Dr. Morganasked the Secretary of State for India whether he will make a statement on the actual legal position arising from recent judgments by the Federal and other courts in India, either invalidating or questioning the legality of certain ordinances issued by the Viceroy?
§ Mr. AmeryThe Question relates to two ordinances. One is the Special Criminal Courts Ordinance of 1942 which the Federal Court, upholding the views of the Calcutta High Court, declared last June to beultra vires. The Governor-General, therefore, made a fresh ordinance, repealing that of 1942 but confirming the validity and the continuance in force of all sentences already passed under it subject to such rights of appeal and revision as would have been available had they been passed at trials held in accordance with the ordinary criminal procedure code, and providing further, in so far as pending 1080W cases were concerned, for the disposal of such cases in accordance with the provisions of that code. The other ordinance is that which was made by the Governor-General last April in view of the Federal Court's decision that the Central Government had exceeded the powers conferred on it by the Defence of India Act in making Defence of India Rule 26, and that all orders made under the rule were accordingly invalid. The new ordinance, which purported to amend the above Act and to confirm the validity of orders duly made thereunder, was itself subsequently attacked in various High Courts and, though other High Courts upheld its validity, the Calcutta High Court in fact held that it was ultra vires. On appeal, however, the Federal Court, while declining to pronounce definitely on the validity of the ordinance as a whole, decided that save in certain cases where the provisions of Rule 26 were held not to have been strictly complied with the orders made had been validly confirmed by the ordinance.