"The Case of Where Is the Law" Hats Off-Hats On-Hats Off

William Penn and William Mead were tried for misdemeanour on Thursday 1 September 1670,. The Clerk read out the indictment and said: What say you, William Penn and William Mead.

Recorder: Are you guilty as you stand indicted, in a manner and form, as aforesaid, or Not Guilty?
Penn: Not Guilty in manner and form.

Recorder: Do you know there is respect due to the Court?
Penn: Yes

Recorder: Why do you not pull off your hat then?
Penn: Because I do not believe that to be any respect

Recorder. Well, the court sets forty marks a piece upon your heads, as a fine for your contempt of the court.
Penn: By What law? Where is that common Law?

The Recorder was nonplussed. He did not know and prevaricated.

Recorder: You must not think that I am able to run up so many years, and over so many adjudged cases, which we call common law, to answer your curiosity?
Penn: Am I to plead to an indictment that hath no foundation in Law?

The Jury gave as many as five verdict as 'Not Guilty'

But the court was adamant to find him guilty and went to the extent of removing the twelve  jurors to prison in Newgate, along with William Penn and William Mead.

Penn made his final request:

I ask, if it be according to the fundamental laws of England, that any Englishman should be fined or amerced, but by the judgment of his peers or jury; since it expressly contradicts the 14th and 29th Chapters of the Great Charter of England, which say, No freeman ought to be amerced but by the oath of good and lawful men of the vicinage.

The recorder had no answer to this, except to say:

Take him away, Take him away, Take him away out of the Court.

Both Penn and Mead were hauled into the bale-dock to Newgate prison.

William Penn’s father who was none other than Admiral Sir William Penn, paid the fines of Penn and Mead and they were set free.

This case is famously known as : Bushel’s Case (1670) 124 E.R. 1006 (also spelled Bushell's Case) is a famous English decision on the role of juries. It also confirmed that the Court of Common Pleas could issue a writ of habeas corpus in ordinary criminal cases.

Bushel's Case arose from a previous case involving two Quakers charged with unlawful assembly, William Penn (the future founder of Pennsylvania) and William Mead. They had been arrested in August 1670 for violating the Conventicle Act, which forbade religious assemblies of more than five people outside the auspices of the Church of England. The jury found the two "guilty of speaking in Gracechurch Street" but refused to add "to an unlawful assembly". The infuriated judge charged the jury that they "shall not be dismissed until we have a verdict that the court will accept".

The jury modified the verdict to "guilty of speaking to an assembly in Gracechurch Street", whereupon the judge had them locked up overnight without food, water or heat. Penn protested this and the judge ordered him bound and gagged. Finally, after a two-day fast, the jury returned a not guilty verdict. The judge fined the jury for contempt of court for returning a verdict contrary to their own findings of fact and removed them to prison until the fine was paid. Penn protested that this violated the Magna Carta and was forcibly removed from the court.

Edward Bushel, a member of the jury, nonetheless refused to pay the fine.

DECISION

Bushel petitioned the Court of Common Pleas for a writ of habeas corpus. Sir John Vaughan, Chief Justice of the Court of Common Pleas, initially held that the writ should not be granted, saying that it was King's Bench that should issue writs of habeas corpus in ordinary criminal cases and that Common Pleas could issue the writ only on a claim of privilege of the court (e.g., if the petitioner were an attorney of Common Pleas); the other justices issued the writ, however. Vaughan ruled that a jury could not be punished simply on account of the verdict it returned, but that individual jurors could still be punished if it could be demonstrated that they had acted improperly.

This case also reflects the importance of interpretation of Laws and the  Fundamental Rights of the citizen as reflected in Clause 1 of Article 20 of  the Constitution of India "No person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged."

This important rights has been demonstrated by Lord Atkin in Liversidge vs. Anderson: He said:  I know of only one authority which might justify the suggested method of construction: 'When I use a word' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean, neither more or less'. The question is said Alice. 'Whether you can make, words mean so many different things'. 'The question is', Humpty Dumpty said, 'which is the Master-that is all'.

In another words, before depriving the life and liberty of a subject, the law must be clear and definite and not only that, the existence of such law must be made known to the subject of the existence of such laws, and this has been demonstrated in the celebrated Supreme Court case of Harla Vs State of Rajasthan.

Cites 2 docs

  • The Opium And Revenue Laws (Extension Of Application) Act, 1950
  • Babulal Choukhani And Sailendra  vs. The King-Emperor on 17 February, 1938

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  • Yadu Raj Singh And 2 Ors. vs. State Of Rajasthan And Ors. on 17 December, 1986

Supreme Court of India
Harla vs. The State Of Rajasthan on 24 September, 1951
Equivalent citations: 1951 AIR 467, 1952 SCR 110

Author: V Bose
Bench: Bose, Vivian
PETITIONER:
HARLA
Vs.
RESPONDENT:

THE STATE OF RAJASTHAN
DATE OF JUDGMENT: 24/09/1951

BENCH:
BOSE, VIVIAN

MAHAJAN, MEHR CHAND

CITATION:

1951 AIR  467               
1952 SCR  110

ITATOR INFO :

R 1962 SC 562 (2)
RF 1978 SC1675 (194)
RF 1980 SC1230 (19)
RF 1988 SC 440 (23)
RF 1990 SC1256 (27)

ACT: Jaipur  Laws  Act,1923,  s.  3(b)--Jaipur Opium Act, 1923--Law passed by Council of Ministers not promulgated  or published in Gazette--Validity of law--Necessity  of promulgation of laws-Natural justice.

HEADNOTE:

Natural justice requires that before a law can  become operative  it must be promulgated or published. It  must  be broadcast in some recognizable way so that all men may know what  it is; or at least there must be some special rule  or regulation  or customary channel by or through which such knowledge  can be  acquired with the exercise of  due and reasonable diligence.

The Council of Ministers appointed by the Crown  Representative for the  government and  administration  of the Jaipur State passed a Resolution in 1923 purporting to enact a law called the Jaipur Opium Act, but this law was  neither promulgated  or published in the Gazette nor made  known  to the  public. The  Jaipur Laws Act, 1923,  which  was also passed by the Council and which came into force on the 1st November,  1924,  provided by s. 3 (b) that the law  to  be administered  by the court of the Jaipur State shall  be."

(b) all the regulations now in force within the said  territories and the enactments and regulations that may hereafter be  passed from time to. time by the State and published  in the  Official  Gazette." In 1938 the Jaipur Opium  Act was amended by adding a clause to the effect that "it shall come into force from the 1st of September, 1924."

Held, that the mere passing of the Resolution  of the Council without further publication or promulgation of the law  was  not sufficient to make the law operative  and the Jaipur Opium Act was not therefore a valid law. Held further, that  the said Act was not saved by s.3 (b) of the Jaipur Laws Act, 1923, as it was not a valid law in force on the 1st November, 1924, and the mere addition of a clause in 1938 that it shall come into force in 1924 was of no use.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 5 of 1951. Appeal from the Judgment and Order dated 18th August, '1950, of the High Court of Judicature for Rajasthan at Jaipur (Nawal Kishore C.J. and Dave J.) in Criminal Reference No. 229 of Sambat 2005.

H. J. Umrigar for the appellant.
G. C. Mathur for the respondent.

1951. September 24. The Judgment of the Court was delivered by Bose J:-The appellant was convicted under section 7 of the Jaipur Opium Act and fined Rs. 50. The case as such is trivial but the High Court of Rajasthan in Jaipur granted special leave to appeal as an important point touching the vires of the Act arises. We will state the facts chronologically.

It is conceded that the Rulers of Jaipur had full powers of government including those of legislation. On the 7th of September, 1922, the late Maharaja died and at the time of his death his successor, the present Maharaja, was a minor. Accordingly, the Crown Representative appointed a Council of Ministers to look after the government and administration of the State during the Maharaja's minority-

On the 11th of December, 1923, this Council passed a Resolution which purported to enact the Jaipur Opium Act, and the only question is whether the mere passing of the Resolution without promulgation or publication in the Gazette, or other means to make the Act known to the public, was sufficient to make it law. We are of opinion that it was not. But before giving our reasons for so holding, we will refer to some further facts.

About the same time (that is to say, in the year 1923 we have not been given the exact date) the same Council enacted the Jaipur Laws Act, 1923. Section 3(b) of this Act provided as follows :--

"3. Subject to the prerogative of the Ruler the law to be administered by the Court of Jaipur State shall be as follows:

(b) All the regulations now in force within the said territories, and the enactments and regulations that may hereafter be passed from time to time by the State and published in the Official Gazette."

This law came into force on the 1st of November, 1924. It is admitted that the Jaipur Opium Act was never published in the Gazette either before or after the 1st of November, 1924. But it is contended that was not necessary because it was a "regulation" already in force on that date.

The only other fact of consequence is that on the 19th of May, 1938, section 1 of the Jaipur Opium Act was amended by the addition of sub-section (c) which ran as follows: "(c) It shall come into force from the 1st of September, 1924."

The offence for which the appellant was convicted took place on the 8th of October, 1948.

Dealing first with the last of these Acts, namely the one of the 19th of May, 1938, we can put that on one side at once because, unless the Opium Act was valid when made, the mere addition of a clause fourteen years later stating that it shall come into force at a date fourteen years earlier would be useless. In the year 1938 there was a law which required all enactments after the 1st of November, 1924, to be published in the Gazette. Therefore, if the Opium Act was not a valid Act at that date, it could not be validated by the publication of only one section of it in the Gazette fourteen years later. The Jaipur Laws Act of 1923 required the whole of the enactment to be published; therefore publication of only one section would not validate it if it was not already valid. We need not consider whether a law could be made retroactive so as to take effect from 1924 by publication in 1938, though that point was argued. That throws us back to the position in 1923 and raises the question whether a law could be brought into operation by a mere resolution of the Jaipur Council.

We do not know what laws were operative in Jaipur regarding the coming into force of an enactment in that State. We were not shown any, nor was our attention drawn to any custom which could be said to govern the matter. In the absence of any special law or custom, we are of opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalized by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognizable way so that all men may know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilized man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential. In England the rule is that Acts of Parliament become law from the first moment of the day on which they receive the Royal assent, but Royal Proclamations only when actually published in the official Gazette. See footnote (a) to paragraph 776. page 601, of Halsbury's Laws of England (Hailsham edition), Volume VI and 32 Halsbury's Laws of England (Hailsham edition), page 150 note (r). But even there it was necessary to enact a special Act of Parliament to enable such proclamations to become law by publication in the Gazette though a Royal Proclamation is the highest kind of law, other than an Act of Parliament, known to the British Constitution; and even the publication in the London Gazette will not make the proclamation valid in Scotland nor will publication in the Edinburgh Gazette make it valid for England. It is clear therefore that the mere enacting or signing of a Royal Proclamation is not enough. There must be publication before it can become law, and in England the nature of the publication has to be prescribed by an Act of Parliament.

The Act of Parliament regulating this matter is the Crown Office Act of 1877' (40 and 41 Victoria Ch. 41). That Act, in addition to making provision for publication in certain official Gazettes, also provides for the making of rules by Order in Council for the best means of making Proclamations known to the public. The British Parliament has therefore insisted in the Crown Office Act that not only must there be publication in the Gazette but in addition there must be other modes of publication, if an Order in Council so directs, so that the people at large may know what these special laws are. The Crown Office Act directs His Majesty in Council carefully to consider the best mode of making these laws known to the public and empowers that body to draw up rules for the same and embody them in an Order in Council. We take it that if these Proclamations are not published strictly in accordance with the rules so drawn up, they will not be valid law. The principle underlying this question has been judicially considered in England. For example, on a somewhat lower plane, it was held in Johnson v. Sargant (1) that an Order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order, 1917 does not become operative until it is made known to the public, and the difference between an Order of that kind and an Act of the British Parliament is Stressed. The difference is obvious. Acts of the British Parliament are publicly enacted. The debates are open to the public and the Acts are passed by the accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done. They also receive wide publicity in papers and, now, over the wireless. Not so Royal Proclamations and Orders of a Food Controller and so forth. There must therefore be promulgation and publication in their cases. The mode of publication can vary; what is a good method in one country may not necessarily be the best in another. But reasonable publication of some sort there must be.

Nor is the principle peculiar to England. It was applied to France by the Code Napoleon, the first Article of which states that the laws are executory "by virtue of the promulgation thereof" and that they shall come into effect "from the moment at which their promulgation can have been known." So also it has been applied in India in, for instance, matters arising under Rule 119 of the Defence of India Rules. See, for example, Crown v. Manghumal Tekuml (1), Shakoor v. King Emperor (2) and Babulal v. King Emperor (3). It is true none of these cases is analogous to the one before us but they are only particular applications of a deeper rule which is rounded on natural justice.

The Council of Ministers which passed the Jaipur Opium Act was not a sovereign body nor did it function of its own right. It was brought into being by the Crown Representative, and the Jaipur Gazette Notification dated the 11th August, 1923, defined and limited its powers. We are entitled therefore to import into this matter consideration of the principles and notions of natural justice which underlie the British Constitution, for it is inconceivable that a representative of His Britannic Majesty could have contemplated the creation of a body which could wield powers so abhorrent to the fundamental principles of natural justice which all freedom loving peoples share. We hold that, in the absence of some specific law or custom to the contrary, a mere resolution of a Council of Ministers in the Jaipur State without further publication or promulgation would not be sufficient to make a law operative.

It is necessary to consider another point. It was urged that section 3(b) of the Jaipur Laws Act of 1923 saved all regulations then in force from the necessity of publication in the Gazette. That may be so, but the Act only saved laws which were valid at the time and not resolutions which had never acquired the force of law.

The appeal succeeds. The conviction and sentence are set aside. The fine, if paid, will be refunded.

Appeal allowed.

Agent for the appellant: R.A. Govind. Agent for the respondent: P.A. Mehta.

(1) I.L.R. 1944 Karachi 107. 
(2) I.L.R. 1944 Nag. 150.
(3) I.L.R. 1945 Nag. 762.

 

N.K.Assumi 
on 13 June 2017
Published in Constitutional Law
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