State of Nagaland Vs. Ratan Singh
 INSC 68 (9 March 1966)
09/03/1966 HIDAYATULLAH, M.
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
CITATION: 1967 AIR 212 1966 SCR (3) 830
R 1971 SC 813 (4) R 1982 SC 710 (21) R 1990
SC 73 (2) RF 1991 SC1557 (10)
Scheduled Districts Act, 1874-Rules there under-If
valid and it force-If Act bad for excessive delegation-If Rules violate Arts.
14 and 21 of Constitution-Applicability of Criminal Procedure Code to back ward
tracts-constitution of India, 1950.
The respondents were sought to be tried for
offences under the India Penal Code, before the Additional Deputy Commissioner,
Kohima, when objection was taken that the trial should be before the Court of
Session after commitment, as the offences were triable exclusively by the Court
of Session under the Code of Criminal Procedure. The Additional Deputy
Commissioner overruled the objection on the ground that there were no Courts of
Session in the Naga Hills District and the Criminal Procedure Code was also not
in force. He ruled that committal proceedings and the trial before a session
court was therefore not possible and the procedure laid down in the Rules for
the Administration of Justice and Police in the Naga Hills District, 1937,
would be followed. Thereupon the respondents filed writ petitions to quash the
proceedings commenced under the Rules of 1937.
The High court issued a writ directing the
State not to proceed with the trial under the Rules of 1937.
The area, where the trial was taking place
was one of the backward tracts and it was for a century and more specially
administered. The successive Criminal Procedure Codes, which ordinarily would
have governed the trial of offences, were always withdrawn from this area and
special rules for administration of criminal justice were promulgated instead.
By the Government of India Act, 1870, the
Governor-General and other authorities were conferred the power to make or
propose laws and the Governor-General was allowed to legislate separately for
the backward tracts. As difficulties arose in determining what laws were in
force and in which area of backward tracts, the Scheduled Districts Act 1874
was passed. The position at the inauguration of the Government of India, 1935
was that the Governor-General in Council legislated for these backward areas
and the Governor-General could direct that any Act of the Indian Legislatures
should not apply at all or should apply with such exceptions and modifications as
he might think fit. The 1937 Act provided for the ascertainment of the backward
tracts and for making of laws in those areas and in 1936 an Order in Council
was made specifying the backward tracts. The Scheduled District Act was
repealed by the Adaptation of Laws Order, 1937. The Constitution of India, 1950
by Art. 244 made a special provision for the scheduled and tribal areas The
State of Nagaland was formed by the State of Nagaland Act, 1965 comprising of
Naga Hills Tuensang Area and consisting of three distracts. The administration
of the State of Nagaland was to be in accordance with the provisions of the
State of Nagaland Act, which among other things provided for the continuance of
existing laws and their adaptation The Government and administration of these
areas was often not carried on directly under laws made by the Governor-General
either by himself 831 or in his Council but through rules which were framed
from time to time by other agencies. In 1937, the Governor of Assam prescribed
revised Rules under the powers vested in him by s. 6 of the Scheduled Districts
Act. These Rules of 1937 began by stating that they cancelled "all
previous orders on the subject" but were on the pattern of earlier rules
which laid down that in criminal trials the spirit of the Criminal Procedure
Code was to be followed because the Code itself was not in force. In appeal to
this Court, the main question that arose were whether the Rules of 1937 were
validly enacted and they continued to be in force, whether the Scheduled
Districts Act was bad because of excessive delegation, and whether the Rules of
1937 were rendered void by reason of Arts. 14 and 21 of the Constitution.
HELD : The Rules of 1937 were validly enacted
and continued to be 'in force and governed the trial of the respondents.
The Code of Criminal Procedure admittedly did
not apply to that area and the Additional Deputy Commissioner was therefore
right in holding the trial under the Rules of 1937, [854 E-F] The Rules of 1937
did survive the repeal of the Scheduled Districts Act, 1874 by virtue of the
saving clause in the Adaptation of Laws Order which repealed the Act. The
saving clause preserved all notifications and the Rules of 1937 were enacted by
a notification. After the passing of the Government of India Act, 1935, the
Rules of 1937 were successively preserved by ss. 292 and 293 of the Government
of India Act, 1935, s. 18 of the Indian Independence Act, 1947 and Art. 372 of
the Constitution. [847 G-848 A] There was no excessive delegation under the
Scheduled Districts Act. The Legislature clearly indicated the policy and the
manner of effectuating that policy. The Act conferred on the local Governments
power to appoint officers for administration of civil and criminal justice
within the Scheduled Districts and empowered the local Government to regulate
the procedure of the officers so appointed and to confer on them authority and
jurisdiction powers and duties incidental to the administration of civil and
criminal justice. These provisions afforded sufficient guide to the local
Government that the administration of Civil and Criminal justice was to be done
under their control by the officers appointed by them and the procedure which
they were to follow had to be laid down. Beside.,, there was sufficient
guidance in the three sub-sections of a. 6 read as a whole with the preamble,
and the Chief Commissioner's Rules made in 1872 and republished In 1874 by
Governor General in Council were also available as a further guide as the last
were continued in force by 7. [849 G-850 D] By the Scheduled Districts Act the
Governor-General in Council conferred on the local Government an equal or
concurrent power and this was clearly indicated by the word "as the case
may be' in s. 7 of the Act. Those words did not, show that the local Government
could only amend its own Rules. They showed that whoever made the rules the
authority of the Act made them binding. [851 A-B] Article 21 of the
Constitution did not render the Rules of 1937 ineffective. In the backward
tracts it was considered necessary that discretion should have greater play
than technical rules and the provision that the spirit of the Code should apply
was a law conceived in the best interests of the people. The discretion of the
Presiding Officer was not subjected to rigid control because of the
unsatisfactory state of defences which would be offered and which might fail if
they did not comply with 83 2 some technical rule. The removal of
technicalities, led to the advancement of the cause of justice in these
backward tracts. On the other hand the imposition of the Code of Criminal
Procedure would have retarded Justice as indeed the Governors-General, the
Governors and the heads of local Government had always thought. [852 B-D] It
was not discriminatory to administer different laws in different areas. These
backward tracts were not found suitable for the application of the Criminal
Procedure Code in, all its vigour and technicality and to say that they were to
be governed, not by the technical rules of the Code, but by the substance of
such rules was not to discriminate this area against the rest of India. [852
&G] The law had not attempted to control discretion by Rules in this area
but had rightly left discretion free so that the rule might not hamper the administration
of justice. 'Mere was no vested right in procedure; therefore, the respondents
could not claim to be tried under the Criminal Procedure code in this area
where the, Code was excluded. 1853 G] No discrimination can be spelled out from
the differences in the rules applicable to different areas in the backward
tracts. The object was to bring these territories under the Code of Criminal
Procedure applicable in the rest of India, by stages. Article 371 of the
Constitution itself contemplates a different treatment of these tracts and the
differences are justified by the vast differences between the needs of social
conditions in Nagaland and the various stages of development of different parts
of this area. [854 D] (Uniform set of Rules for the whole area suggested.)
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeals Nos. 198 of 1965 and 29-32 of 1966.
Appeals from the judgment and order dated
August 26, 1965 of the Assam and Nagaland High Court in Civil Rules Nos. 200,
235, 234, 233,and 232 of 1965.
C.K Daphtary, Attorney-General, D. M. Sen,
AdvocateGeneral for the State of Nagaland, P. K. Goswami, Anil Barthukar, B.
Dutta and Naunit Lal, for the appellant (in all the appeals.) A.K. Sen, S. S.
Ray, H. K Puri and H. L. Arora, for the respondents (in all the appeals).
Niren De, Additional Solicitor-General and
Naunit Lal, for the intervener.
The Judgment of the Court was delivered by
Hidayatullah, J. These are appeals by the State of Nagaland against the
judgment and order of the High Court of Assam and Nagaland, August 26, 1965, by
which the High Court, allowing ,certain writ petitions filed by the
respondents, issued a writ of mandamus directing the Additional Deputy
Commissioner, Kohima and the State of Nagaland, not to proceed with the trial
of the 833 respondents. The High Court has certified the case as fit for appeal
to this court. The facts are these :
The respondents are members of the 7th
Battalion of the Central Reserve Police (shortly called in this judgment the
C.R.P.) who, under the command of the 8th.Mountain Division Infantry Brigade,
were engaged in_ operations in the State of Nagaland. On receipt of information
that on or about August 3, 1964, seven hostile Nagas, who were captured and
kept prisoners with the C.R.P. at Pfutser Camp, were murdered and their dead
bodies secretly disposed of, the police, after investigating the report,
arrested 44 persons and charged them with offences under ss. 302/109/34 and
201, Indian Penal Code. Some other members of the C.R.P. were charged at the same
time under s. 436, Indian Penal Code for setting fire to some houses in certain
villages. The trial was about to take place before the Additional Deputy Commissioner,
Kohima, when an objection was taken that the trial should be before the Court
of Session after commitment, as the offences were triable by the Court of
Session exclusively, under the Code of Criminal Procedure.
The Additional Deputy Commissioner overruled
the objection pointing out that there were no Courts of Session in the Naga
Hills District and the Criminal Procedure Code was also not in force. He ruled
that committal proceedings and trial before a Sessions Court were, therefore,
not possible and the procedure laid down in the Rules for the Administration of
Justice and Police in the Naga Hills District, 1937, would be followed. For
brevity we shall refer to these Rules as the Rules of 1937.
The respondents filed five petitions under
Art. 226 of the Constitution for writs or orders to quash the proceedings under
the Rules of 1937 and other reliefs. By the order impugned here a Divisional
Bench consisting of C. Sanjeeva Rao Nayudu and S. K. Dutta JJ., quashed the
proceedings and issued a writ of mandamus directing the Additional Deputy
Commissioner and the State of Nagaland not to proceed under the Rules of 1937
with the trial of the accused before him.
The learned Judges gave separate, but
Mr. Justice Dutta in a brief judgment reached
the conclusion that the Rules of 1937 made by the Governor of Assam and the earlier
rules made by the Lt. Governor on November 29, 1906 were not validly made. In
his opinion there already existed certain other Rules made by the
Governor-General in Council in 1874 and the local Government was not competent
to make rules while those Rules existed. In regard to the Rules of 1874 the
learned Judge held that they "had become infructuous" for want of
suitable adaptations after the political changes since 1874. He did not
consider any other ground of alleged invalidity of these Rules and expressly
refrained from giving any opinion. Mr. Justice C. Sanjeeva Rao Nayudu 834 dealt
with the problem exhaustively and viewed it from many angles. He gave several
reasons for holding that the trial could not take place under the Rules of
1937. We have not found it easy to summarize his reasons effectively but,
briefly stated, they were : that the Rules of 1937 were void ab initio because
the Scheduled Districts Act, 1874 under which the Governor purported to make
them did not give him any authority to make them; that if the Act gave such
authority, it was itself ultra vires the statutes of British Parliament and
involved excessive delegation; that on the repeal of Scheduled Districts Act in
1937, all ruled made under it lapsed; that the Rules of 1937 were vague, uncertain
and elusive and were not law as contemplated by Art. 21 ; that they were
discriminatory for various reasons ; that they could not apply to Indian
citizens in Nagaland and that, in any event, the Additional District Magistrate
was not acting in accordance with those Rules such as they were.
We need not at this stage attempt to enlarge
upon the various themes because the arguments on behalf of the respondents have
presented a selection of the reasons which were given by Mr. Justice Nayudu and
they will appear in appropriate places in our Judgment.
We are concerned with a new State formed as
late as 1962 but the territory of this State has had a very long and chequered
history. The area, where the trial is taking place is one of the backward
tracts and it has, for a century and more, been specially administered. In that
area the ordinary laws (particularly the two main Codes) in force in the rest
of India, have not been applied. The successive Criminal Procedure Codes, which
ordinarily would have governed the trial of offences, were always withdrawn
from this area and special rules for administration of criminal justice were
promulgated instead. Whether such rules (particularly the Rules of 1937) were
validly enacted, whether they continue to be in force and whether they are
rendered void by reason of Arts. 14 and 21 of the Constitution are the main
problems requiring consideration.
Before we consider these questions the
history of law-making in these areas may first be told generally and then in
relation to the Rules for the Administration of Justice promulgated in 1937 and
at other times.
Even prior to the taking over of the
Government of the territories formerly administered by the East India Company
the making of laws was entrusted to the Governor General in Council under 3
& 4 William IV, Ch. 85 and 16 & 17 Vict. Ch. 95. They allowed laws to
be made directly for the areas which were under the Government of East India
Company. After the Indian Councils Act of 1861 (24 & 25 Vict. Ch. 67) was
passed the legality of the laws which had been made by the Governor-General
either in Council or on his own was in question. Section 22 of the Indian
Councils Act made new provision by which the Governor-General in Council 835
was authorised to make laws and regulations for India and to repeal, amend or
alter any law or regulation whatever in force in India. The Act also made
provision validating all earlier laws by enacting that no rule, law or
regulation made before the passing of that Act by the Governor-General or
certain named executive authorities would be deemed invalid by reason of not
having been made in conformity with the provisions of the Charter Acts. The
power to make laws was taken away from the executive authorities. The power,
which was taken away from the Governor and other authorities to make or propose
laws was again conferred on the Governor General and other authorities by the
Government of India Act, 1870 (33 & 34 Vict. Ch. 3) and the
Governor-General was allowed to legislate separately for the backward tracts.
For this purpose the Governor in Council, the
Lt. Governor or the Chief Commissioner, as the case, may be, could submit to
the Governor-General draft regulations for his consideration and after their
approval by the Governor General in his Council such regulations became law for
these backward areas.
This state of affairs existed right down to
the Government of India Act, 1915. As difficulties arose in determining what
laws were in force and in which areas of the backward tracts, the Scheduled
Districts Act, 1874 was passed. This Act will be considered closely later and
for the present we content ourselves with a few points of importance to the
present narrative. The preamble of the Act clearly set out that the object, inter
alia, was to ascertain the enactments in force in any territory and the
boundaries of such territory. The Act, therefore, specified Scheduled
tracts" and the local Governments were given the powers to extend by
public notification, any enactment in force in British India. When the
Government of India Act, 1915 (5 & 6 Geo V, Ch. 61) was enacted, while
repealing by the Fourth Schedule the Government of India Act, 1870, section 71
was included in the 1915 Act which, in effect, provided the same procedure for making
and applying laws as had been provided by the Act of 1870. The local
Governments could propose draft regulations for peace and good Government of
any part within their jurisdiction and the Governor-General after taking the
draft regulations and the reasons into consideration could approve in his
Council and assent to the Regulations. After his assent and on their
publication in the official Gazette of India and in the local official Gazette,
if any, they had the same force of law and were subject to the same
disallowance as if they were the Act of the Governor-General in his Legislative
Council. When the Government of India Act, 1919 (9 & 10 Geo. V, Ch. 101)
was passed s. 52-A. was inserted which read as follows :"52-A.
Constitution of new provinces, etc., and provision as to backward tracts.
836 (1) ..... .... ......
(2)The Governor-General in Council may
declare any territory in British India to be a "backward tract", and
may, by notification, with such sanction as aforesaid,. direct that this Act
shall apply to that territory subject to such exceptions and modifications as
may be prescribed in the notification.
Where the Governor-General in Council has, by
notification, directed as aforesaid, he may, by the same or subsequent
notification, direct that any Act of the Indian legislature shall not apply to
the territory in question or any part thereof, or shall apply to the territory
or any part thereof subject to such exceptions or modifications as the
Governor-General thinks fit, or may authorise the Governor in Council to give
similar directions as respects any Act of the local legislatures." Thus at
the inauguration of the Government of India Act, 1935 the position was that the
Governor-General in. Council or the Governor etc. with the approval of the
Governor General in Council legislated for these backward tracts and the
Governor-General could direct that any Act of the Indian legislature should not
apply at all or should apply with such exceptions and modifications as the
Governor-General might think fit. When the Government of India Act, 1935
replaced the Government of India Act, an Order in Council was made in 1936
specifying the backward tracts and the 1935 Act included ss. 91 and 92 for the
ascertainment of the backward tracts and for the making of laws in those areas.
Section 92, which dealt With the
administration of the excluded areas and partially excluded areas, provided :
"92. Administration of excluded areas
and partially excluded areas :
(1)The executive authority of a Province extends
to excluded and partially excluded areas therein, but, notwithstanding anything
in Act, no Act of the Federal Legislature or of the Provincial Legislature,
shall apply to an excluded area or a partially excluded area, unless the
Governor by public notification so directs, and the Governor in giving such a
direction with respect to any Act may direct that the Act shall in its
application to the area, or to any specified part thereof, have effect subject
to such exceptions or modifications as he thinks fit.
(2)The Governor may make regulations for the
peace and good Government of any area in a Province which is for the time being
an excluded area, or a partially excluded area, and any regulations so made may
repeal or amend any Act of the Federal Legislature or of the Provincial
Legislature, or any existing Indian Law, which is for the time being applicable
to the area in question.
Regulations made under this sub-section shall
be submitted forthwith to the Governor-General and until assented to by him in
his discretion shall have no effect, and the provisions of this Part of this
Act with respect to the power of His Majesty to disallow Acts shall apply in
relation to any such regulations assented to by the Governor-General as they
apply in relation to Acts of a Provincial Legislature assented to by him.
(3)The Governor shall, as respects any area
in a Province which is for the time being an excluded area, exercise his
functions in his X X discretion." After this the Scheduled Districts Act
became obsolete and war, repealed by the Adaptation of Laws Order, 1937.
Next came the inauguration of the
Constitution. Article 244 made a special provision for the scheduled and tribal
areas and the second clause of that article provided that the provisions of the
Sixth Schedule were to apply to the administration of the tribal areas in the
State of Assam.
Originally in the Sixth Schedule to the
Constitution the Naga Hills District was included as an autonomous district and
was shown in Part A of Paragraph 20 and the Naga Tribal Area was shown in Part
B. It is not necessary to refer in detail to the Sixth Schedule which provided
for separate modes of administration of the Part A and Part B territories. The
name Naga Tribal Area was changed to Tuensang Frontier Division by the North
East Frontier Areas (Administration) Regulation, 1954 (No. 1 of 1954) which
came into force on January 19, 1954. By the same Regulation the North East
Frontier Tract was stated to include Balipara Frontier Tract, the Tirap
Frontier Tract, the Abor Hills District, the Misimi Hills District and with the
Naga Tribal Area was named collectively as the North East Frontier Agency. Then
by the Naga Hills-Tuensang Area (Administration) Act, 1957 (42 of 1957), the
Naga Hills District was omitted from Part A and the whole of the Naga
Hills-Tuensang area was shown in Part B with effect from December 1, 1957. The
Tuensang area was the former Naga Tribal Area and the other two areas were the
autonomous districts of Kohima and Mokokchung. The State of Nagaland was formed
by the State of Nagaland Act, 1962 (27 of 1962).
That Act repealed and replaced the Nagaland
(Transitional Provisions) Regulation, 1961 (Regulation 2 of 1961). The 838
territory of the new State comprises the Naga Hills-Tuensang Area and consists
of three districts which are the Kohima District, the Mokokchung District and
the Tuensang District.
The State of Nagaland Act also deleted all
references to the Naga Hills-Tuensang Area from the Sixth Schedule. The
administration of the State ,of Nagaland was to be in accordance with the
provisions of State ,of Nagaland Act.
Among other things it provided for a common
High Court for the State of Assam and the State of Nagaland. By section 26 it
laid down:-"26. Continuance of existing laws and their adaptation.(1)All
laws in force, immediately before the appointed day, in the Naga Hills-Tuensang
Area shall continue to be in force in the State of Nagaland until altered,
repealed or amended by a competent Legislature or other competent authority.
(2)For the purpose of facilitating the
application in relation to the State of Nagaland of any law made before the
appointed day, the appropriate Government may, within two years from that day,
by order make such adaptations and modifications of the law, whether by way of
repeal or amendment, as may be necessary or expedient, and thereupon every such
law shall have effect subject to the adaptations and modifications so made until
altered, repealed or amended by a competent Legislature or other competent
Explanation.-In this section the expression
"appropriate Government" means, as respects any law relating to a
matter enunciated in the Union List in the Seventh Schedule to the
Constitution. The Central Government; and as respects any other law, the
Government of Nagaland." Section 27 conferred power on courts, tribunals
and authorities to construe, in the absence of adaptations, the laws in such
manner, without affecting the substance, as may be necessary. By s. 28 all
courts, tribunals and authorities discharging lawful functions were continued
as before unless their continuance was inconsistent with the State of Nagaland
Act. So much will suffice to describe the ground-work of law-making under the
authority of British Parliament, the Governor-General in Council and the
Parliament and Legislatures under the present Constitution.
We shall now see the real crux of the problem
because the Government and administration of these areas was often not carried
on directly under laws made by the Governor-General either by himself or 839 in
his Council but through rules which were framed from time to time, by other
agencies. We will now describe how these rules, some of which are in
controversy in the present appeal, were made.
On September 24, 1869 the Governor-General
enacted the Garo Hills Act, 1869 (Act 22 of 1869). By this Act the Garo Hills
were removed from the jurisdiction of the Civil, Criminal and Revenue courts
and offices established under the General, Regulations and Acts and the Act
provided for the administration of justice and collection of revenue.
The Act repealed an earlier Act of 1835 (No.
6 of 1835) and the Bengal Regulation 10 of 1822, but in this case we are not
required to go behind 1869. We are referring to this Act because it was
extended also to the Naga Hills. Section 4 of the Act on extension provided
that the territory known as the Naga Hills was removed from the jurisdiction of
courts of Civil and Criminal Judicature as well as from the law prescribed for
the said courts and no Act passed by the Council of the Governor-General for
making laws and regulations was deemed to extend to any part of the said
territory unless the same was specially named in it. By s. 5 the administration
of Civil and Criminal justice was vested in such officers as the Lt. Governor
might, for the purpose of tribunals of first instance or of reference and appeal,
from time to time, appoint. The officers so appointed were, in the matter of
administration, subject to the direction and control of the Lt. Governor and
were to be guided by such instructions as the Lt. Governor might, from time to
time, issue. The Lt. Governor could extend by notification any law or any
portion of a law in force in the other territories subject to his Government or
to be enacted by the Council of the Governor. General or of the Lt.
Governor for making laws and regulations and
while making such extensions could direct by whom the powers and duties
incident to the provisions so extended should be exercised or performed and
might make any order which was deemed requisite for carrying such provisions
into operation. The Act also gave power by s. 9 to the Lt. Governor to extend
mutatis mutandis all or any of the provisions contained in the other sections
of the Act to the Jaintia Hills, the Naga Hills and to such portions of the
Khasi Hills as for the time being formed parts of British India. The Act was
also extended to Khasi and Jaintia Hills and the authority of the
Governor-General to enact the Act and of the Lt. Governor to "tend it was
challenged. The decision of the Judicial Committee is reported in Queen v.
Burah (L. R. 5 I.A. 178) which held that both the powers existed. On October
14, 1871 acting under s. 9 of the Act of 1869 the Lt. Governor extended the
whole of the Act to the Naga Hills District and vested the administration of
Civil and Criminal jurisdiction in the Commissioner of Assam subject to his own
direction and control. The Commissioner 840 was to exercise the powers of the
High Court in Civil and Criminal cases triable in the Courts of the said
districts but no sentence of death was to be carried out without the sanction
of the Lt. Governor and it was competent to the Lt. Governor to call for the
record of any criminal or civil case and to pass such orders thereon as he saw
The notification also ordered that cases not
then triable in the ordinary British Courts would not be triable therein and
even in those cases which were triable in those courts, the officers were to
guide themselves by the spirit of the laws prevailing in British India and in
force in the districts.
In continuation of this notification, the Lt.
Governor made under s. 5 of the Act of 1869, in application to the Naga Hills
(which he renamed the Naga Hills Agency) Rules for the Administration of
Justice and Police in the Naga Hills Agency. These rules were first published
on August 7, 1872 and may be called, for brevity, the Rules of 1872.
The Rules of 1872, 39 in number, dealt with
various topics but we shall set down the purport of such rules only as concern
US. Part I was general and consisted of two rules. By Rule 1, the
administration of the Naga Hills Agency was vested in the Commissioner of
Assam, the Political Agent and his assistants, the Monzadars, Gaonburahs,
Peumahs (Naga Chiefs) and Houshas (Kookie Chiefs) or headmen of Khels, or such
other classes of officers as the Lt. Governor deemed fit. Part II provided for
police a-.id consisted of Rules 3 to 15. We are not concerned with it. Criminal
justice was provided for in Part III (Rules 16 to 24) and Civil Justice in Part
IV (Rules 25 to 30). We are only concerned with the former.
Criminal justice was to be ordinarily
administered by the Political Agent, his assistants and by the Mouzadars etc.
The Political Agent could pass a sentence of
death or imprisonment for a term unlimited or of fine up to any amount but not
so as to exceed the value of the offender's property. No sentence of death was
to be carried into effect without the concurrence of the Commissioner and the
sanction of the Lt. Governor. Similarly, no sentence above 7 years'
imprisonment could be carried into effect without the approval of the
Commissioner. The Commissioner could enhance any sentence passed by his
subordinates. The Assistant to the Political Agent was to exercise the powers
of a Magistrate, First Class as laid down in the Criminal Procedure Code of
1872. The Mouzadars etc. were to try petty offences and could impose a fine up
to Rs. 50. There were elaborate rules for trial by them and appeals lay against
their decisions to the Political Agent or his Assistant. Appeals lay to the
Political Agent from the decisions of his Assistant. No appeal lay as of right
from the sentence of the Political Agent involving less than three years'
imprisonment but the Commissioner could call for the record of the case to
satisfy himself Sentences above that period were appealable to the Com841
missioner. The Lt. Governor was empowered to review the proceedings of all
subordinate officers. Rule 23 bore upon the manner of the trial. It provided
that the procedure of the Political Agent and his Assistant was to be in the
spirit of the Code of Criminal Procedure as far as it was applicable to the
circumstances of the District and consistent with the Rules. The main
(a)Verbal notices fixing a date to appear
were sufficient when the police was employed to convey them or the person was
not resident or in the district or where his place of abode was not known.
(b)Political Agent and his Assistant were to
keep only the substance of all proceedings in cases requiring sentences below
three years. In other cases, full notes of the proceedings had to be kept in
(c)Proceedings before Mouzadars etc. were not
required to be in writing but if a person could be found to be able to write, a
brief note of the proceeding was to be made.
(d)All fines levied by the Mouzadars etc.
were to be paid to the Political Agent or his
Assistant or some officer specially empowered by the Political Agent.
(e)It was discretionary to examine witnesses
on oath in any form or to warn them that they were liable to punishment for
perjury if they stated what they knew to be false.
On February 6, 1874 there was formation of
the Chief Commissioner ship in Assam. The Governor-General in Council issued a
proclamation under s. 3 of 17 & 18 Vict., Ch. 77.
By the proclamation he took under his immediate
authority and management the backward territories then under the Lt.
Governor of Bengal including the Naga Hills.
By another notification the Governor-General in Council in exercise of powers
under s. 3 of the Act formed those territories into a Chief Commissioner ship
called the Chief Commissioner ship of Assam. In April of the same year an Act
(Act 8 of 1874) was passed to provide for the exercise within the said
territories, of the powers which were before exercised under or by virtue of
any law or regulation by the Lt. Governor of Bengal and the Board of Revenue.
By the first section these powers were transferred and vested in the
Governor-General in Council and by s. 2 the Governor-General in Council was
empowered to delegate to the Chief Commissioner all or any of the powers or
withdraw any power so delegated. On 16th of April, 1874 the Governor-General in
Council by notification delegated to the Chief Commissioner of Assam powers
which M12SupCI/66-8 842 were formerly vested in or were exercisable by the Lt.
Governor of Bengal. On June 13, 1874 the
Governor-General in Council made alterations in the Rules of 1872 but only to
make them accord with the political changes and republished them for general
information. The changes were that wherever the Commissioner was mentioned in
the Rules, the Chief Commissioner was substituted and where the Lt.
Governor was mentioned the Governor-General
was to be read.
The Rules, however, remained the same. We
shall refer to these Rules as the Rules of 1874.
Doubts having arisen in some cases as to
which Acts or Regulations were in force or the boundaries of the territories in
which they were in force and with a view to providing a ready means for
ascertaining the enactments in force in the respective areas and the boundaries
of the areas and for administering the law therein, an Act was passed by the
Governor-General of India in Council. This Act was in titled the Scheduled
Districts Act, 1874 (14 of 1874).
This Act remained on the statute book till
the Government of India Act, 1935 came into force when it was repealed by the
Adaptation of Laws Order, 1937. The scheme of the relevant provisions of this
Act was this. The Act extended to the whole of India. It defined
"Scheduled Districts" by reference to its First Schedule and these
districts were to include such other territories in which the Secretary of
State in Council declared the provisions of 33 Vict. Ch. 3 (section 1) to be
applicable. The Act repealed other enactments by its Second Schedule. By
sections 3 and 4 the local Government was enabled, with the previous sanction
of the Governor-General in Council to notify what enactments were in force and
what were not in force in any of the Scheduled Districts and to correct any
mistake of fact in a notification already issued under that Act but not so as
to change a declaration once made and on the issue of such notifications the
intended effect was to follow. By s. 5 the local Government with the previous
sanction of the Governor-General in Council was enabled to extend to the
Scheduled Districts any Act in force in British India. Sections 6 and 7, which
were the subject of great discussion in this appeal, may be quoted for future
"6. Appointment of officers and
regulation of their procedure.
The Local Government may from time to time:(a)
appoint officers to administer civil and criminal justice and to superintend
the settlement and collection of the public revenue, and all matters relating
to rent, and otherwise to conduct the administration, within the Scheduled
Districts, (b) regulate the procedure of the officers so appointed; but not so
as to restrict the operation of any enactment for the time being in force in
any of the said Districts, (c) direct by what authority any jurisdiction, powers
or duties incident to the operation of any enactment for the time being in
force in such District shall be exe raised or performed." "7.
Continuance of existing rules and officers.
All rules heretofore prescribed by the
Governor-General in Council or the Local Government for the guidance of
officers appointed within any of the Scheduled Districts for all or any of the
purposes mentioned in section six and in force at the time of the passing of
this Act, shall continue to be in force unless and until the Governor General
in Council or the Local Government, as the case may be, otherwise directs.
All existing officers so appointed previous
to the date on which this Act comes into force in such District, shall be
deemed to have been appointed hereunder." Section 8 enabled settlement of
question as to boundaries of Scheduled Districts. Section 9 indicated the place
of imprisonment or of transportation. Sections 10 and 11 do not matter to us.
The Assam Frontier Tracts Regulation 1880
(Regulation II of 1880) was next enacted to provide for the removal of certain
Frontier Tracts in Assam from the operation of enactments in force there.
Section 2 of the Regulation read:
"2. Power to direct that enactment shall
cease to be in force.
When this regulation has been extended in manner
hereinbefore prescribed to any tract, the Chief Commissioner may from time to
time, with the previous sanction of the Governor General in Council, by
notification in the local Gazette, direct that any enactment in force in such
tract shall cease to be in force therein, but not so as to affect the criminal
jurisdiction of any court over European British Subjects." Under the
provisions of this Regulation the Criminal Procedure Codes of 1882 and 1898
were withdrawn from the Naga Hills.
By proclamation No. 2832 dated the 1st
September, 1905 the Governor-General, with the sanction of His Majesty, constituted
the Province of Assam (to which were added certain districts 844 of East
Bengal) and appointed a Lt. Governor. The new Province was known as Eastern
Bengal and Assam. The Governor-General in Council also passed on the 29th
September, 1905 an Act (No. 7 of 1905). it provided by s. 5 as follows:"5.
Power to Courts and Local Governments for facilitating application of
For the purpose of facilitating the
application to any of the territory mentioned in Schedule A, B or C of any
enactment passed before the commencement of this Act, or of any notification,
order, scheme rule, form or bylaw made under any such enactment,-(a) (b) the
Local Government may, by notification in the local official Gazette, direct by
what officer any authority or power shall be exercisable, and any such
notification shall have effect as if enacted in this Act." Naga Hills were
in Schedule A.
On November 29, 1906, the Lt. Governor
prescribed Rules for the Administration of Justice and Police in the Naga Hills
District under S. 6 of the Scheduled Districts Act, 1874.
These Rules may be conveniently called the
Rules of 1906.
These Rules repeated the Rules which had been
in force from 1872 with appropriate modifications consequent upon the political
changes. The nomenclature of Political Agent and his Assistant was dropped and
in their place the Deputy Commissioner and his Assistants were named in the
The Deputy Commissioners became the
equivalent of Political Agents in the exercise of powers. The Assistants to the
Deputy Commissioner were invested with powers of First Class Magistrates. All
sentences of death or transportation were required to be confirmed by the Lt.
Governor but did not have to be considered by the Commissioner as in the Rules
of 1872 and 1874. All sentences of imprisonment of 7 years and upward had to be
confirmed by the Commissioner. The Lt.
Governor and the Commissioner had record of a
criminal case and reduce enhance it within the limits prescribed Except for
these differences the Rules the same.
Assam underwent yet another change at the
imperial Coronation Darbar held in Delhi in December, 1911, the King announced
a new distribution of territory. Bihar and Orissa were cut off from Bengal and
were formed into an independent 845 Lt. Governorship. Eastern Bengal was
reunited with West Bengal and Assam once again became a separate Province with
a Chief Commissioner. This new scheme took effect from April 1, 1912.
In 1914 by two notifications (Nos. 5467P and
5459P dated 1310-1914), which were issued under Regulation 2 of 1818, all
enactments in force in the Western, Central, North East and Eastern Tracts were
to cease to be in force and under s. 5 of the Scheduled Districts Act, 1874,
the Indian Penal Code, the Indian Police Act, the Indian Arms Act, the Assam
Land Revenue Regulation, the Assam Forest Regulation and the Whipping Act were
extended by the Chief Commissioner with the previous sanction of the
Governor-General in Council.
The administration of Assam thereafter
continued under the above mentioned Acts and the procedural part was taken from
the Rules of 1906 which laid down that in criminal trials the spirit of the
Criminal Procedure Code was to be followed because the Code itself was not in
force. In 1921 Assam became a Governor's Province.
We next come to March 25, 1937, On that day
the Governor of Assam prescribed revised Rules under the powers vested in him by
s. 6 of the Scheduled Districts Act. These Rules did not materially differ from
the Rules of 1872, 1874 and 1906.
The Rules of 1937 began by stating that they
cancelled "all previous orders on the subject." The changes that were
introduced were of the pattern we have known before. The administration of the
Naga Hills was vested in the Governor of Assam, the Deputy Commissioner, the
Additional Deputy Commissioners and Assistants to the Deputy Commissioner, the
Mouzadars, etc. The Deputy Commissioner, the Additional Deputy Commissioner and
Assistants to the Deputy Commissioner were to be appointed by the Governor. As
a result of these changes, the provisions of Part III dealing with criminal
justice were suitably amended. The first change was to assign duties to the
Additional Deputy Commissioner. The term Deputy Commissioner was said to
include an Additional Deputy Commissioner and the latter had the same powers as
the former (Rule 15A). The terms District Magistrates, Additional District
Magistrates and Magistrates of the District, Sub-Divisional Magistrates or
Magistrate of a Sub-Division were to refer to in any law in force in Naga Hills
to the Deputy Commissioner, Additional Deputy Commissioner and Sub-Divisional
Officers, Mokokchung (Rule 15B). In respect of all offences under the Indian
Penal Code or under any other law to be investigated, inquired into, tried or
otherwise dealt with according to the Rules of 1937 the words and expressions
defined in s. 4 of the Criminal Procedure Code, 1898 were to have the same
meanings. The Deputy Commissioner could impose any sentence but the sentence of
death was subject to confirmation by the High Court. The Assistants to the
Deputy Commissioner were equated to 846 Magistrates of First Class, but the
Governor could, if he thought fit, invest an Assistant to the Deputy
Commissioner either generally or for trial of a particular case or cases with
all powers of the Deputy Commissioner, except to pass a sentence of death.
Another change was that instead of the Lt. Governor the High Court of Assam and
the Deputy Commissioner could call for the record of any case and reduce,
enhance or cancel any sentence or remand the case for retrial. Sentences of
death Passed by the Deputy Commissioner were subject to the confirmation by the
High Court of Assam (Rule 16-A) and the Deputy Commissioner while convicting
the accused and sentencing him to death was to inform the accused about the
period in which the appeal should be filed (Rule 16-B). The other Rules defined
the powers of the High Court in cases submitted for confirmation of sentence
(Rule 16-C, D and E.). Appeals lay from the Deputy Commissioner to the High
Court in any case.
These Rules, it is contended on behalf of the
State of Nagaland, continue till today. They were amended in 1952, 1954, 1956
and 1957. In 1937 by the Adaptation of Laws Order the Scheduled Districts Act
was repealed but there was a special saving which read as follows:" This
Act shall cease to have effect, without prejudice to the continuing validity of
any notification, appointment, regulation, direction or determination made there
under and in' force immediately before the commencement of Part III of the
Government of India Act, 1935 :
Provided that, where immediately before the
first day of April, 1937, any enactment is, by virtue of any notification made
under this Act, in force in any area in British India, either with or without
restrictions or modifications, the Central Government, in relation to matters
enumerated in List I of the Seventh Schedule to the Government of India Act,
1935, and the Provincial Government, in relation to other matters, may, within
six months from the said date, by notification in the Official Gazette, declare
that the enactment in question shall have effect in that area subject to such
modifications and adaptations specified in the notification as the Government
in question may deem necessary or expedient to bring it into accord with the
Government of India Act, 1935." In 1945 the Assam Frontier (Administration
of Justice) Regulation, 1945 (Regulation 1 of 1945) was enacted. It was
originally made applicable to Balipara, Lakhimpur, Sadiya and Tirap Frontier
Tracts. It was applied to Tuensang in 1955. In the main these Regulations were
the same as the Rules of 1937 applicable in the Kohima and Mokokchung Divisions
but slight differ847 ence existed in the powers of the High Court in the matter
of transfers and appeals against acquittals. As these were the subject of an
argument we shall refer to these differences later.
Before the formation of the State of Nagaland
the laws in the Tuensang Frontier Division and those in force in the rest of
the North-East Frontier Agency were assimilated by the Tuensang Frontier
Division (Assimilation of Laws) Regulation, 1955 (No. 4 of 1955). These were
made by the Governor in exercise of the powers conferred by clause (2) of Art.
243 of the Constitution read with Sub-paragraph (2) of paragraph 18 of the
Sixth Schedule to the Constitution by the President of India. By Paragraph 3 of
that Regulation all laws except the Tuensang Frontier Division (Undesirable
Persons) Regulation, 1951, which were extended to or were in force in Tuensang
Frontier Division but were not extended to and not in force in the rest of the
North East Frontier Agency ceased to be in force in Tuensang Frontier Division.
Similarly, all laws which immediately before
the appointed day did not extend to or were not in force in the Tuensang
Frontier Division but extended to or were in force in the rest of the North
East Frontier Agency, were extended to or came into force in the Tuensang
Frontier Division. In other words, the laws in the North East Frontier Agency
became completely uniform except in one respect, namely, the continued
enforcement of the Undesirable Persons Regulation referred to above in Tuensang
Division. As the Criminal Procedure Code was never in force in any part of the
North East Frontier Agency it did not come into force in the Tuensang Area. On
the other hand, the Rules of 1937 if they were valid and in force got extended
to the Tuensang area also. In 1921, in accordance with the provisions of the
Government of India Act, Assam became a Governor's Province and later one of
the States in the Indian Republic. The Regulations of 1952, 1954, 1956 and 1957
were made by the Governor in exercise of his powers under the Sixth Schedule of
the Constitution. We shall now consider the arguments in these appeals which
have covered a wide field, and they were also apparently addressed in the High
Court and found favour there.
We may here dispose of one argument which is
somewhat independent of the others. It is contended that the Rules of 1937 did
not survive the repeal of the Scheduled Districts Act, 1874 by the Adaptation
of Laws Order, 1937, notwithstanding the saving clause in the Adaptation of
Laws Order. This argument is. based on the submission that the savings clause
(reproduced earlier by us) did not mention rules as such. We do not agree. The
saving clause preserved all notifications. The Rules of 1937 were enacted by
notification and if notifications were saved the Rules in the notification were
also saved. After the passing of the Government of India Act, 1935, the Rules
of 1937 would be successively preserved by ss. 292 and 293 of the Government of
India Act, 1935, S. 18 of the Indian Independence Act, 1947 and Art. 372 of the
Constitution. The real questions are whether they were invalid for any reason
to start with or became void after the Constitution.
The powers of the Governor-General in Council
and now of the President derived from the various constitutional documents are
not and indeed cannot be in doubt. Hence the attempt of the respondents is to
challenge the powers of the Lt. Governor, Chief Commissioners and the Governor
who have in turns made Rules for the administration of these areas.
The attack is on the Rules of 1906 and 1937
as being incompetently made under the Scheduled Districts Act and on ss. 6 and
7 of the Scheduled Districts Act, if it be held that the Rules were competently
made. We shall deal first with these arguments.
The contention that the Rules of 1937 were
void ab initio is supported by many arguments. The submission is that ss. 6 and
7 of the Scheduled Districts Act did not confer any powers of legislation to
regulate judicial procedure. It is pointed out in this connection that s. 6(a)
gave powers to appoint officers to administer civil and criminal justice and s.
6(b) allowed the procedure of the officers so appointed to be regulated which
meant administrative procedure and no general law-making authority can be
implied and s. 6(c) enabled the choosing of authority by which any
jurisdiction, power or duty incident to the operation of any enactment for the
time being in force should be exercised or performed in any scheduled district.
Reference is made in this connection to s. 5 of the Act of 1869 where it was
laid down that the officers so appointed would, in the matter of administration
and superintendence, be subject to the direction and control of the Governor
and would be guided by such instructions as he might, from time to time, issue.
It is contended that by regulating the procedure is meant instructions on the
In our opinion this is a wrong reading of the
section. We must not forget that the Scheduled Districts Act was passed because
the backward tracts were never brought within the operation of all the general
Acts and Regulations (particularly the Criminal Procedure Code) and were
removed from the operation and jurisdiction of the ordinary courts of
Judicature. In these areas the Indian Penal Code was always applicable but not
the Code of' Criminal Procedure.
The local Governments were empowered by the
Scheduled Districts Act to appoint officers to administer civil and criminal
justice and to regulate the procedure of the officers so appointed. Officers
appointed to administer civil and ,criminal justice must follow some procedure
in performing this task. Regulating procedure, therefore, meant more than
framing 849 administrative rules. It meant the control of the procedure for the
effective administration of justice. It is significant that the
Governor-General in Council, who enacted the Scheduled Districts Act, framed
the Rules of 1874 containing comprehensive rules of procedure for dealing with
criminal cases. This was a clear exposition of ss. 6 and 7 of the Scheduled
Districts Act by the Governor-General in Council himself. The Act was
understood as conferring full powers to regulate not the administrative
procedure only but also the procedure for administration of criminal justice.
As the Rules of 1872, 1874, 1906 and 1937 were almost the same (except for a
few changes rendered necessary by the altered political conditions) it is clear
that a succession of officers saw the necessity of Rules controlling not only
the administrative side but the judicial side of administration of justice. In
our judgment the construction of ss. 6 and 7 attempted by the respondents
cannot be accepted.
It is next contended that the Act itself was
bad because the Legislature did not legislate on the subject of judicial
procedure but left essential legislation to a delegate, without laying down any
or at least enough guidance in the Scheduled Districts Act for those who were
to make Rules under it. In this connection learned counsel has drawn our
attention to several rulings in which the question of excessive delegation has
been considered by this Court and in particular we have been referred to Re the
Delhi Laws Act, 1912,(1) Hamdard Dwakhana (Wakf) Lal Kuan v. Union of India,(2)
Vasantlal Maganbhai Sanjanwala v. State of Bombay(3) and D. S. Grewal v. State
of Punjab.(4) It is submitted that ss. 6 and 7 of the Scheduled Districts Act
laid down no policy, and did not afford a guide in the making of Rules except
to say that officers should be appointed to administer civil and criminal
justice and that the local Government might regulate the procedure of such
officers, thereby leaving the essential law-making to the delegate.
In this Court we have on several occasions
pointed out that guidance may be sufficient if the nature of thing to be done
and the purpose for which it is to be done is clearly indicated. Instances of
such legislation were cited before us and the case of Harishankar Bagla v.
Madhya Pradesh(5) was one of them. The policy and purpose may be pointed out in
the section conferring the powers and may even be indicated in the preamble or
elsewhere in the Act. The preamble of the Scheduled Districts Act shows that
these backward tracts were never brought within, but from time to time were
removed from, the operation of general Acts and Regulations and the
jurisdiction of the ordinary courts of judicature was also excluded. It was
therefore necessary to ascertain the enactments (1)  S.C.R. 747. (2) [19601
2 S.C.R. 671.
(3)  1 S.C.R. 341. (4)  Supp. 1
(5)  1 S.C.R. 288.
8 50 in force and to set up a machinery for
making simple rules.
The Act conferred on the local Governments
power to appoint officers for administration of civil and criminal justice
within the Scheduled Districts and empowered the local Government to regulate
the procedure of the officers so appointed and to confer on them authority and
jurisdiction, powers and duties incident to the administration of civil and
criminal justice. These provisions afforded sufficient guide to the local
Government that the administration of civil and criminal justice was to be done
under their control by the officers appointed by them and the procedure which
they were to follow must be laid down. This was not an instance, therefore, of
excessive delegation at all. The Legislature clearly indicated the policy and
the manner of effectuating that policy. There was sufficient guidance in the
three sub-sections of s. 6 read as a whole with the preamble and the Chief
Commissioner's Rules made in 1872 and republished in 1874 by the
Governor-General in Council were also available as a further guide as the last
were continued in force by s. 7. Indeed, the subsequent Rules of 1906 and 1937
repeated the Rules of 1872 & 1874 with amendments necessary' owing to
political changes and only slightly liberalised them in some ways. We do not
consider that there was excessive delegation of legislative authority by the
It is next contended that s. 7 of the
Scheduled Districts Act did not confer any power upon the local Government to
alter in any way the Rules made by the Governor-General in Council. That
section says that Rules which had hitherto been prescribed by the
Governor-General or the local Government for the guidance of the officers
appointed within any of the scheduled districts were to continue to be in force
unless and until the Governor-General or the local Government, as the case may
be, otherwise directed. It is admitted that the Governor-General in Council,
possessing an overriding power, might even have amended the Rules made by the
local Government. But it is submitted that the Governor-General in Council
could amend his own Rules and the local Government could amend its own Rules
but the Local Government, being a delegate, could not amend or cancel the Rules
of the Governor-General in Council. It is urged that the Rules of 1906 made by
the Lt. Governor and the Rules of 1937 made by the Governor were ineffective.
With regard to the Rules of 1906 it is sufficient to say that the Bengal Assam
Laws Act 1905 authorised local Government by notification to say by what
officer any authority or power was to be exercisable and any such notification
was to have effect as if enacted in the Act itself. When the Rules of 1906 were
made by the local Government they had effect as if they were enacted in Act 7
of 1905. But the power could be exercised by the Governor under the Scheduled
Districts Act ss. 6 and 7 to make fresh Rules. By that Act the Governor General
in Council conferred on the 851 local Government an equal or concurrent power
and this is clearly indicated by the word "as the case may be" in s.
7 of the Act. Those words do not, as it contended, show that the local
Government could only amend its own Rules. These words rather show that whoever
made the rules the authority of the Act would make them binding. In our
judgment the Rules of 1937 were validly enacted.
In order to avoid this implication, the Rules
are attacked as ultra vires Arts. 21 and 14. Article 21 is used because it is
contended that these Rules do not amount to law as we understand it,
particularly where the Rules say that not the Criminal Procedure Code but its
spirit is to govern the administration of justice. It is urged that this is not
a law because it leaves each officer free to act arbitrarily.
This is not a fair reading of the Rule. How
the spirit of the Code is to be applied and not its letter was considered by
this Court in Gurumayum Sakhigopal Sarma v. K. Ongbi Anisija Devi (Civil Appeal
No. 659 of 1957 decided on 9th of February, 1961) in connection with the Code
of Civil Procedure. With reference to a similar rule that the courts should be
guided by the spirit and should not be bound by the letter of the Code of Civil
Procedure this Court explained that the reason appeared to be that the technicalities
of the Code, should not trammel litigation embarked upon by a people unused to
them. In that case although a suit was ordered to be dismissed for default of
appearance, an order was passed on merits. The question arose whether it was
dismissed under 0.9 r. 8 or 0 . 17 r. 3 of the Code of Civil Procedure. It was
held by this Court that it did not matter under which Order it was dismissed
but that no second suit could be brought on the same cause of action without
getting rid of the order dismissing the suit. In this way this Court applied
the spirit of the Code and put aside the technicalities by attempting to find
out whether the dismissal was referable to 0. 9, r. 8 or 0. 17, r. 3 of the
Code. That case illustrates how the spirit of the Code is used rather than the
technical rule. In the same way, under the criminal administration of justice
the technical rules are not to prevail. over the substance of the matter.
The Deputy Commissioner in trying criminal
cases would hold the trial according to the exigency of the case. In a petty
case he would follow the summons procedure but in a heinous one he would follow
the procedure in a warrant case. The question of a Sessions trial cannot arise
because there is no provision for committal proceeding and there are no
Sessions Judges in these areas. Therefore, the Deputy Commissioner who was
trying the case observed that he was going to observe the warrant procedure and
in the circumstances he was observing the spirit of the Code.
Laws of this kind are made with an eye to
People in backward tracts cannot be expected
to make themselves aware 8 52 of the technicalities of a complex Code. What is
important is that they should be able to present their defence effectively
unhampered by the technicalities of complex laws. Throughout the past century
the Criminal Procedure Code has been excluded from this area because it would
be too difficult for the local people to understand it.
Instead the spirit of the Criminal Procedure
Code has been asked to be applied so that justice may not fail because of some
technicality. The argument that this is no law is not correct. Written law is
nothing more than a control of discretion. The more there is of law the less
there is of discretion. In this area it is considered necessary that discretion
should have greater play than technical rules and the provision that the spirit
of the Code should apply is a law conceived in the best interests of the
people. The discretion of the Presiding Officer is not subjected to rigid
,control because of the unsatisfactory state of defences which would be offered
and which might fail if they did not comply with some technical rule. The removal
of technicalities, in our opinion, leads to the advancement of the cause of
justice in these backward tracts. On the other hand, the imposition of the Code
of Criminal Procedure would retard justice, as indeed the Governors-General,
the Governor and the other heads of local Government have always thought. We
think, therefore, that Art. 21 does not render the Rules of 1937 ineffective.
A similar attempt is made by comparing these
Rules with the Criminal Procedure Code applicable in the rest of India.
It is contended that this leads to
discrimination. We think that the exigency of the situation clearly demands
that the Criminal Procedure Code should not apply in this area. It is not
discrimination to administer different laws in different areas. The Presidency
Towns have got special procedures which do not obtain in other areas. We have
known of trial by jury in one part of India for an offence which was not so
triable in another. Similarly, what is an offence in one part ,of India is not
an offence in another.
Regional differences do not necessarily
connote discrimination and laws many be designed for effective justice in
different ways in different parts of India if people are not similarly
circumstanced. These backward tracts are not found suitable for the application
of the Criminal Procedure Code in all its rigour and technicality, and to say
that they shall be ,governed, not by the technical rules of the Code but by the
substance of such rules is not to discriminate this area against the rest of India.
It is contended that there is discrimination
between the Tuensang District and the other two districts of the State because
in the other two districts the Code of Criminal Procedure applies. This seems
to be stated in the judgment of Mr. Justice C. Sanjeeva Rao Nayudu who
proceeded upon a concession of the Advocate-General 853 of Nagaland. We have,
however, no reason to think that the Advocate-General could have conceded this
point. It was made clear to us that there was some mistake and the assumption
made by Nayudu J. was based on a misapprehension.
It is now admitted by Mr. A, K. Sen on behalf
of the respondents that the Criminal Procedure Code does not apply to any of
the three districts and therefore there is no question of any discrimination between
one district and another in Nagaland.
Lastly, it is contended that the Rules
themselves allow for discrimination because one officer may take something to
be the spirit of the Criminal Procedure Code and another may not. The
requirements of the case must determine what should be applied from the
Criminal Procedure Code and what should not. The Rules have been purposely made
elastic so that different kinds of cases and different situations may be
handled not according to a set pattern but according to the requirements of the
situation and the circumstances of the case. In a backward tract the accused is
not in a position to defend himself meticulously according to a complex Code.
It is, therefore, necessary to leave the Judge free so that he may would his
proceedings to suit the situation and may be able to apply the essential rules
on which our administration of justice is based untramelled by any technical
rule unless that rule is essential to further the cause of justice. This would
rather lead to less discrimination because each accused would be afforded an
opportunity which his case and circumstances require. The Rules of 1937 were
designed for an extremely simple and unsophisticated society and approximate to
the rules of natural justice. It is impossible in such circumstances to, think,
that because the Judge has more discretion than if he acted under the Criminal
Procedure Code or is able to bring different considerations to the aid of
administration of justice that there must be discrimination. If a Judge does
not apply +the spirit of the Code but goes against it or acts in a manner which
may be considered to be perverse the High Court will consider his action and
set it right. As we said earlier the law has not attempted to control
discretion by Rules in this area but has rather left discretion free so that
the rule may not hamper the administration of justice.
As there is no vested right in procedure the
respondents cannot claim that they be tried under the Criminal Procedure Code
in this State where the Code is excluded. In such a situation it is difficult
to, find discrimination.
It was lastly contended that there is
discrimination between one set of rules and another; that in some of the other
backward tracts of Assam the rules are different and a comparative study was
made before us of the different rules, as for example, Rules of 1874, 854 1937
and the Assam Frontier Administration of Justice Regulation, 1945 which applied
to Balipura, Lakhimpur, Sadiya and Tirap tracts and had been applied in
Tuensang Division in 1955. The main differences are in the matter of appeals
against acquittals and the power of transfer. In so far as the appeals against
acquittals are concerned, it is, of course, obvious that where such a power is
not conferred there cannot be an appeal against acquittals. In so far as
transfer is concerned, we see no difficulty because the rules were different to
start with in different districts and even if the provisions for transfer may
not be in one part the spirit of the Code of Criminal Procedure would permit
transfer in that part. Similarly, in some places confirmation of sentence above
7 years is required and in some others there is only a right of appeal. This
depends on how advanced each area is. The attempt, of course, is to bring these
territories under the Criminal Procedure Code ,applicable in the rest of India,
by such stages as appear justified. As that stage is not yet reached little
differences must exist but no discrimination can be spelled out from the
differences. Art. 371A of the Constitution itself contemplates a different
treatment of these tracts and the differences are justified by the vast
differences between the needs of social conditions in Nagaland and the various
stages of development of different parts. We do not, therefore, consider that a
comparison of these rules leads to any conclusion that there is likelihood of
discrimination which would offend the Constitution.
We accordingly hold that the Rules of 1937
continue to be in force and govern the trial of these respondents. The Code of
Criminal Procedure admittedly does not apply there and the Additional Deputy
Commissioner was therefore right in holding the trial under the Rules of 1937.
It is obvious that in following the spirit of the Code and in applying the
warrant procedure the Deputy Commissioner followed the right procedure and the
High Court was in error in thinking that neither the Rules of 1937, nor any
Rules applied to this area. We accordingly allow the appeals and set aside the
order of the High Court. The trial of the respondents shall proceed under the
Rules of 1937.
We may, however, say that it would be better
if, as soon as it is found to be expedient, all Rules are cancelled and one
uniform set of Rules is made for the whole of this area.
This would obviate having to find out through
the mazes of history and the congress ,of rules, notifications and regulations
what law is applicable. If any difficulty is felt in making new rules recourse
may easily be taken to the provisions of s. 31 of the State of Nagaland Act
which enables the President, by order, to remove any difficulty to give effect
to the provisions of the State of Nagaland Act.
The history of this area shows that there
have been difficulties in the past in 85 5 ascertaining laws which were
applicable at any point of time in any particular area and led to the passing
of many Acts of British Parliament and of the Governor-General in Council to
remove such difficulties. We do not think that such a state of affairs should
continue indefinitely when the State of Nagaland Act itself gives sufficient
power to remove difficulties.