Updated: Aug 17, 2020
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 The ordinance in India before and after 1950 had an upper limit of six months, after which they were automatically repealed.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: