This Case commentary is written by Mannan Samad, a Fifth Year Law Student of University Law College, Quetta

Case Name: Usif Patel versus Crown PLD 1955 SC

Court Name: Federal Court of Pakistan

Court Members:

Muhammad Munir,

C. J. A. S. M. Akram,

A. R. Cornelius Muhammad Sharif,

S A. Rahman, JJ

Date of Judgement: 1954

Citation: PLD 1955 FC 23

Background of the case

This case started when the Maulvi Tameezuddin judgement was pronounced and the federal court termed 46 laws invalid across the country, stating that those laws that were assented by the governor are not valid. So, emergency powers of the governor general were questioned in the federal court in the Usif Patel versus Crown case.

Facts of the case

Usif Patel and his two companions were declared 'Gundas' by Larkhana magistrate, and they were directed to submit their sureties. When they failed to submit their sureties, as a result, they were confined. Usif Patel and his companions challenged their detention under Section 491 of the CRPC before the Sindh High Court, and they asserted that their confinement is illegal, but the Sindh Chief Court dubbed confinement legal, and then they heeded the federal court and filed an appeal there. The federal court challenged the validity of the Sindh Control Gunda Act 1952, saying that it is not a law. This act was imposed by the Governor under 92(A) of the Government of India Act, 1935. The governor derived his powers from Section 92(A) of the Government of India Act, 1935, and this section was added under Section 9 of the Indian Independent Act. Under this section, the governor was authorised to make provisions and adaptations of the Government of India Act, 1935.

Issues of the case

The issue was that the time limit for the governor to make provisions and adaptations was 31st March 1948 as per the Indian Independence Act 1947, but the governor general made additions in July 1948 by exceeding the time limit. But the constituent assembly exceeded the time limit of 31st March 1948 till 31st March 1949 through Amendment Act 1948 and extended the limitations mentioned in Section 9.

Rules of the case

Rules included in this case are given below:

1. Sindh Control of Gundas Act 1952

2. Section 92(A) of the Government of India Act 1935

3. Section 491 of the CRPC

4. Section 9 of the Indian Independence Act 1948

5. Amendment Act 1948

6. Emergency Powers 1959

Arguments

The appellants raised their points that this amendment was not assented by the governor, therefore Section 92(A) is ultra virus. If Section 92(A) is an ultra virus, then the Sindh Control Gunda Act 1952 is automatically an ultra virus, and the governor general was deriving his powers from this section. Thus, their detention and confinement are illegal too. In this sense, appellants should be set free and the validity of amendment should be challenged as the amendment didn’t receive the assent of governor General.

Advocate General Defence

Advocate General presented his defence that Governor General issued emergency powers in 1959. Under column 1 of its schedule, it mentioned all acts that didn't receive the assent of the governor general, and under column 2 of its schedule, the dates that were mentioned in this column were considered as assented dates for all acts and those laws in effect through these subsequent dates.

Questions

1. Whether the governor general has the authority to issue an ordinance to make all invalid laws valid?

2. Whether the governor general can assent the constituent amendment retrospectively.

The Federal Court raised the point that the validity of an ordinance is derived from Section 42 read with Section 102 of the Government of India Act, 1935. It is mentioned in Section 42 that restrictions on the powers of the Governor General in issuing ordinances are the same as those of federal legislation.

Appellants raised points about whether the federal legislature holds the power to amend Section 9 of the Indian Independence Act 1947. It was stated that if any subject doesn't have the power to legislate, then it won't carry validation power either because validation is itself legislation. So the federal legislature doesn't have the power to make amendments.

Analysis

Usif Patel vs. Crown is a historic judgement in the country's legal history, paving the way for constitutional development, such as underlining the importance of separation of powers between legislature and judiciary. The concept of judicial review came into being due to this case, as this judgement serves as a crucial reminder about the need of interpretation of the complexities of provisions given in the constitution. This judgement also highlighted the significance of safeguarding individual rights by dismissing the detention of Usif Patel and his companions and setting them free.

Judgement of the case

The federal court declared that power of legislation is vested with the constituent assembly rather than the federal legislature and governor general. Further, it was added that under the judgement of Maulvi Tameezuddin that the constituent assembly is not a sovereign body, and it doesn't mean the governor general is sovereign because legislative power is vested with the constituent assembly, not with the governor general. Under this ordinance, the Governor General made additions to its powers through legislation, which is actually the jurisdiction of the constituent assembly. Therefore, governor general can't carry out legislation. Any legislative amendments or additions done by governor general are invalid and illegal. The sole power of legislation is vested with the constituent assembly. Only constituent assembly is authorised to make changes in the constitution, not the Governor General.

Conclusion

The Federal Court concluded the case and declared Amendment Act 1948 was not presented for the assent of the Governor General. Therefore, he has no power to extend the date from 31.03.1948 till 31.03.1949; thus, it is invalid and illegal. Therefore, Section 92(A) of the Government of India Act 1935 was added after 31st March 1948, so the provisions of those acts are invalid. The Sindh Control of Gundas Act was termed an ultra virus, so no action can be taken against appellants under this act, so their detention and confinement were totally illegal. The federal court accepted the appeal of the appellants, and the appellants were set to liberty. This case has set a huge example for the significance of judicial review and protection of individual rights. It is clear and crystal that no one is above the legislature no matter how powerful he is. Governor general exercised abuse of power and made additions and changes in the constitutional provisions which was totally illegal and out of his jurisdiction. Thus, federal court accepted the appeal of appellants in light of supremacy of constitution and dubbed the Sindh Control of Gundas Act illegal.

References

Iqra Khan, "Usif Patel Case and 2 others- Appellants vs The Crown Respondents ;PLD 1955 Federal Court 387" (2011), The Advoacte Iqra Khan Online, https://advocateiqrakhan.online/usif-patel-case-and-2-others-appellants/ accessed 10 March 2024

Nasir Law associates, "PLD 1955 Federal Court 387" (2014), Nasir Law Site, https://nasirlawsite.com/historic/pld387.htm/ accessed 18 August 2016

Sahar Saeed Chaudhary, "Usif Patel Vs Crown Case", (2010) “Student Law Journal, https://www.studocu.com/row/document/university-of-the-punjab/law/assignment-usif-patel-case/101474369/ accessed 25 November 2018

International Journal of Social Sciences, "Doctrine of Necessity", (2011) IJSSE, http://ijsse.com/sites/default/files/issues/2012/Volume%202%20Issue%202%20,%20%202012/Paper-9/Paper-9/