The Trading with the Enemy (Continuance of Emergency Provisions) Act, 1947

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A legislation being Act of Parliament and was enacted with the short title as the Trading with the Enemy (Continuance of Emergency Provisions) Act, 1947 wide Act no. 16 of the year 1947. It was enacted as Act of Central Government with the aim and object to make provisions as to continuance application of certain provisions from the Defence of India Rules, 1939 which are connected with the purpose of controlling the trading with States, and persons and the firms belonging to States at War with the Indian Government and also to have the custody of their properties. The Act was extended to the entire Indian territories and thought originally its extension was restricted for the Part-B States, however, now by the Part B States (Laws) Act, 1951 (Act no. 3 of 1951), the said restriction was removed. Moreover, the provisions of this Act are also applicable to the every Citizens of India either inland or out side the territories. The Act was assented by the honorable President of India on 20th day of March, 1947 and the provisions thereof are given effect or became operative from 25th day of March of the same year.

The important provision under this Act which are relating to the main object an purpose of this Act are contained under section 2 of the Act, wherein it is provided that the provisions of the Defence of India Rules which are enumerated under the first column of the Schedule annexed with this Act are required to continue with its effect with certain modifications as have been provided therewith under the same schedule. It is also specified that such continuation will be irrespective of the expiry of the Defence of India Act, 1939 (Act no. 35 of 1939), and the Emergency Provisions (Continuance) Ordinance, 1946 (Ord. no. 20 of 1946). Further, it is also made clear under the same provision that whatever order, instruments which were made should also be continue to have effect. Further, section 3 of the Act provides that the effect of such rules which was continued as per aforementioned provision, should not be affected by any provisions of any other Enactment or even by provisions under any instrument which are contrary to the provisions of those Rules.

Moreover, the provisions of section 4 of the Act empowers the Central Government in respect of making an order of delegation of its powers or functions which are provided to it by virtue of the provisions of Rules the effect of which is continued under this Act. Such delegation can be made by the Central Government to officers or authorities which are subordinate to the said Government. And also such delegation can be made under any prescribed situations or conditions which will also be provided with the directions delegating such powers and functions. Even the said provision makes it very clear that, whatever orders of delegations which were made by the Central Government even before the present Act brought into operation, then also the said orders should not be taken as effect less, however, the same should be continued to have force and should be deemed that the said are made under this section.

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Further, the provisions of section 5 of the Act provides that whatever order made under the provisions of Rules which are continued to have force under this Act, especially, under section 2 of this Act, should not be called by any Court to question them. And if such orders are duly made and signed by the authority under those provisions then the same should be presumed as has been made by authority within the meaning of provisions of the Indian Evidence Act, 1872 (Act no. 1 of 1872). Finally, section 6 of the Act protect the persons against the legal actions either civil or criminal, in respect to their actions taken or even if any damage caused under the good faith or in pursuance of the provisions of that Rules, which are continued to have effect under this Act, as aforesaid.

However, recently, in on 29th day of October, 2014, the Law commission of India has suggested the repeal of this present Act, by providing the reasons that the purpose of this Act has been subsumed by the Enemy Property Act, 1968 which provides for the continuing of vesting of enemy property vested in the Custodian of Enemy Property for India under the Defence of India Rules, 1962 and the Defence on India Rules, 1971. The present recommendation or suggestion was provided under the 250th Report being ‘Obsolete Laws: Warranting Immediate Repeal – Third Interim Report’ of Law commission on its study on the ‘Legal Enactments: Simplifications and Streamlining’. And the same was also recommended for repeal by the PC Jain Commission Report (Appendix A-4).

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by Faim Khalilkhan Pathan.