The Lahore Conspiracy Case Ordinance, Lahore High Court Bar Association Report, June 19, 1930
By a resolution of the High Court Bar Association a sub-committee consisting of Dr. Sir Motisagar, Lala Jagan Nath Aggarwl and the undersigned was appointed to consider and report on the validity and propriety of Ordinance No. 3 of 1930, dated 1st May 1930, designed to make provisions for the trial of certain persons accused in the Lahore conspiracy case. Dr. Sir Motisagar and Lala Jagan Nath were not present in the deliberations of the committee.
The undersigned, having carefully gone into the matter, are unanimously of the opinion that the said Ordinance is ultra vires of the Governor-General and, therefore, invalid; that, in any case, its promulgation was inexpedient and inadvisable; and that there was no justification whatsoever for depriving the High Court of its power of hearing the appeal from the final order of the Special Tribunal constituted under the Ordinance.
The Ordinance purports to have been promulgated in exercise of the powers conferred upon the Governor-General by section 72 of the Government of India Act.
A perusal of the Section would show that before the Governor-General can promulgate an Ordinance (a) an emergency must exist, and (b) the Ordinance must be for the peace and good Government of India or any part of it.
QUESTION OF EMERGENCY
(A) On the question of emergency we are clearly of the opinion that the emergency contemplated in section 72 of the Government of India Act does not exist at all. Emergency, as defined in Webster Dictionary and as generally understood, mean "an unforeseen occurrence creating a combination of circumstances which call for an immediate action." Even the statement of reasons and facts issued by His Excellency the Governor-General in justification of the Ordinance promulgated by him does not constitute or disclose any case of emergency justifying this extraordinary measure.
The Statement refers (a) to the murder of Mr. Saunders, Assistant Superintendent of Police, and Head Constable Chanan Singh, which tragic incident took place on the 17th of December 1928; (b) to the establishmen of bomb factories at Lahore and Saharanpur; (c) to the conspiracy resulting in the throwing of bombs in the Legislative Assembly on the 8th of April 1929; (d) to the hunger-strike of two of the accused, which had been resorted to before the commencement of the enquiry; (e) to the joining of a number of other accused in the hunger-strike necessitating the adjournment of the case from time to time owing to some of the accused being unfit to attend the court; and (f) to interruptions caused by the defiant and disorderly conduct of some of the accused, which, in the words of His Excellency. "tend to bring the administration of justice into contempt."
Coming to the facts of the case itself, we are confirmed in our opinion that no emergency whatsoever has been established.
The case was started on the 11th of July 1929, and a short time after an application was made on behalf of the High Court asking for an authoritative pronouncement whether a counsel could be appointed to represent an absent accused against his will. This application was decided by the High Court of Judicature at Lahore on the 26th of Jul 1929 in which it was held that counsel could not be forced upon an accused against his will.
Against, an application was made by the Crown asking for the opinion of the High Court as to whether the evidence originally proposed to be produced against the accused could be curtailed. The High Court refused to give any direction or advice.
Home Member's Bill
On the 6th of September, Sir James Crerar, Home Member of the Government of India, drafted Bill No. 29 of 1929, which was published in the Punjab Gazette, dated 20th September 1929. It was proposed in this Bill to amend the Criminal Procedure Code in such a way as to allow the enquiry or trial of an accused to proceed in his absence where the absence was due to the accused's own action. This Bill was, however, with drawn.
These circumstances show that the Government was fully aware of the delay of the necessity, if any, of the trial being allowed to proceed in the absence o the accused. Nevertheless no action was taken until the 1st of May when this Ordinance was promulgated. In addition to the facts mentioned above, it is admitted that some of the accused had started hunger-strike before the commencement o the enquiry before the committing Magistrate, and it is well-known that the hunger-strike was suspended on an assurance conveyed to them by certain gentlemen who had been appointed by the Government to make an enquiry into the condition of political prisoners and make recommendations with a view to having certain rules framed with respect to the treatment of political prisoners.
The accused had definitely intimated to the Government that in case the grievances of political prisoners were not satisfactorily settled they would resume the hunger-strike on a certain date and, as a matter of fact, as His Excellency's own statement shows, the hunger-strike was resumed on the 4th day of February 1930, creating the difficulty which this Ordinance seeks to remove.
It is also important to note that when the rules relating to the treatment of political prisoners were published and were considered satisfactory by those accused who had gone on hunger-strike the hunger-strike was abandoned, and from the 8th of March to the 1st of May 1930, the case went on in the Magistrate's court without an interruption or undesirable incident.
It is also clear that the Government itself did not consider that there was any emergency; otherwise it would not have waited so long from the 26th of July 1929, up to 1st of May 1930, or in any case from the 20th of September 1929, when the Bill for the amendment of the Criminal Procedure Code referred to above was published, to 1st of May 1930. Even if alleged defiant and disorderly conduct of the accused could be considered any justification for the promulgation of the Ordinance, it had ceased to exist long before the Ordinance was actually promulgated.
Faith in Justice Shaken
(B) On the question of peace and good Government of India for which alone an ordinance can be promulgated we are of opinion that the Ordinance instead of promoting peace and good government has jeopardised both. Far from restoring respect for law this Ordinance, being most unprecedented and allowing the trial of a large number of persons accused of the most serious crimes in their absence and without any right o appeal, has brought not only the administration of law and justice into contempt but has also gone a great way in making the Government unpopular.
We are further of the opinion that even if it was necessary for the prevention of delay to resort to an Ordinance there was no justification whatsoever for depriving the accused of the right of appeal to the High Court, and depriving the High Court of its powers of superintendence over the Tribunal. In our opinion the taking away of the right of appeal from the highest tribunal of the province has further considerably shaken the confidence of the people in the unpartiality of the present trial.
Appeal in High Court
It will be at once admitted that the question of delay caused by any defiant or obstructive conduct of the accused doe not arise at all in relation to an appeal in the High Court. Once this appeal is filed that course of the appeal is entirely in the hands of the High Court and cannot possibly be deflected or delayed by any conduct of the accused. The hearing of the appeal unlike the trial does not require the presence o the appellants at all.
In our opinion the Ordinance is not only invalid in view of Section 72 of the Government of India Act but is a most ill-advised measure, which goes much beyond the necessities o the case, and is utterly unjustifiable so far it takes away the right of appeal from the High Court.
(Sd.) GOKAL CHAND NARANG
(Sd.) BARKAT ALI
(Sd.) NANAK CHAND
(Sd.) MOHD. IQBAL
Note: - The report has been sent to Sir Motisagar and Mr. Jagan Nath for signature.
- The Tribune, June 21, 1930.