Case Note & Summary
The appellant, Hansraj Moolji, was prosecuted for an alleged contravention of Section 4 of the High Denomination Bank Notes (Demonetisation) Ordinance, 1946, which occurred on July 11, 1953. The Ordinance had been promulgated by the Governor-General of India on January 12, 1946, in exercise of powers conferred by Section 72 of the Ninth Schedule to the Government of India Act, 1935. This power was exercisable 'in cases of emergency' and originally limited to ordinances having force for not more than six months. However, by virtue of Section 1(3) of the India and Burma (Emergency Provisions) Act, 1940, the words 'for the space of not more than six months from its promulgation' were omitted from Section 72 as respects ordinances made between June 27, 1940, and the end of the emergency. The emergency was declared ended by Order in Council on April 1, 1946. The appellant contended that the Ordinance lapsed on that date because the emergency power came to an end and the original six-month limitation revived. He argued that since the offence was committed more than six years after the expiry of the emergency, the Ordinance had ceased to operate and the prosecution was not maintainable. The State, on the other hand, submitted that the deletion of the temporal limitation during the emergency period had the effect of transforming the Ordinance into a permanent legislative measure, and its validity was not affected by the termination of the emergency. The Supreme Court examined the legal effect of Section 1(3) of the 1940 Act and held that clearly, by omitting the words of limitation from Section 72, the legislative intent was to place ordinances made during the specified period on the same footing as Acts passed by the Indian Legislature without any time limit. The Court reasoned that once an ordinance was validly made under such a provision, its legal character and duration were determined at the time of its promulgation. The subsequent cessation of the emergency did not retrospectively reintroduce the six-month limitation. Consequently, the High Denomination Bank Notes (Demonetisation) Ordinance remained in full force after April 1, 1946, and the prosecution based on it was perfectly valid. The appeal was dismissed.
Headnote
A) Constitutional Law - Emergency Powers - Validity of Ordinance After Termination of Emergency - Government of India Act, 1935, Sch. 9, s. 72; India and Burma (Emergency Provisions) Act, 1940, ss. 1(3), 3 - The High Denomination Bank Notes (Demonetisation) Ordinance was promulgated on January 12, 1946 under the emergency power in s.72 as modified by the 1940 Act, which had omitted the words limiting the duration of ordinances. The Supreme Court held that this omission had the effect of making the Ordinance a permanent enactment without temporal limitation. Therefore, the subsequent declaration of the end of the emergency on April 1, 1946 did not cause the Ordinance to lapse, and it continued in force as if it were an Act of the Indian Legislature. The prosecution of the appellant in 1953 for contravention of s.4 of the Ordinance was consequently maintainable. (Paras 1-10)
Issue of Consideration
Whether the High Denomination Bank Notes (Demonetisation) Ordinance, 1946 remained in force after April 1, 1946, the date on which the emergency was declared ended, so as to sustain a prosecution for its breach in 1953.
Final Decision
The Supreme Court held that the Ordinance remained in force after the end of the emergency, as the deletion of the time limit from Section 72 equated the Ordinance to an Act of the Indian Legislature without temporal limitation. The prosecution was maintainable. The appeal was dismissed.
Law Points
- deletion of the words 'for the space of not more than six months from its promulgation' from Section 72 of the Government of India Act
- 1935 by the India and Burma (Emergency Provisions) Act
- 1940 equates ordinances to Acts of Indian Legislature without time limitation
- emergency ordinances do not lapse upon termination of emergency if their duration has been expressly removed
- ordinance validly made under amended power retains full force and effect irrespective of subsequent end of emergency
