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2015 DIGILAW 719 (TRI)

Tajul Islam v. State of Tripura

2015-11-19

DEEPAK GUPTA

body2015
ORDER 1. Whether the provisions of the Passport (Entry Into India) Act, 1920 and the provisions of the Foreigners Act, 1946 are applicable to the State of Tripura or not is the moot question which arises for decision in this petition. 2. The entire problem arose due to the totally wrong information supplied to the petitioner by the officials of the Government of Tripura. The petitioner through his counsel Sri Subhendu Sarkar sought information under the Right to Information Act, 2005 from the Law Department of the Government of Tripura and specifically asked for the information as to whether these two laws are applicable to the State of Tripura or not? The law department instead of answering the issue abdicated its functions, washed its hands of the matter and directed the petitioner to approach the General Administration (Political), Department of Home. The least which is expected from the Law Department is that it should know which laws are applicable and which laws are not applicable in the State of Tripura. I am constrained to observe that the Law Department could not have taken a stand that it has no such information and therefore this information be sought from the other department. 3. Be that as it may, on 10th July, 2013 one Sri B. Basfore, Deputy Secretary to the Government of Tripura in the department of General Administration (Political) sent a communication to Sri Subhendu Sarkar that the Passport (Entry Into India) Act, 1920 and Passport (Entry Into India) Rules, 1950 made thereunder are not extended to the State of Tripura. In respect of the Foreigners Act 1946 his reply was that the information cannot be supplied by his office. 4. Taking benefit of the information given to him the petitioner approached this Court challenging his prosecution on the ground that if the State itself is stating that the Passport (Entry Into India) Act, 1920 is not applicable to the State of Tripura and it does not have any information whether the Foreigners Act, 1946 is applicable to the State of Tripura or not, how could the State lodge prosecution against the petitioner for violating these two Acts? On the petition being filed, notice was issued to the State of Tripura and in reply to the said notice the stand of the State was that both these Acts are applicable to the State of Tripura. 5. On the petition being filed, notice was issued to the State of Tripura and in reply to the said notice the stand of the State was that both these Acts are applicable to the State of Tripura. 5. On 29th January, 2015 this Court directed the Chief Secretary to the Govt. of Tripura to file his affidavit in view of the conflicting stands of the State (i) in the communication sent to the petitioner by Sri B. Basfore, Deputy Secretary to the Government of Tripura and (ii) the stand taken by the under Secretary to the Home Department and the Under Secretary, Law Department in the reply affidavits filed to the petitioner. The Chief Secretary in his affidavit has clearly stated that these Acts are applicable to the State of Tripura. 6. Sri S. Kar Bhowmik, learned counsel for the petitioner, submits that there should have been a special presidential notification or the Parliament or State Legislature should have passed special legislative Act enforcing the provisions of these two Acts in the State of Tripura. He submits that unless there is a special notification issued by the President or the Governor, the Acts of Parliament are not applicable to the State of Tripura. In support of his contention Sri Bhowmik has placed reliance on the provision of Article 372 of the Constitution which reads as follows:- “372. Continuance in force of existing laws and their adaptation:- (1) Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority. (2) For the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the President may by order make such adaptations and modifications of such law, whether by way of repeal or amendment, as may be necessary or expedient, and provide that the law shall, as from such date as may be specified in the order, have effect subject to the adaptations and modifications so made and any such adaptation or modification shall not be questioned in any court of law. (3) Nothing in clause (2) shall be deemed:- (a) To empower the President to make any adaptation or modification of any law after the expiration of three years from the commencement of this Constitution. (b) To prevent any competent Legislature or other competent authority from repealing or amending any law adapted or modified by the President under the said clause. Article 372A. Power of the President to adapt laws –– (1) For the purposes of bringing the provisions of any law in force in India or in any part thereof, immediately before the commencement of the Constitution (Seventh Amendment) Act, 1956, into accord with the provisions of this Constitution as amended by that Act, the President may by order made before the first day of November, 1957, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and provide that the law shall, as from such date as may be specified in the order, have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall not be questioned in any court of law. (2) Nothing in clause (1) shall be deemed to prevent a competent Legislature or other competent authority from repealing or amending any law adapted or modified by the President under the said clause. He submits that the laws which were in force in the territory of India before commencement of the Constitution are not applicable to the State of Tripura because Tripura was not a part of India at the time when these two Acts were enacted in the year 1920 and 1946. 7. To decide this question it would be necessary to give a brief history in this regard. 7. To decide this question it would be necessary to give a brief history in this regard. The territory which now forms part of the State of Tripura was a part of the kingdom of Tripura which never formed part of British India. It was a princely State which had its own independent polity and administration. The kingdom of Tripura was one of the ancient princely states of India. According to the Rajmala (the Chronicles of Kings), Tripura was ruled continuously by as many as 184 Tripuri Kings with sovereign and independent status prior to its merger with the Indian Union in 1949, after the death of the last ruling King, Bir Bikram Kishore Debbarman. His successor, Kirit Bikram, was thirteen years old at the time of the merger. King Bir Bikram had died in 1947. 8. Prior to independence, India was not one unified country. It consisted of various provinces which were under British rule. There were independent princely states some of which were administered by British and some only owed suzerainty to the British monarch. Tripura was an independent territory. Though there was a British political agent in the State of Tripura the monarchy did not exercise any judicial or administrative powers in the State of Tripura. 9. Queen Kanchan Prava Devi was finally appointed as sole regent on 12th January, 1948. As is well-known, after India attained independence on 15th August, 1947, a large number of princely states which were not part of British India acceded to the Union of India. On 9th September, 1949 an agreement was entered into between the Govt. of India and His Highness the Maharaja of Tripura who was then a minor through his mother who was the regent Queen whereby the Maharaja abdicated his rights of ruler-ship and merged the territory of Tripura into the Union of India. 10. Article I of the Tripura Merger Agreement reads as follows:- “The Maharaja of Tripura hereby cedes to the Dominion Government full and exclusive authority, jurisdiction and powers for and in relation to the governance of the State and agrees to transfer the administration of the State to the Dominion Government on the fifteenth day of October, 1949 (hereinafter referred to as the said day). As from the said day the Dominion Government will be competent to exercise the said powers, authority and jurisdiction in such manner and through such agency as it may think fit.” As per Article I of the Merger Agreement quoted herein above, from the date of merger it was the dominion Government i.e. the Government of India which had to exercise all powers, authority and jurisdiction and therefore, the laws applicable in the rest of the country became automatically applicable to the erstwhile territory of Tripura. 11. Tripura merged into the Union of India prior to the enforcement of the Constitution of India. Therefore, it was a territory of India prior to 26th January, 1950. After Tripura merged into the Union of India all laws which were applicable to the territory of India automatically applied to the territory of Tripura and therefore, the law was automatically applicable to the territory of the state of Tripura. No further adaptation or modification was necessary to make it applicable to the territory of Tripura. Furthermore, I am clearly of the view that the provision of Article 372 will only come into play when there has to be some adaptation or modification to be made. Once Tripura had merged into the Union of India it became a part of the Union of India and a law which may have been enacted even prior to the date of accession would automatically become applicable to the State of Tripura unless under the instrument of accession certain laws were specifically excluded. 12. The purpose of Article 372 was that if any modification or adaptation in the existing laws which were applicable to the Union territory of India had to be made, it might not be possible to get all these modifications and adaptations passed either by parliament or by the Legislature because in some States even the Legislature and Parliament had still to come into existence. Reliance placed by Sri S. Kar Bhowmik on Clause (2) of Article 372 is misplaced. Explanation I clearly states that the expression law in force shall include a law passed or made by legislature or other competent authority in the territory of India before commencement of the Constitution and not previously repealed. Both these Acts were passed by the competent authorities of the then territory of India. Explanation I clearly states that the expression law in force shall include a law passed or made by legislature or other competent authority in the territory of India before commencement of the Constitution and not previously repealed. Both these Acts were passed by the competent authorities of the then territory of India. True it is, that at the time when these Acts were passed Tripura was not a part of the territory of India but after Tripura became a part of the Union of India these Acts became automatically applicable to these territories. 13. It is not necessary to record explanation II because that only relates to extra territorial operations of the provisions of law. 14. Rule of law is one of the most important aspects of any independent, sovereign State. When one State merges and joins another State to form one country there has to be only one set of laws and when Tripura merged into the Union of India it accepted that the laws which were applicable to the Union of India would also be applicable to the State of Tripura. In this view of the matter I am clearly of the view that the provisions of the Passport (Entry Into India) Act, 1920 and Foreigners Act, 1946 are applicable to the territory of Tripura. Therefore there is no merit in the petition which is, accordingly, dismissed.