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Usif Patel Case Summary

Constitutional Development of Pakistan (Kinnaird College for Women)

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Brief Background of the Case.

The appellants in these appeals were declared to be Goondas by the District Magistrate of
Larkana under the Sindh Control of Goondas Act (Governor's) Act XXVIII of 1952. They were
directed to furnish heavy security, and upon failure to do so they were detained. Against their
detention in prison the petitioners made applications to the Chief Court of Sind under section
491 of the CrPC (Habeas Corpus), alleging that their imprisonment was wrongful and. praying
that they be set at liberty. The petitioners in the other two appeals moved revisions under
section 17 of CrPC before the same Court. The Chief Court held that all the detentions were
legal and rejected the applications. The appellants appeared before the federal court and
advanced a fresh argument challenging the very validity of section 92 of the Indian
Independence Act.
The issues that needed to be decided by the Federal Court:
The issue before the court was:
(a) the validity of Section 92(A) and the subsequent Sind Control of Goondas Act (XXVIII of
1952):
The legislative history of the Act include the Government of India Act 1935 that included many
sections which required the Governor-General or the Governor of a province concerned to act
in his discretion namely Section 93 which dealt with an instance of constitutional machinery
failure in any province and stipulates that the governor of the said province can make a
proclamation assuming to himself all the powers vested in any legislative body in the province.
Under the Indian Independence Act that came into effect on the 15th of August 1947,Section 8
the new dominion declared all sections of the Government of India act 1935 which required the
governor-general or the governor to act in his discretion shall cease to operate. However, due to
no electoral machinery and in certain provinces no provincial legislatures were operating certain
powers were vested in the office of the Governor General under Section 9(1) of the Indian
independence Act .i.e. he could omit adapt or add any of the sections of the Government of
India act 1935 into effect if the situation deemed it necessary. So the Governor-General
reinserted Section 93 into the Act on the 19th of July, 1948.

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However, following the Molvi Tamizzudin Judgement, all acts that did not receive the assent of
the Governor General were declared void, that also included the Indian Independence
Amendment Act 1948, the only piece of law that validated the Governor-General’s
reintroduction of section 93 into the Indian Independence Act four months after the duration of
amendments expired (31st of March,1948). The appellants contended that since the
reintroduction of the Section 92 is invalid, the powers to promulgate law as stipulated in the
Section were also invalid namely the Sindh Goondas Control Act .
(b) the retrospective assent given by the Governor-General under the Emergency Powers
Ordinance 1955:
The power of proclamation, the Attorney General argued, as afforded to the Governor General
stemmed from Sections 42 and 102 of the Government of India Act 1935. Hence the Schedule 1
and 2 of the Emergency Powers Ordinance 1955, were a relevant piece of law. However, under
Section 102 federal legislature was not empowered to make provisions to the constitution
hence neither was the Governor-General competent to issue ordinance on a constitutional
matter. Furthermore, under Section 8 subsection (1) of Indian Independence Act; 1947, the
power of the Legislature of the Dominion for the purpose of making provision to the
constitution could be exercised only by the Constituent Assembly and that power could not be
exercised by the Federal Legislature. Any legislative provision that relates to a constitutional
matter is solely therefore within the powers of the Constituent Assembly.

A. Summary of the opinion of Justice. Munir:

Chief Justice Munir first declared that the exclusion clause in Section 2(2) (a) could not
have the effect of divesting this Court of the jurisdiction conferred on it by section 205 of
the Government of India Act to entertain, hear and determine an appeal if the High
Court certifies that the case involves a substantial question of law as to the
interpretation of the Government of India Act or the 'Indian Independence Act.
Secondly, CJ discussed that the Governor-General in section 102 of Government of India
Act was given the power of making Ordinances subject to the restrictions of the Federal
Legislature to make laws,' and that any Ordinance made under that section may be

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controlled or superseded by an Act of the Federal Legislature. Since the

Governor-General's power to promulgate Ordinances is subject to the same restrictions
as the power of the Federal Legislature to make laws; the true issue in the case is
whether the Federal Legislature was competent to amend subsection (5) of section 9 of
the Indian Independence Act which the Constituent Assembly amended by the
Amendment Act of 1948.
Lastly, this Court held in Mr. Tamizuddin Khan's case 'that the Constituent Assembly was
not a sovereign body. But that did not mean that if the Assembly was not a sovereign
body the Governor-General was. The Governor-General in Pakistan is the constitutional
Head of the State, namely, a position very similar to that occupied by the King in the
United Kingdom,the Governor-General is possessed of no more powers than those that
are given to him by those Acts.On principle the power of the Governor-General to
legislate by Ordinance is always subject to the control of the Federal Legislature -and he
cannot remove these controls merely by asserting that no Federal Legislature in law or in
fact is an existence. No such position is contemplated by the Indian Independence Act,
or the Government of Indian Act, 1935. Any legislative provision that relates to a
constitutional matter is solely within the powers of the Constituent Assembly and the
Governor-General' is under the Constitution Acts precluded from exercising those
powers.

B. Summary of the opinion of Justice. Cornelius.

Per Justice Cornelius, no provision in the Constitution and no rule of law applicable to
the situation, empowers the Governor General to validate the stated in the Schedule to
the Emergency Powers Ordinance, 1955, whether temporarily or permanently. The
legislative powers of the Governor-General under the existing Constitution are confined
within the terms of section 42 Government ofIndiaAct,1935. Those powers are
sufficient to enable the Governor-General to stay all proceedings in Courts other than
the Federal Court, in which the legal provisions referred to are called in question.

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The action that was taken was not an extreme emergency,per the the maxims of salus
populi suprema lex.
The effect of that judgment is in my opinion, to make it clear that in relation to the
very situation which the Proclamation of the 16th April, 1955 is intended to remedy,
this Court was emphatically of the view that the Governor-General could not invoke
any powers except such as were available to him under the constitutional
instruments in force. To that opinion, I steadfastly adhere, and nothing which has been
said in the arguments in the Reference affords in my view, sufficient, justification for
varying that finding, which constitutes law declared by this Court under section 212,
Government of India Act, 1935.

Not validate it retrospectively since it is relevant to the substantive law that vested
certain rights. Retrospective assent---- only procedural not substantive act.

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