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PETITIONER: STATE OF NAGALAND

       Vs.

RESPONDENT: RATAN SINGH, ETC.

DATE OF JUDGMENT: 09/03/1966

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. SHAH, J.C. SIKRI, S.M.

CITATION:  1967 AIR  212            1966 SCR  (3) 830  CITATOR INFO :  R          1971 SC 813  (4)  R          1982 SC 710  (21)  R          1990 SC  73  (2)  RF         1991 SC1557  (10)

ACT: Scheduled Districts Act, 1874-Rules thereunder-If valid  and it  force-If  Act  bad  for  excessive  delegation-If  Rules violate  Arts.  14 and 21 of  Constitution-Applicability  of Criminal Procedure Code to back ward tracts-constitution  of India, 1950.

HEADNOTE: The  respondents were sought to be tried for offences  under the   India  Penal  Code,  before  the   Additional   Deputy Commissioner,  Kohima,  when objection was  taken  that  the trial   should  be  before  the  Court  of   Session   after commitment, as the offences were triable exclusively by  the Court of Session under the Code of Criminal Procedure.   The Additional  Deputy Commissioner overruled the  objection  on the ground that there were no Courts of Session in the  Naga Hills District and the Criminal Procedure Code was also  not in force.  He ruled that committal proceedings and the trial before  a session court was therefore not possible  and  the procedure  laid down in the Rules for the Administration  of Justice  and Police in the Naga Hills District, 1937,  would be followed.  Thereupon the respondents filed writ petitions to quash the proceedings commenced under the Rules of  1937. The  High  court issued a writ directing the  State  not  to proceed with the trial under the Rules of 1937. The  area, where the trial was taking place was one  of  the backward tracts and it was for a century and more  specially administered.   The  successive  Criminal  Procedure  Codes, which ordinarily would have governed the trial of  offences, were  always withdrawn from this area and special rules  for administration of criminal justice were promulgated instead. By  the Government of India Act, 1870, the  Governor-General and  other authorities were conferred the power to  make  or propose  laws  and  the  Governor-General  was  allowed   to

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legislate   separately   for  the   backward   tracts.    As difficulties  arose in determining what laws were  in  force and  in  which  area  of  backward  tracts,  the   Scheduled Districts  Act  1874  was  passed.   The  position  at   the inauguration  of the Government of India, 1935 was that  the Governor-General  in Council legislated for  these  backward areas and the Governor-General could direct that any Act  of the  Indian Legislatures should not apply at all  or  should apply  with  such exceptions and modifications as  he  might think  fit.  The 1937 Act provided for the ascertainment  of the  backward tracts and for making of laws in  those  areas and  in  1936 an Order in Council was  made  specifying  the backward tracts.  The Scheduled District Act was repealed by the  Adaptation  of Laws Order, 1937.  The  Constitution  of India,  1950  by Art. 244 made a special provision  for  the scheduled and tribal areas The State of Nagaland was  formed by the State of Nagaland Act, 1965 comprising of Naga Hills- Tuensang  Area  and  consisting  of  three  distracts.   The administration of the State of Nagaland was to be in accord- ance with the provisions of the State of Nagaland Act, which among other things provided for the continuance of  existing laws and their adaptation The Government and  administration of these areas was often not carried on directly under  laws made by the Governor-General either by himself                             831 or  in his Council but through rules which were framed  from time  to time by other agencies.  In 1937, the  Governor  of Assam  prescribed revised Rules under the powers  vested  in him by s. 6 of the Scheduled Districts Act.  These Rules  of 1937  began  by stating that they  cancelled  "all  previous orders  on the subject" but were on the pattern  of  earlier rules which laid down that in criminal trials the spirit  of the  Criminal Procedure Code was to be followed because  the Code itself was not in force.  In appeal to this Court,  the main question that arose were whether the Rules of 1937 were validly  enacted and they continued to be in force,  whether the  Scheduled  Districts Act was bad because  of  excessive delegation, and whether the Rules of 1937 were rendered void by reason of Arts. 14 and 21 of the Constitution. HELD : The Rules of 1937 were validly enacted and  continued to  be ’in force and governed the trial of the  respondents. The  Code of Criminal Procedure admittedly did not apply  to that  area  and  the  Additional  Deputy  Commissioner   was therefore  right  in holding the trial under  the  Rules  of 1937, [854 E-F] The  Rules of 1937 did survive the repeal of  the  Scheduled Districts  Act, 1874 by virtue of the saving clause  in  the Adaptation of Laws Order which repealed the Act. The  saving clause  preserved  all notifications and the Rules  of  1937 were  enacted by a notification.  After the passing  of  the Government  of  India  Act, 1935, the  Rules  of  1937  were successively preserved by ss. 292 and 293 of the  Government of  India Act, 1935, s. 18 of the Indian  Independence  Act, 1947 and Art. 372 of the Constitution. [847 G-848 A] There  was  no  excessive  delegation  under  the  Scheduled Districts Act.  The Legislature clearly indicated the policy and  the  manner  of  effectuating  that  policy.   The  Act conferred on the local Governments power to appoint officers for administration of civil and criminal justice within  the Scheduled  Districts and empowered the local  Government  to regulate  the procedure of the officers so appointed and  to confer on them authority and jurisdiction powers and  duties incidental  to  the  administration of  civil  and  criminal justice.  These provisions afforded sufficient guide to  the local  Government  that  the  administration  of  Civil  and

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Criminal  justice was to be done under their control by  the officers appointed by them and the procedure which they were to  follow  had  to  be  laid  down.   Beside.,,  there  was sufficient  guidance in the three sub-sections of a. 6  read as  a whole with the preamble, and the Chief  Commissioner’s Rules  made  in 1872 and republished In  1874  by  Governor- General in Council were also available as a further guide as the last were continued in force by 7. [849 G-850 D] By  the  Scheduled  Districts Act  the  Governor-General  in Council  conferred  on  the local  Government  an  equal  or concurrent power and this was clearly indicated by the  word "as  the case may be’ in s. 7 of the Act.  Those  words  did not, show that the local Government could only amend its own Rules.   They  showed  that  whoever  made  the  rules   the authority of the Act made them binding. [851 A-B]          Article  21 of the Constitution did not render  the Rules  of 1937 ineffective.  In the backward tracts  it  was considered  necessary  that discretion should  have  greater play than technical rules and the provision that the  spirit of  the  Code should apply was a law conceived in  the  best interests  of the people.  The discretion of  the  Presiding Officer  was not subjected to rigid control because  of  the unsatisfactory state of defences which would be offered  and which might fail if they did not comply with 83 2 some technical rule.  The removal of technicalities, led  to the advancement     of   the  cause  of  justice  in   these backward  tracts.  On the other hand the imposition  of  the Code  of Criminal Procedure would have retarded  Justice  as indeed the Governors-General, the Governors and the heads of local  Government  had always thought. [852 B-D] It  was not discriminatory to administer different  laws  in different  areas.   These  backward tracts  were  not  found suitable for the application of the Criminal Procedure  Code in,  all  its vigour and technicality and to say  that  they were to be governed, not by the technical rules of the Code, but  by the substance of such rules was not to  discriminate this area against the rest of India. [852 &G] The law had not attempted to control discretion by Rules  in this area but had rightly left- discretion free so that  the rule might not hamper the administration of justice.   ’Mere was no vested right in procedure; therefore, the respondents could  not  claim to be tried under the  Criminal  Procedure code in this area where the, Code was excluded. 1853 G] No discrimination can be spelled out from the differences in the  rules  applicable to different areas  in  the  backward tracts.  The object was to bring these territories under the Code of Criminal Procedure applicable in the rest of  India, by   stages.   Article  371  of  the   Constitution   itself contemplates  a different treatment of these tracts and  the differences  are justified by the vast  differences  between the  needs of social conditions in Nagaland and the  various stages of development of different parts of this area.  [854 D] (Uniform set of Rules for the whole area suggested.)

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos.  198 of 1965 and 29-32 of 1966. Appeals from the judgment and order dated August 26, 1965 of the  Assam and Nagaland High Court in Civil Rules Nos.  200, 235, 234, 233,and 232 of 1965. C.K  Daphtary,  Attorney-General, D.  M.  Sen,  Advocate-

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General  for  the State of Nagaland, P.  K.   Goswami,  Anil Barthukar, B.  Dutta  and Naunit Lal, for the appellant  (in all the appeals.) A.K.  Sen,  S.  S. Ray, H. K Puri and H. L. Arora,  for  the respondents (in all the appeals).    Niren  De, Additional Solicitor-General and  Naunit  Lal, for the intervener. The Judgment of the Court was delivered by Hidayatullah, J. These are appeals by the State of  Nagaland against  the judgment and order of the High Court  of  Assam and  Nagaland,  August 26, 1965, by which  the  High  Court, allowing  ,certain writ petitions filed by the  respondents, issued  a writ of mandamus directing the  Additional  Deputy Commissioner,  Kohima and the State of  Nagaland,  not  to proceed with the trial of the 833 respondents.   The High Court has certified the case as  fit for appeal to this court.  The facts are these : The  respondents  are members of the 7th  Battalion  of  the Central Reserve Police (shortly called in this judgment  the C.R.P.) who, under the command of the 8th.Mountain  Division Infantry  Brigade, were engaged in_ operations in the  State of  Nagaland.   On receipt of information that on  or  about August  3, 1964, seven hostile Nagas, who were captured  and kept  prisoners  with  the  C.R.P.  at  Pfutser  Camp,  were murdered  and  their dead bodies secretly disposed  of,  the police, after investigating the report, arrested 44  persons and charged them with offences under ss. 302/109/34 and 201, Indian  Penal Code.  Some other members of the  C.R.P.  were charged at the same time under s. 436, Indian Penal Code for setting fire to some houses in certain villages.  The  trial was  about to take place before the Additional  Deputy  Com- missioner,  Kohima,  when an objection was  taken  that  the trial   should  be  before  the  Court  of   Session   after commitment,  as  the offences were triable by the  Court  of Session  exclusively, under the Code of Criminal  Procedure. The  Additional Deputy Commissioner overruled the  objection pointing  out  that there were no Courts of Session  in  the Naga Hills District and the Criminal Procedure Code was also not in force.  He ruled that committal proceedings and trial before  a Sessions Court were, therefore, not  possible  and the procedure laid down in the Rules for the  Administration of  Justice  and Police in the Naga  Hills  District,  1937, would  be  followed.  For brevity we shall  refer  to  these Rules as the Rules of 1937. The  respondents filed five petitions under Art. 226 of  the Constitution  for writs or orders to quash  the  proceedings under  the  Rules of 1937 and other reliefs.  By  the  order impugned  here a Divisional Bench consisting of C.  Sanjeeva Rao Nayudu and S. K. Dutta JJ., quashed the proceedings  and issued  a writ of mandamus directing the  Additional  Deputy Commissioner and the State of Nagaland not to proceed  under the Rules of 1937 with the trial of the accused before  him. The learned Judges gave separate, but concurring  judgments. Mr. Justice Dutta in a brief judgment reached the conclusion that the Rules of 1937 made by the Governor of Assam and the earlier rules made by the Lt.  Governor on November 29, 1906 were not validly made.  In his opinion there already existed certain other Rules made by the Governor-General in  Council in  1874 and the local Government was not competent to  make rules while those Rules existed.  In regard to the Rules  of 1874   the  learned  Judge  held  that  they   "had   become infructuous"  for  want of suitable  adaptations  after  the political changes since 1874.  He did not consider any other ground  of alleged invalidity of these Rules  and  expressly

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refrained from giving any opinion.  Mr. Justice C.  Sanjeeva Rao Nayudu 834 dealt with the problem exhaustively and viewed it from  many angles.  He gave several reasons for holding that the  trial could  not take place under the Rules of 1937.  We have  not found  it  easy to summarize his  reasons  effectively  but, briefly stated, they were : that the Rules of 1937 were void ab  initio because the Scheduled Districts Act,  1874  under which  the Governor purported to make them did not give  him any  authority  to  make them; that if  the  Act  gave  such authority, it was itself ultra vires the statutes of British Parliament  and involved excessive delegation; that  on  the repeal  of Scheduled Districts Act in 1937, all  ruled  made under  it lapsed; that the Rules of 1937 were vague,  uncer- tain and elusive and were not law as contemplated by Art. 21 ;  that they were discriminatory for various reasons ;  that they  could  not apply to Indian citizens  in  Nagaland  and that,  in any event, the Additional District Magistrate  was not acting in accordance with those Rules such as they were. We  need  not  at this stage attempt  to  enlarge  upon  the various  themes  because  the arguments  on  behalf  of  the respondents have presented a selection of the reasons  which were  given  by Mr. Justice Nayudu and they will  appear  in appropriate places in our Judgment. We are concerned with a new State formed as late as 1962 but the  territory  of  this  State has  had  a  very  long  and chequered  history.   The area, where the  trial  is  taking place  is  one  of the backward tracts and  it  has,  for  a century and more, been specially administered.  In that area the ordinary laws (particularly the two main Codes) in force in the rest of India, have not been applied.  The successive Criminal  Procedure  Codes,  which  ordinarily  would   have governed  the trial of offences, were always withdrawn  from this  area and special rules for administration of  criminal justice  were  promulgated  instead.   Whether  such   rules (particularly  the  Rules  of 1937)  were  validly  enacted, whether  they continue to be in force and whether  they  are rendered  void  by  reason  of  Arts.  14  and  21  of   the Constitution are the main problems requiring  consideration. Before we consider these questions the history of law-making in  these  areas  may first be told generally  and  then  in relation  to  the Rules for the  Administration  of  Justice promulgated in 1937 and at other times.        Even  prior to the taking over of the  Government  of the  territories  formerly administered by  the  East  India Company  the making of laws was entrusted to  the  Governor- General  in Council under 3 & 4 William IV, Ch. 85 and 16  & 17 Vict.  Ch. 95.  They allowed laws to be made directly for the  areas  which were under the Government  of  East  India Company.   After  the Indian Councils Act of 1861 (24  &  25 Vict.  Ch. 67) was passed the legality of the laws which had been  made by the Governor-General either in Council  or  on his own was in question.  Section 22 of the Indian  Councils Act  made  new provision by which  the  Governor-General  in Council                             835 was authorised to make laws and regulations for India and to repeal,  amend  or alter any law or regulation  whatever  in force in India.  The Act also made provision validating  all earlier  laws  by enacting that no rule, law  or  regulation made before the passing of that Act by the  Governor-General or  certain  named  executive authorities  would  be  deemed invalid by reason of not having been made in conformity with the provisions of the Charter Acts.  The power to make  laws

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was  taken away from the executive authorities.  The  power, which was taken away from the Governor and other authorities to make or propose laws was again conferred on the Governor- General  and  other authorities by the Government  of  India Act,  1870 (33 & 34 Vict.  Ch. 3) and  the  Governor-General was allowed to legislate separately for the backward tracts. For this purpose the Governor in Council, the Lt.   Governor or the Chief Commissioner, as the case, may be, could submit to   the   Governor-General  draft   regulations   for   his consideration  and  after their approval  by  the  Governor- General in his Council such regulations became law for these backward areas. This  state of affairs existed right down to the  Government of  India Act, 1915.  As difficulties arose  in  determining what  laws were in force and in which areas of the  backward tracts, the Scheduled Districts Act, 1874 was passed.   This Act will be considered closely later and for the present  we content  ourselves  with a few points of importance  to  the present narrative.  The preamble of the Act clearly set  out that the object, inter alia, was to ascertain the enactments in  force  in  any  territory and  the  boundaries  of  such territory.  The Act, therefore, specified Scheduled  tracts" and the local Governments were given the powers to extend by public  notification,  any  enactment in  force  in  British India.  When the Government of India Act, 1915 (5 & 6 Geo V, Ch. 61) was enacted, while repealing by the Fourth  Schedule the  Government of India Act, 1870, section 71 was  included in  the  1915  Act  which,  in  effect,  provided  the  same procedure for making and applying laws as had been  provided by  the  Act of 1870.  The local Governments  could  propose draft regulations for peace and good Government of any  part within  their  jurisdiction and the  Governor-General  after taking   the   draft  regulations  and  the   reasons   into consideration could approve in his Council and assent to the Regulations.   After his assent and on their publication  in the  official  Gazette of India and in  the  local  official Gazette,  if  any, they had the same force of law  and  were subject to the same disallowance as if they were the Act  of the  Governor-General in his Legislative Council.  When  the Government of India Act, 1919 (9 & 10 Geo.  V, Ch. 101)  was passed s. 52-A. was inserted which read as follows :-               "52-A.   Constitution of new provinces,  etc.,               and provision as to backward tracts.               836               (1)  .....      ....      ......               (2)The  Governor-General  in  Council   may               declare any territory in British India to be a               "backward  tract", and may,  by  notification,               with such sanction as aforesaid,. direct  that               this Act shall apply to that territory subject               to such exceptions and modifications as may be               prescribed in the notification.               Where the Governor-General in Council has,  by               notification,  directed as aforesaid, he  may,               by the same or subsequent notification, direct               that  any Act of the Indian legislature  shall               not apply to the territory in question or  any               part thereof, or- shall apply to the territory               or any part thereof subject to such exceptions               or   modifications  as  the   Governor-General               thinks  fit, or may authorise the Governor  in               Council to give similar directions as respects               any Act of the local legislatures." Thus  at  the inauguration of the Government of  India  Act, 1935 the position was that the Governor-General in.  Council

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or  the  Governor etc. with the approval  of  the  Governor- General in Council legislated for these backward tracts  and the Governor-General could direct that any Act of the Indian legislature  should  not apply at all or should  apply  with such  exceptions and modifications as  the  Governor-General might  think  fit.  When the Government of India  Act,  1935 replaced  the Government of India Act, an Order  in  Council was made in 1936 specifying the backward tracts and the 1935 Act  included  ss. 91 and 92 for the ascertainment of  the backward  tracts and for the making of laws in those  areas. Section  92,  which  dealt With the  administration  of  the excluded areas and partially excluded areas, provided :               "92.   Administration  of excluded  areas  and               partially excluded areas :               (1)The  executive authority of  a  Province               extends  to  excluded and  partially  excluded               areas  therein, but, notwithstanding  anything               in  Act, no Act of the Federal Legislature  or               of the Provincial Legislature, shall apply  to               an excluded area or a partially excluded area,               unless the Governor by public notification  so               directs,  and  the Governor in giving  such  a               direction  with respect to any Act may  direct               that  the Act shall in its application to  the               area,  or to any specified part thereof,  have               effect   subject   to   such   exceptions   or               modifications as he thinks fit.               (2)The  Governor may make- regulations  for               the peace and good Government of any area in a               Pro-                                    837               vince which is for the time being an  excluded                             area,  or  a partially excluded area,  and  any               regulations  so made may repeal or  amend  any               Act  of  the  Federal Legislature  or  of  the               Provincial Legislature, or any existing Indian               Law, which is for the time being applicable to               the area in question.               Regulations made under this sub-section  shall               be submitted forthwith to the Governor-General               and until assented to by him in his discretion               shall  have no effect, and the  provisions  of               this  Part  of this Act with  respect  to  the               power  of His Majesty to disallow  Acts  shall               apply  in  relation to  any  such  regulations               assented  to by the Governor-General  as  they               apply  in  relation to Acts  of  a  Provincial               Legislature assented to by him.               (3)The Governor shall, as respects any area               in  a Province which is for the time being  an               excluded area, exercise his functions in his                      X       X               discretion." After  this the Scheduled Districts Act became obsolete  and war, repealed by the Adaptation of Laws Order, 1937. Next came the inauguration of the Constitution.  Article 244 made a special provision for the scheduled and tribal  areas and  the  second clause of that article  provided  that  the provisions  of  the  Sixth Schedule were  to  apply  to  the administration  of the tribal areas in the State  of  Assam. Originally  in  the Sixth Schedule to the  Constitution  the Naga  Hills District was included as an autonomous  district and was shown in Part A of Paragraph 20 and the Naga  Tribal Area  was shown in Part B. It is not necessary to  refer  in

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detail  to  the Sixth Schedule which provided  for  separate modes   of  administration  of  the  Part  A  and   Part   B territories.   The  name  Naga Tribal Area  was  changed  to Tuensang Frontier Division by the North East Frontier  Areas (Administration)  Regulation,  1954 (No.  1 of  1954)  which came into force on January 19, 1954.  By the same Regulation the North East Frontier Tract was stated to include Balipara Frontier  Tract,  the Tirap Frontier Tract, the  Abor  Hills District, the Misimi Hills District and with the Naga Tribal Area  was  named  collectively as the  North  East  Frontier Agency.     Then   by   the   Naga    Hills-Tuensang    Area (Administration)  Act,  1957 (42 of 1957),  the  Naga  Hills District  was omitted from Part A and the whole of the  Naga Hills-Tuensang  area  was shown in Part B with  effect  from December  1,  1957.  The Tuensang area was the  former  Naga Tribal  Area  and the other two areas  were  the  autonomous districts  of Kohima and Mokokchung.  The State of  Nagaland was formed by the State of Nagaland Act, 1962 (27 of  1962). That  Act repealed and replaced the  Nagaland  (Transitional Provisions) Regulation, 1961 (Regulation 2 of 1961).  The 838 territory of the new State comprises the Naga Hills-Tuensang Area  and consists of three districts which are  the  Kohima District, the Mokokchung District and the Tuensang District. The State of Nagaland Act also deleted all references to the Naga  Hills-Tuensang  Area  from the  Sixth  Schedule.   The administration  of  the  State ,of Nagaland  was  to  be  in accordance  with the provisions of State ,of  Nagaland  Act. Among  other things it provided for a common High Court  for the State of Assam and the State of Nagaland.  By section 26 it laid down:--               "26.   Continuance of existing laws and  their               adaptation.-               (1)All  laws in force,  immediately  before               the appointed day, in the Naga  Hills-Tuensang               Area  shall  continue to be in  force  in  the               State  of Nagaland until altered, repealed  or               amended  by a competent Legislature  or  other               competent authority.               (2)For  the  purpose  of  facilitating  the               application  in  relation  to  the  State   of               Nagaland of any law made before the  appointed               day,  the appropriate Government  may,  within               two  years from that day, by order  make  such               adaptations  and  modifications  of  the  law,               whether by way of repeal or amendment, as  may               be necessary or expedient, and thereupon every               such  law  shall have effect  subject  to  the               adaptations  and modifications so  made  until               altered,  repealed or amended by  a  competent               Legislature or other competent authority.               Explanation.-In  this section  the  expression               "appropriate  Government" means,  as  respects               any law relating to a matter enunciated in the               Union  List  in the Seventh  Schedule  to  the               Constitution.  The Central Government; and  as               respects  any  other law,  the  Government  of               Nagaland." Section   27  conferred  power  on  courts,  tribunals   and authorities to construe, in the absence of adaptations,  the laws in such manner, without affecting the substance, as may be   necessary.   By  s.  28  all  courts,   tribunals   and authorities  discharging lawful functions were continued  as before  unless their continuance was inconsistent  with  the State of Nagaland Act.  So much will suffice to describe the

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ground-work  of  law-making under the authority  of  British Parliament,   the  Governor-General  in  Council   and   the Parliament and Legislatures under the present  Constitution. We  shall now see the real crux of the problem  because  the Government  and administration of these areas was often  not carried on directly under laws made by the  Governor-General either by himself or 839 in his Council but through rules which were framed from time to time, by other agencies.  We will now describe how  these rules,  some  of  which are in controversy  in  the  present appeal, were made.        On  September 24, 1869 the  Governor-General  enacted the Garo Hills Act, 1869 (Act 22 of 1869).  By this Act  the Garo Hills were removed from the jurisdiction of the  Civil, Criminal  and Revenue courts and offices  established  under the  General, Regulations and Acts and the Act provided  for the  administration  of justice and collection  of  revenue. The Act repealed an earlier Act of 1835 (No. 6 of 1835)  and the  Bengal Regulation 10 of 1822, but in this case  we  are not  required to go behind 1869.  We are referring  to  this Act because it was extended also to the Naga Hills.  Section 4 of the Act on extension provided that the territory  known as  the  Naga  Hills was removed from  the  jurisdiction  of courts of Civil and Criminal Judicature as well as from  the law prescribed for the said courts and no Act passed by  the Council   of  the  Governor-General  for  making  laws   and regulations  was  deemed to extend to any part of  the  said territory unless the same was specially named in it.  By  s. 5  the  administration  of Civil and  Criminal  justice  was vested in such officers as the Lt.  Governor might, for  the purpose  of tribunals of first instance or of reference  and appeal,  from  time  to  time,  appoint.   The  officers  so appointed were, in the matter of administration, subject  to the  direction and control of the Lt.  Governor and were  to be  guided by such instructions as the Lt.  Governor  might, from time to time, issue.  The Lt.  Governor could extend by notification any law or any portion of a law in force in the other territories subject to his Government or to be enacted by  the  Council  of the Governor.  General or  of  the  Lt. Governor  for making laws and regulations and  while  making such  extensions could direct by whom the powers and  duties incident  to the provisions so extended should be  exercised or  performed  and  might make any order  which  was  deemed requisite for carrying such provisions into operation.   The Act  also gave power by s. 9 to the Lt.  Governor to  extend mutatis  mutandis all or any of the provisions contained  in the other sections of the Act to the Jaintia Hills, the Naga Hills  and  to such portions of the Khasi Hills as  for  the time being formed parts of British India.  The Act was  also extended to Khasi and Jaintia Hills and the authority of the Governor-General  to enact the Act and of the Lt.   Governor to  "tend it was challenged.  The decision of  the  Judicial Committee is reported in Queen v. Burah (L.  R. 5 I.A.  178) which  held  that both the powers existed.  On  October  14, 1871 acting under s. 9 of the Act of 1869 the Lt.   Governor extended the whole of the Act to the Naga Hills District and vested the administration of Civil and Criminal jurisdiction in  the Commissioner of Assam subject to his  own  direction and control.  The Commissioner 840 was  to exercise the powers of the High Court in  Civil  and Criminal  cases triable in the Courts of the said  districts but  no sentence of death was to be carried out without  the sanction  of the Lt.  Governor and it was competent  to  the

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Lt.   Governor  to call for the record of  any  criminal  or civil  case and to pass such orders thereon as he  saw  fit. The notification also ordered that cases not then triable in the ordinary British Courts would not be triable therein and even in those cases which were triable in those courts,  the officers were to guide themselves by the spirit of the  laws prevailing  in British India and in force in the  districts. In continuation of this notification, the Lt.  Governor made under  s. 5 of the Act of 1869, in application to  the  Naga Hills (which he renamed the Naga Hills Agency) Rules for the Administration  of  Justice  and Police in  the  Naga  Hills Agency.  These rules were first published on August 7,  1872 and may be called, for brevity, the Rules of 1872.       The  Rules of 1872, 39 in number, dealt  with  various topics but we shall set down the purport of such rules  only as  concern  US.  Part I was general and  consisted  of  two rules.   By  Rule 1, the administration of  the  Naga  Hills Agency  was  vested  in  the  Commissioner  of  Assam,   the Political   Agent   and  his  assistants,   the   Monzadars, Gaonburahs,  Peumahs  (Naga  Chiefs)  and  Houshas   (Kookie Chiefs)  or  headmen  of Khels, or  such  other  classes  of officers as the Lt.  Governor deemed fit.  Part II  provided for  police  a-.id consisted of Rules 3 to 15.  We  are  not concerned  with  it.  Criminal justice was provided  for  in Part  III  (Rules  16 to 24) and Civil Justice  in  Part  IV (Rules 25 to 30).  We are only concerned with the former. Criminal  justice was to be ordinarily administered  by  the Political  Agent, his assistants and by the  Mouzadars  etc. The  Political  Agent  could pass a  sentence  of  death  or imprisonment  for  a  term unlimited or of fine  up  to  any amount  but not so as to exceed the value of the  offender’s property.   No  sentence  of death was to  be  carried  into effect  without the concurrence of the Commissioner and  the sanction of the Lt.  Governor.  Similarly, no sentence above 7  years’ imprisonment could be carried into effect  without the  approval of the Commissioner.  The  Commissioner  could enhance  any  sentence  passed  by  his  subordinates.   The Assistant to the Political Agent was to exercise the  powers of  a Magistrate, First Class as laid down in  the  Criminal Procedure  Code  of 1872.  The Mouzadars etc.  were  to  try petty offences and could impose a fine up to Rs. 50.   There were  elaborate  rules  for trial by them  and  appeals  lay against  their  decisions  to the  Political  Agent  or  his Assistant.   Appeals  lay to the Political  Agent  from  the decisions of his Assistant.  No appeal lay as of right  from the  sentence  of the Political Agent  involving  less  than three  years’ imprisonment but the Commissioner  could  call for  the record of the case to satisfy  himself.   Sentences above that period were appealable to the Com-                             841 missioner.   The Lt.  Governor was empowered to  review  the proceedings of all subordinate officers.  Rule 23 bore  upon the manner of the trial.  It provided that the procedure  of the  Political  Agent  and his Assistant was to  be  in  the spirit  of the Code of Criminal Procedure as far as  it  was applicable   to  the  circumstances  of  the  District   and consistent with the Rules.  The main exceptions were:               (a)Verbal  notices fixing a date to  appear               were  sufficient when the police was  employed                             to  convey them or the person was not  resident               or in the district or where his place of abode               was not known.                (b)Political  Agent and his Assistant  were               to keep only the substance of all  proceedings

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             in  cases  requiring  sentences  below   three               years.   In  other cases, full  notes  of  the               proceedings had to be kept in English.               (c)Proceedings  before Mouzadars etc.  were               not required to be in writing but if a  person               could  be found to be able to write,  a  brief               note of the proceeding was to be made.               (d)All  fines levied by the Mouzadars  etc.               were to be paid to the Political Agent or  his               Assistant or some officer specially  empowered               by the Political Agent.               (e)It   was   discretionary   to    examine               witnesses on oath in any form or to warn  them               that  they  were  liable  to  punishment   for               perjury  if they stated what they knew  to  be               false. On  February  6,  1874  there was  formation  of  the  Chief Commissioner ship in Assam.  The Governor-General in Council issued  a proclamation under s. 3 of 17 & 18 Vict., Ch.  77. By  the proclamation he took under his  immediate  authority and  management the backward territories then under the  Lt. Governor  of  Bengal including the Naga Hills.   By  another notification the Governor-General in Council in exercise  of powers under s. 3 of the Act formed those territories into a Chief  Commissioner ship called the Chief Commissioner  ship of Assam.  In April of the same year an Act (Act 8 of  1874) was  passed  to  provide for the exercise  within  the  said territories, of the powers which were before exercised under or by virtue of any law or regulation by the Lt. Governor of Bengal and the Board of Revenue.  By the first section these powers  were transferred and vested in the  Governor-General in  Council and by s. 2 the Governor-General in Council  was empowered  to delegate to the Chief Commissioner all or  any of  the powers or withdraw any power so delegated.  On  16th of   April,   1874  the  Governor-General  in   Council   by notification  delegated to the Chief Commissioner  of  Assam powers which M12SupCI/66-8 842 were  formerly  vested  in or were exercisable  by  the  Lt. Governor  of Bengal.  On June 13, 1874 the  Governor-General in Council made alterations in the Rules of 1872 but only to make them accord with the political changes and  republished them  for  general  information.   The  changes  were   that wherever  the Commissioner was mentioned in the  Rules,  the Chief  Commissioner  was  substituted  and  where  the   Lt. Governor was mentioned the Governor-General was to be  read. The  Rules, however, remained the same.  We shall  refer  to these Rules as the Rules of 1874. Doubts having arisen in some cases as to which Acts or Regu- lations  were in force or the boundaries of the  territories in  which they were in force and with a view to providing  a ready means for ascertaining the enactments in force in  the respective  areas  and the boundaries of the areas  and  for administering  the  law therein, an Act was  passed  by  the Governor-General   of  India  in  Council.   This  Act   was in  titled the Scheduled Districts Act, 1874 (14  of  1874). This  Act remained on the statute book till  the  Government ,of India Act, 1935 came into force when it was repealed  by the  Adaptation  of  Laws Order, 1937.  The  scheme  of  the relevant provisions of this Act was this.  The Act  extended to the whole ,of India.  It defined "Scheduled Districts" by reference to its First Schedule and these districts were  to include  such  other territories in which the  Secretary  of State in Council declared the provisions of 33 Vict.  Ch.  3

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(section  1)  to  be applicable.   The  Act  repealed  other enactments by its Second Schedule.  By sections 3 and 4  the local Government was enabled, with the previous sanction  of the  Governor-General in Council to notify  what  enactments were  in  force  and what were not in force in  any  of  the Scheduled Districts and to correct any mistake of fact in  a notification already issued under that Act but not so as  to change  a  declaration once made and on the  issue  of  such notifications  the intended effect was to follow.  By  s.  5 the  local  Government  with the previous  sanction  of  the Governor-General  in  Council was enabled to extend  to  the Scheduled Districts any Act in force in British India.  Sec- tions 6 and 7, which were the subject of great discussion in this appeal, may be quoted for future reference:               "6. Appointment of officers and regulation  of               their procedure.               The Local Government may from time to time:-               (a)   appoint officers to administer civil and               criminal   justice  and  to  superintend   the               settlement   and  collection  of  the   public               revenue, and all matters relating to rent, and               otherwise   to  conduct  the   administration,               within the Scheduled Districts,               (b)   regulate  the procedure of the  officers               so  appointed; but not so as to  restrict  the               operation of any enact-               843               ment for the time being in force in any of the               said Districts,               (c)   direct    by    what    authority    any               jurisdiction, powers or duties incident to the               operation of any enactment for the time  being                             in force in such District shall be exe rcised or               performed."               "7.   Continuance   of  existing   rules   and               officers.               All   rules  heretofore  prescribed   by   the               Governor-General  in  Council  or  the   Local               Government   for  the  guidance  of   officers               appointed   within   any  of   the   Scheduled               Districts  for  all  or any  of  the  purposes               mentioned  in section six and in force at  the               time  of  the  passing  of  this  Act,   shall               continue  to be in force unless and until  the               Governor  General  in  Council  or  the  Local               Government,  as  the case  may  be,  otherwise               directs.                  All existing officers so appointed previous               to the date on which this Act comes into force               in such District, shall be deemed to have been               appointed hereunder." Section 8 enabled settlement of question as to boundaries of Scheduled  Districts.   Section  9 indicated  the  place  of imprisonment  or of transportation.  Sections 10 and  11  do not matter to us. The Assam Frontier Tracts Regulation 1880 (Regulation II  of 1880) was next enacted to provide for the removal of certain Frontier Tracts in Assam from the operation of enactments in force there.  Section 2 of the Regulation read:               "2. Power to direct that enactment shall cease               to be in force.               When this regulation has been extended in man-               ner hereinbefore prescribed to any tract,  the               Chief Commissioner may from time to time, with

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             the previous sanction of the Governor  General               in  Council,  by  notification  in  the  local               Gazette, direct that any enactment in force in               such tract shall cease to be in force therein,               but   not  so  as  to  affect   the   criminal               jurisdiction   of  any  court  over   European               British Subjects." Under  the  provisions  of  this  Regulation  the   Criminal Procedure  Codes  of 1882 and 1898 were withdrawn  from  the Naga Hills. By  proclamation No. 2832 dated the 1st September, 1905  the Governor-General, with the sanction of His Majesty,  consti- tuted  the  Province of Assam (to which were  added  certain districts 844 of  East  Bengal) and appointed a Lt.   Governor.   The  new Province  was  known  as  Eastern  Bengal  and  Assam.   The Governor-General   in  Council  also  passed  on  the   29th September, 1905 an Act (No. 7 of 1905). it provided by s.  5 as follows:-               "5. Power  to Courts and  Local  Governments               for facilitating application of enactments.               For   the   purpose   of   facilitating    the               application to any of the territory  mentioned               in Schedule A, B or C of any enactment  passed               before the commencement of this Act, or of any               notification, order, scheme rule, form or  by-               law made under any such enactment,--               (a)               (b) the Local Government may, by  notification               in the local official Gazette, direct by  what               officer  any  authority  or  power  shall   be               exercisable,  and any such notification  shall               have effect as if enacted in this Act."               Naga Hills were in Schedule A. On November 29, 1906, the Lt.  Governor prescribed Rules for the  Administration of Justice and Police in the Naga  Hills District  under S. 6 of the Scheduled Districts  Act,  1874. These  Rules may be conveniently called the Rules  of  1906. These Rules repeated the Rules which had been in force  from 1872  with  appropriate modifications  consequent  upon  the political changes.  The nomenclature of Political Agent  and his  Assistant  was dropped and in their  place  the  Deputy Commissioner  and  his Assistants were named in  the  Rules. The Deputy Commissioners became the equivalent of  Political Agents  in  the exercise of powers.  The Assistants  to  the Deputy Commissioner were invested with powers of First Class Magistrates.  All sentences of death or transportation  were required  to be confirmed by the Lt.  Governor but  did  not have to be considered by the Commissioner as in the Rules of 1872 and 1874.  All sentences of imprisonment of 7 years and upward  had  to be confirmed by the Commissioner.   The  Lt. Governor and the Commissioner had record of a criminal  case and  reduce enhance it within the limits  prescribed  Except for these differences the Rules the same. Assam   underwent  yet  another  change  at   the   imperial Coronation Darbar held in Delhi in December, 1911, the  King announced a new distribution of territory.  Bihar and Orissa were cut off from Bengal and were formed into an independent 845 Lt.  Governorship.   Eastern Bengal was reunited  with  West Bengal and Assam once again became a separate Province  with a  Chief  Commissioner.  This new scheme  took  effect  from April 1, 1912. In 1914 by two notifications (Nos. 5467P and 5459P dated 13-

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10-1914), which were issued under Regulation 2 of 1818,  all enactments in force in the Western, Central, North East  and Eastern  Tracts were to cease to be in force and under s.  5 of the Scheduled Districts Act, 1874, the Indian Penal Code, the  Indian Police Act, the Indian Arms Act, the Assam  Land Revenue  Regulation,  the Assam Forest  Regulation  and  the Whipping  Act were extended by the Chief  Commissioner  with the  previous sanction of the Governor-General  in  Council. The  administration of Assam thereafter continued under  the above mentioned Acts and the procedural part was taken  from the  Rules of 1906 which laid down that in  criminal  trials the spirit of the Criminal Procedure Code was to be followed because  the  Code itself was not in force.  In  1921  Assam became a Governor’s Province. We next come to March 25, 1937, On that day the Governor  of Assam  prescribed revised Rules under the powers  vested  in him by s. 6 of the Scheduled Districts Act.  These Rules did not materially differ from the Rules of 1872, 1874 and 1906. The Rules of 1937 began by stating that they cancelled  "all previous  orders  on  the subject." The  changes  that  were introduced  were of the pattern we have known  before.   The administration of the Naga Hills was vested in the  Governor of  Assam,  the Deputy Commissioner, the  Additional  Deputy Commissioners and Assistants to the Deputy Commissioner, the Mouzadars,  etc.   The Deputy Commissioner,  the  Additional Deputy   Commissioner   and   Assistants   to   the   Deputy Commissioner  were  to be appointed by the Governor.   As  a result of these changes, the provisions of Part III  dealing with  criminal  justice were suitably  amended.   The  first change was to assign duties to the Additional Deputy  Commi- ssioner.   The term Deputy Commissioner was said to  include an  Additional  Deputy Commissioner and the latter  had  the same  powers as the former (Rule 15A).  The  terms  District Magistrates, Additional District Magistrates and Magistrates of the District, Sub-Divisional Magistrates or Magistrate of a Sub-Division were to refer to in any law in force in  Naga Hills   to  the  Deputy  Commissioner,   Additional   Deputy Commissioner  and Sub-Divisional Officers, Mokokchung  (Rule 15B).   In  respect of all offences under the  Indian  Penal Code  or  under any other law to be  investigated,  inquired into,  tried or otherwise dealt with according to the  Rules of  1937  the words and expressions defined in s. 4  of  the Criminal  Procedure  Code,  1898  were  to  have  the   same meanings.  The Deputy Commissioner could impose any sentence but the sentence of death was subject to confirmation by the High Court.  The Assistants to the Deputy Commissioner  were equated to 846 Magistrates  of First Class, but the Governor could,  if  he thought fit, invest an Assistant to the Deputy  Commissioner either generally or for trial of a particular case or  cases with all powers of the Deputy Commissioner, except to pass a sentence  of death.  Another change was that instead of  the Lt.   Governor  the  High  Court of  Assam  and  the  Deputy Commissioner  could  call  for the record of  any  case  and reduce,  enhance or cancel any sentence or remand  the  case for  retrial.   Sentences  of death  Passed  by  the  Deputy Commissioner  were subject to the confirmation by  the  High Court of Assam (Rule 16-A) and the Deputy Commissioner while convicting  the accused and sentencing him to death  was  to inform  the  accused about the period in  which  the  appeal should  be filed (Rule 16-B).  The other Rules  defined  the powers of the High Court in cases submitted for confirmation of  sentence  (Rule 16-C, D and E.). Appeals  lay  from  the Deputy Commissioner to the High Court in any case.

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These  Rules,  it  is contended on behalf of  the  State  of Nagaland,  continue till today.  They were amended in  1952, 1954,  1956  and 1957.  In 1937 by the  Adaptation  of  Laws Order the Scheduled Districts Act was repealed but there was a special saving which read as follows:-               " This Act shall cease to have effect, without               prejudice  to the continuing validity  of  any               notification,     appointment,     regulation,               direction or determination made thereunder and               in’ force immediately before the  commencement               of  Part III of the Government of  India  Act,               1935 :                 Provided that, where immediately before  the               first day of April, 1937, any enactment is, by               virtue  of  any notification made  under  this               Act,  in force in any area in  British  India,               either   with  or  without   restrictions   or               modifications,  the  Central  Government,   in               relation  to matters enumerated in List  I  of               the  Seventh  Schedule to  the  Government  of               India   Act,   1935,   and   the    Provincial               Government, in relation to other matters, may,               within  six  months  from the  said  date,  by               notification in the Official Gazette,  declare               that  the  enactment in  question  shall  have               effect   in   that  area   subject   to   such               modifications and adaptations specified in the               notification as the Government in question may               deem  necessary or expedient to bring it  into               accord  with  the  Government  of  India  Act,               1935." In  1945  the  Assam Frontier  (Administration  of  Justice) Regulation, 1945 (Regulation 1 of 1945) was enacted.  It was originally  made applicable to Balipara,  Lakhimpur,  Sadiya and  Tirap Frontier Tracts.  It was applied to  Tuensang  in 1955.   In the main these Regulations were the same  as  the Rules  of  1937  applicable in  the  Kohima  and  Mokokchung Divisions but slight differ- 847 ence  existed in the powers of the High Court in the  matter of transfers and appeals against acquittals.  As these  were the  subject  of  an  argument  we  shall  refer  to   these differences later. Before  the formation of the State of Nagaland the  laws  in the  Tuensang  Frontier Division and those in force  in  the rest  of the North-East Frontier Agency were assimilated  by the  Tuensang  Frontier  Division  (Assimilation  of   Laws) Regulation,  1955 (No. 4 of 1955).  These were made  by  the Governor  in exercise of the powers conferred by clause  (2) of Art. 243 of the Constitution read with Sub-paragraph  (2) of paragraph 18 of the Sixth Schedule to the Constitution by the  President of India.  By Paragraph 3 of that  Regulation all laws except the Tuensang Frontier Division  (Undesirable Persons) Regulation, 1951, which were extended to or were in force in Tuensang Frontier Division but were not extended to and  not  in force in the rest of the  North  East  Frontier Agency ceased to be in force in Tuensang Frontier  Division. Similarly,  all laws which immediately before the  appointed day  did not extend to or were not in force in the  Tuensang Frontier  Division but extended to or were in force  in  the rest of the North East Frontier Agency, were extended to  or came into force in the Tuensang Frontier Division.  In other words,  the  laws in the North East Frontier  Agency  became completely  uniform  except  in  one  respect,  namely,  the continued enforcement of the Undesirable Persons  Regulation

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referred  to  above in Tuensang Division.  As  the  Criminal Procedure  Code was never in force in any part of the  North East  Frontier  Agency  it did not come into  force  in  the Tuensang Area.  On the other hand, the Rules of 1937 if they were  valid and in force got extended to the  Tuensang  area also.   In  1921, in accordance with the provisions  of  the Government of India Act, Assam became a Governor’s  Province and  later  one of the States in the Indian  Republic.   The Regulations  of 1952, 1954, 1956 and 1957 were made  by  the Governor in exercise of his powers under the Sixth  Schedule of the Constitution.  We shall now consider the arguments in these appeals which have covered a wide field, and they were also apparently addressed in the High Court and found favour there. We  may  here  dispose of one  argument  which  is  somewhat independent  of the others.  It is contended that the  Rules of  1937  did  not  survive  the  repeal  of  the  Scheduled Districts  Act, 1874 by the Adaptation of Laws Order,  1937, notwithstanding the saving clause in the Adaptation of  Laws Order.   This argument is. based on the submission that  the savings  clause (reproduced earlier by us) did  not  mention rules  as  such.   We  do  not  agree.   The  saving  clause preserved all notifications.  The Rules of 1937 were enacted by notification and if notifications were saved the Rules in the notification were also saved.  After the passing of  the Government  of India Act, 1935, the Rules of 1937  would  be successi- 848 vely preserved by ss. 292 and 293 of the Government of India Act,  1935, S. 18 of the Indian Independence Act,  1947  and Art.  372  of  the Constitution.   The  real  questions  are whether  they were invalid for any reason to start  with  or became void after the Constitution. The  powers of the Governor-General in Council and  now  ,of the  President  derived  from  the  various   constitutional documents are not and indeed cannot be in doubt.  Hence  the attempt of the respondents is to challenge the powers of the Lt.  Governor, Chief Commissioners and the Governor who have in  turns made Rules for the administration of these  areas. The  attack  is  on the Rules of 1906  and  1937  as  being incompetently made under the Scheduled Districts Act and  on ss.  6 and 7 of the Scheduled Districts Act, if it  be  held that  the Rules were competently made.  We shall deal  first with these arguments. The contention that the Rules of 1937 were void ab initio is supported  by many arguments.  The submission is that ss.  6 and  7  of the Scheduled Districts Act did  not  confer  any powers of legislation to regulate judicial procedure.  It is pointed  out in this connection that s. 6(a) gave powers  to appoint  officers to administer civil and  criminal  justice and  s.  6(b)  allowed the procedure of  the  officers  so appointed   to  be  regulated  which  meant   administrative procedure and no general law-making authority can be implied and  s. 6(c) enabled the choosing of authority by which  any jurisdiction, power or duty incident to the operation of any enactment for the time being in force should be exercised or performed  in any scheduled district.  Reference is made  in this connection to s. 5 of the Act of 1869 where it was laid down that the officers so appointed would, in the matter  of administration  and  superintendence,  be  subject  to   the direction and control of the Governor and would be guided by such instructions as he might, from time to time, issue.  It is  contended  that  by regulating the  procedure  is  meant instructions on the administrative side. In  our opinion this is a wrong reading of the section.   We

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must not forget that the Scheduled Districts Act was  passed because  the backward tracts were never brought  within  the operation   of   all  the  general  Acts   and   Regulations (particularly the Criminal Procedure Code) and were  removed from  the operation and jurisdiction of the ordinary  courts of  Judicature.   In these areas the Indian Penal  Code  was always  applicable but not the Code of’ Criminal  Procedure. The  local  Governments  were  empowered  by  the  Scheduled Districts  Act to appoint officers to administer  civil  and criminal justice and to regulate the procedure of the  offi- cers  so appointed.  Officers appointed to administer  civil and   ,criminal  justice  must  follow  some  procedure   in performing  this  task.   Regulating  procedure,  therefore, meant more than framing 849 administrative rules.  It meant the control of the procedure for   the  effective  administration  of  justice.   It   is significant  that  the  Governor-General  in  Council,   who enacted  the  Scheduled Districts Act, framed the  Rules  of 1874 containing comprehensive rules of procedure for dealing with  criminal cases.  This was a clear exposition of ss.  6 and 7 of the Scheduled Districts Act by the Governor-General in  Council himself.  The Act was understood  as  conferring full  powers  to regulate not the  administrative  procedure only  but also the procedure for administration of  criminal justice.   As  the Rules of 1872, 1874, 1906 and  1937  were almost the same (except for a few changes rendered necessary by  the  altered political conditions) it is clear  that  a succession   of   officers  saw  the  necessity   of   Rules controlling  not  only  the  administrative  side  but   the judicial side of administration of justice.  In our judgment the construction of ss. 6 and 7 attempted by the respondents cannot be accepted. It is next contended that the Act itself was bad because the Legislature  did  not legislate on the subject  of  judicial procedure  but  left essential legislation  to  a  delegate, without  laying down any or at least enough guidance in  the Scheduled  Districts  Act for those who were to  make  Rules under it.  In this connection learned counsel has drawn  our attention  to  several  rulings in  which  the  question  of excessive  delegation has been considered by this Court  and in  particular  we have been referred to Re the  Delhi  Laws Act,  1912,(1) Hamdard Dwakhana (Wakf) Lal Kuan v. Union  of India,(2)   Vasantlal  Maganbhai  Sanjanwala  v.  State   of Bombay(3)  and  D. S. Grewal v. State of  Punjab.(4)  It  is submitted  that ss. 6 and 7 of the Scheduled  Districts  Act laid  down  no  policy, and did not afford a  guide  in  the making  of  Rules  except to say  that  officers  should  be appointed to administer civil and criminal justice and  that the  local Government might regulate the procedure  of  such officers,  thereby leaving the essential law-making  to  the delegate.     In  this Court we have on several occasions pointed  out that guidance may be sufficient if the nature of thing to be done  and the purpose for which it is to be done is  clearly indicated.  Instances of such legislation were cited  before us  and the case of Harishankar Bagla v.  Madhya  Pradesh(5) was one of them.  The policy and purpose may be pointed  out in  the  section  conferring  the powers  and  may  even  be indicated  in  the preamble or elsewhere in  the  Act.   The preamble  of  the Scheduled Districts Act shows  that  these backward tracts were never brought within, but from time  to time  were removed from, the operation of general  Acts  and Regulations  and the jurisdiction of the ordinary courts  of judicature was also excluded.  It was therefore necessary to

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ascertain the enactments (1) [1951] S.C.R. 747.        (2) [19601 2 S.C.R. 671. (3) [1961] 1 S.C.R. 341.    (4)  [1959] Supp.  1 S.C.R. 792. (5)  [1955] 1 S.C.R. 288. 8 50 in force and to set up a machinery for making simple  rules. The Act conferred on the local Governments power to  appoint officers  for administration of civil and  criminal  justice within  the  Scheduled  Districts and  empowered  the  local Government  to  regulate the procedure of  the  officers  so appointed and to confer on them authority and  jurisdiction, powers  and duties incident to the administration  of  civil and criminal justice.  These provisions afforded  sufficient guide  to  the local Government that the  administration  of civil  and  criminal  justice was to  be  done  under  their control by the officers appointed by them and the  procedure which  they were to follow must be laid down.  This was  not an instance, therefore, of excessive delegation at all.  The Legislature  clearly indicated the policy and the manner  of effectuating that policy.  There was sufficient guidance  in the  three  sub-sections of s. 6 read as a  whole  with  the preamble and the Chief Commissioner’s Rules made in 1872 and republished in 1874 by the Governor-General in Council  were also available as a further guide as the last were continued in  force by s. 7. Indeed, the subsequent Rules of 1906  and 1937  repeated  the  Rules of 1872 &  1874  with  amendments necessary’  owing  to political changes  and  only  slightly liberalised  them  in some ways.  We do  not  consider  that there  was excessive delegation of legislative authority  by the Legislature. It  is next contended that s. 7 of the  Scheduled  Districts Act  did not confer any power upon the local  Government  to alter  in any way the Rules made by the Governor-General  in Council.   That section says that Rules which  had  hitherto been  prescribed  by  the  Governor-General  or  the   local Government for the guidance of the officers appointed within any  of  the scheduled districts were to continue to  be  in force  unless  and until the Governor-General or  the  local Government,  as the case may be, otherwise directed.  It  is admitted that the Governor-General in Council, possessing an overriding power, might even have amended the Rules made  by the  local Government.  But it is submitted that the  Gover- nor-General  in  Council could amend his own Rules  and  the local  Government  could amend its own Rules but  the  Local Government, being a delegate, could not amend or cancel  the Rules of the Governor-General in Council.  It is urged  that the Rules of 1906 made by the Lt.  Governor and the Rules of 1937 made by the Governor were ineffective.  With regard  to the  Rules of 1906 it is sufficient to say that  the  Bengal Assam   Laws  Act  1905  authorised  local   Government   by notification  to say by what officer any authority or  power was to be exercisable and any such notification was to  have effect  as if enacted in the Act itself.  When the Rules  of 1906 were made by the local Government they had effect as if they were enacted in Act 7 of 1905.  But the power could  be exercised by the Governor under the Scheduled Districts  Act ss. 6 and 7 to make fresh Rules.  By that Act the  Governor- General in Council conferred on the 851 local  Government an equal or concurrent power and  this  is clearly  indicated by the word "as the case may be" in s.  7 of the Act.  Those words do not, as it contended, show  that the local Government could only amend its own Rules.   These words rather show that whoever made the rules the  authority of  the  Act would make them binding.  In our  judgment  the

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Rules of 1937 were validly enacted. In  order to avoid this implication, the Rules are  attacked as ultra vires Arts. 21 and 14.  Article 21 is used  because it is contended that these Rules do not amount to law as  we understand it, particularly where the Rules say that not the Criminal  Procedure  Code but its spirit is  to  govern  the administration  of justice.  It is urged that this is not  a law because it leaves each officer free to act  arbitrarily. This  is not a fair reading of the Rule.  How the spirit  of the Code is to be applied and not its letter was  considered by  this  Court in Gurumayum Sakhigopal Sarma  v.  K.  Ongbi Anisija Devi (Civil Appeal No. 659 of 1957 decided on 9th of February,  1961)  in  connection  with  the  Code  of  Civil Procedure.  With reference to a similar rule that the courts should  be guided by the spirit and should not be  bound  by the  letter  of  the  Code of  Civil  Procedure  this  Court explained  that the reason appeared to be that  the  techni- calities of the Code, should not trammel litigation embarked upon  by a people unused to them.  In that case  although  a suit was ordered to be dismissed for default of  appearance, an  order was passed on merits.  The question arose  whether it  was dismissed under 0.9 r. 8 or 0 . 17 r. 3 of the  Code of  Civil Procedure.  It was held by this Court that it  did not  matter under which Order it was dismissed but  that  no second  suit  could be brought on the same cause  of  action without  getting rid of the order dismissing the  suit.   In this  way this Court applied the spirit of the Code and  put aside  the technicalities by attempting to find out  whether the dismissal was referable to 0. 9, r. 8 or 0. 17, r. 3  of the Code.  That case illustrates how the spirit of the  Code is  used rather than the technical rule.  In the  same  way, under  the criminal administration of justice the  technical rules are not to prevail. over the substance of the  matter. The Deputy Commissioner in trying criminal cases would  hold the trial according to the exigency of the case.  In a petty case he would follow the summons procedure but in a  heinous one  he would follow the procedure in a warrant  case.   The question  of a Sessions trial cannot arise because there  is no  provision  for  committal proceeding and  there  are  no Sessions  Judges  in  these areas.   Therefore,  the  Deputy Commissioner  who was trying the case observed that  he  was going   to  observe  the  warrant  procedure  and   in   the circumstances he was observing the spirit of the Code. Laws  of  this  kind are made with  an  eye  to  simplicity. People  in  backward  tracts  cannot  be  expected  to  make themselves aware 8 52 of the technicalities of a complex Code.  What is  important is  that  they  should  be able  to  present  their  defence effectively  unhampered  by the  technicalities  of  complex laws.   Throughout the past century the  Criminal  Procedure Code  has been excluded from this area because it  would  be too  difficult  for  the  local  people  to  understand  it. Instead  the spirit of the Criminal Procedure Code has  been asked to be applied so that justice may not fail because  of some technicality.  The argument that this is no law is  not correct.   Written  law is nothing more than  a  control  of discretion.   The more there is of law the less there is  of discretion.   In this area it is considered necessary  that discretion should have greater play than technical rules and the provision that the spirit of the Code should apply is  a law  conceived  in the best interests of  the  people.   The discretion  of  the Presiding Officer is  not  subjected  to rigid  ,control  because  of  the  unsatisfactory  state  of defences which would be offered and which might fail if they

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did  not  comply with some technical rule.  The  removal  of technicalities, in our opinion, leads to the advancement  of the cause of justice in these backward tracts.  On the other hand, the imposition of the Code of Criminal Procedure would retard   justice,  as  indeed  the  Governors-General,   the Governor and the other heads of local Government have always thought.  We think, therefore, that Art. 21 does not  render the Rules of 1937 ineffective.   A   similar attempt is made by comparing these Rules  with the Criminal Procedure Code applicable in the rest of India. It is contended that this leads to discrimination.  We think that the exigency of the situation clearly demands that  the Criminal  Procedure Code should not apply in this area.   It is  not  discrimination  to  administer  different  laws  in different  areas.   The Presidency Towns  have  got  special procedures  which  do not obtain in other  areas.   We  have known  of trial by jury in one part of India for an  offence which was not so triable in another.  Similarly, what is  an offence in one part ,of India is not an offence in  another. Regional    differences   do   not    necessarily    connote discrimination  and  laws  many be  designed  for  effective justice  in  different ways in different parts of  India  if people  are  not similarly  circumstanced.   These  backward tracts  are  not found suitable for the application  of  the Criminal Procedure Code in all its rigour and  technicality, and  to  say  that  they shall  be  ,governed,  not  by  the technical  rules  of the Code but by the substance  of  such rules  is not to discriminate this area against the rest  of India. It  is  contended that there is discrimination  between  the Tuensang  District and the other two districts of the  State because  in  the other two districts the  Code  of  Criminal Procedure applies.  This seems to be stated in the  judgment of  Mr. Justice C. Sanjeeva Rao Nayudu who proceeded upon  a concession of the Advocate-General 853 of Nagaland.  We have, however, no reason to think that  the Advocate-General  could  have conceded this point.   It  was made  clear  to  us  that there was  some  mistake  and  the assumption made by Nayudu J. was based on a misapprehension. It  is  now  admitted  by Mr. A, K. Sen  on  behalf  of  the respondents that the Criminal Procedure Code does not  apply to  any  of the three districts and therefore  there  is  no question  of  any discrimination between  one  district  and another in Nagaland. Lastly, it is contended that the Rules themselves allow  for discrimination because one officer may take something to  be the  spirit of the Criminal Procedure Code and  another  may not.   The  requirements  of the case  must  determine  what should be applied from the Criminal Procedure Code and  what should  not.  The Rules have been purposely made elastic  so that  different kinds of cases and different situations  may be  handled not according to a set pattern but according  to the  requirements of the situation and the circumstances  of the  case.   In  a backward tract the accused is  not  in  a position  to  defend  himself meticulously  according  to  a complex  Code.   It is, therefore, necessary  to  leave  the Judge free so that he may would his proceedings to suit  the situation  and may be able to apply the essential  rules  on which our administration of justice is based untramelled  by any technical rule unless that rule is essential to  further the  cause  of  justice.  This would  rather  lead  to  less discrimination  because  each accused would be  afforded  an opportunity  which his case and circumstances require.   The Rules  of  1937 were designed for an  extremely  simple  and

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unsophisticated  society  and approximate to  the  rules  of natural justice.  It is impossible in such circumstances to, think, that because the Judge has more discretion than if he acted under the Criminal Procedure Code or is able to  bring different  considerations  to the aid of  administration  of justice that there must be discrimination.  If a Judge  does not  apply  +the spirit of the Code but goes against  it  or acts in a manner which may be considered to be perverse  the High Court will consider his action and set it right.  As we said earlier the law has not attempted to control discretion by Rules in this area but has rather left discretion free so that the rule may not hamper the administration of  justice. As  there  is no vested right in procedure  the  respondents cannot claim that they be tried under the Criminal Procedure Code  in this State where the Code is excluded.  In  such  a situation it is difficult to, find discrimination. It was lastly contended that there is discrimination between one  set  of rules and another; that in some  of  the  other backward  tracts  of  Assam the rules are  different  and  a comparative study was made before us of the different rules, as for example, Rules of 1874, 854 1937  and  the  Assam  Frontier  Administration  of  Justice Regulation,  1945  which  applied  to  Balipura,  Lakhimpur, Sadiya  and  Tirap tracts and had been applied  in  Tuensang Division in 1955.  The main differences are in the matter of appeals against acquittals and the power of transfer.  In so far as the appeals against acquittals are concerned, it  is, of course, obvious that where such a power is not  conferred there cannot be an appeal against acquittals.  In so far as transfer  is  concerned, we see no  difficulty  because  the rules  were different to start with in  different  districts and  even if the provisions for transfer may not be  in  one part  the  spirit of the Code of  Criminal  Procedure  would permit  transfer  in that part.  Similarly, in  some  places confirmation  of sentence above 7 years is required  and  in some  others there is only a right of appeal.  This  depends on how advanced each area is.  The attempt, of course, is to bring  these territories under the Criminal  Procedure  Code ,applicable  in the rest of India, by such stages as  appear justified.   As  that  stage  is  not  yet  reached   little differences must exist but no discrimination can be  spelled out  from  the differences.  Art. 371A of  the  Constitution itself  contemplates a different treatment of  these  tracts and  the differences are justified by the  vast  differences between  the needs of social conditions in Nagaland and  the various  stages  of development of different parts.   We  do not,  therefore, consider that a comparison of  these  rules leads  to  any  conclusion  that  there  is  likelihood   of discrimination which would offend the Constitution. We accordingly hold that the Rules of 1937 continue to be in force  and govern the trial of these respondents.  The  Code of  Criminal Procedure admittedly does not apply  there  and the  Additional Deputy Commissioner was therefore  right  in holding  the trial under the Rules of 1937.  It  is  obvious that in following the spirit of the Code and in applying the warrant procedure the Deputy Commissioner followed the right procedure  and the High Court was in error in thinking  that neither  the  Rules of 1937, nor any Rules applied  to  this area.   We accordingly allow the appeals and set  aside  the order of the High Court.  The trial of the respondents shall proceed under the Rules of 1937. We may, however, say that it would be better if, as soon  as it is found to be expedient, all Rules are cancelled and one uniform  set  of Rules is made for the whole of  this  area.

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This  would obviate having to find out through the mazes  of history  and  the  congress  ,of  rules,  notifications  and regulations  what law is applicable.  If any  difficulty  is felt in making new rules recourse may easily be taken to the provisions  of  s.  31 of the State of  Nagaland  Act  which enables the President, by order, to remove any difficulty to give effect to the provisions of the State of Nagaland  Act. The  history  of  this  area  shows  that  there  have  been difficulties in the past in 85 5 ascertaining laws which were applicable at any point of time in  any particular area and led to the passing of many  Acts of British Parliament and of the Governor-General in Council to  remove such difficulties.  We do not think that  such  a state of affairs should continue indefinitely when the State of  Nagaland  Act itself gives sufficient  power  to  remove difficulties. Appeals allowed. 856