P L D 1950 SIND 49
Per Hassanaly Agha, J.(a) Government of India Act, 1935, Sections. 88, 50 and 51(4)
Constitution of Pakistan (1973) Articles.128,130 and 132–
r/w Section 8 of Indian Independence Act, 1947
This is a suit for declaration and injunction.
The plaintiffs case is that he was an elected member of the Sind
In the written statement filed on behalf of the defendant no. 1, the
On these pleadings the following (amoung other) issues were framed:
1. Whether the Ordinance II of 1948 was ultra vires ?
Issue no.1. Coming to issue no. 1, Mr. Siraj has argued that Ordinance II of 1948 was ultra vires o three grounds : –
(i) No circumstances existed to give power to the Governor under section 88 to promulgate the Ordinance.
“If and so far as an Ordinance in this section make any provision which would not be valid if enacted in an Act of Provincial Legislature assented to by the Governor, it shall be void.
In the present case the Ordinance makes provision which would not be valid if enacted in an Act of Provincial Legislature as it does not relate to any of the items in Lists II and III of the Seventh Schedule of the Government of India Act.
So far the first objection is concerned, it can easily be disposed of. The wordings of the section are : —
“If at any time when the Legislature of a province is not in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinance as the circumstances appear to him to require.”
From this it is clear that it is the Governor himself, who is to be satisfied about the existence of the circumstances which make it necessary for him to take immediate action. The Ordinance no. II of 1948 promulgated by him reads : —
“Whereas the Legislature of the Province is not in session, and whereas the Governor of Sindh is satisfied that circumstances exist which render it necessary for him to take immediate action to set up a special Court for investigation and inquiry in certain matters”.
This clearly shows that the Governor was satisfied about the existence of the circumstances which rendered it necessary for him to promulgate the Ordinance.
Coming to the second objection regarding the Governor not having acted with the aid and advice of his Council of ministers, Mr. Siraj has relied on section 50 of the Government of India Act, 1935 (as adapted by the Pakistan (Provisional Constitution) Order 1947) which says that there shall be a council of ministers, to aid and advise the Governor in the exercise of his functions, and On section 8 clause(c) of the Independence Act, 1947, which says :
“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. ”
and has argued that, under the Government of India Act as it stands at present, the Governor has no power to act in his discretion or in exercise of his individual judgment, and he is bound to act in all matters with the aid and advice of the council of his ministers. Anything, therefore, done by the Governor except on the advice of the council of his ministers is illegal.
The reply of the others side is that there is no provision in the Government of India Act to the effect that the Governor is bound to act only with the aid and advice of his council of ministers, and that there is only a constitutional convention by which the Governor is expected to act only with the aid and advice of the ministers, and not a statutory obligation upon the Governor to be guided by the advice of his council of ministers. Mr. Manzoor Qadir has, in support of this contention, relied on section 51, clause (4) of the Government of India Act, which says :
“The question whether, and if so what, advice was tendered by the ministers to the Governor, shall not be enquired into in any Court. ”
It is true that the whole scheme of the Act is that the Governor should be a constitutional Governor who is expected to act with the aid and advice of his ministers. There is, however, no definite provision in the Act which creates an obligation on him to be guided by the advice of his ministers. The words “aid and advice” in section 50 seem to have been deliberately used to keep the matter outside the cognizance of the Courts of law and to leave it to the Governor to act according to constitutional convention prevailing in all the other Dominions. At one stage of the proceedings, I was inclined to be of the view that, as the defendant no.1 had admitted in his written statement that the Governor had not acted on the advice of his ministers, I could go into the question and decide whether on account of this the Sindh Ordinance II of 1948 was properly promulgate or not. But on a further consideration of the matter, however, I am of the opinion that clause 4 of section 51 takes away completely the jurisdiction of the Courts to decide this question. In my opinion, the question whether the Governor did or did not act on the advice of his ministers, cannot directly or indirectly be considered by the Court. Even if I had held that this question can be gone into by the Court, the objection must fall on the ground mentioned above, namely that a Governor’s act would only be against constitutional convention and not against any statutory obligation; it cannot, therefore, affect the legality of the Ordinance. [p. 51 to 58]