YOUSIF PATEL CASE

1. Facts of Case

2. Present Bench

3. The decision of the Chief Court

4. Appeal to Federal Court

5. The decision of the Federal Court

6. Question Involved in Present Case

7. Observation of Federal Court

Facts of Case:

(1) The appellants were proceeded against by a District Magistrate

under the Sind Control of Gonads Act (Governor’s Act XXVIII of
1952).

They were declared to be goondas as directed to furnish security,

and their failure to furnish security confined to prison. Against their
detention in prison, the appellants first made applications to the
Chief Court of Sindh under Section 491 of the Criminal Procedure
Code, 1898, alleging that their detention was unlawful and praying
that they are set at liberty. PLD 1955 SC 387

(2) The contention raised before the Chief Court was that the Act in
dispute was invalid because it was passed by the Governor in the
exercise of the powers which were conferred on him by a
proclamation issued by the Governor General under Section 92-A of
the Government of India Act, 1935, which section had been
insisted in the Government of India Act by an order of the Governor
General under section 9 of the Indian Independence Act and this
action of the Governor General was ultra vires the provisions of the
aforesaid Section 9, the Chief Court repelled the contention.

Present Bench:

 Muhammad Munir C.J.

 ASM Akram J

 AR Cornelius J

 Muhammad Sharif J

 S A Rehman J

THE DECISION OF THE CHIEF COURT:

The Chief Court held the detentions to be legal and dismissed the
applications for habeas corpus.

Appeal to Federal Court:

The appellant was not satisfied with the Chief Court and they filed
an appeal to the Federal Court.

THE DECISION OF THE FEDERAL COURT:

(1) Fresh Argument before Federal Court:

The matter was taken up to the Federal Court in appeal. A fresh

argument was advanced before the Federal Court. Here the validity
of Section 92-A was also questioned. It was pointed out that this
action was taken after the expiry of the original date fixed by sub-
section (5) of Section 9 of the Indian Independence Act for the
making of orders by it. The day on or before which commands
under the abovementioned Provision 9 could be made by the
Governor General was 31st March 1948 but this date was altered to
31st March 1949 by Provision 2 of the Indian Independence
(Amendment) Act, 1948 passed by the Legislature. This
amendment Act, however, was never presented to the Governor
General for his assent. Yousaf Patel VS Crown PLD 1955 SC 387
Background Summary

(2) Question Involved in Present Case:

The question involved in the present case is whether

the Indian Independence (Amendment) Act, 1948 by which the date
mentioned in Section 9(5) of the Indian Independence Act was
altered to 31st March 1949 was law when on the 19th July, 1948 the
Governor General added Section 92-A to the Government of India
Act, 1935. On the authority of Moulvi Tamiz-ud-Din Khan’s
case, the answer to this question must be negative, with the result
that the addition of Section 92-A to the Government of India Act,
1935 being unauthorized, the Sind Goondas Act which was passed
by the Governor of Sind in the exercise of the authority derived by
him from a proclamation of the Governor General under Section 92-
A must be held to be invalid and the proceedings taken there under
void and inoperative.

(3) Observation of Federal Court:

It was observed that the rule hardly requires any explanation, much
less emphasis, that a legislature cannot validate an invalid law if it
does not possess the power to legislate on the issue to which the
invalid law relates. If the Legislature, in the deficiency or lack of a
provision specifically authorizing it to do so was incompetent to
amend the Indian Independence Act 1947, or the Government of
India Act 1935, the Governor General possessing no larger powers
than those of the Federal Legislate was equally incompetent to
amend either of those Act’s by an Ordinance. Under the
independence act the authority competent to legislate on
constitutional matters is the constituent assembly; it is that
assembly alone which can amend those acts. On the disappearance
of the constituent Assembly the Governor General can neither claim
powers of the constituent Assembly, because he himself is not the
constituent Assembly, nor can he claim to succeed to the authority
of that Legislature.

The Federal Court observed that in the situation prevailing the first
concern of the Government should have been to bring into
existence concern of Government should have been to bring into
existence another representative body to exercise the powers of the
constituent Assembly so that all invalid legislation could be
immediately validated by the new body.