Tamizzudin's Case

MAULVI TAMIZUD DIN CASE1955

ByFazal Akbar

DMG Probationer atCivil Services Academy LahoreDated: 15th September, 2011

Basic Facts• The Constituent Assembly amended

Sections 9, 10, 10-A, 10-B of the Govt of India Act, 1935 through the Govt of India (Amendment) Act, 1954.

• These amendments reduced the powers of Governor Genral.

• GG reacted and dissolved the CA on 24th October, 1954.

Continued….• GG issued a proclamation in this regard.

• Maulvi Tameez-ud-Din was president of the CA. So he challenged the proclamation in the Sind Chief Court.

• He prayed for a writ of Mandamus and a writ of Quo Warranto.

Continued…..

• Writ of Mandamus : to restraint respondents from giving effect to the proclamation and from interfering with the exercise of his functions as President of CA.

• Writ of Quo Warranto: to oust ministers of the Cabinet (respondents 2-10) appointed by the Governor General.

Govt’s Reply

• Section 6 (3) of the Indian Independence Act,

1947 gave the GG of each of the new

dominions full powers to assent to any law of

the legislature of the dominions.

Continued….

• The Sind Chief Court has got no jurisdiction

to issue any writ and Section 223-A which

was inserted by the CA in the Govt of India

Act, 1935 giving writ jurisdiction to the

Court, was never assented to by the

Governor General of Pakistan.

Situation on Ground

• The laws or any amendment made in the

Govt of India Act, 1935 were never sent for

approval to Governor General from 1947

to 1954. So many laws were in operation

and many cases had been decided or were

under trial in this regard.

Continued….• Governor General was not having power to

dismiss Assembly and to issue Emergency

Power Ordinance,1955 under Govt. of India

Act, 1935 .

• Under the Indian Independence Act,1947,

Governor General was bound to give his

assent to the laws made by the CA till the

new Constitution.

Sind Chief Court’s Decision

• Sind Chief Court decided in favour of

Maulvi Tamizuddin.

• The proclamation issued by the Governor

General was invalidated

Judgment of Chief Court

• Objection against S.223-A was overruled.

• Objection against new S.10 was overruled.

• The word “law” in S.6 (3) has reference only

to ordinary law and not constitution.• CA was a sovereign body and was not

subject to checks and balances.

Judgment Continued….

• CA had powers to repeal not only S.6 (3) of

Indian Independence Act but the whole of

the Act itself.

• Rule 15 was properly framed by CA with

regard to dissolution.

• The Indian Independence Act does not

contain express provision for dissolution.

Judgment Continued….

• Legislatures are created by statute so

statute should provide for their dissolution.

• Bracton’s maxim “that which is not

otherwise lawful is lawful by necessity.

• The argument, that GG was having His

majesty’s prerogative to dissolve the CA,

was not valid.

Govt’s Appeal

• Govt filed an appeal to Federal Court

headed by Justice Munir.

• Could the Governor General ( a nominee of

the Queen) imply his power to deny the

laws of the CA ( a representative body)?

Continued….

• Has the Constituent Assembly lost its

representative mandate in 1954 as it was

elected in 1946 ?

• The Federal Court decided in favour of the

Govt on 21st March, 1955.

Federal Court’s Decision

• FC did not go into the question that

whether CA was rightly dissolved.

• Held that enactments of CA, in the

capacity of legislative or constituent

body, required the assent of GG.

Decision Continued….

• Legislation of CA is a part of Govt of

dominion under Section 5.

• When CA functions under S.8 (1) of

IIA, it acts as a legislature of the

dominion within the meaning of S.6 of

that Act.

Decision Continued….

• Justice A.R Cornelius dissented from the

bench members.

• He said that the CA be placed above the GG

for two reasons:

1. That CA was a sovereign body; and

2. Statutes under which GG functioned, were

under its competence to amend.

Decision Continued….• The CA was not a creation of the British

Parliament but was a body created by a supra-legal power to discharge the function of preparing a constitution.

• The nature of freedom extended under the IIA, resulted in making free peoples in the dominions of Pakistan and India who enjoyed the advantage of representative institutions on British pattern.

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