Updated: Aug 17
This article is written by Vishwas Chitwar currently pursuing B.COM LLB (HONS) from Institute of Law Nirma University. This article deals with the War Injuries (Compensation Insurance) Act 1943 and how colonial ordinances passed between 1940-1946 became perpetual Acts.
The war injuries (Compensation Insurance) Act 1943 was enacted on 2nd September 1943 to impose liability on an employer to pay compensation to its workmen who sustain war injuries. As per this Act along with the compensation the employer also owes a duty to provide insurance to its employers against the liability.
This article will be talking about why this Act still exists till now, how this Act became a perpetual ordinance as this Act was supposed to be enforced for six months and no more, along with this the article will be putting light on the key features of this act.
The fact that there is such a thing as "perpetual ordinances" should feel rather strange. Well, maybe not if you had a chance to take a look at the 2014 Law Commission report on obsolete laws (here). In a course of four reports, the Law Commission has highlighted several ordinances created during the Second World War, which are still valid laws today.
Ordinances are peculiar to the law, it gives the executive head of state legislative powers and blurs the model of separation of powers. Some would argue that regulations are essential to ensure that state machinery continues where parliament takes too long to think about. Others call this a convenient back door for the ruling government to enforce their decisions if they can't convince the parliament. Perhaps, to balance both views, most ordinances have fixed deadlines after which they lose their validity. The ordinance in India before and after 1950 had an upper limit of six months, after which they were automatically repealed.
It was during the Second World War that the British Government introduced the India and Burma (Emergency Provisions) Act, 1940 for a better administration in the wartime. After the Act was passed the idea of the time-bound ordinance was completely changed. The six-month time frame on ordinances was lifted for ordinances passed during a time frame set out by the Act.
HOW THIS ACT BECAME A PERPETUAL ORDINANCE?
The term Perpetual ordinance will definitely raise your eyebrows. we were taught that an ordinance should not last more than six months, then how can this WWII era ordinance be still valid in nature?
This act was enforced in the World War II era and at that time, and British India was under a war emergency. These wartime ordinances were enacted under the Government of India Act, 1935 and were normally supposed to be for six months and no more. However, the six-month clause was temporarily suspended under the India and Burma Emergency Provisions Act of 1940.
After the war was over and India got independence from the British the status of these ordinances were changed to “law” under the Presidential Adaptation of Laws Order of 1950.
Furthermore, the Supreme Court held that since these ordinances were passed between 1940 and 1946 when the Emergency Provisions were in effect, the six-month clause wasn’t applicable and these ordinances were like statutes. These ordinances would stay enforced unless they were specifically repealed.
The Supreme Court held that the six-month clause will not be applicable and these ordinances will be considered as statutes, as these ordinances were passed between 1940 and 1946 when the Emergency Provisions were in effect, therefore, they would remain until they were specifically repealed.
In this way, the 1943 War Injuries Act along with other ordinances (approx 190) passed between 1940-1946 became perpetual ordinances.
A TALE OF TWO WORL WARS
In the First World War the British came up with the Emergency Legislation Continuance Act, 1915, and the 1915 Act stated:
"owing to the state of war existing between His Majesty the King-Emperor and certain foreign powers it is expedient to provide for the continuance in this Act mentioned of the provisions contained in those ordinances".
As per section 2 of the 1915 Act, the status of ordinances was changed from temporary (six months) to permanent during the continuation of the war and a period of six months thereafter.
Similarly, at the time of the Second World War, the British came up with the India and Burma Emergency Provisions Act of 1940. In the 1940 Act, no recitals were barring the economical reference to make emergency provision about the government of India and Burma. What was vastly different between the two was the phrasing of provisions and removing time limits from the ordinances.
As per Section 1(3) of India and Burma Emergency Provisions Act of 1940:
Section 72 of the Government of India Act which, as set out in the Ninth Schedule to the Government of India Act, 1935, confers on the Governor-General power to make Ordinances in case of emergency.
WHY DOES THIS ACT STILL EXIST?
The law commission has addressed the existing issue and has recommended repealing the ordinances passed between 1940-1946 in its reports. The first report regarding this issue was published in 2014 however it was the second report which specifically dealt with the repeal of perpetual ordinances.
It is hard to believe that, despite Article 123 of the constitution and the Supreme Court's pronouncement in DC Wadhwa Case, the ordinances passed between 1940-1946 have continued on a perpetual basis.
Apart from the war injuries Act 1943, there are various wartime ordinances which are still enforceable as of now, some of which are as follows:
1. Collective Fines Ordinance, 1942:
This Act allows collective fines to be imposed on inhabitants of an area. As there exist no safeguards against its misuse, it likely violates Articles 14, 20 and 21 of the Constitution.
2. Armed Forces (Special Powers) Ordinance, 1942:
This was enforced to suppress the Quit India Movement. This ordinance conferred special powers to the officers of the armed forces.
3. Public Health (Emergency Provisions) Ordinance, 1944:
No one has ever taken the Aid of this ordinance in recent times and apart from this, there exists a duplication of this ordinance with that of the Epidemic Diseases Act of 1897.
4. Criminal Law Amendment Ordinance, 1944:
This is one of those ordinances that the Law Commission does not believe can be repealed immediately. It is used in conjunction with the 1988 Prevention of Corruption Act, and it has to be amended before it can be repealed.
5. Secunderabad Marriage Validating Ordinance, 1945:
6. War Gratuities (Income Tax Exemption) Ordinance, 1945:
This ordinance was passed to exempt war-time gratuities from payment of income tax.
7. Bank Notes (Declaration of Holdings) Ordinance, 1946:
By January 11, 1946, all banks and the government treasury would have to inform the RBI of the banknotes they held.
8. Termination of War (Definition) Ordinance, 1946:
This ordinance determined the date of the end of the second world war and the end date of which war measures.
9. Military Nursing Service Ordinance, 1943:
Indian Military Nursing Service, now part of the Armed Forces Medical Services was set up under this Act.
KEY FEATURES OF THE ACT
The employers in respect of war injuries to his workman shall be liable to pay compensation to its employees. According to the scheme of this Act, the employers shall not necessarily apply for insurance rather the Central Government shall pay the compensation on behalf of the employers upon assumptions and discharge its duties. The amount of compensation shall be based on the provisions under this Act that may vary depending upon the injuries they face for example death or permanent or minor disablement, etc.
Through this Act, the government took the responsibility of the employers in paying the compensation to the workmen for any injuries sustained because of war depending on the type of injury as defined under the Act.
The 1943 War injuries Act helps in regulating the payment of compensation and also includes a penalty clause for the individual who does any act which is in contravention to this Act. The War injuries Act very well specifies as to whom it applies, how it applies and in what proportion it applies.
Under this Act, the central government is under an obligation to establish an insurance/compensation fund for all the activities carried out to fulfil the intent of this Act. Also, the Central Government shall prepare the accounts regarding the amount credited and debited every six months. Excess funds shall be kept by the Central Government for the benefit of the workman.
According to Section 6 of the Act, this Act will be applicable to the workmen employed as per:
The Essential Services (Maintenance) Ordinance, 1941.
Section 2(j) of the Factories Act, 1934.
The Indian Mines Act, 1923.
Also, it will be applicable to any workmen employed in any major port and any employment specified in this regard by the Central Government by notification in the Official Gazette.
BAR OF LEGAL PROCEEDINGS
By the virtue of Section 18 of this Act, no proceedings can be initiated against any individual for anything which is in good faith done or intended to be done under this Act. Also, the suit shall not be maintainable in any Civil Court against the Central Government or a person acting as its agent under section 8 for reimbursement of any amount which has been paid or purporting to have been paid by way of premium on a policy of insurance taken out or purporting to have been taken out under this Act.
VIEW OF THE PRIVY COUNCIL & HIGH COURTS BEFORE 1950
King-Emperor v. Benoari Lal Sharma & Ors
The Privy Council had upheld the validity of the India & Burma (Emergency Provisions) Act 1940, in the year 1944. As the judgement was promulgated before 1946 the issue regarding the perpetual nature of ordinance has not arisen. The reason why this judgement was celebrated was the obiter of Viscount Simon L.C. The judgement was celebrated because of the obiter promulgated by Viscount Simon L.C regarding the effect of the 1940 Act, he said:
"operation of the words 'for the space of not more than six months from its promulgation' was suspended during the period therein specified."
J.K. Gas Plant Manufacturing Co. v. King Emperor
The appellants contested the validity of the tribunal that sentenced them on the grounds that the ordinances no longer had to apply post 1st April 1946. However, the court rejected this allegation.
The court did not understand the Act of 1940 as a suspension of the six-month validity but as making the ordinances subject to no time limit with respect to its scope and validity. The Federal court, in this case, had taken the views from Dulichand Amboomai Vs. Crown (1947 Cri LJ 494), In Re MS Mehdi (1947 @ MLJ 192) to conclude.
The Allahabad High Court also arrived at the same conclusion soon after the pronouncement of Sridhar Achari v. Emperor (AIR 1948 All 182), and within two years there seemed unquestionable validity for the idea of permanent ordinances.
SUPREME COURT'S PRONOUNCEMENTS POST 1950
Mahabir Prasad Bajoria v. M.S. Biswas [AIR 1956 Cal 176]
In this case, the validity of the High Denomination Bank Notes Demonetisation (Ordinance) 1946 was challenged. Five judge bench of Supreme Court unanimously handed down the decision laid down in Hansraj Moolji v. State of Bombay [AIR 1957 SC 497] and held that perpetual ordinances, although oxymoronic, are legal in nature.
The Court held ordinances made by the Governor-General were akin to Acts, and any ordinance which doesn't have a time limit is called a perpetual Act. The High Denomination Bank Notes Demonetisation (Ordinance) 1946 became permanent in nature after the six-month time limit was "omitted" for all ordinances passed during the WWII as per the India & Burma (Emergency Provisions) Act 1940.
However, the court somehow failed to take into account the fundamental nature of an ordinance. The court was so satisfied with the text of the Act that it did not even consider it appropriate to consider the intent or context of the 1940 Act. Also, no reference was made to the 1915 Act that the British had passed regarding the operation of war-time ordinances.
Why do we need ordinances enacted during the Second World War after the emergency was ended? The lack of debate on these ordinances in the parliament of independent India is astonishing.
If we focus on the war-time ordinances, it would be best to terminate those laws where there exist no need for specific retention. But none of this has been done, and we have been left with the strange legacy of colonial executive decisions governing us today.