# STATE OF NAGALAND v. RA TAN SINGH, ETC

- **Citation:** [1966] 3 S.C.R. 830
- **Court:** Supreme Court of India
- **Decided:** 1966-03-09
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, Hidayatullah, J. C. Shah, S. M. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-nagaland-v-ra-tan-singh-etc-3771
- **Pages:** 26

## Headnote

Scheduled Districts Act, 1874-Rule• thereunder-If valid and in
fore~! Act bad for excessive delegation-If Rulu violate Arts. 14 and
21 of Co11stltution-Applicabi/ity of Criminal Procedure Code to backward tracu--Constitution of India, 1950.
The respondents were sought to be tried for oft'ooces under the Indian
Ponal Code, before the Additional Dqluty Commissioner, Kohnna, "hen
objection was taken that the trial should be before the Court of Sessiom
;ifter commitment, as tho offences were triable exclusively by the Court
of Session under the Code of Criminal Procedure. The Additional Deputy
Commissioner overruled tho objection on the ground that there were no
Courts of s-ion in the Naga Hills District and tho Criminal Procedure
Code was also not in force.
He ruled that committal proceedings and
the trial before a session coun was therefore not possible and the pr<><»-
dure laid down in the Rules for the Administration of Justice and Police
ii\ the Naga Hills District, 1937, would be followed.
Thereupon the respondents filed writ petitions to quash the proceedings commenced under
the Rulo:; of 1937. Tho 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.
Tho
successive Criminal Procedure Codos, which ordinarily would have governed the trial of offence•, were always withdrawn from this area and
special rul"" for administration of criminal justice were pomulgated instead.
Dy tho 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 legislate separarelv for the
backward tracts.
M difficulties arose in determining whμt laws were in
force and io which area of backward tracts, the Scheduled Districts Act,
1874 was passed.
The p06ition at the inauguation of the Govornmcot
of India. 1935 was that the Go\'emor-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 tit. The 1935
Act provided for the ascertainment of the backward tracJs and for =king
of laws in those areas and in 1936 an Order in Council was made speci·
fying 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 areu.
1ltt> State of Nagaland was formed by the State of Nagaland Act, 1962
comprising of N"? Hills-Tuensang Area and consisting of three districta. The admin!Slration of tho State of Nagaland was to be in accordance with the provisions of the State of Nagaland Act, which amon~ other
thingt provided for the continuance of existing law• 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
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or in his Council but through rules which were framed from tμne to t!m•
by other agencies.
In 193 7, the Governor of AMam prescribed re~ed .
Rules under the powers vested in him by s. 6 of the S9heduled D1•ti:icts
Act. These Rules of 1937 began by stating that they cancelled "all pre>1ous
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, ao.d
whether the Rules of 1937 were rendered void by reasou of Arts. 14 and
21 of the Constitution.
HELD: The

## Text

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STATE OF NAGALAND
v.
RA TAN SINGH, ETC.
March 9, 1966
[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, HIDAYATULLAH,
J. C. SHAH AND S. M. SIKRI, JJ.j
Scheduled Districts Act, 1874-Rule• thereunder-If valid and in
fore~! Act bad for excessive delegation-If Rulu violate Arts. 14 and
21 of Co11stltution-Applicabi/ity of Criminal Procedure Code to backward tracu--Constitution of India, 1950.
The respondents were sought to be tried for oft'ooces under the Indian
Ponal Code, before the Additional Dqluty Commissioner, Kohnna, "hen
objection was taken that the trial should be before the Court of Sessiom
;ifter commitment, as tho offences were triable exclusively by the Court
of Session under the Code of Criminal Procedure. The Additional Deputy
Commissioner overruled tho objection on the ground that there were no
Courts of s-ion in the Naga Hills District and tho Criminal Procedure
Code was also not in force.
He ruled that committal proceedings and
the trial before a session coun was therefore not possible and the pr<><»-
dure laid down in the Rules for the Administration of Justice and Police
ii\ the Naga Hills District, 1937, would be followed.
Thereupon the respondents filed writ petitions to quash the proceedings commenced under
the Rulo:; of 1937. Tho 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.
Tho
successive Criminal Procedure Codos, which ordinarily would have governed the trial of offence•, were always withdrawn from this area and
special rul"" for administration of criminal justice were pomulgated instead.
Dy tho 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 legislate separarelv for the
backward tracts.
M difficulties arose in determining whμt laws were in
force and io which area of backward tracts, the Scheduled Districts Act,
1874 was passed.
The p06ition at the inauguation of the Govornmcot
of India. 1935 was that the Go\'emor-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 tit. The 1935
Act provided for the ascertainment of the backward tracJs and for =king
of laws in those areas and in 1936 an Order in Council was made speci·
fying 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 areu.
1ltt> State of Nagaland was formed by the State of Nagaland Act, 1962
comprising of N"? Hills-Tuensang Area and consisting of three districta. The admin!Slration of tho State of Nagaland was to be in accordance with the provisions of the State of Nagaland Act, which amon~ other
thingt provided for the continuance of existing law• 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
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or in his Council but through rules which were framed from tμne to t!m•
by other agencies.
In 193 7, the Governor of AMam prescribed re~ed .
Rules under the powers vested in him by s. 6 of the S9heduled D1•ti:icts
Act. These Rules of 1937 began by stating that they cancelled "all pre>1ous
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, ao.d
whether the Rules of 1937 were rendered void by reasou 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 Oxle of Criminal
Procedure admittedly did not apply to that area and the Additional Deputy
Commissioner was therefore right in holding the trial under the Rule•
of 1937. [854 E-F]
The Rules of 1937 did survive the repeal of the Scheduled Districts
Act, 1874 by virtue of the saving ci_ause in the Adaptation of Laws
Order which repealed the Act.
The sav.ng clause preserved all n.ouficat10111
and the Rules of 1937 were enacted by a notification. After the passing
"of the Government of India Act, 1935, the Rules of 1937 wore succe.-
sively preserved by ss. 292 anc! 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 WM no excessive delegation under the Scheduled Districts Act.
The Legislature clearly indicated the policy and tbo manner of off..,tuating
tbat 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 oll'icers so appointed and to confe.r on tllem authority and jun.-
diction powers and duties incidental to the administration of civil and
criminal justice.
These pro,isions 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 apoointed by them anc! the
procedure which they were to follow had to be laid doWt!. Besides, there
was sufficient guidance in the three sub-sections of s. 6 read as a whole
with the preamble, and the Chief Commi.,;ioner's Rules made in 1872
and republished 'n 1874 by Governor-General in Council
wore
alo<>
available as a further guide as the last were continued in force by
s. 7. [849 G-850 DJ
By the Scheduled Districts Act the Governor-General in Council conferred on the local Government an equal or concurrent power an& thi•
was clearly indicated by the word "as tbe case may be" in s. 7 of the
Act. Those word< did not. show that the local Government could only
amend its own Rule'l.
They showed that whoever made the rules the
authority of the Act made them binding. [851 A-BJ
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
iRtercsto of the people.
The di!cretion of the Presiding Officer was net
subjected ro rigid control because of tbe unsatisfactory state of defences
which would be offered an<) which might fail if they did not comply with
832
SUPREME COUll.T REPORTS
[1966] 3 S.C.R.
some technical rule.
The removal of technicalities, led to the advancoment of the cause of justice in these backward tracts.
On the ocher
hand the imposition of the Code of Criminal Procedure would have retarded justice as iiideed the Governors-General, the Governors and the
heads of local Governmoot bad always thought. (852 B-0]
It was not discriminatory to administer different laws in different
areas.
These backward tracts were not found suitable for the applic.1tion
of the Criminal Procedure Code in all its ,;gour 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 ru1 .. was not to discriminate this
area against the rest of India. (852 E-G]
The law had not attempted to control discretion by Rules
in Ibis
area but had rightly left discretion free so that the rule might not
hamper the administration of justice.
There was no vested right in
procedure; therefore, the respondents could not claim to be tried undtr
the CrimiMI Procedure Code tn this area where the Code was excluded.
[853 Gl
No discrimination can be spelled out from the differences in the rule•
aPJ>licable to different areas in the backward tracts.
The object was to
bnng these territories under the Code of Criminal Procedure applicable
in the rest of India, by stages.
Article 371 of the Constitution it>elf
coatcmplatcs a diffecent treatment of these tracts and the differences are
justified by the vast differences between the needs of social conditions .In
Nagaland and the \1lrious stages of development of different parts of this
area. [854 DJ
[Uniform set of Rules for the whole area suggested.]
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CRIMINAL APPFLLATE JURISDICTIO~ : Criminal Appeals Nos.
E
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·
F
General for the State of Noga/and, P. K. Goswami, Anil Barthukar,
B. Dutta and Naunit Lal, for the appellant (in all the appeals.)
A. K. Sen, S. S. Ray, I!. K. Puri and H. L. Arora, for the respondents (in all the appeals).
Nimz 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 Adliitional Deputy Commissioner, Kohima
and the State of Nagaland, not to proceed with the trial of the
G
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833
A ·respondents. The High Court has certified the case as fit for appeal
•to this court. The facts are these :
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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 Commissioner, 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. Go-
·vernor 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
H : 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 refrained from
giving any
opinion. Mr. Justice C.
Sanjeeva Rao Nayudu
834
SUPllEMll COUllT llEPOllTS
[1966) 3 S.C.R.
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 1·ires 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, uncertain 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. Jn 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 arc 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 wa-; entrusted to the Governor-General in Council under
3 & 4 William IV, Ch. 85 and 16 & 17 Viet. Ch. 95. They allowed
laws to be made directly for the areas which were under the Government of East Jndia Company. After the Indian Councils Act of
1861 (24 & 25 Viet. 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 lndian Councils
Act made new provision by_which the Governor-General in Council
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was authorised to make laws and regulations for India and to
repeal, amend or alter any law or regiilation 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 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 Viet. 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 wi!l 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 a/ia, 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 & JO 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
SUPREME COURT REPORTS
[1966] 3 S.C.R.
(I)
•
(2) The Governor-General in Council may declare
any territory in British India to be a "backward
tract", anc.I may, by notification, with such sanction
as ~foresaid'. direct that this Act shall apply to that
terntory 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 GovernorGeneral thinks fit, or may authorise the Governor
in Council to give similar directions as respects any
Act of the local legislaturee."
Thus at the inauguration of the Government of India Act, 1935
the position was that the Governor-General in Council or
the Governor etc. with the approval of the Governor-General
in Council legislatec.I for these backward tracts anc.I the GovernorGeneral 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 ProA
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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 Prov!nci~l Legislatur~, or ~ny
existing Indian Law, which 1s for the lime bemg
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 discretion."
After this the Scheduled Districts Act became obsolete and was
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 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. I of 1954) which came into force on January 19, 1954. By
the same Regulation the North East Frontier Tract was stated to
include Ba!ipara Frontier Tract, the Tirap Frontier Tract, the
Abor Hills District, the Misimi Hills District and with the Nitga
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 I, 1957. The Tuensang
area was the former N aga Tribal Area and the other two areas
were the autonomous districts of Kohima and Mokokchung. T)le
State of Nagaland was formed by the State of Nagaland Act, 1962
(27of1962). That Act repealed and replaced the Nagaland (Transitional Provisions) Regulation, 1961 (Regulation 2 of 1961). The
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1138
SUPREME COURT REPORTS
(1966] 3 S.C.R.
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.-
(I) 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.
Exp/anation.-In this seciion
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 ~nstrue, 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 !av.fol functions
were continued as before unless their continuance was inconsistent
with the State of Nagaland Act. So much will suffice to describe
the ground-work of law-making ~nder the. authority of ~ritish
Parliament the Governor-General m Council and the Parliament
and Legisl;tures 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
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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.
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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 GovernorGeneral or of the Lt. Governor for making laws and regulations
and while making such extensions co~ld 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 extend 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
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(1966) 3 S.C.R.
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 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 mit 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 topic$
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 Mouzadars, 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 and
consisted of Rules 3 to 15. We are not concerned with it.
Criminal
justice was provided for in Part Ill (Rules 16 to 24) and Civil Justice
in Part IV (Rules 25 to 30).
We arc 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 decisii:i:s to the Political
Ag~n.t or
his Assistant. Appeals lay to the Pohllcal Agent from the dec1S1ons
of his Assistant. No appeal lay as of right from the sentence
of the Political Agent involving less than three years' imprisonm.ent
but the Commissioner could call for the record of the case to sat1Sfy
himself. Sentences above that period were appealable to the ComA
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missioner. The Lt. Governor
was empowered to review the
proceedings of all subordinate officers. Rule 23 bore upo~ .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
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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 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
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in any form or to warn them that they were liable to punishment for perjury if they stated what they knew to be
false.
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On February 6, 1874 there was formation of the Chief Commissionership in Assam. The Governor-General in Council issued
a proclamation under s. 3 of 17 & 18 Viet., 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 Commissionership
called the Chief Commissionership 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 Jaw 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 GovemorGeneral in Council and by s. 2 the Governor-General ilt 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
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were fonnerly vested in or were exercisable by the Lt. Governor
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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 Governorn
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 Regulations 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 intituled the Scheduled Districts Aet, 1874 (14 or
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 Viet. Ch. 3 (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. Sections 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 enactc
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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 enact•
ment for the time being in force in such District
shall be exercised or performed."
"7. Continuance of existing rules and officers.
All rules heretofore prescribed by the GovernorGeneral 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 ll
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 manner hereinbefore prescribed to any tract, the Chief
Commissioner may from time to time, with 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 Proced~
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, comtituted the Province of Assam (to which were added certain districta

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Lt. Governorship. Eastern Bengal was reunited with West Bengal
and Assam once again became a separate Province with a Chief
Commissioner.