The Common Law in India - College of Social Sciences and ...

Civil Law 115Dealing with the question as to what amountedto an act of State the court quoted with approvalLord Atkin 22 : " This phrase (act of State) is capableof being misunderstood. As applied to an act of thesovereign power directed against another sovereignpower or the subjects of another sovereign power notowing temporary allegiance, in pursuance of sovereignrights of waging war or maintaining peace on the highseas or abroad, it may give rise to no legal remedy.But as applied to acts of the executive directed tosubjects within the territorial jurisdiction it has nospecial meaning, and can give no immunity from thejurisdiction of the court to inquire into the legalityof the act." In a later decision the Supreme Courtobserved 2S : " Such an act of State was described inelegant phrase by Fletcher Moulton L.J. in Salamanv. Secretary of State, 2i as ' a catastrophic changeconstituting a new departure.' It is a sovereign actwhich is neither grounded in law nor does it pretendto be so. Examples of such ' catastrophic changes 'are to be found in declarations of war, treaties,dealings with foreign countries and aliens outside theState. On the desirability or the justice of suchactions the municipal courts cannot form any judgment.In civil commotion, or even in war and peacethe State cannot act ' catastrophically' outside theordinary law and there is legal remedy for its wrongfulacts against its own subjects or even a friendlyalien within the State."22 Eleko v. Officer Administering the Government of Nigeria[1931] A.C. 662, 671.23 State of Saurastra v. Memon Haji Ismail (1960) 1 S.C.R. 531,544. « [1906] 1 K.B. 613, at 640.