,
differentiated from the "Legislature of the Dominion". if the intention of the British Parliament
had been that as from the appointed day, viz., 14th August 1947, the Constituent Assembly of
Pakistan should be the "Legislature of the Dominion", nothing could have been easier than to
have said so expressly, and-if that had been done, a considerable number of provisions, which
were made neces sary only because the conception of the "Legislature of the Dominion" was to
be kept distinct from the actuality of -the Constituent Assembly, would have been rendered
unnecessary, and the Act might have been greatly shortened and 'simplified. In fact, the
Constituent Assembly could not conceivably be identified with the "Legislature of the
Dominion" for the simple reason that the Constituent Assembly was to be the parent and creator
of the "Legislature of the Dominion", whose shape and form the British Parliament could not
presume to set, having once declared that this function was to be perfor med by the Constituent
Assembly of Pakistan free of all control. It might have been that in the result the Constituent
Assembly may have decided upon a Legislature to exercise the legislative powers of the
Dominion, in which the Governor General might have been an integral part, and in that case, that
provision, in section 6 (3), Indian Independence Act, would immediately come into play. But
until that happened, the correct position was that the Constituent Assembly was not the
"Legislature of the Dominion", whether it was exercising Constitution-making powers or the
powers of the Federal Legislature.

Lastly, Mr. Chundrigar referred to the great number of constitutional laws which had been made.
by the Constituent Assembly in the same mode as the laws which were now being impugned,
and emphasised that the addition of section 223A to the Government'- of India Act had been
made by the Con stituent Assembly upon motion of the then Law Minister, Mr. A. K. Brohi.
Being a provision relating to a highly important subject of great public interest, namely, the
jurisdiction of the High Courts, it must be presumed to have been put forward after due
consideration by the Federal Government. It did not lie in the mouth of that Government now to
repudiate this provision, which it itself moved to obtain, presumably with the intention that it
should be effective. M. Chundrigar also referred to a number of judgments of superior Courts in
Pakistan where either directly or by implication, effect had been given to the view that a law of
the Constituent Assembly making provision or containing a provision as to the Constitu tion of
Pakistan did not require the assent of the Governor General. These cases are firstly, M. A.
Khuhro v. The Federa tion of Pakistan, (P L D 1950 Sind 49) the Mamdot case (P -L D 1950 F C
15=1950-51 F C R 24) and ex-Major General Akbar Khan's case (PLD 1954 FC87). In the first
case, a single Judge of the 'Sind Chief Court, in the year 1950 expressly accepted a contention
advanced on behalf of the Federation of Pakistan, in respect of a law which the opponent was
seeking to avoid, that that law, being a law making provision of a Constitutional nature, was
validly passed without the assent of the Governor- General. In the other two cases, which were
subsequently decided in 1950 and 1954 respectively, in both of which the Federation of Pakistan
was represented, the validity of the law in question in each case was challenged on the ground
that it . was not a law relating to the Constitution; and therefore, required assent. In each case,
this argument was negatived, but the absence of assent was the central and crucial fact in each of
these cases and it .was of the utmost significance that the eminent counsel who appeared did not
challenge the validity of the legislation, even as constitutional legislation, on this ground. Nor
did the learned Judges of the Federal Court themselves take notice of the matter, indicating
clearly that the judicial view expressed in the Sind case was accepted as correct in this regard. .

The issue between the parties on the point of necessity of assent may be stated somewhat as
follows. For the Federation of Pakistan and the Ministers whose legal status has been held by the
Sind Chief Court to be unsound, the contention is that the necessity of assent by the
Governor-General, as a condition of the validity of all laws passed by any Legislature which has
the capacity to make laws for the whole Dominion, including laws making provision as to the
Constitution, is derivable from (a) the fact that Pakistan is a Dominion included in the British
Commonwealth of Nations and (b) the following words contained in section ; 6 (3) of the Indian
Independence Act, viz., "The Governor-General of each of the new Dominions shall have full
power to assent to any lave of the Legislature of that Dominion". On behalf of the petitioner, the
contention is that no such condition or obligation can be construed out of Pakistan's membership
of the British Commonwealth of nations, even as a Dominion, in view. of the present-day
conception of that membership, of the deliberate avoidance by .Pakistan of acceptance of alle
giance to the British Crown, and the equally deliberate accept ance of the British Sovereign, not
as Queen of Pakistan,-, but only as Head of the Commonwealth. The Construction placed upon
section 6 (3) of the Indian Independence Act is characterized as entirely incorrect, and it is
contended that the words are only of enabling effect and cannot carry any connotation of a duty.
I shall examine first the question whether the necessity of assent by the Governor-General can be
founded upon any consideration arising out of Pakistan's membership of the British
Commonwealth of Nations.

As far back as 1926,, following the Imperial Conference of that year (the British Empire being
then a. living reality), it was declared that the United Kingdom and the Dominions were
"autonomous communities within the British Empire, equal in status, in, no way one subordinate
to another in any aspect of their domestic or external affairs, though united by q common
allegiance to the ' Crown, and freely associated as members of the British' Commonwealth - of
Nations". It was still possible at that time to describe the British Parliament as "the Imperial
Legislature", a term employed by the Privy Council in the Maritime Bank of Canada case which
I have already cited. In 1931, "the Imperial Legislature" passed what may be described, I hope
without disrespect, as a self-denying enactment, viz,, the Statute of Westminster, whose long title
however was-

"Act of the Imperial Parliament to give Effect to, certain Resolutions passed by Imperial
Conferences held in the years 1926 and 1930."

The lengthy preamble to this Act is in six separate para graphs of which the second contains an
attempt at a definition of the' position of members of the Commonwealth, couched in the
following words:- . .

"It is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is
the symbol of the = free association of the members of the British Common wealth of Nations;
and as they are united by a common allegiance to the Crown."

It may be noted that the freedom was confined to the association of the countries among
themselves; as against the Crown however there was not' freedom but allegiance. It is, I think,
entirely justifiable to give to the word "allegiance", when used in respect of a high and mighty
Prince, its full connotation, namely, that bond of servitued which a liege-man owes to his
liege-lord. A liege-man is, in the feudal. concept, from which it is not safe to depart when
assessing at its full weight the power and authority. of royalty, a sworn vassal, bound by an oath
of fealty to his liege-lord, namely, a feudal superior or sovereign entitled to receive feudal
service. It may be that by convention and also as a result of the devolution of power involved in
the . grant of representative institutions, the strict obligations, which words such as "feudal
sovereign", "feudal service" import become. inapplicable in course of time. In the case of the
sub-continent of India, which was known as the Indian Empire in which the British Sovereign as
will appear from section 2 of the Government of India -Act, 1935, enjoyed and possessed every
kind of royal power and authority, being also sovereign - of all the territories thereof, it would be
possible, in my view, to place a meaning upon the word "allegiance" not far removed from that
which might be thought to convey the maximum obligations arising out of the relation ship. At
that time, however, i.e., in the year 1931, India was not a Dominion.

As a -result of the Statute of Westminster, the conception of an "Imperial Parliament" was swept
away in relation to the Dominions of Canada, Australia, New Zealand, South Africa, the Irish
Free State and Newfoundland. Yet, -allegiance to the British Crown was retained on the one side,
and while it was declared that no future Act of the British Parliament would extend to any of
these Dominions (subject to acceptance of this provision by Australia, New Zealand and
Newfoundland) and that the Parliaments of these Dominions should be free to make any law they
pleased, even a law repugnant, to arty United Kingdom law having effect in the Dominion so that
the power to repeal any such law of England was included, yet the Parliaments of Canada,
Australia and New Zealand were expressly debarred by sections 7 and 8 from amending or
repealing their respective constitutional Acts, being Acts of the erstwhile "Imperial Parliament".
In the case of Australia, a further limitation upon the fullness of the legislative power of the
Dominion was provided by section 9, namely, that the British Parliament retained power to make
laws "with respect to any matter within the authority of the States of Australia, not being a matter
within the.-. authority of the Parliament or Government of the Commonwealth of Australia",
where the making of such a law without the concurrence of the Parliament of the Dominion was
in accordance with the previous constitutional practice. These provisions are still substantially in
operation as law, and, in my opinion, they detract very greatly from the nature of the-
sovereignty which was received by these Dominions in consequence of the Statute of West
minster. It was argued for the appellants that by convention the stringency of these powerful
controls was susceptible of relaxation, but at this point, it is useful, in my opinion, to repeat one
of the basic propositions which Mr. Kenneth Diplock advanced as the foundation .. of his
argument, viz., that in construing any constitutional enactment the Courts are concerned only
with legal powers.. In my opinion, the existence of these restraints clearly, and forcefully, stands
in the way of acceptance of Mr. Diplock's assertion that all the Dominions were independent
Dominions in exactly the same) sense as India and Pakistan became independent Dominions in
August 1947. It is true that Mr. Diplock. did not rely to the greatest extent for this assertion on
the case, of India, Australia and New Zealand. His strongest card as the South Africa Act, 1909,
which by section -t52, gave power to the Parliament of the Dominion to repeal or alter any of the
provisions of that Act. Yet that Act imposed specific jurisdic tions of a very real kind which exist
to this day, as is evident from section 9 providing that the Governor-General shall be appointed
by the King and section 64 which lays down that a Bill passed by the two Houses should be
presented to the Governor-General for the King's assent, and the Governor General shall declare
"according to his discretion, has subject to the provisions of this Act, and to such instruction as
may from time to time be given in that behalf by the King, that he assents in the King's name, or
that he withholds assent". The power of this strong legal provision was sought to be minimised in
argument by reference to conventions, but again I repeat that the Court is not concerned with
conventions but only with legal provisions.

The conclusions which I reach on the basis of this brief examination regarding the effect of the
Statute of Westminster are as follows. In respect of the specified Dominions, for the future, the
British Parliament altogether, lost the status of "Imperial Legislature". ' In the case of each
Dominion, the duty of allegiance to the British Crown was asserted, and in the case of three of
them, the power to alter their own Constitutions, which had been conferred upon them by Act of
the "Imperial Legislature" was expressly withheld. The idea of independence is certainly not the
first or the strongest, impression conveyed by these stipulations. In only one respect was a word
of liberation employed, viz., these countries, enjoying a mitigated form of legislative power,.
Approximating to but distinctly different from legal sovereignty, were describ ed as being "freely
associated" with each other; as well as with His Majesty's Government- in the United Kingdom.

After the year 1931, a number of rapid developments took place, particularly in relation to the
Irish Free State, which are of great importance to a proper understanding of the position occupied
by Pakistan and the obligations arising out of that position, when it was admitted to the
community of the 'Dominions in 1947. The history of the developments affecting the Irish Free
State may be conveniently extracted from a foot-note to paragraph 1022 on page 458 of Volume
V. of Halsbury's Laws of England. Third Edition, which reads as follows, the unnecessary matter
being excised :-

"The Irish Free State was one of the Dominions specified in the Statute of Westminster, 1931. In
1933 she abolished the oath of allegiance ; in 1935 she purported to exclude her citizens from the
definition of British subjects, in 1936 she abolished the office of Governor-General ; in 1937 she
adopted what was in effect a republican Constitution, in which the only reference to the Crown
related to the Executive Authority (External Relations) Act, 1936, which provided that so long as
the -Free State was associated with the Commonwealth the King could act on her behalf and on
the advice of her Government for the appointment of diplo matic and consular representatives.
The adoption of the 1936 Constitution was not accepted by the United Kingdom as effecting a
fundamental change in Eire's relations with the Commonwealth, and an argument that the
adoption of the 1937 Constitution was an act of secession was rejected in Murray v. Parkes 1942
2 K B 123."

The final steps were however not taken until 1949, and these may be conveniently set out in the
words of paragraph 1022 mentioned above :-

"In 1949 Eire, which, regarding herself as being externally associated within the Commonwealth,
had for long oc cupied an equivocal and anomalous constitutional position, seceded from the
Commonwealth by her own action. By an Act of the Oireachtas her remaining formal links with
the Crown were severed and she was declared to - be the Re public of Ireland ; this measure was
accompanied by an announcement by. the Government of Eire of intention to terminate the
association with the Commonwealth. The United Kingdom Parliament by statute recognized and
declared that Eire had ceased as from 18th April 1949 (the date fixed by Eire) to be part of His
Majesty's dominions". From foot-note (o) at page 459, however, it appears quite clearly that even
these acts are not construed in the United Kingdom as determining finally the traditional
relationship between Eire and the United Kingdom.

Accordingly it would appear to .be perfectly clear that in August 1947, when India and Pakistan.
entered the community of the Dominions, there was in existence one Dominion accepted As such
by- His Majesty, and by His Majesty's Government in the United Kingdom as well as by the
other 'Dominions, which did not owe allegiance to the British Crown, which by law had declared
that her citizens were not British subjects, and had by law abolished the office of
Governor-General hitherto within the power of the British sovereign to fill, replacing him by an
elected President. These several acts, which might be thought to be unequivocal acts of
dissociation and severance .from the purview of the British Sovereign, were not ' regarded by
any of the other parties interested to maintain the position of Eire as a country within the
community of: the British Commonwealth of Nations, to have the effect of excluding Eire from
that com munity. The same view was -apparently taken by Eire herself, for she delayed her final
act of severance from the Common wealth for another twelve years. Nothing can indicate more
clearly the interest which the United Kingdom displayed in retaining Ireland within the
Commonwealth, despite its denial of every kind of obligation which might be thought to stem
from a common allegiance to the Crown" than the fact that even after 1949, it continued to be
assumed in the United Kingdom that citizens of Eire and Eire herself are not yet wholly free of
the character which they had earlier possessed.

It is, therefore, not surprising to find the learned author of the monograph on "Commonwealth
and Dependencies" in the latest edition of Halsbury's Laws declaring at page 431 of the volume
already cited that :-

"Having regard to the variant conceptions of the Com monwealth association held by different
members; no attempt has been made or is likely to be made to prescribe a uniform terminology
to designate the association."

By the year 1947, the clear-cut conception of "a common allegiance to the Crown" as a necessary
incident of member ship of the Commonwealth had, as a result of the studied defection therefrom
of a valued and apparently still-cherished member,, become obscured to vanishing point.
Consequently, any new entrants into the Commonwealth might reasonably consider that they
were under no obligation accept any ties or bounds in excess of the minimum which the- existing
members being, of course, freely associated with each other, were content to regard as sufficient
in relation to any one of their number. The point .is of crucial importance for deter mining the
obligations of India and Pakistan when they entered the Commonwealth in 1947, that Ireland had
completely renounced all allegiance to the British Crown at that time, and was being governed
under .a republican constitution, F according to which the head of the State was an elected
President, whose powers of ail kinds were derived from the Constitution of the country and not
in any way from or through the British Sovereign. When it is borne in mind, as a matter of public
general knowledge of which judicial notice may properly be taken, that the Indian Independence
Act was passed by the British Parliament as a result of an insistent public demand throughout the
sub-continent of India - for independence from what used to be described as the "British yoke" a
fair idea may be formed of the sense in which entry into the Commonwealth was regarded by
those to whom, on their departure. from the -sub-continent, the British transferred power of
every kind. The temper of the people may be gauged with a high degree of accuracy from the last
of the popular political slogans which preceded the transfer of power. It was contained in two
words, namely, "Quit India". Further proof of that temper, if proof be needed, is provided by the
rapidity with which the Indian people proceeded to frame a new Constitution for themselves and
proclaimed a Republic under an elected President in January 1950. It, is true that this did not lead
to dissociation of India from Common wealth, any more than a similar declaration some thirteen
years earlier by Eire had been thought either by Eire or by the United Kingdom or by any of
the .other then existing Dominions to have caused such a . severance. But allegiance to the
British Crown of necessity- `disappeared and India accepted the British Sovereign only as Head
of the Common wealth.

Again, as a matter of public general knowledge, judicial notice may be taken of the fact that in
material respects, the attitude in Pakistan was no different from that - displayed in the other
"Independent Dominion" towards the British connection. By way of evidence, one may cite the
several occasions upon which the Constituent Assembly has acted to remove from the
Instruments which formed the interim Con stitution 'of the country, namely, the Indian
Independence Act, 1947, and the Government of India Act, 1935 (as adapted to come into effect
on the 14th August 1947) various . residual references to the British Sovereign which were taken
as imposing restraints upon legislative freedom. - Another indication of the same intention is to
be found in the official declaration by Pakistan that the country is to be under its new
Constitution, an Islamic Republic. I am not aware that any later declaration has been made on
this subject by any competent authority.

There are, however, two very precise acts of the Pakistan Governor-General which' cannot be
interpreted otherwise than as acts of denial of allegiance to the - British Sovereign. The first such
act was performed by the first Governor -General of Pakistan, the late Quaid-e-Azam
Muhammad Ali Jinnah. When the time came for him to take the oath upon assuming office as
Governor-General of Pakistan, he .refused to accept the earlier form which required the
Governor-General to bear "true faith and allegiance to His. Majesty"

and thereupon, by agreement with the British Sovereign, the oath which he took and which, his
successors after him have taken requires that he should bear true allegiance ' to the Constitution
and be faithful to His Majesty. Nothing can indicate more clearly that appointment at the hands
of the British Sovereign to the office of the Governor-General of Pakistan is accepted by .the
Governor-General of this country in a form vastly different from that which the Governors
General of the other Dominions are required to accept.. In the case of these latter
Governor-General, they swear "true faith and allegiance to the British Sovereign." That imports
of necessity a disparity of position . and acceptance of servitude. The Governor-General of
Pakistan,' when he swears to 'be faithful to the British Sovereign cannot be thought to accept any
inferiority of position, much less of servitude in the feudal sense appropriate to the conception of
royalty. At the highest it is an undertaking of loyalty on equal terms, and entirely appropriate to
acceptance of the British Sovereign not as a Queen, .but as a symbolic Head of the,
Commonwealth.

The second such act was performed by the present Governor-General, His Excellency _Mr.
Ghulam Muhammad. By the preamble to the Statute of Westminster, it is set out that through the
Crown being the symbol of free association within the Commonwealth, and as the members are
united by the common allegiance to the Crown, constitutional practice require that the royal
styles and titles should, after the Act, require the assent "as well of the Parliaments of the Domin
ions as of the Parliament of the United Kingdom." Such a question arose upon the accession of
the present occupant of the British Throne, Her Majesty Queen Elizabeth 11. Although the
Constituent Assembly met on numerous occasions after June 1953, when Her Majesty was
crowned, it does not appear that the matter of acceptance or otherwise of the royal styles and
titles appropriate to Her Majesty, in relation to Pakistan, was ever brought before the Constituent
Assembly. On the other hand, and perhaps by way of sub stitution; a proclamation was made by
the Governor-General accepting Her Majesty Queen Elizabeth II as "Head of the
Commonwealth," which expression, so far as I can gather, includes every Dominion and may
also include other realms and territories. It seems to me quite clear from this Tingle act that the
position which has been accepted by Pakistan, as being- occupied by Her Majesty in relation to
this country is in no way different from that which has been accepted by the neighbouring
Republic of India. Despite the apparently, constant activity of well-informed persons, in
unravelling the legal incidents of the various terms employed in British Con stitutional Law with
reference to the Commonwealth, no authority has yet chosen to derive from the description
"Head of the Commonwealth" anything importing the exercise either directly or by . a delegate
of royal prerogatives of powers. A passage from a notable judgment by my Lord the Chief
Justice, delivered as Chief Justice of the Lahore High Court in the case of Sarfraz Khan v. The
Crown (P L R 1950 Lah. 658 : P L D 1950 Lah. 348) may assist materially in 'elucidating the
position. That judgment was delivered at a time when the declaration of the Governor-General in
relation to the status of Her Majesty Queen Elizabeth II qua Pakistan had not yet been made. The
passage reads as follows :-
"The assent to the bills, however, is still given by the Governor-General and the Governors in the
name of His Majesty but that is because the Crown is the symbol of the free association of the
members ;of the British Common wealth of Nations and not because His Majesty exercises any
control over it in the form of revoking the assent or the authority of the Governor-General or
disallowing the Act. The Governor-General is the head of the Government of the Dominion, and
he is there by reason of the will of that Government and not by the will of the British
Government or that of His Majesty, His Majesty in such matters having no will at all.

True he represents His Majesty for the purposes of the Government of the Dominion but that
does not mean that he is an agent of His Majesty in the sense that His Majesty has delegated any
authority to him- which His Majesty can revoke at will."

Having regard to the change brought about by the Governor-General's proclamation in respect of
the present occupant of the British Throne qua Pakistan, the view expressed in this passage gains
enormous emphasis from the circumstance that, as Head of the Commonwealth, Her' Majesty is
indeed a `mere symbol, although as Queen of Pakistan a more substantial position might perhaps
have been claimed.

The next question to which I propose to address myself is what was the nature of the freedom
which the Indian Independence Act, 1947, was intended to convey ? I .use the expression
"freedom" advisedly, for, it is sufficiently clear from the foregoing that in the description "free
association of free peoples", so often applied to the Dominions, the words "free peoples" must
necessarily be understood in a qualified sense. I conceive that they are meant in the sense of
peoples enjoying- the advantage of representative institutions according to the British pattern,
and that fullness of legislative compe tence does not necessarily follow from the application of
these words. In order to confirm this view, I propose at this stage to. reproduce verbatim from the
Constitutions of the three principal Dominions, namely, Canada, Australia and South Africa,
provisions relating to the powers still reserved in His Majesty to control legislation in these
Dominions.
In Canada, by section 17 of the British North America Act, 1867, it is provided that :-

There shall be one Parliament for Canada, consisting of the Queen, an Upper House styled the
Senate', and the House of Commons."

By section 9 of the same Act, it is provided that " The Executive Government and authority of
and over Canada is hereby declared to continue and be vested in the Queen."

Provision under section 11 is made for the Governor General who is to be aided and advised by a
Council composed of members to be chosen and summoned by him, this Council being
described as "The Queen's Privy Council for Canada". Section 55 of the Act relating to Royal
assent is of the utmost significance. I reproduce it below along with sections 56 and 57, ~as these
form a self-contained legal code, which visibly and expressly reserves power in the Queen to
veto legislation by the Parliament of Canada :-

"55. Where a bill passed by the Houses of the Parliament is presented to the ' Governor-General
for the Queen's assent he shall declare, according to his discretion, but subject' to the provisions
of this Act and to Hey Majesty's instructions, either that' he assents thereto in the Queen's name,
or that he withholds the Queen's assent, or that he reserves the bill for the signification of the
Queen's pleasure.

56. Where the Governor-General assents to a bill in the Queen's name, he shall by the first
convenient opportunity send an authentic copy of the Act to one of Her Majesty's Principal
Secretaries of State, and if the Queen in Council within 2 years after receipt thereof by the'
Secretary of State thinks fit to disallow the Act, such disallowance- (with a certificate of the
Secretary of State of the day on which the Act was received by him) being signified by the
Governor General, by speech or message to each of the Houses of the Parliament or, by
proclamation, shall annul the Act from and after the day of such signification.

57. A bill reserved for the signification of the Queen's pleasure shall not have any force unless
and until, within 2 fears from the day on which it was , presented to the. Governor-General for
the Queen's assent, the Governor General signifies, by speech or message to each of the Houses
of the Parliament or by proclamation, that it. has received the assent of the Queen in Council."

In a judgment of this character it may, I think, be presumed that whore a Governor -General
reserves a bill for the signification of the Royal pleasure, he does so in accordance with general.
instructions received in that behalf from the British Sovereign. In each of the three sections
which are reproduced above the assent of the British Sovereign in person therefore appears with
absolute clearness, as a final controlling force applicable to legislation of the Canadian
Parliament.

The .corresponding provisions in the Australian Constitu tion are as follows. In the
Commonwealth of Australia Constitution Act, 1900, it it is provided by section 1 of Chapter I as
follows :-
"The legislative power of the Commonwealth shall be vested in a Federal Parliament, which
shall consist of the Queen, a Senate, and a House of Representatives, `and which is hereinafter
called `the Parliament', or `the Parliament of the Commonwealth."

By section 2 provision- is made for appointment . by the British Sovereign of a

Governor-General to be the Sovereign's representative in the Commonwealth. Sections 58, 59
and 60 give effect to the control provided by the requirement of Royal assent and are in the
following terms :-

"58. When a proposed law passed by both Houses of the Parliament is presented to the
Governor-General for the Queen's assent, he shall declare, according to his' discretion, but
subject to this constitution, that he assents in the Queen's name, or that he withholds assent!. or
that he reserves the law for the Queen's pleasure.
The Governor-General may return to the House in which it originated any proposed law so
presented to him, and may transmit therewith any amendments which he may recommend,
and ,the Houses may deal with the recommendation.
59. The Queen may disallow any law within one year from the Governor-General's assent, and
such disallowance on being made known by the Governor: General by speech or .message to
each of ' the Houses of the Parliament, or by proclamation,' shall annul the .law from the day
when the disallowance is so made known.

60. A proposed law reserved for the Queen's pleasure shall not have any force unless and until
within 2 years from the day on which it was presented to the .Governor-General for the Queen's
assent the Governor-General makes known, by speech or message to each of . the Houses of the
Parlia ment, or by proclamation, that it has received the Queen's assent."

The same observations as have been made above with reference to the Canadian Constitution are
fully applicable to the restraints so specifically imposed upon the legislative power of "the
Parliament of the Commonwealth."
In the South Africa Act, 1909, section 19 by which the Parliament of the Union was constituted;
reads as under
"The, legislative powers of the Union shall be vested in the Parliament of the Union, hereinafter
called `Parliament', which shall consist of the King, a Senate and a House of Assembly".

By section 9 it is provided that the Governor-General shall be appointed by the King. Section 64
to which reference has already been made may here be reproduced in full with advantage :-

"64. When a 'bill is presented to the Governor-General for the King's assent, he shall declare
according to his discretion, but subject to the provisions of this Act, and to such instructions as
may from time to time be given in that behalf by the King, that he assents in the King's name or
that he withholds assent. The Governor-General may return to the House in which it originated
any bill so presented to him, and may transmit therewith any amendments which he may
recommend, and the House may deal with the recommenda tion."

In the face of these provisions it is obvious, that these great countries can hardly be called
"Independent Dominions",
Their. principal Legislatures work under controls imposed- from without, by force of law.

The Indian Empire, as it was till the grant of independence in 1947, did not enjoy Dominion
Status, but it had been provided by the British Parliament with a series of constitu tions,
progressively liberal in character, under which the Government of the country with its vast
population and extremely complex administrative problems, had been success fully carried on
for a great many years. The last of these constitutions was that contained in the Government of
India Act, 1935, and it falls to be observed that in many essential respects, it provided a degree
of freedom not far removed from that enjoyed by the recognised Dominions. True, by section 2
of the Government of India Act, it was stated, in words of high import that :-

"All rights, authority and, jurisdiction heretofore belonging to His Majesty the King, Emperor of
India, which appertain or are incidental to the Government of the territories in India for the time
being vested in him, and all rights, authority and jurisdiction exercisable by him in or in relation
to any other territories in India, are exercisable by His Majesty, except in so far as may be
otherwise provided by or under this Act, or as may be otherwise directed by his Majesty."

The words, perhaps by design, convey a vast sense of majesty and authority, which despite the
generous distribution effected by the Act could yet be exercised by the Sovereign, free of all
control. Nevertheless, in their effect, they are scarcely to be distinguished from the simpler
words of section 9 of the British North America Act, 1867, relating to Canada. Indeed, if
distinction be sought, in relation to imposition of legal limitations upon the exercise of royal
power, that distinction would appear to lie clearly in favour of the then Indian Empire. But
Canada as a country within the purview of the Statute of Westminster, 1931, enjoyed one
advantage, namely, that the British Parliament could no longer legislate for Canada, except with
the consent of the Dominion. The condition in India - was entirely different. Although very wide
legislative powers had been expressly conveyed to the Indian people by, numerous provisions in
the Government of India Act and intricate provisions were made for exercise of these powers in a
harmonious manner by the Centre and the Provinces among whom those. powers had been
distributed, yet, by section 110, the following over-riding provision was made, viz :-

"Nothing in this Act shall be taken to affect the power of Parliament to legislate for British India,
or any part thereof."

There were other limitations also contained in this section, but these are of minor importance
compared with that appearing from the words reproduced above. Restrictions oil the exercise of
legislative powers were spread all. over the Government of India Act; in several different forms,
but as regards reservation and disallowance, the main provisions relating to the Central
Legislature were contained in a single section, viz., section 32, which is reproduced below:-

"32. (1) When a Bill has been passed by the Chambers, it shall' be presented to the
Governor-General, and the Governor-General shall in his discretion declare either that he assents
in His Majesty's name to the Bill, or that he withholds assent therefrom, or that he reseves the
Bill for the signification of His Majesty's pleasure:
Provided that the Governor-General may in hr's discretion return the Bill to the Chambers with a
message requesting that they will reconsider the Bill or any specified provisions thereof arid, in
particular, will consider the desirability of introducing any such amendments as he may
recommend in his message, and the Chambers shall reconsider the Bill accordingly.

(2) A Bill reserved for the signification of His Majesty's pleasure shall not become an Act of the
Federal Legislature unless and until, within twelve months from the day on which it was
presented to the Governor-General, the Governor-General makes known by public notification
that His Majesty has assented thereto.

(3) Any Act assented to by the Governor-General may be disallowed by His Majesty within
twelve months from the day of the Governor-General's assent; and where any Act 'is so
disallowed the Governor-General shall forthwith make the disallowance known by public
notification, and as from the date of the notification the Act shall become void."

The terms of this section do not vary materially from those which are still in operation in the
senior Dominions of Canada and Australia. 1n the case of laws made by the Provincial
Legislatures, which had their own independent powers of legislation, it was laid down that the
assent of the Governor should be necessary and the Governor should either accord assent, or
reserve the bill for the consideration of the Governor-General, who might in his discretion either
grant or withhold 'the assent or reserve the bill for the signification of His Majesty's pleasure. A
time limit was fixed within which a reserved bill could become law by proclamation of. His
Majesty's assent, as in the case of Federal laws. Finally, there was a specific provision enabling
His Majesty to disallow Provincial Acts within twelve months of the giving of the assent by the
Governor or the Governor-General.

Here again, it seems evident that the position in the Indian Empire was not materially different
from that which the great self-governing Dominions were enjoying. The Governor-General and
the Governors were required to observe Instruments of Instructions issued to them after approval
by the British Parliament in the name of His Majesty, and these contained, inter alia, very precise
directions regard ing the kind of legislation which must be submitted for signification of His
Majesty's pleasure. (These Instruments of Instructions were declared by subsection (4) of section
18, Indian Independence Act to 'lapse as from the appointed day").

A distinction might perhaps appear at this point, in favour of the -older Dominions, viz., that His
Majesty, when exercis ing, the power of granting or' withholding .Royal assent, or disallowing
Acts, would not be advised by His Majesty's Government in the United Kingdom, as was the
case in relation to the Indian Empire. In this respect the position of the Indian Empire
approximated to that of a British Colony or Possession, for the Government of which the British
Parlia ment was directly responsible.

' It will be of advantage, if at this stage, two sections from the Government of India Act, 1935,
relating to the constitution of Legislatures under the Act are reproduced, viz., section 18 relating
to the Federal Legislature and section 60 relating to Provincial Legislatures:-
"18. (I) There shall be a Federal Legislature which shall consist of His Majesty, represented by
the Governor General; and two Chambers, to be known respectively as the Council of State and
the House o#' Assembly (in this Act referred to as "the Federal Assembly").

(2) The Council of State shall consist of one hundred and fifty-six representatives of British
India. and not more than one hundred and four representatives of the Indian States, and the
Federal Assembly shall consist , of two hundred and fifty representatives of British India and not
more than one hundred and twenty-five representatives of the Indian States.

(3) The said representatives shall be chosen in accordance with the provisions- in that behalf
contained in the First Schedule to this Act.

(4) The Council of State shall be a permanent body not subject to dissolution, but as near. as may
be one-third of the members thereof shall retire in every third year in accordance with the
provisions in that behalf contained in the said First Schedule.

(5) Every Federal Assembly, unless sooner .. dissolved, shall continue for five years from the
date appointed for their first meeting and no longer, and the expiration of the said period of five
years shall operate as a dissolution of the Assembly."

"60. (1) There shall for every Province be a Provincial Legislature which shall consist of His
Majesty, represented
by the Governor, and

(a) -in the Provinces of Madras, Bombay, Bengal, the United Provinces, Bihar and Assam, two
Chambers;

(b) in other Provinces one Chamber.

(2) Where there are two Chambers of a. Provincial Legislature, they shall be known respectively
as the Legisla tive Council and the Legislative. Assembly, and where there is only one Chamber,
the Chamber shall be known as the Legislative Assembly."

It is particularly to be noted that as in . the case of each of the Dominions, the sections
expressly , declared His Majesty represented by the Governor-General or the Governor to be a
part of the relevant Legislature.
I now proceed to consider the impact of the' Indian Independence Act in relation to the matters
appearing from the Government of India Act fo which I have referred above, all of which were
materially altered in the course of adaptation by the Governor-General of the Indian Empire in
the exercise, of the powers conferred upon him by section 9 of the Indian Independence Act.. It
should be fairly clear from the preced ing discussion that . the Indian Independence Act, 1947,
possessed in several respects the same character as the Statute of Westminster, 1931, but with
one major difference. It will, I think, be clear from the analysis I am about to attempt, that the
extent of freedom accorded to the countries which, a Dominions, were to replace the Indian
Empire, was in A very material degree greater than that which the older Dominions had gained
in 1931. That, in my view, is the circumstance which justifies the application of the special
description "Independent Dominions" to the two new States which were brought into existence
by means of this highly effective instrument.

Firstly, I take up the provisions for appointment of the Governor-General and the provincial
Governors. The original Government of India Act provision relating to the Governor -General
read as follows :-

"3. (1) The Governor-General of India is appointed by His Majesty, by a Commission under the
Royal Sign Manual and has-.

(a) all such powers and duties as are conferred or imposed on him by or under this Act ; and-

(b) such other powers of His Majesty, not being powers connected with the exercise of the
functions of the Crown in its relations with Indian States, as His Majesty may be pleased to
assign :to him."
In the adapted Government of India Act, 1935, which was in force when Pakistan came into
existence, section 3 reads simply as follows :-

"The Governor-General of Pakistan is appointed by His Majesty. by a Commission under the

Royal Sign Manual."
This, however, is not to be regarded as divesting him of all power, for by section 5 of the Indian
Independence Act, 1947, it was provided that-

"For each of the new Dominions, there shall be a Governor- General who shall be appointed by
His Majesty and- shall represent His Majesty for the purposes of the government of the
Dominion "

The Royal Commission which issues under His Majesty's in signature contains the following
significant provisions. Firstly, the appointment is "during our pleasure". Secondly, the in
Governor-General is to have "all the powers, rights, privileges and advantages to the said official
belonging or appertaining"

and it would appear that neither the British Sovereign nor the British Parliament possess any
longer the authority to vary these powers, rights, privileges and advantages. On the date of the
creation of Pakistan, and at least until just before the 24th October, 1954, such a power could be
regarded as belonging to no person or body, other than this Constituent Assembly of Pakistan.
Next, the Governor-General is authorised, empowered find commanded to perform the powers
and duties conferred and imposed upon him by and under the Indian Independence Act, 1946.
These powers and duties are also no longer subject to regulation by either the British Sovereign
or the British Parliament. Only one of the Royal prerogatives is specifically conveyed to the
Governor-General, namely, that of pardon, and is conferred in the following terms :

"We-do hereby authorise and empower you in our name and on our behalf to grant to any
offender convicted in the exercise of its criminal jurisdiction by any Court of Justice within our
territories in Pakistan a pardon, either free or subject to such lawful conditions as you may deem
fit." There are no instructions or authorizations in relation to legislation, e.g., with respect to
grant or assent, and even the prerogative of summoning, proroguing and dissolving the
Legislature is not conveyed.

The contrast with the case of Governor-General of the older Dominions is almost startling. In
South Africa which Mr. Diplock urged was as "independent" as Pakistan, the following
authorizations are found in the Letters Patent, viz., (a) to fulfil his duties "according to our
instructions"; (b) to keep and use the Great Seal ; (c) to summon, prorogue and dissolve the
Union Parliament ; (d) to appoint deputies to himself ; and (e) to exercise the prerogative of
mercy. In Canada and Australia, the Governor-General is authorised to appoint Judges,
commissioners, justices of the peace, Ministers, and other officers "in our name and on our
behalf", and also to suspend and remove such persons, under instructions given by, or under the
authority of, the King. In each case, the Governor-General is forbidden to quit the Dominion on
any pretence whatsoever, except under the Sign Manual of the King, on the ground, expressed in
the Canada Royal Instruc tions, 1931, that "great prejudice may happen to our service and to the
security of our said Dominion" otherwise.

One cannot fail to observe that the formal order made by the British Sovereign, in relation to the
Pakistan Governor General contains no instructions or prohibition at all. He is merely enjoyed to
perform his duties under the interim Constitution, which itself provides for the grant of the Royal
prerogative of mercy in section 295, Government of India Act, 1935. It could hardly appear more
clearly that the Governor-General owes nothing to the British Sovereign except his warrant of
appointment, issued upon the recommendation of the Government of Pakistan. No duty of any
kind is prescribed which he owes to Her Majesty, except that o g being "faithful ', appearing in
the oath. which Her Majesty is pleased to accept. The appointment, by_ its terms affirms and
emphasises that the Governor-General's duty or as it might be termed "allegiance", is to the
Constitution, as in existence from time to time.

With respect to Governors, the earlier position was that each Governor was appointed by His
Majesty by a Commission under the Royal Sign Manual, but under the adapted Government of
India Act, 1935, the new provision reads as follows :-

"48. The Governor of a Province holding office as from the date of the establishment of the
Federation is, appointed by His Majesty by a Commission under the Royal sign Manual but any
person appointed thereafter to be the Governor of a Province shall be appointed by the Governor
General and shall hold office at the Governor-General's pleasures." ,

A provision similar to the latter part of the section cited above was also included in the British
North America Act, 1867, but as has been seen in the Maritime Bank case cited above, such a
provision was not regarded as sufficient for holding that the Lieutenant-Governor of a' province
in Canada was not a representative of His Majesty, because the same Act expressly vested the
Executive Government of Canada in the Queen. The corresponding provision in section 2 of the
Government of India Act, 1935 (cited above, was entirely omitted, in advance of the creation of
Pakistan in the course of adaptation and, consequently; it would appear difficult to suppose,
under. the existing provisions, that Governors of Provinces other than those who were holding
office at the time when Pakistan came into being, are appointees of or owe their position in any
respect . to, the British Sovereign.
The impression is thus clearly gained that the effective presence of the British Sovereign in the
new State of Pakistan was confined to the connection still retained by virtue of the power of
appointment of the Governor-General being by law vested in Her ,Majesty. That furnishes, in my
opinion, a precise indication of the measure of freedom which Pakistan possessed, at its creation,
by virtue of the legislative and other actions taken by the King and the British Parliament.

In all but name, the Governor-General was free of all connec tion with the British Sovereign ;
and in point of control, he was altogether free.

At this stage it will be convenient for me to state my opinion. regarding an argument raised by
Mr. Diplock con cerning the use to be made of adaptations of the Government of India Act
effected by the then Governor-General, in advance of the creation of the new Dominions, under
the powers given by section 9 of the Indian Independence Act. I am unable to agree with Mr.
Diplock that these are acts of a subordinate or delegated character and therefore .cannot be called
in aid for the purpose of interpreting the meaning of words contained in the Indian Independence
Act and the intention underlying those words. This is a proposition which may be appropriate to
many types of legislation, but it cannot, in my view, be sustained in relation to an organic
document such as the Indian Independence Act. By section 9 of that Act, the Governor-General
was given power equivalent to that of the British Parliament to make all changes in the
Government of India Act which were necessary for the purpose of carrying out the intentions
underlying the specific provisions of that Act. The Governor-General of that time, namely, Lord
Mountbatten, was not a mere statutory authority working within the four corners of the
Government of India Act, 1935, as a number of his predecessors had been. He acted, for
instance, as a plenipotentiary of His Majesty's Government in the United Kingdom, for the
purpose of carrying out the design of that Government to provide the peoples of the Indian
Empire with machinery appropriate for the purpose of enabling them to draw up a new
Constitution for themselves, and to decide at the same time whether or not they would remain
within the British Empire. Similarly, under section 9 of the Indian Independence Act, the power
which the Governor-General exercised was not exercised by him as merely an instructed agent,
for it is a matter of public general knowledge that Lord Mountbatten had been most intimately
associated with both the peoples of the Indian Empire as well as- the members of His Majesty's
Government in the United Kingdom, in settling details of the great com promise which was
eventually. found acceptable to both parties. Any action. taken by a person in that position,
which in its nature, is susceptible of only one explanation in point of intention must, in my view,
be regarded as furnishing a very powerful indication of the intention underlying the provision in
the Indian Independence Act, which was thereby carried into effect. Exactly the same holds good
in the case of the first Governor-General, of Pakistan, the late Quaid-e-Azam Muhammad Ali
Jinnah, for he too had been associated in the closest manner with the negotiations of 1946-47
which preceded the elimination of the British power in the sub continent of India, and having
been designated as the first Governor-General of Pakistan well in advance of that event, may be
assumed to have been directly concerned in the decisions relevant to the adaptations which were
necessary in the case of Pakistan. .

The important changes in the Government of India Act relating to the exercise of the 'legislative
power in respect of the future Dominion as a whole may now be considered. The Government of
India Act provided, as has already been stated, a very precise distribution of legislative powers
between the Centre and the Provinces, and as section 8, subsection (2) of the Indian
Independence Act clearly shows, it had been agreed that each of the Dominions should continue,
during the interim period, to be governed in all respects according to that Act as adapted, and
subject to any alterations therein which might be subsequently effected by the Constituent
Assembly. The wording of this provision is important and it is accordingly reproduced below in
full

"8 (2). Except in so far as other provision is made by or in accordance with a law made by the
Constituent Assembly of the Dominion under subsection (1) of this section, each of the new
Dominions and all Provinces and other parts thereof shall be governed as nearly as may be in
accordance with the Government of India Act, 1935 ; and the provisions of that Act, and of the
Orders in Council, rules and other instruments made thereunder, shall, so far as applicable, and
subject to any express provisions of this Act, and with such omissions, additions, adaptations and
modifications as may be specified in orders of the Governor-General under the next succeeding
section, have effect accordingly provided that-

(a) the said provisions shall apply , separately in relation to each of the new Dominions and
nothing in this subsection shall be construed as continuing on or after the appointed day any
Central Government or Legislature common to both the new Dominions ;

(b) nothing in this subsection shall be construed as con tinuing in force on or after the appointed
day any form of control by His Majesty's Government in the United Kingdom over the affairs of
the new Dominions or of any Province or other part thereof ;

(c) so much of the said provisions as requires the Governor-General or any Governor to act in his
discretion or exercise his individual judgment as respects any matter shall cease to have effect as
from the appointed day ;

(d) as from the appointed day, no Provincial Bill shall be reserved under the Government of
India Act, 1935, for the signification of His Majesty's pleasure and no Provincial Act shall be
disallowed by His Majesty thereunder.; and

(e) the powers of the Federal Legislature or Indian Legislature under that Act, as in force in
relation to each Dominion, shall, in the first instance, be exercisable by the Constituent
Assembly of the Dominion, in addition to the powers exercisable by that Assembly under
subsection (1) of this section."

At this stage I invite particular reference to provisos (b), (c) and (d) in this subsection. By these
provisos, the power of His Majesty's Government in the United Kingdom over the affairs of
Pakistan and its Provinces was .completely eliminated. The pre-existing requirement that the
Governor- General and the Governors should in certain respects act in their discretion (i.e.,
independently of the elected Ministers) or in their individual judgments (i.e. according to their
own judgment although after consultation with the elected Ministers) were -also- removed
and .the removal is- significant powers given by section 9 of the Indian Independence Act. I am
unable to agree with Mr. Diplock that these are acts of a subordinate or delegated character and
therefore .cannot be called in aid for the purpose of interpreting the meaning of words contained
in the Indian Independence Act and the intention underlying those words. This is a proposition
which may be appropriate to many types of legislation, but it cannot, in my view, be sustained in
relation to an organic document such as the Indian Independence Act. By section 9 of that Act,
the Governor-General was given power equivalent to that of the British Parliament to make all
changes in the Government of India Act which were necessary for the purpose of carrying out
the intentions underlying the specific provisions of that Act. The Governor-General of that time,
namely, Lord Mountbatten, was not a mere statutory authority working within the four corners of
the Government of India Act, 1935, as a number of his predecessors had been. He acted, for
instance, as a plenipotentiary of His Majesty's Government in the United Kingdom, for the
purpose of carrying out the design of that Government to provide the peoples of the Indian
Empire with machinery appropriate for the purpose of enabling them to draw up a new
Constitution for themselves, and to decide at the same time whether or not they would remain
within the British Empire. Similarly, under section 9 of the Indian Independence Act, the power
which the Governor-General exercised was not exercised by him as merely an instructed agent,
for it is a matter of public general knowledge that Lord Mountbatten had becn most intimately
associated with both the peoples of the Indian Empire as well as- the members of His Majesty's
Government in the United Kingdom, in settling details of the great com promise which was
eventually. found acceptable to both parties. Any action. taken by a person in that position,
which in its nature, is susceptible of only one explanation in point of intention must, in my view,
be regarded as furnishing a very powerful indication of the intention underlying the provision in
the Indian Independence Act, which was thereby carried into effect. Exactly the same holds good
in the case of the first Governor-General, of Pakistan, the late Quaid-e-Azam Muhammad Ali
Jinnah, for he too had been associated in the closest manner with the negotiations of 1946-47
which preceded the elimination of the British power in the sub continent of India, and having
been designated as the first Governor-General of Pakistan well in advance of that event, may be
assumed to have been directly concerned in the decisions relevant to the adaptations which were
necessary in the case of Pakistan. .

The important changes in the Government of India Act relating to the exercise of the 'legislative
power in respect of the future Dominion as a whole may now be considered. The Government of
India Act provided, as has already been stated, a very precise distribution of legislative powers
between the Centre and the Provinces, and as section 8, subsection (2) of the Indian
Independence Act clearly shows, it had been agreed that each of the Dominions should continue,
during the
interim period, to be governed in all respects according to that Act as adapted, and subject to any
alterations therein which might be subsequently effected by the Constituent Assembly. The
wording of this provision is important and it is accordingly reproduced below in full
"8 (2). Except in so far as other provision is made by or in accordance with a law made by the
Constituent Assembly of the Dominion under subsection (1) of this section, each of the new
Dominions and all Provinces and other parts thereof shall be governed as nearly as may be in
accordance with the Government of India Act, 1935 ; and the provisions of that Act, and of the
Orders in Council, rules and other instruments made thereunder, shall, so far as applicable, and
subject to any express provisions of this Act, and with such omissions, additions, adaptations and
modifications as may be specified in orders of the Governor-General under the next succeeding
section, have effect accordingly
provided that-
(a) the said provisions shall apply , separately in relation to each of the new Dominions and
nothing in this subsection shall be construed as continuing on or after the appointed day any
Central Government or Legislature common to both the new Dominions ;
(b) nothing in this subsection shall be construed as con tinuing in force on or after the appointed
day any form of control by His Majesty's Government in the United Kingdom over the affairs of
the new Dominions or of any Province or other part thereof ;
(c) so much of the said provisions as requires the Governor-General or any Governor to act in his
discretion or exercise his individual judgment as respects any matter shall cease to have effect as
from the appointed day ;
(d) as from the appointed day, no Provincial Bill shall be reserved under the Government of
India Act, 1935, for the signification of His Majesty's pleasure and no Provincial Act shall be
disallowed by His Majesty thereunder.; and
(e) the powers of the Federal Legislature or Indian Legislature under that Act, as in force in
relation to each Dominion, shall, in the first instance, be exercisable by the Constituent
Assembly of the Dominion, in addition to the powers exercisable by that Assembly under
subsection (1) of this section."
At this stage I invite particular reference to provisos (b), (c) and (d) in this subsection. By these
provisos, the power of His Majesty's Government in the United Kingdom over the affairs of
Pakistan and its Provinces was .completely eliminated. The pre-existing requirement that the
Governor General and the Governors should in certain respects act in their discretion (i.e.,
independently of the elected Ministers) or in their individual judgments (i.e. according to their
own judgment although after consultation with the elected Ministers) were -also- removed
and .the removal is- significant in this respect that by specific provisions in the Government of
India Act and the instructions issued to the Govern General and the Governors, these powers
were to be exercise in consultation with the Secretary of State for India London, who was in the
last resort to be the deciding authority. Thirdly, there was an express prohibition against
reservation of Provincial laws for signification of His Majesty's pleasure and equally express
withdrawal : of His Majesty's power disallow such laws, both to take effect upon, a. . date in t
future, which in the case of Pakistan was fixed as the 14th August, 1947. .

The terms of the last-mentioned provision are, in n opinion, of high significance. In respect of
the laws applicable in the whole of the Dominions, the -corresponding provision was in
subsection (3) of section 6, and is contained in the following words :-

"so much of any Act as relates to the disallowance law by His Majesty or the reservation of laws
for the signification of His Majesty's pleasure thereon or the suspension of the operation of laws
until the signification of His Majesty's pleasure thereon shall net apply to laws . c the Legislature
of either of the new Dominions."
As has been seen, provisions for disallowance and reservation of Central laws were contained in
the Government of India Act, 1935, and it appears that such provisions might also be found in
other Acts of the British Parliament. As regard suspension, the only example brought to the
notice -of the Court was a provision contained in the Colonial Courts o Admiralty Act, 1890,
which did apply to the Indian Empire The point which emerges, and which is, to my mind, of the
greatest importance, is that whereas the wording in relation to Provincial laws is in absolute and
peremptory terms of immediate application on the appointed date the provision relating to the
"Legislature of the Dominions" is expressed in terms of simple futurity. This is relevant, anal in
my opinion appreciably so, to the contention raised on behalf of the petitioner in the present case
that the British Parlia ment in the Indian Independence Act having indicated some forms of
legislative activity appropriate to a Legislature whose Acts were to have force throughout the
Dominion, designedly refrained from constituting such a Legislature. Since it was concerned
only to make provision for an interim period to precede the establishment of the new
Constitution which was to be drawn up by the Constituent Assembly, the British Parliament was
content to provide for exercise of those legislative powers only,-vide section 8, subsection (1)
and proviso (e) to subsection (2), Indian Independence Act: Therefore, the "Legislature of the
Dominion" being intended to assume concrete from at a date in the future, under and in
accordance with the decision of the Constituent Assembly it was deemed sufficient to provide
that the laws of such a Legislature, assuming that the country still remained a Dominion, would
not be subject to the' restrictions and controls which were part of the heritage of .the other
Dominions and had also by statute been imposed upon the pre-existing Indian Empire. As for
laws of the Constituent Assembly made in the interim period, that Assembly being a sovereign
body, it was unnecessary and might have been thought derogatory to its position, for a
Legislature not superior in status, to provide that such laws should be not subject to controls
exercisable by the British Sovereign. But as for the Provincial Legislature, they were either in
being, or were to be consti tuted for newly-created Provinces by the Governor-General under
section 9 (1) (i), Indian Independence Act, and -they were to act under the terms of the adapted
Government of India Act, 1935, as from the appointed day. Their existence and powers being
actual on the appointed day, the words used to free those powers from all control by His Majesty
needed to -be absolute and peremptory in their effect.

In my opinion, the language in which the relevant controls were sought to be eliminated in
relation to laws of "the Legislature of the Dominion" furnishes a strong clue to the time when the
words were to take effect, and the nature of that effect. Putting the matter in a single sentence, I
would say that these words constituted a promise that, should the count remain a Dominion, and
should e, as course could a more confidently expected, a Union Legislature, then unlike the great
self-governing Dominions of - Canada, Australia and South Africa, Pakistan would be wholly
free of any control of an kind exercisable- over the laws of the Union legislature by His Majesty.,
But the difference of language also include me to think that section 6 (3) of the, Indian
Independence Act was - not drafted on the assump tion that on the appointed date, there would
be a "Legislature of the Dominion" in existence in Pakistan.

Section 6 of the Indian Independence Act contains provisions of the highest significance,
couched in language of subtle and comprehensive nature, whose interpretation is a task, as the
lengthy arguments in the present case clearly show, of no mean magnitude. Subsection (2) of
section 6 is in almost precisely the same terms as subsection (2) of section 2 of the Statute of
Westminster. Taken by itself, this provision would necessarily be understood .a instituting the
people of Pakistan a "free people" in a sense no higher than that which, as has already been
-seen, must be accepted in relation to the free peoples of Canada, Australia and Newzealand
subsection (4) of section 6 of Independence Act corres ponds to section 4 of the Statute of
Westminster. It provides that Acts of the British Parliament passed after the transfer of power
should not extend or be deemed to extend to Pakistan, unless extended to Pakistan "by a law of
the Legis lature of the Dominion". (In the Statute of Westminster, the condition is differently
expressed as follows, viz., "unless it is expressly declared in that Act that that Dominion has
requested, and consented to, the enactment thereof".) Subsection (5) provides similar immunity
from the operation of Orders-in-Council, and other orders, rules and instru ments made under
Acts of the British Parliament, passed after the transfer of power. Subsection (1) of section 6 is/
in the following terms:-
"The Legislature of each of the new Dominions shall have full power to make laws for that
Dominion, including laws having extra-territoral operation."

This may be compared with section 3 of the Statute of Westminster which reads as follows:

"It is hereby declared and enacted that the Parliament of a Dominion has full power to make laws
having extra territorial operation."

This provision was interpreted in The British Columbia Electric Co., Ltd. v. The King ((1946) 4
Dominion Law Reports, p. 81,) in the following terms:

"The specific investment of extra-territorial power by section 3 of . the Statute of 1931 was
designed no doubt to remove the generally accepted limitation of colonial legisla tive
jurisdiction, a limitation which the Courts of the colony itself were bound to recognise."

It may be pointed out that in the original Government of India Act by section 99 (2),
extra-territorial operation had been allowed within specified limits to laws . of the Federal
Legislature of India. The effect of the relevant clause in section 6 of the Indian Independence
Act, would naturally be to remove these limitations, and accordingly it is found that section 99
was adapted,. before the transfer of power, so as to eliminate the subsection making this
provision.

It yet remains to consider why it was thought necessary by the British Parliament to declare, in
the clear language of futurity, that "the Legislature of the Dominion" should have "full power to
make laws for that Dominion". Having equipped the Dominion at its very birth with a
Constituent Assembly whose function would be to make provision for exercise of legislative
powers including the legislative power which was to vest in the Union or Federation, it might
have been thought sufficient for the British Parliament to remove by express words, all the
controls of any kind which had previously operated on such laws, through operation of laws of
the British Parliament or through the exercise of the Royal prerogative.

The Government of India Act, 1935, as originally enacted contained a number of scattered.
provisions operating in restraint of the power of the Federal Legislature to pass laws within the
sphere allotted to it in the distribution of the powers effected by that Act. Thus, under section
116, which has been referred to already, there are words which clearly debar the Federal
Legislature or any Provincial Legislature from making laws, inter alia, affecting the British
Sovereign or the Royal Family, Succession to the Crown, the sovereignty of the Crown in any
part of India, the law of British nation ality, the Army Act, the Air Force Act, the Naval
Discipline Act, or the law of Prize or Prize Courts; it was forbidden also for these Legislatures to
make any laws amending any provision of the Government of India Act, 1935, or any
subordinate legislation thereunder, except to the extent per mitted expressly by the Act; and
finally subject to the same condition, they were forbidden to legislate so as to take away the
prerogative right of His Majesty to grant special leave - - - appeal from any Court .(i.e., to the
Privy Council). Another of mode of restraint appears in section 108 which contains a lengthy list
of subjects in regard to which the introduction of any bill in the Federal Legislature would
require the previous sanction of the Governor-General in his discretion, i.e., acting within that
sphere of his executive power which was controlled by His Majesty's Government in the' United
Kingdom.

It should be remembered that the Indian independence Act was passed in advance of the
adaptations which were made in the stage immediately prior to the transfer of power. Two of
these adaptations were the entire elimination of section 108 and section 110 and it may safely, be
said that all other provisions of a similarly restraining nature were also removed in the same
process. The conclusion would appear to be plain that the complete removal of these powerful
restraints was a necessary consequence of the employment by the British Parliament, whose
intention was being carried out in course of the adaptations, of the expression "full power to
make laws". The word "full" in that aspect would perhaps be completely translated as
"unrestrained". .

It was stated from time to time in the course of arguments' that the Constituent Assembly derives
power to make laws for the Dominion from section 6 (1), ,but with great respect, it seems to me
that the interpretation overlooks the, fact that the Constituent Assembly' was, as a body, not a
creation of the British Parliament. It is, in my opinion, to be regarded as a body created by a
supra-legal power on Constitution for the supra-legal function of preparing a Pakistan. Its powers
in respect belonged to itself inherently, by virtue of its being a body representative of the will of
the people in relation to their future mode of Government. The will of the people had, up to that
time, been denied expression in this respect, through the presence, by virtue of conquest and
cession, of the undisputed and plenary executive power in India of the British Sovereign, which
was being withdrawn by unilateral act. That power did not owe its existence to any law, though
its exercise ma have time to time progressively been reduced to regulation b laws of the British
Parliament and of the Indian Empire.

I draw a sharp distinction between the function of providing for the government of the Indian
Empire and the function of governing the Indian Empire. The latter function was to be carried
out by the Governor-General, of, India and his subordinates acting in accordance with
instructions received from His Majesty's Government in the United Kingdom in certain respects,
and in other respects in accordance with the provisions of the statutory instrument then in force,
viz., the Government of India Act, 1935. That Act, however, must not itself be included in the
complex which may be described as the "Government of India". It was set apart from and above
that complex, the whole of which was conducted in accordance with the strict terms of that Act.
The making of that Act, and the replacement and amendment of that Act, on the other hand,
belong to the sphere of making provision for the government of the Indian Empire, and that was
until the 14th August, 1947, a function exclusively to be discharged by the British Parliament of
which the British Sovereign is an integral part. For the purpose of making such provision, the
British' Sovereign has invariably made the Royal prerogatives available to the British Parliament
so that their operation might be provided for, so far as necessary, in the constitutional instrument
to be enacted. It is quite clear that the Latter function which is obviously the higher of the two
functions, was entrusted to the Constituent Assembly of Pakistan. .
The nature of the freedom from external control of the Governor-General having already been
considered, . and found to be absolute so long as he remained faithful to His Majesty", it is now
possible to answer - the question posed at the commencement of this discussion. That answer
may be considered under three heads:-

(i) What was the nature of the autonomy, in the legis lative sphere, which - the British Parliament
intended to convey by means of the Indian Independence Act, 1947, and the adapted
Government of India Act, 1935?

(ii) Did the autonomy include power to interpret and apply the provisions in these constitutional
instruments as the successor authorities thought best?

(iii) How did these successor authorities interpret and apply the provisions, in respect of the
matter now in dispute, and what weight is to be allowed to the interpreta tions as they appear
from the actions of these persons or bodies?
It should be quite clear from the foregoing discussion . that, in a legal sense, the older Dominions
to which in 1926 the description "autonomous communities within the British Empire, equal in
status, in no way subordinate one to another in any aspect of their domestic or external affairs",
had been applied, were in respect of legislation at least, not so blessed as was Pakistan when it
emerged as an "Independent Domi nion". In the case of Pakistan, the statute which created the
new State, was prepared with meticulous attention to the elimination in detail of every provision
of law which had hitherto operated to impose controls upon the executive government and
Legislatures in the territory. Existing laws were retained, whether they operated as part of the
law of the territory, or as part of the law of the United Kingdom, but there was provided, a
Constituent Assembly which being empowered to furnish if it : so chose, a completely new
Constituent assembly which being empowered to furnish, if it so chose, a completely new
Constituent for the country, was not to be regarded bound by any law in existence, unless it
choose to be so bound. In relation to constitutional provisions, it exercised exercises the powers
of the British Parliament, which were in that respect, untramelled by any laws. By way of a
practical expedient, it was declared in section 8, Indian Independence Act, that
(a) "the powers of the Legislature of the Dominion shall for the purpose of making provision as
to the Constitu tion of the Dominion, be exercisable in the first instance by the Constituent
Assembly" and (b) "the, powers 'of the Federal Legislature or Indian Legislature under , (the
Government of India) ' Act, as in force - in relation to each Dominion, shall in the first instant, be
exercisable by the Constituent Assembly."

It will be necessary, .in connection? with an argument to be dealt with later, to decide whether
these provisions have
the effect contended for by the appellants of (i) prescribing the powers of the "`Legislature of the
Dominion" as being the aggregate of "powers for the purpose of making provision for the
Constitution of the Dominion" and "powers of the Federal, or Indian Legislature under the
Government of India Act" and (ii) making the Constituent Assembly, since these powers were
exercisable by it, identical with the "Legislature of the Dominion" as so composed. It may save
discussion at a later stage, if I utilise this occasion to say that proposition (i) involves usurpation
by the British Parliament of a very essential part of the power which had expressly been
delivered over to the Constituent Assembly, namely to provide a Cons titution for Pakistan, in
which there might or might not be a "Legislature of the Dominion," and if there were such a
Legislature, to prescribe its powers and functions. To my mind, such an inference is obnoxious to
the entire plan which His Majesty's Government in the United Kingdom. implemented through
the enactment by the British Parliament of the Indian Indepen dence Act. And it seems to me that
to identify an existing body of persons such as the. Constituent Assembly clothed with sovereign
power to provide a new Constitution for the country, with an entirely different and as yet
notional body, whose constitution and. powers were yet to be shaped by the Constituent
Assembly, involves an operation in thought of extreme difficulty. It stands out most prominently,
in this context, that the Indian Independence Act uses no words to relate "the vow of the Federal
Legislature or the Indian Legislature under the Government of India Act with any future power
of the "Legislature o t e Dominion".

The reason seems obvious, namely, that it was for the Con stituent Assembly to say, what should
be the powers of the "Union Legislature", and they were in no way bound to follow the pattern
provided by the Government of India Act, 1935. In marked contrast with the Constitutions of
other Dominions, all of which have been enacted by the same British Parliament, the Indian
Independence Act refrains from cons tituting any "Legislature of the Dominion". The references
to it are confined to mentioning, in scattered sections, , certain powers which it could exercise,
and certain matters with which it might deal. There are only eleven such provisions, and putting
all these together, they cannot,, in the remotest degree, be thought to meet the enormous
complexities involv ed in a distribution of legislative powers between the Centre (or Dominion)
and the Provinces. Therefore, to refer to the expression "full power to make laws for the
Dominion" as conferring plenitude of power is not helpful, and the delibe rate avoidance of any
words to suggest that, on the appointed day, the "Federal Legislature or the Indian Legislature"
was to be replaced by the "Legislature of the Dominion" makes it clear beyond doubt, that no
definition of the "Legislature of the Dominion" by reference to the powers which it was to
exercise was attempted in the Indian Indepen dence Act. For that, the- plain reason is that it was
for the Constituent Assembly to provide for (a) the Constitution and (b) the powers of tl?e Union
Legislature, or the "Legisla ture of the Dominion".

But to return to the question of the legislative autonomy which can be construed out of the Indian
Independence Act, I think I can safely predicate on the basis of what I have already said, that it
was intended to be absolute, the existing laws as adapted being retained only for the purpose of
conti nuing the Government of the country on a stable and uniform basis, pending the
preparation and promulgation of a new Constitution. The British Parliament was so meticulous in
this regard that it was even at pains to include in the Indian Independence Act, two provisions
designed to produce the effect that the limitations upon legislative powers which were contained
in the Government of India Act, 1935, should be deemed to be of Dominion origin. By
subsection (6) of section 6, the following provision was made -.-

"The power referred to in subsection (1) of this section (i.e., full power to make laws for the
Dominion) extends to the making of laws limiting for the future the powers of the Legislature of
the Dominion."
Learned counsel on the two sides were at a loss to explain the purpose of this provision. It was
referred to for the appellants as conveying indubitably a power of making Constitutional laws, to
the "Legislature of the Dominion", but that appears in clearer terms from section 8 (1) of the
same Act. It might have been thought that an' autonomous Legislature, such as was intended by
subsections (1) and (2) of the same section, would possess the capacity to limit its own
legislative compe tence, e.g., in the interest of a harmonious operation of legisla tive powers
distributed between the Centre and the Province. Such a distribution already existed, and might
conceivably have been thought to be likely to continue under the future arrangements.

In my opinion, the true explanation of section 6 (6) is to be found in the presence of section 8 (3)
of the Indian Inde pendence Act, which reads as follows : .

"(3) Any provision of the Government of India Act, 1935, which, as applied to either of the new
Dominions by subsection (2) of this section and the orders therein referred to, operates to limit
the power of the legis lature of that Dominion shall, unless and until other provision is made by
or in accordance with a law made by the Constituent Assembly of the Dominion in accordance
with the provisions of subsection (1) of this sec tion, have the like effect as a law of the
Legislature of the Dominion limiting for the future the powers of that Legislature."

The operation of "deeming" involves the supposition that a thing is that which is not. All the
limitation on the powers of the legislature of the Dominion" with a small `1' indicating as Mr.
Diplock thought, that the reference might be to the .Legislature, which had power to legislate for
the whole of British India before the transfer of power were limitations imposed upon it by the
British Parlia ment. The delicate design and intention of section 6 (6) and section 8 (3) seems
clearly enough to be, to cause it to appear, for the satisfaction of all those who were sensitive to
controls from outside the country, that the limitations were of local origin, and-for the time being
only, until the Cons tituent Assembly should see fit to remove or alter them.

As the Governor-General's power of granting assent to laws of the Legislature of the Dominion"
was uncontrolled from without, complete autonomy was secured to the new Dominion in the
legislative sphere, by virtue of the 'terms employed in the relevant documents, if and when it
should be equipped with a Legislature of the Dominion". In the interim period, the position was,
if anything superior, in point of freedom, for the Constituent Assembly, 'which was to legislate in
the place both of the self-effaced British Parliament, as well as of the dissolved Federal of Indian
Legislature, was a body which ex hypothesis was free of all forms of legal or other control.

But, in the operation of a Constitution, there frequently arise occasions where the meaning of one
or more of its provisions,' or the intention in a particular respect of the instru ment as a whole,
gives rise to doubt. With respect to th
necessity of assent by the Governor-General to laws of constitutional nature passed by the
Constituent Assembly, this doubt arose at a very early stage. The Court is indebt to the learned
Advocate-General of Pakistan for the assertion, made on more than one occasion, that the Law
Ministry of the Government of Pakistan (by which was meant the body of permanent officials
constituting the staff of the Minister under the Law . Minister) had consistently advised the
Minister that such assent was sine qua non. On the other hand, the Constituent Assembly had
throughout maintained the view that assent was not necessary, and acting on that vie, had made
and promulgated a rule, No. 62 in the Rules o the Constituent Assembly to give formal
expression to that view. This rule, as originally framed on the 24th February I, 1948, at a meeting
presided over by the President, the late Quaid-e-Azam Muhammad Ali Jinnah, merely provided
that when a Bill had been passed by the Assembly, a copy of it should be signed by the
President. As this was not followed by any provision for submission to the Governor-General for
his assent, it was understood to provide a sufficient formal act to give validity as law to the Bill
as passed, but it appears that doubts were felt on this subject, and the rule was amended at a
meeting presided over by the Deputy President, Mr. Tamizuddin Khan, and held on the 22nd
May, 1948, to read as follows :-

When a Bill is passed by the assembly a copy thereof shall be signed by the President, and it
shall become law on being published in the official Gazette of Pakistan under authority of the
President."

No words could express more clearly the opinion of the Constituent Assembly, passed nearly
seven years ago, on the question which is now before the Court. I quote here from Craies on
-Statute Law, 5th Edn. at page 11 :-

"Parliament is the supreme authority for interpretation of Statutes parliament has power to
declare by statute the common law or the meaning of any prior statute, and may declare wrong
and repeal any -judicial legislation effected by interpretation or misinterpretation of statutes, and
may make the declaratory - or repealing statute retrospective."

It is argued, however, for the appellants ,that a rule of the Constituent Assembly is not a law. The
proposition, on the face of it, seems valid, but it is permissible to observe that there are several
other rules made by the Constituent Assembly, which it alone was competent to make, which
have been acted upon, and which in their character and essence are not only laws in the most
thorough-going sense, but must also be placed in the very highest category of laws, viz., constitu
tional laws. I cite three instances below. Rule 6 of the Rules makes elaborate provision for filling
of "casual vacan cies" in the membership of the Assembly. By the first pro viso to subsection (3)
of section 19 Indian Independence Act, 19.47, it was declared that "nothing in this subsection
shall be construed as preventing the filling of casual vacancies in the (Constituent Assembly of
Pakistan). . . and the powers of, the said (Assembly) shall extend; an& be deemed always to have
extended, to the making of provision for the matters specified in this proviso".

I do not construe this proviso. as conferring any power upon the Constituent Assembly which it
did not inherently possess ; it is obviously intended for the avoidance of doubts which might.
have been founded on the wording of sub section (3). But it would seem' clear enough that, in the
eye of the British Parliament, the matter was one of "powers" and not merely of administrative or
incidental or ancillary nature so that the exercise of the power in question would, I apprehend,.
lead to the creation of law.

Next, I refer to Rule 6-B which provides for "Disqualifi cation from membership", and lays
down a large number of conditions which individually shall be sufficient to cause vacation of his
seat by a member. In one case, the President is enjoined to direct, upon -being satisfied of the
conditions, that the disqualified member ceases to be a member and to declare his seat vacant ;
and it is further provided that the President's decision shall be final and shall not be questioned in
any Court of law or before any other authority. A fine of rupees five hundred per day,
recoverable as a debt to the Federation, is prescribed for any person who sits or votes as a
member of the Constituent Assembly, while under the disqualification or prohibition. that by this
rule, the constituent assembly purported to make law.`

Rules 75 to 86 of the Rules relate to "Doubts and Disputes as to Elections" to membership of the
Constituent Assembly. No possible doubt can be entertained regarding these rules that they
constitute law. It is true that they were not made in the form prescribed for a statute, but there is
authority for the view that in the case of a sovereign body, like the Constituent Assembly, it is
the substance and not the form which determines whether the expressed will of such a body
constitutes law. I reproduce a below the observations of a learned an much respected American
authority on Constitutional Law. In Cooley's Constitutional Limitations, Eighth Edition, at page
266, at the commencement of the chapter entitled "On the Enactment of Laws", there occurs the
following passage, which. is deserving of careful study

"When the supreme power of a country is wielded by a single man, or by a single body of men,
any discussion, in the Courts, of the rules which should be observed, the enactment 'of laws
must. generally be without 'practical value, and in fact impertinent; for, whenever the unfettered
sovereign power of any country expresses its will in the promulgation of a rule of law, the
expression must be conclusive, though proper and suitable forms may have been wholly omitted
in declaring it. It is necessary attribute of sovereignty that the expressed will of the sovereign is
law; saw an while 'we may question and cross-question the words employed, to make certain of
the real meaning, and may hesitate and doubt concerning it, yet, when the intent is made out, it
must govern, and it is idle to talk of forms that should have surrounded the expression, but do
not."

But even if statutory authority be not conceded in favour of rule. 62, on the ground discussed
above, it cannot be denied that it embodies a "parliamentary exposition" - of the highest
importance. I quote again from Craies on,Statute Law, p. 137:-

"But Acts of Parliament, without having been passed for the. express purpose of explaining
previous Acts, are, sometimes spoken of as being "legislative declarations" or "parliamentary
expositions" of the meaning of some earlier Act. This in Battersby v. Kirk ((1836) 2 Bing. N C
584, 609), Tindal C. J. said "We cannot but consider these legislative enactments as forming a .
glossary for the proper interpretation of the expressions in the Bristol Dock Act which are
considered to be left in doubt". . . : . But, as has been pointed out; , it is the Courts of law and not
the Legislature, who are the authorised expositors of the statute law of the land, so that anything
'in the nature of a "parliamentary exposition", of an Act of Parliament is only an argument that
may be proved in aid of attaching some certain meaning to a statute and cannot be treated as -per
se conclusive."

If the matter related to the meaning of a doubtful expression in some Act making a substantive
provision, so clear an expression of opinion by the Constituent Assembly would carry very great
weight. The question here is of the mode of enactment of constitutional laws. Here, I am
concerned to point out that the major limb of the three great limbs .of the autonomous State of
Pakistan had clearly expressed in 1948 its view on this question, which has . now assumed so
high an importance. I place the Constituent Assembly above the Governor-General, the chief
Executive of the State, for two reasons, firstly that the Constituent Assembly was a sovereign
body, and secondly because the statutes under and in accordance with which the Governor
General was required to function, were within the competence of the Constituent Assembly to
amend.

The a second -great limb of the State, namely the Executive Government of the Federation, hays
never, until after the event of the 24th October 1954, shown any sign of doubt of this point. This
was in the highest, degree natural, for not only the three successive Governors-General of
Pakistan, but with a few exceptions, mostly of very recent date, every Minister of the Federal
Government has been a member of the Constituent Assembly. The first Governor-General, 'the
late Quaid-e-Azam Muhammad Ali Jinnah, and the second Governor-General Khwaja
Nazimuddin were original members of the Constituent Assembly, as appears from the
notification on the subject in the Gazette of India of the 26th July 1947. The third
Governor-General, H. E. Mr. Ghulam Muhammad, was elected as a member of the Constituent
'Assembly from East Bengal in June 1948, and retained his membership until July, 1953. The
requirement that Ministers of the Federation should be members of the "Federal Legislature" was
contained in the Government of India Act, 1935, and has already been cited. Thus it is possible
to declare that the Government of Pakistan, composed of the Governor-General and his Ministers
have, throughout the relevant period, been aware that the Constituent Assembly had formally
declared that its constitutional laws became law under its own Rule 62, without the need of the
Governor-General's assent. The knowledge was not passively ,possessed, for occasions when the'
Federal Government was under the necessity of obtaining enactment of laws of a constitutional
nature arose from a very early stage in the history of the country, and continued to arise with
increasing frequency as it progressed. Not all these laws were of the same importance, and I shall
therefore select for mention those which, in my humble opinion, are connected with matters of
the highest importance to the State.

From the very inception of Pakistan, matters connected with defence have been germane to its
very existence. It might reasonably be assumed that in obtaining a necessary law relating to the
Defence Services, the -Federal Government would exercise the .utmost care to ensure that the
mode of enactment was fully effective. Chapter I in Part -X of the Government of India Act,
1935, originally contained sections 232 to 239, which empowered His Majesty-in-Council in all
necessary respects, and contained numerous references to "His Majesty's Forces". These sections
were deleted at the adaptation prior to the transfer of power in. 1947, and were not replaced until
1950, when two new sections, viz., Nos. 232 and 233 were inserted in the Act, empowering the
Governor- General to raise and maintain - Forces and Reserves, to grant Commissions in the
Forces and Reserves, to appoint Com manders-in-Chief of the three Services, and to fix their
emoluments, etc, These powers, , which of necessity are frequently exercised, thus derive from
an Act of the Constit uent Assembly, viz., the Government of India (Second Amendment) Act,
1950, which was passed into law without the assent of the Governor-General.

The second instance I propose to cite is the Delimitation of Constituencies (Adult Franchise)
Act, 1951, which was passed by the Constituent Assembly -in the same form. This Act was
designed to extend adult franchise to the Provinces of Pakistan, and' provided for the necessary
increase of -seats and readjustment of constituencies, on the basis of a report to be submitted by a
Committee to be appointed to each Province where an election was to be held,' which Committee
would be appointed by . the Central Government. That Government was empowered to amend
and modify the scheme of delimitation proposed by- the Committee, . and the Governor -General
was empowered, by order, to make consequential amendments in the Government of India
(Provincial Legislative Assemblies) Order, 1936. So far as I am aware, action has been taken in
regard to three Provinces, under powers derived from this Act, and consequential amendments
have also been made in the appropriate schedule of the Government of India Act. " As a
consequence, these Provinces, namely East Bengal, Sind and the N.-W. F. Province are today
equipped with Legislative Assemblies elected on the basis of adult franchise, and so far as I am
aware, these Assemblies have during their term already passed numerous laws of far-reaching
effect, touching great numbers of citizens and a great many rights, in property and otherwise. All
concerned, including the Provincial executive authorities, and the newly elected Legislatures
themselves have acted throughout in the firm belief that they were doing so effectively.

I shall mention the third instance very briefly. Under the original Government 'of India Act, the
Federation had power under List I, Item 1 of the Legislative Lists, to legislate on "preventive
detention for reasons of State connected with defence or external affairs," while the Provinces
had power under List II, Item 1, to legislate on "preventive detention for reasons connected with
the maintenance of public order.". The division of powers being found inconvenient, the
Government of India (Second Amendment) Act, 1952, was passed by the Constituent Assembly
whereby in List I, Item 1, the relevant entry was altered so as to read "preventive detention for
reasons of state connected with defence, external affairs, or the security of Pakistan or any part
thereof", the relevant words in List II, Item 1 were deleted, and in their place a new entry was
added in List III as Item 1-A, so as to come within the legislative competence of the Federation
as well as the Provinces, which reads as follows : "Preventive detention for reasons connec ted
with the maintenance of public order, or the maintenance of supplies and services essential to the
community." The law did not receive the assent of the Governor-General, -but that it was
initiated by the Federal Government is evident from the fact that in the same year, a
comprehensive measure entitled the Security of Pakistan Act, 1952, was moved by that
Government in the Federal Legislature, which took advantage of the access of power derived
from the amendment of the Lists, to make necessary provisions "to deal with persons acting in a
manner pre-judical to the defence, external affairs and , security of Pakistan, or. the maintenance
of supplies and services essential for the community, or for the maintenance of public order".
Here again was a matter touching the safety of Pakistan, on which the Federal Government might
have been expected to act with the utmost circumspection. There can be no doubt that they did
so, and the Court is indebted to the learned Advocate-General of Pakistan for the assurance that,
throughout, the Federal Government was in possession of the advice consistently given by the
permanent .staff of the Law Ministry that assent was essential. The possibility of action per
incuriam is ruled out conclusively.

The third great limb of the, State is the Judicature, and as was brought out in the course of the
argument, the question has been before superior Courts in Pakistan on three occasions. The first
was in early 1950, in the Sind Chief Court, in the case M. A. Khuhro v. The Federation of
Pakistan (1950-51 FYC R 24=P L D 1950 F C 15) decided on 20th March, 1950. The appellant
had been an original member of the Constituent Assembly of Pakistan, but by virtue of an order
of disqualification made by the Governor- General under section 3 of the Public and
Representative Offices (Disqualification) Act, 1949, he had been disqualified for three years for
holding any political office, including membership of the Constituent Assembly. The other
features of the case are not relevant for the purposes of the discussion. It will be sufficient to say
that Mr. M. A. Khuhro raised squarely the contention that the Act under which he had been
disqualified was invalid because it had not been assented to by ,the Governor-General. The
Federation of Pakistan met the contention squarely by assenting that no such assent was
necessary because the Act was passed by the Constituent Assembly sitting as a
Constituent-making body and not as Federal Legislature. The Judge (Hassanally. Agha, J) held
that no assent was necessary, and reference to the words in section 6 (3) "the Governor-General
shall have full power to assent in His Majesty's name (the last four words were deleted by the
Constituent Assembly in 1950 to any lava of the Legislature of the Dominion", he observed

"All that this clause says is that in cases where the assent of His Majesty may be necessary, it
shall be given in His Majesty's name."

The attitude taken by the Federation of Pakistan in that case was the exact reverse of that
presented before this Court. It was in complete accordance with the view of the Constituent
Assembly with which, of course, the plaintiff Mr. M. A. Khuhro, who had been disqualified for
membership, could not be expected to agree. The condition of the initiating, party in the next
case, viz. Khan Iftikhar Husain Khan of Mamdot v. The Crown (P L D 1950 Sind 49) in this
respect, was not productive of the same degree of antagonism: The case was decided on the 19th
May, 1950. The Khan of Mamdot was an original member of the Constituent Assembly of
Pakistan, and he too had been respondent in a case under the same Act as Mr. M. A. Khuhro. At
the stage at which he brought his case before the Federal Court, there had been an equal division
among the Judges of the Lahore High Court who had tried the case, as to the question ' of guilt
on several charges and a Full Bench of the same Court had decided that the matter should be
referred to a third Judge for final decision. .It was against the decision of the Full Bench that the
Khan of Mamdot, who was still a member of the Constituent Assembly appealed to the Federal
Court, through a very senior and experienced Advocate., Dr. Khalifa Shuja-ud-Din,
Barister-at.Law' The Federation of Pakistan was represented at the hearing. The question of
assent to the Public and Representative Offices (Disquali fication) Act, 1949, was raised in the
following form, viz :-

"The Act should have been passed, not by the Constituent Assembly, but by the Federal
Legislature of Pakistan, and it should have received the assent of the Governor-Genenral of
Pakistan in accordance with the provisions of the Government of India Act. The Act, having
been passed by the Constituent Assembly and not having received the assent of the
Governor-General in accordance with the provisions . of the Government of India Act, was void
and ultra vires . . . ."

The reply to the argument was that the Act was a "constitu tional law" and "therefore, if fell
within the purview of the words `for the purpose of making provision as to the Constitution of
the Dominion', as they occur in subsection (1) of section 8 of the Independence Act, 1947." This
argument was accepted by the Federal Court in full, and the appeal was accordingly dismissed.
There are no words in the judgment of Sir Abdul Rashid (then Chief Justice of Pakistan) which
amount to formulation of the proposition for which the petitioner contends, but the proposition
necessarily follows from the conclusion that the appeal must fail, although there was no assent
by - the Governor-General, because the law was a `constitutional law'. The absence of assent
being pro minently before the Court, the sufficiency of -the finding -that the law was a
`constitutional law' to put the appellant out of Court, clearly leads to the inference drawn above.

The third case on the subject arose about four years later, also in the Federal Court. It is reported
as ,ex-Major-General Akbar Khan and Faiz Ahmad Faiz v. The Crown (P L D 1955 F C 185)
and was decided on the 21st December 1953. The appellants were two of the persons convicted
in proceedings held under the Rawalpindi Conspiracy (Special Tribunal) Act, 1951, and were
represented by an eminent English barrister with much experience of constitutional law cases,
namely, Mr. D. N. Pritt, Q. C. Here also the argument put forward was that the Act under which
the appellants had been tried and convicted needed assent because it related to the sphere of
Federal legislation and the latter contention being negatived, by reason of the presence of a
provision having. the effect of avoiding an appeal in the Federal Court, whose jurisdiction is a
matter to be regulated by the Constitution, the appeal was dismissed. In both these cases, the
argument that assent was necessary even' to a constitutional law, which arose in the most obvious
manner, was not taken, and the Court in dealing with the two pronged argument that the decision
of the Court below should be upset (1) because the law under which it was passed, was a law
within the Federal sphere of legislation. and (2) because the law had not received the assent of
the Governor-General, thought that a reply sufficient to defeat the argument was that the law was
a constitutional law. By clear implication, it was held that assent was not ' non for a
constitutional law. [I should add here that. since the First March, 1955, it has been laid down by
this Court that it is not bound by its previous decisions; Criminal Appeal No. 50 of 1953, Anwar
and Nawaz v. The Crown] (P L D 1954 F C 87). Thus, for the first seven years of Pakistan's
existence, the three great limbs of this new "autonomous community exhibited complete
harmony of view in regard to the point this'! Court is now called upon to decide. They had not
reached their conclusions in any superficial way. Throughout there was awareness of the status
of the country as a "Dominion" and of the existence of the link with the 'British Crown. In the
case of Sarfaraz Khan (P L R 1950 Lab. 658 P L D 1950 Lah. 384) it appeared, among the
relevant facts, that the Governor-General's assent had been given to the Punjab Public Safety
Act, 1949, .in a form from which the words "in His Majesty's name" had been scored out.
Shortly after, the Constitution Act was amended' by -the Constituent Assembly, wherever
necessary, to exclude these words from provisions relating to the grant of assent by the Governor
General and the Governors, thereby evincing an intention to retain the link at a purely nominal
level.

These actions were plainly performed in compliance with a clearly-formed notice regarding the
nature of the autonomy enjoyed by the country as an "Independent Dominion". They of indicate
a determination to manifest freedom from everything M resembling control from without, and in
that respect, they did no more than to confirm and continue that spirit which had inspired the
people of the country in their struggle for independence which had achieved success in 1947.
The autonomy of the country, its independent power to control its own affairs, both internal and
external,. was embodied in the three great agencies of the State, the Constituent Assembly, the
Executive, and the Judicature, and all three were agreed that the country was independent in all
but name, and that they were entirely free to adopt their own methods, in regard to matters such
as legislation, without reference to any practice prevailing else where, and without suffering
from any sense of obligation, as the price of their continuing membership of the Common
wealth, to follow any methods, or assume any ideology, except such as was found suitable to
their own requirements. True, they had undertaken to perform their tasks in accordance with the
Indian Independence Act and the adapted Government of India Act, but that was the initial step
only, for the Con stituent Assembly had sovereign legislative power; including power to alter
these instruments, which in relation to the Government of India Act, was repeatedly mentioned
in the Indian Independence Act. The interpretation of the latter Act too was now a purely
domestic matter, in which no outside interference, or sense of obligation to any outside person,
or State, or organisation of States, could compel the autonomous State of Pakistan in favour of
one view rather than of another.

I conceive that the settled and complete unanimity on be the point now in dispute of the three
major organs of the State is most properly to be regarded, from this point of view, as a
manifestation of their conception of the country's autonomy, in the particular sphere. Such a
temper accorded with the still active demand for complete independence. In assuming such a
-temper, while accepting the appellation of an "independent Dominion" Pakistan need not have
feared to involve itself in any inconsistency, or any behaviour such as might bring about its
expulsion from the Commonwealth. For it was a "free association of free peoples", and the
merest link with the British Crown was the sole necessary qualification for retention of
membership. There was an example of a European nation, namely the people of the Irish Free
State, who in 1947 continued to be accepted by the United Kingdom and the other Dominions as
one of themselves despite having broken off, by unilateral act, nearly every possible link with the
Crown. It could hardly have been expected, in the light of the views held at the time, that the
great organs of the State of Pakistan, an Asiatic country, to which a degree of emancipation from
every form of control exercisable by the British Sovereign or the British Parliament, had been
accorded which far transcended anything previously granted to any of the senior self-governing
Dominions, should, in regard to the question of assent to constitutional laws made by its
Constituent Assembly, assume an attitude less resistant to controls from the old masters than was
evinced by Ireland.

On this point, moreover, they could find direct support in the practice of the great American .
Republic of the United States, a practice consistently followed since the year 1798. I refer once
again to Cooley's Constitutional Limitations, Eighth Edition, at page 70, where the mode of
amendment of the Constitution of the United States is dealt with, and it is said, in the simplest
language-

"The submission of an amendment does not require the action of the President."

Two cases are cited- namely (Holingsworth v. , Virginia ((1789) U S S C R Lawyers Ed. 644)
and Hawke v. Smith (1919 U S S C R 64 Lawyers Ed. 871). A clear statement of the opinions
expressed in both these judgments appears from the following paragraph which I extract from the
later judgment :-
"At an early day this Court settled that the submission of a constitutional amendment did not
require the action of the President. The question arose over the adoption of the 11th Amendment.
'Hollingsworth v. Virginia (3 Dall. 378 I L'Ed. 644). In that case it was contended that the
amendment had not been proposed in the manner provided, in the Constitution, as an inspection
of the original roll showed that it had never been submitted to the President for his approval in
accordance with article 1; section 7, of the Constitution. The Attorney General answered . that
the case of amendment's is a substan tive act, unconnected with the ordinary business of
legislation, and not within the policy or terms of the Con stitution -investing the President with a
qualified negative on the acts and resolutions of Congress. In , a footnote to this argument of the
Attorney-General, Justice Chase said

"There can surely be no necessity to answer that .argument. The negative of the President applies
only to the ordinary cases of legislation. He has nothing to do with the pro position, or adoption,
of amendment to the Constitution", The Court by a unanimous judgment held that the amend
ment was constitutionally adopted."

The Constituent Assembly too was a supra , legal body, not acting in its constitution-making
capacity within the; Constitution. It was not to be presumed that, in this, capacity, its proceedings
and decisions were subject to the qualified negative of the Governor-General, who was a
statutory authority, owing existence to the interim Constitution.

This, then, was the situation on the 24th October, 1954, and it was only thereafter that, for the
first time, the Federal Government of Pakistan raised the plea that all Constitutional Acts of the
Constituent Assembly needed the Governor-General's assent. It is permissible, perhaps, at this
stage, to refer to the argument ab inconvenienti, which arises naturally enough whenever a long
course of legislative, administrative and judicial action has been based upon a certain view of
law which is sought to be upset. Certain events have followed the pronouncement of the orders
in this case, which necessitate -the exercise of great caution in making these comments, lest they
may influence and perhaps confuse the decision of matters already pending before other Courts. I
will content myself with citing a few extracts from Cooly's Constitutional Limitations, and from
Crawford's Statutory Construction (Thomas Law Book Co. St. Louis, 1940).

At page 144 of Cooley's book, I find the following obser vations :-

"Indeed, where a particular construction has been generally accepted as correct, and especially
when this has occurred contemporaneously with the adoption of the constitution, and by those
-who had the . opportunity to understand the intention of the instrument, it is not to be denied
that a strong presumption exists that the cons truction rightly interprets the intention."

Three passages from Crawford's book are relevant. At page 381, he says :-
"Where the meaning of a statute is in doubt, the Court may resort to contemporaneous
construction-that is, the construction placed upon the statute by its contemporaries, at the time of
its enactment and soon there after for assistance in removing any doubt. Similarly, resort may
also be had to the usage or course of conduct based upon a certain construction of the statute
soon after its enactment, and acquiesced in- by the Courts arid the Legis lature for a long period
of time."

And, speaking of "departmental construction" which means "construction by the Executive

Department", the learned author says at page 395 and page 399-

"And where vested rights have grown up under the departmental construction, the Courts are ,
justified in being more reluctant than in ordinary cases in adopting a construction which will
destroy or disturb such rights."

" where the executive construction has been for a long time, an element of estoppel seems to be
involved. Naturally, many rights will grow up in reliance upon the interpretation placed upon a.
statute by those whose duty it is to execute it."

The kind of case to which these observations, in their terms apply, is however of importance far
below that of the present case. The present is not a case where a mere "depart mental
construction", or even a judicial or legislative construction is. put forward, as a caution against
lightly disturbing that which has been accepted and acted upon as settled law for a period,
leading to development of vested rights. The rule . of stare decisis is altogether too small III its
content to fit the case. Here, the greatest organs and agencies of the State have been consciously
and unanimously holding a certain belief, and have been acting upon

it in numerous respects 'affecting the most fundamental right of the entire people. It is difficult to
imagine a law which affects so large a proportion of the public a does a law designed to grant
adult suffrage, and to determine the composition of Provincial Legislatures on that basis. The
Delimitation of Constituencies (Adult Franchise) Act, 1951, was procured by the Federal
Government, was passed by the Constituent Assembly, was put into operation by the combined
labours of the Federal and Provincial Govern ments, and has borne fruit in the shape - of new
Legislative Assemblies, which have been busy ever since passing new laws and in other ways,
regulating the lives of the people. It is beyond conception to tabulate all the vested rights and
interests which have developed in consequence of this law. And there are many other laws which
have pro duced extensive effects, which cannot possibly be ascertained with exactness. These
circumstances should, in my opinion, furnish an argument of almost insuperable character, in
favour of upholding what has been the practice hitherto in regard to assent to constitutional laws.

I now take up for examination the final argument for the appellants, namely, that assent of the
Governor-General is rendered essential by the formula appearing in section 6 (3) of the Indian
Independence Act, viz.-

"The Governor-General of each of the new Dominions shall have full power to assent to any law
of the Legislature of that Dominion "

The argument was supported by reference to section 5, which lays down that the
Governor-General shall represent His Majesty for the purposes. of the government of the
Dominions." It was said that by this simple formula His Majesty transferred all his Royal
prerogatives to the Governor-General, including the prerogative of assent, which it thereafter
became incumbent upon the Governor-General to employ, and upon the Legislature of the
Dominion to seek. In my humble opinion, the argument is unsound, and for the following
reasons. Assent is a matter which is not dealt with in any document issued to Governor-General
of Dominions from His Majesty direct, except in relation to the question of reservation of Bills
for His Majesty's own assent, when it finds place in the Instrument of Instruc tions. But in the
Constitution of every Dominion, there are precise provisions relating to the presentation of Bills
to the Governor-General for his assent, and for the action which he is to take thereon.

The Indian Independence Act, 1947, expressly deals with a, field of legislation, viz.,
constitutional legislation, lying outside the scope of the Government of India Act, 1935, in which
.there was, as has been seen already, a specific provision relating to assent to Bills passed within
the powers of the Federal Legislature. This provision was in the full terms already in use, since
1867, in relation to other Domi nions. In 1947, when transferring additional legislative powers to
the new Dominions the British Parliament were aware that express provision for assent was
necessary in relation to laws made in exercise of these powers, if such assent was to be
prescribed. The provision would have been in the nature of conveyance of His Majesty's prero
gative, which in this respect had been placed at the disposal of the British Parliament. That
Parliament chose to make the provision in the terms reproduced above from section. 6 (3). It is
settled that when the British Sovereign parts with any of his prerogatives in the shape of a grant
to a country with representative institutions, then unless there is an express reservation (which is
not found here), the grant is final and cannot be revoked. (Sammut - v. Mrickland) (1).
Therefore, section 5 cannot be referred to for enlarging the power which the words of sections 6
(3), Indian Independence Act, operate to convey.

I propose to examine the effect of those words in three parts, viz., firstly the words "shall have
full power", secondly the words "any law" and lastly the words of the Legislature of the
Dominion".

It , will not, I think be disputed that the words "shall have full power" convey no more than a
power or capacity: I have already stated my opinion that the word . "full" signifies the
withdrawal of pre-existing restraints, appearing tfie original the Government of India Act, 1935,
and in. the Instru ment of Instructions, etc. Indirectly, it may also be thought to indicate a
variation from, and an improvement upon, the limited , powers conferred in the same respect by
the Constitution Acts of the older Dominions. But I do not read it in any sense such as might
impose obligations, besides conferring a capacity. It is one thing to enlarge a ' capacity to the
utmost; it is quite another thing to covert it into a duty. These words purport plainly and
unambiguously to convey a power. The circumstances in which such words occurring in an
English statute may be construed to impose a duty have been considered and passed upon by the
House of Lords in the case of Jilivs v. Bishop of Oxford (5 Appeal Cases Page 214). Lord Cairns
L. C. stated the matter in the following terms regarding the meaning of the words `,`It shall be
lawful":-

"They are words merely making that legal and possible which there would otherwise be no right
or authority to do. They confer a faculty . or power, and they do not themselves confer more than
a faculty or power. But there may be something in the nature of the thing empowered to be done,
something in the object for which it is to be done, something in the conditions under which it is
to be done, something in the title of the person or persons for , whose benefit the power is to be
exercised, which may couple the power with a duty, and make it the duty of the person in whom
the power is reposed, to exercise that power when called upon to do so . . . . . And the words "It
shall be lawful" being according to their natural meaning permissive or enabling words only, it
lies upon those, as it seems to me, who contend that an obligation exists to exercise this power,
to show in the circumstances of. the case something which according to the principles I have
mentioned,, creates this obligation.."

A little further on; the learned Lord Chancellor observed as follows:-

the cases to which I have referred, appear to decide nothing more than this: that where a power is
deposited with a public officer for the purpose of being used for the benefit of persons who are
specifically pointed, and with regard to whom a definition is supplied by the Legislature of the
conditions upon which they are entitled to call for its exercise, that power ought to be exercised,
and the Court will require it to be exercised."

Similar views . were expressed by the other three noble Lords who heard the case. Lord
Penzance said:-

"The conclusion then, at which I arrive is, that the Appellant has not established his case. The
words `It shall be lawful' are permissive and enabling only. It devolved upon him 'to show that
the Legislature intended the exercise of the power, thus conferred, to be a duty, in the
performance of which the Bishop was not intended to have any discretion-."

And Lord Blackburn observed:

"The enabling words are construed as compulsory when ever the object of the power is to
effectuate a legal right."

I am not aware that the construction thus placed upon words which are, in themselves, merely
potential, or per missive or enabling, i.e., words which create a mere faculty or power, has been
varied or departed from in any judgment of equivalent authority. It therefore becomes necessary
to examine why the same Parliament, which in relation of the other Dominions, and even to
India, had, in this respect always made the, most precise and specific provision, requiring that
Bills when passed should be submitted to the Governor- General, who should either assent in His
Majesty's name, or withhold assent, or reserve the Bill for signification of His Majesty's pleasure,
should on this occasion have,. elected to employ simpler language, conveying no more than a
mere power of assent.

Two reasons stand out at once. The Constituent Assembly being designed to be a sovereign body
and to exercise sovereign power, including power to alter the Constitution subject to which the
Governor-General was intended to act, it would clearly be , inconsistent with that . design and
purpose if the `qualified negative" of assent by the Governor-General were imposed upon its
constitutional laws. Secondly, it being within the complete power of the Constituent Assembly to
determine the Constitution of the "Legislature of the Dominion", or Union Legislature, and to
determine the scope of its legislative competency as well the mode in which its laws should be
enacted, the British Parliament could not" affect to prescribe the requirement of assent, as an
essential formality, in respect of the laws made by such a Legislature. This would be to usurp the
functions of the Constituent Assembly. To impose such a requirement upon laws of a
constitutional nature made by the Constituent Assembly would be a direct affront to the position
and authority of that body. Hence the careful use of expressions in section 8, Indian
Independence Act, to indicate that the necessary powers of legislation should be exercisable by
the Constituent Assembly. The words signify' the courtesy owed by one sovereign body to
another. There was no direct imposition of obligations, but the need being indicated, it was
indicated also that the Constituent Assembly, as previously agreed upon by the plenipotentiaries
in the negotiations between the United Kingdom Government and the representatives of the
Indian people, might fulfil the need.

I conceive that it was for these and possibly other similar reasons that a form of words was
chosen which created no more than the power, without specifying the occasion and manner of its
exercise. I do not agree that the words can mean that the British Parliament intended or assumed
that assent was an essential requisite. I find it impossible to spell out, of the words used any
obligation upon any Legislature, be it the Constituent Assembly acting as such or the "Legisla
ture of the Dominion", to present the laws made by them, for assent ; that, in my opinion, must
have been separately provided, to make it essential, and the absence of such provision, in the
Indian Independence Act, when contrasted with its presence in the Government of India Act,
1935, and in the Constitutions of nearly all other British Possessions, having representative
institutions, be they Dominions or merely Colonies or "realms and territories", strongly inclines
me to the view that such prescription was deliberately avoided by the British Parliament, in view
of the special conditions created by the Indian Independence Act, and otherwise, at the time
when Pakistan came into being.

On this view the conception of an obligation resting on the Legislature in relation to the
Governor-General cannot be thought to arise out of the terms of the section in the Indian
Independence Act, whatever the condition might have been at a later date under the new
Constitution, or under any provisions which the Constituent Assembly might have thought fit to
make in respect of its constitutional laws. As has been pointed out above the Constituent
Assembly, as early as May, 1948, formally recorded its considered will that its constitutional
laws should become operative with no more formality than (a) the President's signature on a
copy of the Bill, by way of authentication and (b) publication, in the Federal Government's
Gazette under the authority of the President. What right could then bethought to be effectuated
by applying a compulsive effect to the disputed words of mere potentiality ? The argument of the
appellants seemed to be that the right inhered in the Governor-General by virtue of his being the
representative of His Majesty, and from the fact that. Pakistan was a Dominion.

I have already shown that section 5, Indian Independence Act, cannot operate to confer any right
to grant assent beyond that conveyed by , the relevant words in section 6 (3). Therefore, to draw
the right of assent from section 5 seems to me to be impossible. Moreover, the position of the
Governor General was such that there was no power on earth which could compel him to
exercise any power vested in him, unless it was or became coupled with a duty, as indicated in
the case of Julius v: Bishop of Oxford (cited above), in which case recourse might perhaps be
had to the Courts. For over seven years, the Governor-General had, despite advice being given
by the permanent staff of the Law Ministry in the contrary sense, decided and acted on the basis
that he did not possess any such right as that which was claimed for the first 'time in the present
case. The sovereign body in the State, namely the Constituent Assembly, had declared to this
effect, and the view was confirmed on three occasions by the highest Courts in the land.

To derive the right or duty from the. idea of Dominion Status seems to me an even more difficult
operation. It may be entirely proper for a new member of a club to conform, as nearly as may be,
to the manners and practices of the oldest and most influential members. That is the -part of
wisdom, if the new member sets a value upon his membership. But the sanction thus conceived
is a social or communal sanction ; it is entirely different from a legal sanction. Indeed, where the
club is composed of "autonomous communities" the entire conception of communal sanctions
being applied, through legal process, to enforce any kind of obligation in the 'discharge of
domestic functions of any one member, is fallacious. The question of assent by the
Governor-General to constitutional laws was purley a domestic matter for Pakistan to settle for
itself ; and the three great limbs of the State had settled it, and were content with the settlement
for seven years. No one in the club of Commonwealth countries had objected, or could object, to
this practice. The club tolerated the greatest divergence of practice among its members and even
of belief regarding the existence of any obligations whatsoever inter se among the members.
When Pakistan, as a country whose people were intent upon securing their absolute
independence, entered the club, there was among the members a country, namely Ireland, which
had even renounced allegiance to the British Sovereign, and replaced the Governor-General by a
President. Three years later, another republic, namely India was allowed to continue its
membership, on a slightly altered basis. There was apparently no limit to which the members
could not go, in regard to what were habitually thought, not many years ago, to be the basic
essentials, for acquiring and retaining Dominion Status, without incurring the least danger of
forfeiting that status.

In these circumstances, was it unnatural that the State of Pakistan should evince, from the date of
its admission to membership, a clear intention and determination -to accept only the minimum
possible obligations ? If that be granted it, seems to me. a very difficult proposition to suppose
that the new State accepted, as a condition of membership, that all its laws would be subject to
assent by the Governor-General. Such ' an inference is the precise opposite of the definitive
opinion which the State, through its three great organs, displayed in all its relevant actions over
the first seven years of its existence. What they have been given to run was an autonomous State.
not academy for the advancement of a particular school of political philosophy. it would be a
denial o t e autonomy of a State of Pakistan to declare that its opinion in this matter was wrong.

It seems to me that to 'enforce the right of assent in favour of the Federal Government would
come clearly in conflict with the principle of "approbation and reprobation". To enforce it in the
interest of the community o nations known as the Commonwealth would be absurd, because,
firstly, it was not regarded as a necessary qualification for membership of the community when
Pakistan was admitted, and, secondly, it conflicts with the clear principle of, non-interference in
the domestic affairs of an autonomous State. To enforce it, as an obligation arising out of the
mere idea of Dominion Status, is to confer upon that idea a shape and a certitude which, if it ever
existed, had quite definitely been blurred into vagueness by the toleration, at least since 1933, of
widely variant practices and conditions among Dominion countries, in regard to the most
essential features of their organisation.

The other two matters arising in respect of the relevant words in section 6 (3), Indian
Independence Act, may be very briefly dealt with. The argument for the petitioner, Mr. ,
Tamiz-ud-Din Khan, that "any law" meant only such instru ments as had already acquired legal
effect is plainly unacceptable. In the context, "any law" must mean "any law requiring assent for
it to become operative", i.e., any Bill passed by the "Legislature of the Dominion", which under
any provision of law required to be presented to the Governor General for his assent, and to
receive assent before it could) become operative.

As for the term "Legislature of the Dominion", I have already indicated my view that it cannot
be, and was no p intended to be, regarded as equivalent, at any time, to the o Constituent
Assembly. The mere provision, specific though it be, that certain powers stated in section 8 (1)
of the Indian Independence Act to be powers of the "Legislature of the Dominion" were to be
exercisable by the Constituent Assembly cannot operate to produce any such identity even for
the limited purpose of these powers. The further provision in this subsection that "reference to
the Legislature of the Dominion shall be construed accordingly" must be confined in its meaning
and application, by the .earlier provision that the relevant powers were exercisable by another
body. If the effect of section 8 (I) were to make the "Legislature of the Dominion" and the
Constituent Assembly identical in all respects, in relation to the power of constitution-making,
there would be no reason whatsoever for providing in section 8 (3) that limitations on the power
of the "legislature of the Dominion" appearing in the Government of India Act should be deemed
to .have the same effect as similar limitations imposed by a law of the - "Legislature of the
Dominion" unless and until other provision is made by or in accordance with a, law made by the
Constituent Assembly of the Dominion in accordance with the provisions of subsection (1) of
this section. The underlined words appear as they are in section 8 (3). 1 can only regard them as
the clearest possible indication that the Constituent Assembly and the "legislature of the
Dominion" were treated in the Act, and were intended by the British Parliament to be entirely
distinct bodies. As I have pointed out already, one of the functions of the Constituent Assembly,
in preparing the new Constitution, was expected to be to provide the country with a "Legislature
of the Dominion," if it was to remain a Dominion. An instance of a law to the British Parliament
making the powers of one Legis lature exercisable by another and wholly distinct Legislature,
which the former was intended to replace in .due time, may be found in section 316 of the
original Government of Indian Act, 1935. The two Legislatures in question were the Federal
Legislature, for whose constitution specific provision was made under the Act of 1935, but
which could not come into being until certain things were accomplished; and the "Indian Legisla
ture" constituted under the Government of India Act, 1919, by whom the powers of the Federal
Legislature, as specified in the Act of 1935 were. declared to be exercisable in the interim period.
No one would suggest that by virtue of this provision, the "Indian Legislature" became the
Federal Legislature.

As a consequence of my conclusion on this subject, it is unnecessary for me to pronounce upon

the further question whether, in the absence-and seemingly studied absence-of expression in the
relevant instruments, the British Sovereign, or the Governor-General must be deemed to be a part
of the "Legislature of the Dominion". I consider, however, that there can be no possible doubt
that neither the British Sovereign nor the Governor-General, as such, was a part of the
Constituent Assembly.

The conclusion of this discussion enables me to reach and record my final decision, which is that
on the most careful consideration of the matter of which I am capable, I cannot find that there is
anything in section 6 (3), Indian Independence Act, or in the status of Pakistan as a Dominion
which creates the obligation that all laws made by the Constituent Assembly, Q of a
constitutional nature, require the assent of the Governor- Q General, for their validity and
operation. On this view; the appeal would appear not to be concluded, but as . my Lord the Chief
Justice and my brothers are of the contrary opinion, and as on the basis of that opinion, the
appeal is indeed entitled to succeed, the result must be that the appeal be allowed, and the writ
petition of Mr. Tamiz-ud-Din Khan being dismissed, the ' writs should be recalled. On the
question of costs, I agree that in the circumstances of the case, each party should bear its own
costs.

MUHAMMAD SHARIF, J.-I agree with my Lord the Chief Justice.

S. A. RAHMAN, J.: The material facts of this case have been sufficiently set out in the
judgment of my Lord the Chief Justice and need not be reiterated. The only question that was
argued in full before us is whether it was necessary for legislation passed by the Constituent
Assembly to receive the assent of the Governor-General before it could be accorded the status of
law. I find myself in respectful agreement with the reasoning of my Lord and the conclusions
reached by him on that point. In view of the importance of the legal issues involved in the case,
however, I am tempted to make a few observations of my own:

The question turns on the construction of section 6 of the Indian Independence Act, 1947, which
created the two new independent Dominions of India and Pakistan. The provisions of that section
have to be read, for that purpose, with those of sections 5 and 8 of the Act. Section 5 provides for
the appointment of a Governor-General by His Majesty in each Dominion and declares that he
shall represent His Majesty for the purposes of the Government of the Dominion. Section 6, inter
alia, confers full legislative sovereignty on the Legislature of each Dominion, inasmuch as it is
authorised to pass laws repugnant to any existing or future Act of -the British Parliament
(including the Indian Independence Ac itself) or any order, rule or regulation passed thereunder.
The power thus conferred is expressly extended to include the power to repeal or amend any
such Act, order, etc., and to the making of laws limiting for the future the powers of the
Legislature of the Dominion thus .permitting the setting up of a federal type of Constitution. By
subsection (3) of this section, full power to assent to any law of the Legislature of the Dominion
is vested in the Governor-General and it is added that so much of any Act "as relates to the
disallowance of laws by His Majesty or the reservation of laws for the signifi cation of His
Majesty's pleasure thereon or the suspension of the operation of laws until such signification,
shall not apply to laws of the Legislature of the Dominion". Legislative autonomy of the
Dominion is further ensured by providing in subsections (4) and (5) of this section that no Act of
the British Parliament, on order or rule; etc., promulgated under such Act and no
Order-in-Council made on or after the 15th of August 1947, shall extend or be deemed to extend
to either Dominion, as part of its law, unless so extended by a law of the Legislature of the
Dominion itself. Section 8 of the Act makes temporary provision for the Government of each of
the new Dominion. Subsection (1) of this section lays down that the powers of the Legislature of
the Dominion referred to in section 6, shall be exercisable, in the first instance, by the
Constituent Assembly of the Dominion, for the purpose of making provision as to the
constitution of the Dominion and references in the Act to the Legislature of the Dominion are
required to be construed accordingly. Subject to laws thus made by the Constituent Assembly
and the provisions of the Indian Independence Act, the government of 'the Dominion is to be
carried on by virtue of subsection (2), in accordance with the Government of India Act, 1935,
and the Orders-in-Council, rules, etc., made thereunder, so far as applicable, with such
adaptations and modifications as may be 'specified by the Governor-General under section 9 of
the Act. The provisions requiring the Governor-General or any Governor ' to act in his discretion
or in his individual judgment in respect of any matter, were to cease to have any effect, all
control by His Majesty's Government was removed and the necessity of reserving Provincial
Bills for the signifi cation of His Majesty's pleasure was done away with. The powers of the
Federal Legislature or Indian Legislature under the Government - of India Act, 1935, as in force
in relation to each Dominion, were, , in the first instance, made exercise able by the Constituent
Assembly, in addition to the powers referred to in subsection (1) of section 8. The limitations
placed by the adapted Government of India Act, 1935, on the legislative powers of the Dominion
Legislature (which must be understood to mean the Federal or Indian Legislature in this context)
were to have effect as a restrictive law of the Legislature of the Dominion, within the meaning of
subsection (6) of- section 6 of the Indian Independence Act.

It is suggested on behalf of the respondent that sub section (3) of section 6 of the Indian
Independence Act should be so interpreted as to equate the expression "Legislature of the
Dominion" occurring therein, ,with the Federal Legis lature functioning under the adapted-
Government of India Act, 1935, and that it should be held that the subsection was merely
intended to give the Governor-General plenary powers of assent within the limited legislative
field of the latter Act.

The - position seems to me to be untenable on several grounds. If that had been the sole object
aimed at, it could have been effectively achieved without using the general words "full power to
assent to any law of the Legis lature of that Dominion, in the first part of the sub section and by
merely enacting the subsequent part of the subsection beginning with the words "so much of an
Act. The argument raised - imputes a redundancy to the British Parliament without . any
apparent necessity. The interpreta tion ,contended for would cut down the generality of the words
in the beginning of the subsection and impose a limita tion on them, to be imported from the
latter part of the subsection, a procedure not warranted by the context! Again, it should . have
been easy enough to use the words "Federal Legislature" instead of the comprehensive
expression "Legis lature of the Dominion" and thus to have ensured perfect clarity, if the
intention sought to be read into this subsection was the correct one.

It is clear that at the time of the passing of the' Indian Independence Act or even on the
Appointed Day, no Legislature of the Dominion, envisaged in section 6 of the Act, actually
existed. Mr. Chundrigar conceded at the Bar that the relevant expression occurring in this section
would cover the future Legislature of the Dominion which the framers of the Act anticipated,
was likely to be set .up under .the new, constitutional provision to be made by the Constituent
Assembly under subsection (1) of section 6 read with sub section (I) of section 8 of the Act. It
was further admitted as is also apparent from the plain language of section 6, that such a
Legislature would be competent to pass laws including constitutional laws and that if subsection
(3) was allowed to stand in its present form, the subsection would subject ail such laws to the
necessity of assent by the Governor-General. For the interim period, however, while the
Provisional Con stitution embodied in, the adapted Government of India Act, 1935, and the
Indian Independence Act, 1947, is in force, it was contended, the position was different qua the
Constituent Assembly. The argument was raised that though subsec tion (1) of section 8 made
the constitution-making powers included in subsection (1) of section 6, exercisable in the first
instance (the phrase "in the first instance" needs to be speci fically emphasised in this
connection) by the Constituent Assembly, the latter body was not identifiable with the
"Legislature of the Dominion" within the meaning of sub section (3) of section 6. A similar
formula contained, in proviso (e) to subsection (2) of section 8, makes the powers of the Federal
Legislature or Indian Legislature, exercisable in the first instance by the same Constituent
Assembly. After, a comparison of sections 6 and 8, the inference seems to be irresistible that
during the interregnum prior to the promulgation of a fresh constitution the Constituent
Assembly in fact functions as the Legislature of the Dominion. It is only thus that full meaning
can be given to the words of subsection (1) of section "references in this Act to the Legis lature
of the Dominion shall be construed accordingly" and to the provision contained in subsection (3)
of section 8. The plenary law-making powers of Legislature of the Dominion mentioned in
section 6 had to be divided into two compart ments for the transitional period, in order to keep
the legis lative machinery of the Government of India Act, 1935, working order, with all its
limitations, side by side with the enactment of a new Constitution. For the purpose of func
tioning as the Federal Legislature under the Government of India Act, 1935, the Constituent
Assembly as the Legislature of the Dominion; should be deemed to have placed the incident
limitations on itself, under the provisions of sub section (6) of section 6 read with subsection (3)
of section 8. I confess I am unable to follow the process of reasoning which seeks to give a
different meaning to "Legislature of the Domin ion" occurring in subsection (3) from that
possessed by the ex pression in other subsections of section 6. The attempt seems to be directed
towards investing the Constituent Assembly 'with all the powers under section 6, without
attracting the restric tion (if restriction it really be) regarding assent, provided for in the same
section. The two submissions made that sub section (3) is confined to the Federal Legislature
functioning under the Government of India Act, 1935, and that the sub section would also be
applicable to laws passed by the future Legislature of the Dominion, appear to me to be mutually
contradictory. The word `law' or laws' used in subsection (3) obviously includes - laws of a
constitutional character as a reading, of the whole of section 6 shows and must clearly mean
enactments passed by the Legislature and awaiting assent of competent authority.

The mere absence of an express provision included in the Indian Independence Act for Bills
being presented to the Governor-General for assent, after being passed by the Constituent
Assembly when sitting as the Legislature of the Dominion to frame the Constitution and the fact
that discre tion to withhold assent is not specifically mentioned, though provision to that
effect .exists in the Government of India Act, 1935, or in the Constitutions of other Dominions,
strike me as of no material significance. The words "full power" amply connote discretion to
give or withhold assent, beside indicatings freedom from extraneous control, in full measure. The
presumption is implicit in the subsection that all, such laws shall be submitted to the
Governor-General for his assent.

It seems to me that the attitude, adopted on behalf of the respondent rests on the fallacious
premise that the prescription of the formality of assent for laws passed by the Constituent
Assembly, would detract from the legislative ,sovereignty of that body, undoubtedly conferred
on it by the Indian Independence Act. In the background of this attitude there appears to lurk the
spectre of a full sovereignty, not merely in the legislative field but in all spheres, claimed for the,
Constituent Assembly, somewhat feebly, it is true, at one stage of the arguments: That the
Constituent Assembly is not sovereign in the full sense of the term, it was later admitted. What
was not realised was that the - provision regarding assent should not be regarded as a clog on the
legislative sovereignty of that body, in the context of an "Independent Dominion" free from all
control by His Majesty's Government in England. The Governor-General of such a Dominion is
no doubt formally appointed by His Majesty but in effect the appointment rests with the
responsible Ministry whose advice would, as a matter of settled convention, be accepted in all
cases by the King or Queen. The Ministry would have the means, for the same reason, of
arranging the recall of a Governor-General who intended to flout their wishes in any matter. This
aspect of the case has been exhaustively dealt with in the judgment of my Lord the Chief Justice
and I need not labour the point further. '

A reference to the history of prerogative of the Crown in England would also lend support to the
conclusion that the above interpretation of subsection (3) of section 6 is correct. In my humble
judgment, no other construction of 'that sub section would be acceptable and I only wish to draw
additional strength for this construction from a consideration of the constitutional history of
England. Assent to legislation is one of the most important prerogatives of the Crown in
England, There is also ample authority for the proposition that the prerogative of the Crown
extends to the Colonies and Dominions of His Majesty beyond the Seas. See Halsbury's Law's of
England, 2nd Edition, Volume VI, page 445, paragraph 513 ; New Brunswick case (1892 A C
437 (at page -441)), and Re Bateman's Trust ( IS E C 355). Only express words or necessary
intendment of a statute can take away a . prerogative and the presumption would be against such
a result. Reference in this connection may be made to British Coal Corporation v. King (1935 A
C 500) and Mayor of Weymouth's case (141 R R 392). I can discover nothing in the Indian
Independence Act which could support the plea of express or implied abrogation of the
prerogative of assent in the case of laws enacted by the Constituent Assembly sitting as the
Legislature of the Dominion to frame the Constitution. On the other hand, a reading of section 5
and 6 together would lead to the inference that henceforth the prerogative, of the Crown as
respects assent, would, in the case of each new Dominion, be exercised by the Governor-General
as T representing His Majesty. Allegiance to the Crown, however tenuous the bond may in
practice turn out to be, is an essential incident of Dominion Status. Nothing seems to turn in this
connection on the form of the oath taken by the Governor -General or by members of the
Provincial Legislatures in Pakistan or on the form of the Royal Style and Titles adopted in this
country. This position would continue to hold good in Pakistan as long as it is a Dominion,
'albeit an "Independent Dominion", unless of course it is altered by a proper constitu tional
provision. From the expression "Independent Domi nion", merely constitutional autonomy and
not full political' sovereignty in the legal sense, can be spelt out, though the latter status would .
be potentially within the Dominion Legis lature's grasp.
The doctrine of "Departmental Construction" applied by American Courts to the interpretation of
the Statutes, was also sought to be pressed into service on . behalf of the .respon dent, to favour a
particular construction of subsection (3) of section 6 of the Indian Independence Act. Reliance
was placed or rule 62 of the rules of procedure framed by the Constituent Assembly, of Pakistan
and the practice that has been followed hitherto, of not submitting laws passed by the Constituent
Assembly to the Governor-General for his assent. These -facts were, however, not advanced as
raising the bar of estoppel against any party. Even in America the rule is not regarded as
conclusive and is obviously available only to resolve doubts in cases where the language used in
a statute is equivocal. The present does not appear to me to fall in that category of cases. As long
ago as 1889, Lord Esher laid down the rule in Sharpe v. Wakefield (22 Q B D 239 (242)) that an
Act ought to construed as it would have been the day after Act was passed, unless some
subsequent statute declares that another construction was to be adopted. It must follow as a
corollary that the subsequent conduct of any functionaries in purported pursuance of an Act,
would not be decisive of the interpretation to be placed on the statute. A practice in
contravention of a constitutional provision contained in a statute can never abrogate or repeal a
rule of strict law, with which alone the Courts are concerned-See Disallowance and Reservation
References (1938 S C R 71), and The Statute of Westminster and Dominion Statute ; 1949
Edition, by K. C. Wheare, pages 18 and 292. It is doubtful if the prac tice or usage mentioned has
hardened into an obligatory constitutional convention. Even if that were the position, it would
require to be translated into or supplemented by a statute, if it is to be recognised by Courts (K.
C. Wheare s Book, page 18 et seq). As has been pointed out by my Lord the Chief Justice, rule
62 of the Constituent Assembly rules, is not really in conflict with the provisions, of subsection
(3) of section 6 of the Indian Independence Act and, in any case, it does not operate to effect the
necessary constitutional amendment, eve-n under the rules of that body, which prescribe a
specific procedure for constitutional legislation.

Finally I am not impressed by the argument which seems have found favour with some of the
learned Judges of the Sind Chief Court that the omission to deal with the question of assent in
earlier cases amounts to an indirect decision on that point. Every case is aft authority for the
point or points actually decided by it ether expressly or by necessary impli cation and no more.
The point was not expressly raised or decided in those cases and I can find little in them to
support the theory of an implied decision. The only precedent which deals directly with the point
is Khuhro's case (P L D 1950 Sind 49) in which a learned Single Judge of the Sind Chief Court
held that no assent was required under the law, for legislation passed by the Constituent
Assembly. The ratio decidendi in that case was the assumption of unfettered legislative power
possessed by the Constituent Assembly and the relevant provisions of the Indian Independence
Act were not fully examined.

A. H. Appeal accepted.