Admiralty law and the Constitution

English statutory laws and non-statutory laws relating to Admiralty jurisdiction prevailed in India till the commencement of the Constitution, and thereafter they have continued as “law in force” in terms of Article 372(1) and Explanations I and II thereof. Article(1) and the Explanations aforesaid state.

“(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 law in force in the territory if India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.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 (66) 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, or

(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.

Explanation I: The expression "law in force" in this article include a law passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that it or parts of it may not be then in operation either at all or in particular areas.

Explanation II: Any law passed or made by a Legislature or other competent authority in the territory of India which immediately before the commencement of this Constitution had the extra-territorial effect as well as effect in the territory of India shall, subject to any such adaptations and modifications as aforesaid, continue to have such extra-territorial effect.

Explanation III: Nothing in this Article shall be construed as continuing any temporary law in force beyond the date fixed for its expiration or the date on which it would have expired if this Constitution had not come into force.

Explanation IV: An Ordinance promulgated by the Governor of a Province under section 88 of the Government of India Act, 1935, and in force immediately before the commencement of this Constitution shall, unless withdrawn by the Governor of the corresponding State earlier, cease to operate at the expiration of six weeks from the first meeting after such commencement of the Legislative Assembly of that State functioning under clause (1) of Article 382, and nothing in this article shall be construed as continuing any such Ordinance in force beyond the said period.

It would be pertinent to read Article 366(10) of the Constitution which states-

“366. In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, this is to say-

(10) “existing law” means any law, Ordinance, order, bye-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having the power to make such a law, Ordinance, order, bye-law, rule or regulation;”

And Article 367(1) of the Constitution states:

(1) Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of this Constitution as it applies to the interpretation of an Act of the Legislature of the Dominion of India.

(2)  Any reference in this Constitution to Acts or laws of, or made by, Parliament, or to Acts or laws of, or made by, Parliament, or to Acts or laws of, or made by, the Legislature of a State, shall be construed as including a reference to an Ordinance made by the President or, to an Ordinance made by a Governor, as the case may be.

(3)  For the purposes of this Constitution “foreign State” means any State other than India:

Provided that, subject to the provisions of any law made by Parliament, the President may by order declare any State not to be a foreign State for such purposes as may be specified in the order.

Explanation I in Article 372 defines “law in force” for the purpose of the saving Clause (1) of that Article and the definition is inclusive and wider than the definition of “existing law” in Article 366(10). It is arguable that the definition of “existing law” in Article 366(10) relates to enacted laws, but that definition cannot be imported into Article 372(1) which does not use the phrase “existing law” in the substantive provision and the phrase “law in force” used therein has been specifically defined in Explanation I in wider language: the words “existing laws” used in the marginal note cannot control scope of the substantive provision which has been expressly widened by the definition of “laws in force”. It has been held by the Supreme Court that even non-statutory English common law which prevailed in India have also been saved. By parity of reasoning, non-statutory English admiralty laws which were being administered in Indian courts have been saved. When the question whether the expressions “law in force” and “existing law” are dealt while an enactment is not actually in operation, these expressions mean the same thing.

The Colonial Courts of Admiralty Act, 1890 of the U.K. equated to the admiralty jurisdiction of the High Courts of India to that of the High Court in England, “whether existing by virtue of any statute or otherwise”. Thus non-statutory elements of English Admiralty jurisdiction became part of Indian admiralty jurisdiction under a statute and therefore it may be argued that Article 372(1) saved them even without widening of its scope. In the proposed Indian legislation on Admiralty jurisdiction the entire existing jurisdiction, including the non-statutory elements, is being preserved. The elements of admiralty jurisdiction emanating from the Colonial Courts of the Admiralty Act, 1890, the Colonial Courts of Admiralty (India) Act, 1891, the Letters Patent of 1865 read with Charters constituting the Supreme Courts at Calcutta, Madras and Bombay, and those devolving on other High Courts (such as High Courts of Gujarat, Andhra Pradesh, Kerala and Orissa) by their respective constituent instruments survive in full as of now, and would survive as the Admiralty Bill, 2005 is enacted, by virtue of clause 5(1)(c) thereof to the extent they are in addition to or consistent with the jurisdiction conferred by the enactment. Clause 5(1)(c) has to be construed as conferring jurisdiction by reference to the statutes mentioned therein and will hold good, notwithstanding the repeal of those statutes in clause 21(1).

The original Admiralty jurisdiction of the High Courts of the Calcutta, Madras and Bombay have been continued by virtue of Article 225 of the Constitution, the Orissa High Court claimed such jurisdiction as having been derived from Patna High Court which inherited it from Calcutta High Court; and it was continued under Article 225 of the Constitution. Kerala, Gujarat and Andhra Pradesh High Courts claimed Admiralty jurisdiction as successors of Madras and Bombay High Courts in the post-Constitution era. It was doubtful whether other High Courts, having not derived jurisdiction as successors of the Presidency High Courts, could exercise Admiralty jurisdiction. The Supreme Court has, however, made the position clear in Elisabeth’s case holding that every High Court in India, being the highest court of record for the concerned State, has admiralty jurisdiction as part of the totality of its jurisdictions, being an attribute of the judicial sovereignty of India. In other words, the exercise of admiralty jurisdiction is an integral part of the judicial function of every High Court. Although the Supreme Court has noted the devolution of the jurisdiction of Andhra High Court from the Madras High Court in Para 9 and 10 of the judgment, it has held later on in the judgment that its admiralty jurisdiction is founded on its constitutional position as a superior court of record having unlimited jurisdiction, independently of such devolution. The reasoning holds good for all the High Courts of India.

It is a well-known principle of public international law that laws in force continue to exist, notwithstanding a change of sovereignty, and hence British admiralty laws might possibly have continued mutatis mutandis, even if there had been no provision like Article 372 of the Constitution, especially because of section 6 of the General Clauses Act, 1897 read with Article 367(1) quoted above. But framers of the Constitution considered it necessary to make express saving provisions like Article 372 and Article 225 rather than leave the matter to international law which municipal courts may find difficult to apply. Moreover, the necessity for such saving provisions has arisen because saving of existing laws takes place in international law when there is a “State Succession” involving a change of sovereignty and it is not clear whether promulgation of the Constitution has resulted in State succession, though no doubt there has been a substitution of sovereignty.

Admiralty law is a domestic law of the country. It deals with private rights, mostly arising from maritime commerce, though often cases do arise from breaches of the public concerning shipping and navigation. And yet jurisdiction of an Admiralty court, by its nature, has the international element. Transactions giving rise to Admiralty cases are international, parties may be foreigners. Ships involved may be of foreign registration. Causes of action may have arisen abroad-in high seas or foreign territorial waters. It may be necessary to apply rules of Private International Law (Conflict of Laws), such as choice of law principles, as also rules of Public International Law. The court is often called upon to apply rules emanating from international treaties, conventions, protocols, agreements or even comity of nations, all of which are driving towards the development of what has been described as the ‘Common Law of the Sea’. English Admiralty law has traditionally deferred to international law, public and private, and comity of nations, and naturally, admiralty courts of India have followed suit. The Colonial Courts of Admiralty Act, 1890, in section 2(2), expressly provided that the Colonial Courts of Admiralty (i.e., the High Courts of Calcutta, Madras and Bombay, as also the then High Courts of Rangoon, the District Court of Karachi and the Court of the Resident at Aden) should have the same regard as the High Court in England to international law and the comity of nations. Article 372 of the Constitution continued this position of Indian admiralty law. The High Courts of India now exercising Admiralty jurisdiction would have to defer to the directive principles of State policy in Article 51 of the Constitution: it requires the State to endeavour to-

(a) Promote international peace and security;

(b)  Maintain just and honourable relations between nations;

(c) Foster respect for international law and treaty obligations in the dealings of organised people with one another, and encourage settlement of international disputes by arbitration.

In keeping with this directive principle, and realising the efficacy of arbitration in admiralty matters, the proposed Indian legislation on Admiralty jurisdiction enables reference, in any admiralty proceeding, of an entire dispute or of any question of law or fact raised thereby to arbitration. This provision is likely to prove efficacious in matters of international charter or where technical expertise is required.

The power of legislation with respect to Admiralty jurisdiction is referred from Entry 95, List I, 7th Schedule of the Constitution. The Entry reads:

“Jurisdiction and powers of all courts except the Supreme Court with respect to any of the matters in this List, Admiralty jurisdiction.”

Thus, the Union Legislature has, by virtue of Article 246, exclusive power of legislating on Admiralty jurisdiction and on jurisdiction and powers of courts which may or do exercise Admiralty jurisdiction; it also has exclusive power to legislate on shipping and navigation at sea as well as on inland national waterways, so declared by Parliament by law. Also, subject to Article 254, Parliament may legislate on shipping and navigation in inland waterways not declared to be national waterways. Legislation as to jurisdiction may extend not only maritime cases but also cases arising in inland waterways, whereas; matters arising from admiralty and navigation are the stuff of Admiralty jurisdiction. In the proposed legislation on Admiralty jurisdiction, the Admiralty Bill, 2005, the territorial extent of the jurisdiction includes “inland waters” which has been very widely defined as including “all waters that are in fact navigable, irrespective of whether they are affected by tides or are land-locked or open or contain salt or fresh waters and any part of the sea adjacent to the coast of India notified by the Central Government to be inland waters for the purposes of this Act. [Clause 2(h)]” This is the significant expansion of the existing Admiralty jurisdiction in India.

Aside from legislation, be it for giving effect to international treaties, conventions, and agreements, or purely domestic under Entries 24, 25 and 95 of List I or Entry 32 of List III of the 7th Schedule of the Constitution, there is another mode of law-making that is of special import in the arena of Admiralty law. There is a strong tradition, prevailing since ancient times, in Admiralty courts the world over of recognising and applying what may be described as the non-national maritime law of the world. The assimilation of such laws into the Municipal Law takes place not by statutes but by decisions of admiralty courts following rules, principles and statements of marine practice: Admiralty courts recognise them as the maritime law of the world, though they do not form part of any international treaty, agreement or convention. This assimilation process is valid in modern times, as it was in days of yore. The Supreme Court has approved this “Doctrine of Incorporation” even in spheres other than Admiralty and Maritime law.

A question may arise as to whether the constitutional admiralty jurisdiction of the High Court could be transferred or assigned to any other special court or tribunal by legislation. Entry 95, List I, 7th Schedule read with Article 246 of the Constitution has expressly granted exclusive authority to the Parliament to make laws on the jurisdiction and powers of all courts (except the Supreme Court) with respect to any of the matters in the Union List (i.e., List I, 7th Schedule) and admiralty jurisdiction is one of the matters in the Union List. The Entry has granted exclusive power to the Parliament to make laws concerning admiralty jurisdiction. Also, Entry 75 of the Union List grants exclusive power to the Parliament to make laws concerning Constitution and organisation of High Courts (except to their officers and servants). These provisions seem to point to the existence of the legislative power of the Parliament to transfer Admiralty jurisdiction to special courts or tribunals. In fact, Article 225 of the Constitution has saved the admiralty jurisdiction of the High Courts existing at the commencement of the Constitution “subject to the provisions of this and to the provision of any law of the appropriate Legislature is made by virtue of powers conferred on that Legislature by this Constitution.” The ruling in Elisabeth’s case that Admiralty jurisdiction inheres in the High Court as a superior court of record does not spell out any limitation on Parliament’s power to legislate on High Court’s Admiralty jurisdiction. The ruling should be interpreted as saying that unless Parliament by law otherwise provides, High Courts as conceived in the Constitution possess admiralty jurisdiction as part of the totality of their jurisdictions. A contrary view, however, has been expressed by the Law Commission holding that exclusion of Admiralty jurisdiction of High Court may be unconstitutional. Be that as it may, keeping of Admiralty jurisdiction with High Courts is arguably a sound policy and justifiable on grounds other than unconstitutionality of divesting High Courts of their Admiralty jurisdiction.

The International Charter of Admiralty jurisdiction necessities the extra-territorial operation of some Indian statutes, including those which have come down from British days. In the constitutional provision saving laws in force at the commencement of the Constitution, Article 372, an Explanation has been added to the effect that any law passed or made by Legislature or other competent authority in the territory of India, that is to say, any enactment of a legislature or other authority in India having extra-territorial effect shall continue to have extra-territorial effect, subject to any adaptations and modifications made by the President or the competent legislature under clauses 2 and 3 of Article 372. The provision runs thus:

“Explanation II: Any law passed or made by a Legislature or other competent authority in the territory of India which immediately before the commencement of this Constitution had the extra-territorial effect as well as effect in the territory of India shall, subject to any such adaptations and modifications as aforesaid, continue to have such extra-territorial effect.”

The provision merely continues and validates the statutes and statutory instruments which had the extra-territorial effect on January 26, 1950. It presupposes that such Statutes and statutory instruments should be having an effect both in Indian Territory and abroad and not solely abroad.

On the other hand, provision for post-Constitution statutes having the extra-territorial operation has been made in Article 245(2) of the Constitution. The provision runs thus:

“245. (1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.

(2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.”

The power to make laws having the extra-territorial operation belongs exclusively to the Union Legislature. The State Legislatures do not have the power to make laws so as to operate beyond the territory of the State. There is no restriction, as in the case of pre-Constitution laws saved under Article 372 of the Constitution, to the effect that laws made or to be made by the Parliament should have effect both in Indian territory and abroad, but there may be natural limitation for the Parliament to make futile laws which operate solely on foreigners in foreign territory. In the field of Admiralty laws, however, dealing as they do with international commercial transactions, such laws are possible and often efficacious, in as much as admiralty courts have devised machinery, such as actions in rem, for enforcing such laws.

The legal basis of the extra-territorial effect or operation of the statutes may be examined. The normal rule is that laws of every State are binding in its own territory and not in a foreign territory: statuto suo clauduntur, territorio, nec ultra territorium disponunt. Hence there is the rule of interpretation that when Parliament uses general words it is dealing with persons or things over which it has effective jurisdiction; it would be futile to presume to exercise jurisdiction that it cannot enforce. However, the Parliament has the power to enact and does; in fact, enact laws that operate beyond the territorial limit of the State, usually in territory surrounding the coastline, and notably on matters relating to police, revenue, public health and fisheries. But if the intention is to extend the operation of the statute beyond the territorial limit there should be express words to that effect. A legislature which passes a law having extra-territorial operation may find that what it has enacted cannot be directly enforced but the Act is not invalid on that account and the courts of its country must enforce the law with the machinery available to them. The Union Legislature of India under the Constitution possesses such unlimited, plenary legislative power as a sovereign legislature now and in pre-Constitution days its predecessor, the Federal Legislature, and even the earlier Indian Legislature, also had such sovereign and plenary legislative power. Like the British Parliament, the Union Legislature of India is not subject to any limitation of conformity to international law. In the case of British Coal Corporation v. King, Lord Sankey, while affirming territorial limitation of even sovereign colonial legislature pointed out that the precise extent of such limitation was obscure and gave rise to doubts and disputes. The matter had been referred to the Operation of Dominion Laws Sub-Committee of the Imperial Conference, 1926.

The British Parliament made the position clear by enacting section 3 of the Statute of Westminster which gave the Parliament of Dominion “full power to make laws having the extra-territorial operation.” In civil Admiralty jurisdiction, application of admiralty law to foreigners and foreign ships in respect of causes of action arising in foreign territory is fairly common so that extra-territorial applicability of Admiralty Statutes may be presumed without expressed words to that effect. In criminal admiralty jurisdiction, there is an observation of Kelly, C.B., in the great case of The Franconia, in deference to international law, that the jurisdiction is not available to be exercised.

A British Prize Court would certainly be bound by Acts of the Imperial Legislature. But it is none the less true that if the Imperial Legislature passed an Act the provisions of which are inconsistent with the law of nations, the Prize Court in giving effect to such provisions would no longer be administering the international law. Article 245(2) of the Constitution of India being as full in its scope as section 3 of the Statute of Westminster in respect of Dominion legislatures, the Indian Parliament has no Constitutional limitation in making laws, particularly Admiralty laws, having the extra-territorial operation, and the traditional extra-territorial operation of Admiralty laws, existing by virtue of statute or otherwise, fit well into India’s Constitutional order.