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Judgment
Spens, C.J.—The opinion which I am about to deliver is that of my brother Varadachariar and myself. This is a reference made by His
Excellency the Governor-General under Section 213, Constitution Act. The questions referred are:
(1) Has the Federal Legislature power to make a law providing that upon the death of any person there shall be levied an Estate Duty in respect of
property, other than agricultural land, passing upon the death?
(2) If the Federal Legislature has such power, has it also the power to make a law providing that for the purposes of the aforesaid Duty-
(a) ''Property passing upon the death'' shall be deemed to include-
(i) Property passing either immediately on the death or after a specified interval, either certainly or contingently, either originally or by way of
substitutive limitation;
(ii) property of which the deceased was at the time of his death competent to dispose;
(iii) property in which the deceased or any other person had an interest ceasing on the death of the deceased, including, in particular, a
coparcenary interest in the joint property of a Hindu family governed by the Mitakshara School of Law;
(iv) property transferred by the deceased as a gift in contemplation of death or within a specified period before death;
(v) property passing under any settlement made by the deceased whereby an interest in such property for life or any other period determinable by
reference to death was reserved to the settlor ?
(b) The situs of moveable property shall be such as may be specified in the law or prescribed by rules made under the law.
(3) If the Federal Legislature has not the powers referred to in questions (1) and (2), is the levy of such duties a matter not included in any of the
lists in Schedule 7, Government of India Act, 1935 ?
(4) If the Federal Legislature has the power referred to in question (1) but not all the powers referred to in question (2), is the levy of a duty on
those classes of property mentioned in question (2) in respect of which it has not such powers a matter not included in any of the lists in Schedule
7, Government of India Act, 1935?
Notice of the reference was given to the Government of India and to the Provinces and we have heard arguments from counsel for the Governor-
General and the Governor-General in Council and from the Advocates-General of the United Provinces and the Central Provinces and Berar. At
our instance, Sir Alladi Krishnaswami Aiyar was instructed to appear as amicus curiae and present what may be called the tax-payer''s point of
view. We are indebted to all the learned counsel for the assistance that they have rendered.
The circumstances in which the reference has been made and the form of the questions referred have led to some discussion at the Bar as to the
proper course to be adopted in this case. Two particular features of the situation are:
(1) that the questions relate to contemplated legislation and not to the validity or operation of a measure already passed; and
(2) that the main question referred, namely, Q. (1), contains only very limited information as to the nature of the tax proposed to be levied.
It may be stated at the outset that when Parliament has thought fit to enact Section 213, Constitution Act, it is not in our judgment for the Court to
insist on the inexpediency (according to a certain school of thought) of the advisory jurisdiction. Nor does it assist to say that the opinions
expressed by the Court on the questions referred ""will have no more effect than the opinions of the law officers"": Attorney-General for Ontario V.
Attorney-General for Canada (1912) 1912 A. C. 571 at p. 589. That is the necessary result of the jurisdiction being advisory. The fact that the
questions referred relate to future legislation cannot by itself be regarded as a valid objection. Section 213 empowers the Governor-General to
make a reference when questions of law are ""likely to arise"". It has been urged upon us in the present instance that the reference has become
particularly necessary because of a suggestion that the proposed legislation requires to bo made possible by a notification to be issued by the
Governor-General under Section 104, Constitution Act. Such a notification can be issued if the subject-matter of the proposed legislation is not
enumerated in any of the Lists in Schedule 7 to the Act. As the issue of a notification under Section 104, thereby adding to the Lists in Schedule 7,
is regarded as a matter of some gravity, it seems to have been assumed by the Joint Parliamentary Committee that before issuing such a
notification, the Governor-General would ordinarily take the opinion of the Federal Court as to whether the proposed legislation is not covered by
any of the entries in the Lists and this is what the Governor-General has thought fit to do in this case. In this class of cases, the reference should, in
the very nature of things, be made before the legislation has been introduced and the objection based upon the hypothetical character of the
questions can have no force. We may, however, add that instances were brought to our notice in which references had been made under the
corresponding provision in the Canadian Supreme Court Act when the matter was at the stage of a bill.
It would no doubt make the task of the Court easier and perhaps enable it to give a more specific and useful opinion, if in those cases the Court
could have before it not only questions intended to indicate the pith and substance of the proposed legislation but also a draft notification to be
issued under Section 104 and a draft bill to be introduced to carry out the proposals.
Hence it is that the form of the questions in this case has caused us greater difficulty. When we deal with the questions themselves, it will be seen
that we have been obliged to make certain assumptions and reservations in answering them. As observed in Attorney-General for Ontario V.
Attorney-General for Canada (1912) 1912 A. C. 571 at p. 589 the necessity for making such reservations may arise in particular cases and the
proper course for the Court to adopt in such cases is to make its report with such reservations as may be found necessary.
On behalf of the Governor-General in Council, counsel invited us to answer questions (1) and (2a) in the negative and questions (3) and (4) in
the affirmative. This is slightly different from the position taken up in the statements filed on behalf of the Governor-General in Council, but in a
matter of this kind, wo are not disposed to attach much importance to this circumstance. He contended that nothing like the proposed tax was
mentioned in Lists 2 and 3 of Schedule 7, Constitution Act, and that the only relevant entry in the first list, namely, entry No. 56, could not, on its
true interpretation, be held to authorize the levy of the proposed tax. He drew our attention to some of the English decisions in which the distinction
between a Succession Duty and an Estate Duty had been clearly indicated and asked us to apply the same test here and hold that the proposed
Estate Duty was not a duty ""in respect of succession to property"" within the meaning of that phrase in entry no, 56. Pressed with difficulties arising
out of the meagreness of the information contained in the questions as to the nature of the proposed tax, he contended that the language of
questions (1) and (2) was enough substantially to represent the charging sections of the proposed Act, that taken with the description ""Estate Duty
in question (1), the questions gave sufficient information for the purpose of the present Reference and that other sections of the Bill would only be
machinery provisions. Finally he asked us to express our opinion on the assumption that what was proposed to be levied was a tax similar in all
material respects to the Estate Duty imposed in England by the Finance Act of 1894 (and its later amendments) as interpreted and explained by the
decisions of the English Courts thereon; and he referred to the observations of Rigby L.J., in Earl Cowley''s case (1898) 1 Q. B. 355 and to the
decisions in Winans v. Attorney-General (1910) 1910 A.C. 27 and Nevil v. Inland Revenue Commissioners (1924) 1924 A.C. 385 as clearly
showing that the proposed tax was essentially different from a succession duty and was not therefore covered by the phraseology used in entry
No. 56 or any other entry in the lists in Schedule 7.
The Advocates-General of the United Provinces and of the Central Provinces and Berar contended that the proposed tax fell within the ambit of
entry 56 of List 1 and that question (1) and even question (2), to a great extent, must be answered in the affirmative. They urged that the term
succession"" is one of wide and general import, as comprehensive as the expression ""passing upon the death"" in question (1) and that there was no
justification for limiting its interpretation by reference to the distinction drawn in England between Succession Duty and Estate Duty. This
distinction, they said, was merely the result of the history of this group of taxes in England and of the co-existence of the two kinds of duties. They
insisted that a constitutional enactment should be liberally interpreted so as to give the fullest scope and effect to the language employed and avoid
as far as possible an inference of an intention to withhold essential powers of taxation from the Indian Legislatures. They pointed out that when
Parliament had thought fit to provide in Section 137 that Succession Duty, though collected by the Central Government, should form part of the
revenues of the Provinces, it would not be right to attribute to Parliament an intention that this provision could be defeated by levying a similar tax
under a different name or on a different basis. Referring to a recommendation made in 1924-25 by the Indian Taxation Enquiry Committee in
favour of the levy of Estate Duty in India, they argued that it was unlikely that the power to impose this duty was not conferred by the Constitution
Act passed some years after that recommendation. Lastly, they pointed out that writers on Political Economy and Public Finance and several
enactments in Canada and Australia used the expressions ""Death Duties"", ""Inheritance Taxes"", and duties or taxes on ""succession"" to include both
the Succession Duty and the Estate Duty of the English Law. As regards question (2), they contended that, if the Indian Legislature had the power
to levy Succession Duty in the wide sense contended for by them, it must also be held to have the power to enact provisions required to make the
exercise of that legislative power effective and to prevent evasions of the taxing statute. Many of the categories in the sub-heads forming question
(2-a), they said, would, on this principle, be within the competence of the Indian Legislature. In respect of that portion of Sub-clause (iii) of
question (2-a) which relates to Coparcenary Interest in Mitakshara joint families, they relied on the judgment of this Court in In re The Hindu
Women''s Rights to Property Act (''41) 28 A.I.R. 1941 F.C. 72 as conclusive in support of the view that survivorship is also a form of succession.
Sir Alladi Krishnaswami Aiyar, at one stage, viz., in the case filed by him, supported the contention that ""the answer to the first question must be
in the negative,"" because ""an Estate Duty as such could not be comprehended within the scope of the power conferred by the item"" (i.e., entry No.
56) and there was no other entry in List 1 or List 3 capable of being construed as authorising the levy of such a duty. In his statement in reply, he
referred to the American, Canadian and Australian decisions relied on by the Government of the Central Provinces in its case and submitted
that it is unsafe to rely on American, Australian or Canadian analogies and that the Court must reach its conclusion on a proper interpretation of the
meaning of the expression ""duties with respect to succession.
In Item 56. During the arguments before the Court, he stated that further examination of the question in the light of the arguments urged on behalf of
the United Provinces and the Central Provinces rather inclined him to the view that the word ""succession"" in entry 56 of List 1 could, without any
undue straining of its significance, be held to include all cases of ""passing of property on death"" and that the entry could therefore be held to
comprehend both ""Succession Duties"" (in the narrow sense) and ""Estate Duties."" He instanced the case of a Hindu reversioner being spoken as
succeeding"" to the estate on the death of a widow, though the widow had only a ""limited interest"" and the reversioner has been held not to claim
under her. He invited our attention to the report of the Percy Committee (the Federal Finance Committee of 1932) and to the White Paper on
Constitutional Reforms (1933) Cmd. 4268 where the expression ""Death or Succession Duties"" is used and he asked us to read it as implying that
in the opinion of the authors both the expressions ""Death Duties"" and ""Succession Duties"" were of the same comprehensive significance. He
reiterated the argument based by the Advocate-General of the Central Provinces on Section 137 and he apprehended that if the ""Estate Duty"" and
the ""Succession Duty"" should be held to be two different duties, there might be practical difficulties and conflicts in their levy in view of the financial
scheme adopted by the Constitution Act. We do not feel that the illustration derived from the case of the Hindu widow and the reversioner is likely
to be very helpful. The ""woman''s estate"" under the Hindu law is an anomalous conception created by a long course of decisions in an attempt to
reconcile various conflicting in terests. Nor is the passage cited from the Percy Committee''s Eeport calculated to throw much light on the question.
There is nothing to indicate whether the authors thought that the two duties were one and the same or were different. Anyhow, there remains the
fact that the Constitution Act did not employ that composite expression but only the expression ""duties in respect of succession""-probably taken
from Item 2 in List 1 of the Devolution Rules of 1920. Our conclusion must therefore rest on the weight to be given to the other contentions urged
before us.
With reference to the form of question (1), we feel that we are at some disadvantage by reason of its inadequacy. It may generally be true to say
that questions (1) and (2) correspond to the charging sections of the proposed Act; but a perusal even of the machinery sections may often be
useful and sometimes even necessary to elucidate the scope of the charging section: Colouhoun v. Brooks (1889) 14 A.C. 493, Rex v. Lovitt
(1912) 1912 A.C. 212; Attorney-General for British Columbia v. McDonald Murphy Lumber Co. (''30) 17 A.I.R. 1930 P.C. 173 and
Commissioner of Stamps, Straits Settlements v. Oei Tjong Swan (1933) 1933 A.C. 378 at p. 389-and this is particularly so in cases of ambiguity:
Provincial Treasurer of Alberta v. Kerr.(1933) 1933 A.C. 710 at p. 720. The expression ""property passing upon death"" in the question might not
be inappropriate even to denote cases of succession (in the limited sense) if the other provisions of the Act indicate only a Succession Duty in the
English sense. Reference has no doubt been made in the question to ""Estate Duty,"" but it may be doubted whether it is permissible as a matter of
interpretation to import into this country, merely from the use of that expression, all the incidents associated with that tax in the English financial
system: see the observations in Commissioner of Stamps, Straits Settlements v. Oei Tjong Swan (1933) 1933 A.C. 378 as to the connotation of
the expression "" Estate Duty "" used in the Straits Settlements Ordinance considered in that case and as to the danger of using decisions on an
Imperial Statute in the interpretation of a colonial measure. See also the observation of Lord Robson in Rex v. Lovitt (1912) 1912 A.C. 212
where, dealing with the tax imposed by a Canadian enactment, he said: ""although called a succession duty, the tax here in question was laid on the
corpus of the property."" In a Queensland Statute referred to in Archibald v. Commissioners of Stamps (1909) 8 C.L.R. 739 at p. 755 the
Queensland Legislature had (as pointed out by O''Connor J.) though adopting the words of the English section, used them in a different context
and as part of a different scheme of assessment from that contained in the English Act. As we are not, however, confined strictly to a question of
interpretation of the terms used in the Reference and as counsel for the Governor-General in Council has expressly invited us to give our opinion on
the assumption that the tax referred to in the Reference as proposed to be levied is one resting on the same essential basis and having the same
essential incidents as Estate Duty in the English law, we are prepared to express our opinion on that assumption.
It is true that the difference recognised in England between the Succession Duty and the Estate Duty is, to some extent, due to the history of
those taxes in that country. But it does not follow therefrom that the difference does not also rest on a real and important difference in the bases on
which they rest. It is likewise true that in some Canadian and Australian Statutes the expression ""Succession Duty"" has been employed to denote or
to include what would be Estate Duty in the English law; but these were instances in which very little turned on the difference between the two
kinds of imposts; the expression was generally found in the ""Short Title"" of the enactment or taken from it. Similarly the principle of "" aggregation
and the principle of ""progression"" (or graduated scale) associated with the Estate Duty have sometimes been adopted even in respect of
Succession Duty; they cannot, therefore, be made the basis of differentiation between the two. It is also to be noted that though economists and
writers have dealt with "" Succession Duty"" and ""Estate Duty"" under the headings ""Death Duties,"" ""Inheritance Taxes"" and ""Duties on Succession,"" it
cannot be said that they did not recognise a real distinction between Succession Duty and Estate Duty, There are certain common features
justifying the treatment of both these methods of taxation under one head; but the distinctive features are also noted. Thus, Findlay Shirras in his
Science of Public Finance""-p. 524-classifies Death Duties or Inheritance Taxes
under two categories, an estate tax levied on the inheritance as a whole, and a succession duty or share tax on the separate portions going to the
different beneficiaries.
He adds that both categories have their peculiar characteristics and proceeds to indicate them, observing that the Estate Duty is a more productive
and efficient source of revenue while the Inheritance Tax may be said to be the more equitable. There is one feature common to both taxes,
namely, that the occasion for the levy is the death of a person; but while Succession Duty has reference to the acquisition of the property by the
successor and generally takes into account the extent of the benefit derived by him and other considerations relevant from that point of view, the
Estate Duty has reference to the value of the property constituting the estate of the deceased and is independent of the question as to who takes it.
Thus the distinction drawn in the English decisions between Estate Duty and Succession Duty seems to correspond substantially to a distinction in
principle and basis recognised by writers on Economics. The Members of the Indian Taxation Enquiry Committee themselves recognised it: see
para. 356 of the Report. The judgments in Provincial Treasurer of Alberta v. Kerr.(1933) 1933 A.C. 710 and in some of the earlier cases therein
referred to will also show that that distinction may have a material, bearing upon the classification of taxes into ""direct"" and ""indirect"" and upon the
decision of questions relating to the territorial jurisdiction of Legislatures imposing such taxes.
The argument based upon the improbability of Parliament having withheld the power to levy such a tax when framing the constitution in 1935
has no great force. Section 104 has been enacted to meet that very difficulty. That section has also some bearing on the argument founded on
Section 137; the Governor-General may by a notification under Section 104 confer the power even on a Provincial Legislature. If, however, the
situation cannot be satisfactorily met in that way, the matter must, of course, go before Parliament. As regards the recommendation of the Taxation
Enquiry Committee, it seems to us that it must be taken along with the difficulties pointed out in the report itself as standing in the way of the
immediate introduction of such a tax into this country. The recommendations made as to the preliminary steps necessary might well have created
the impression that it would be some time before the tax could be introduced, if at all.
Recognising that there are real and substantial differences between Succession and Estate Duties, we now address ourselves directly to the
question: in what sense is the word ""succession"" used in entry 56 of List 1 which speaks of ""duties in respect of succession to property."" Our
attention was drawn to the meaning of the word ""succession"" in dictionaries and law lexicons and it was contended that the word was capable of
comprehending every kind of passing of property intended to be comprised in question (1). We are by no means satisfied that this is so. Assuming,
however, that the word ""succession"" by itself is capable of a wide significance, can it bear any such meaning in the expression ""succession to
property,"" especially when it is read in the light of other indications derivable from the Lists in Schedule 7? The Succession Act broadly divides the
subject of ""succession"" into ""testamentary"" and ""intestate"" succession; and the ordinary meaning of succession is the transmission, by law or by the
will of man, to one or more persons of the property and the transmissible rights and obligations of a deceased person. That this is the sense in
which ""succession"" is used in the Lists in Schedule 7 is indicated by the collocation of the words ""wills,"" ""intestacy"" and ""succession"" in entry 7 of
List 3. Entry 21 in List 2 contains a corresponding provision in respect of ""agricultural land;"" and it speaks of ""transfer, alienation and devolution
(entry 21 corresponds not only to entry 7 of List 3 but also to entry 8; hence it deals with transfers intervivos as well as testamentary dispositions
and devolution). It is only reasonable to assume that entry 56 in List 1 and entry 43 in List 2, which authorise the levy of duties in respect of
succession, refer us back to the succession and devolution provided for elsewhere in the schedule. The use of the word ""to"" in the expression
succession to property"" lends some support to this view. How different from this is the concept of a duty which [in the words of Rigby L.J., in Earl
Cowley''s case (1898) 1 Q. B. 355 at p. 375] has no reference to or implication of a relation of predecessor and successor or the existence of a
succession. So far as legislative practice is concerned, there can, we think, be no doubt that in England, where the distinctions between the two
duties were well-known, a power to impose duties ""in respect of succession to property"" would be regarded as most inaptly worded if it was
intended to include a power to impose an estate duty. If in India there were any conflicting legislative practice, we should not place any great
reliance on the English practice. But if there be any legislative practice at all in India, it is to be found generally in the use of the word ""succession"" in
the narrower sense. For reasons indicated earlier in this opinion, we do not think that legislative practice in other Dominions or States is relevant for
our purpose.
The expression ""in respect of"" in entry 56 is also not without significance. It indicates that the ""succession"" is the subject-matter of the taxation
and not merely the occasion. It may be that the amount of the tax is fixed or regulated with respect to the value of the property but the subject-
matter of the tax is not the property but the succession. The significance of this distinction is brought out in Provincial Treasurer of Alberta v. Kerr.
(1933) 1933 A.C. 710. A tax of which the subject-matter is the ""succession"" cannot be held to be the same as a tax which ""has no relation to the
accession to the property of a deceased person""as the Estate Duty is described by Lord Gorrell to be: Winans v. Attorney-General (1910) 1910
A.C. 27 at p. 40. It is perhaps right to add that at the present stage we approach the question only from the point of view of ascertaining the
probable intention of Parliament. When a Court is called upon to pronounce actual legislation ultra vires, the view point becomes slightly different;
because, though the intention of the Constitution Act is even then the test, the presumption in favour of validityweak as it may sometimes beinclines
the Court to put as wide a construction as possible on the words used in the enactment. In our opinion, there is more reason and justification for
placing a limited construction on entry 56 of List 1 than for adopting the wider construction suggested.
Counsel for the Governor-General in Council referred to entry 55 in List 1 only to say that it is not appropriate to describe a levy in the nature
of Estate Duty. We agree in this view; and, as the other counsel appearing before us did not suggest anything to the contrary, we do not think it
necessary to discuss the entry at any length. Entry 13 in List 3 and the cognato entry 51 in List 2 are equally inappropriate. Both Estate Duty and
Succession Duty may be collected in the form of stamps, and in some countries legislation relating to Estate Duty and Succession Duty is included
in Stamp Laws: but the duties themselves are in their nature different from stamp duties (see Bastable''s Public Finance, Bk. IV, Chap. 9, Section
1). The express mention of ""duties in respect of succession"" in the Lists in Schedule 7 is itself an indication that the entry relating to ""Stamp Duties
was not intended to comprise duties of the other kind.
If the first question is answered in the negative, it will not be necessary to answer the second question which has been framed on the
assumption that the Federal Legislature has power to impose the proposed tax. It seems, however, desirable to make a few observations with
reference to the arguments advanced by tho Advocate-General of the Central Provinces and Berar in respect of this question. The expression
shall be deemed to include"" is the method of introducing a statutory fiction, so as to enlarge the scope of a preceding provision in the statute.
While it is true that the grant of legislative power in respect of a certain subject-matter will carry with it certain accessory or incidental powers,
including a power to enact provisions to make effective the exercise of the main power or to prevent evasion of the law enacted under that power,
provisions of this kind are substantially different from provisions calculated to extend the scope of the main power itself by a statutory fiction. It is
bound to be a question of much difficultyand one which, in our opinion, could only usefully be attempted when the legislation has taken much more
final formto determine whether the various provisions set out in question (2) (a) can be regarded as ""incidental"" or ""accessory"" in the sense above
explained.
The point raised by question (2) (b) does not turn on the construction of the Lists in Schedule 7 but on Section 99. The Legislature may, within
limits, have the power to define the situs of moveable property for the purposes of an Act but the validity of such legislation will depend upon its
conforming to the provisions of Section 99, Constitution Act. The question does not, therefore, admit of a general answer and counsel for the
Governor-General in Council did not accordingly invite us to answer this question. There is nothing in List 2 of Schedule 7 to cover the proposed
duty. We are, therefore, of the opinion that the answers to the questions comprised in the Reference are as follows:
(1) The Federal Legislature has no power to make a law providing for the levy of ""Estate Duty"" of the nature and with the incidents of Estate Duty
under the English law.
(2) The question does not arise in view of the answer to question (1).
(3) and (4) The levy of Estate Duty of the kind above referred is not a matter included in any of the Lists in Schedule 7, Government of India Act,
1935.
Our brother Zafrulla Khan finds himself unable to express any opinion on the questions referred. A report will, therefore, be made to His
Excellency in accordance with the opinion of the majority.
Zafrulla Khan, J.
Consultation of Judges by the Executive has been the subject-matter of much controversy at the hands of text-writers, jurists and Judges. The
attempts made by the first two Stuart Kings of England which were characterised by Sir Edward Coke as ""auricular taking of opinions"" from the
Judges and which eventually led to his own removal from his high office were to a large extent responsible for the bias which is noticeable
throughout the judicial history of England against such consultation. These attempts were regarded as interference by the Executive with the proper
exercise of their judicial function by the Judges and as tending to undermine their independence. Today the Crown has come to occupy an
impersonal and detached position and the independence of Judges has been secured by means of such effective safeguards that any suggestion of
such a suspicion attaching to a reference made by the executive to the Judiciary may perhaps be disregarded. That does not mean that the exercise
of advisory jurisdiction, even in pursuance of provision made in that behalf in modern statutes, may not often be attended with great inconvenience,
occasion embarrassment and result in prejudice to the rights of future litigants. It is a jurisdiction the exercise of which on all occasions must be a
matter of delicacy and caution. That the prejudice against obtaining advisory opinions from Judges is still very strong in England may to some extent
be gathered from the protests made in the House of Lords in April 1928 to a clause contained in the Rating and Valuation Bill of that year whereby
it was proposed that in certain events the Minister of Health may submit a substantial question of law to the High Court for its opinion thereon. The
condemnation of the clause was so vigorous that the Government thought it wise to abandon it. On the other hand, Section 4, Judicial Committee
Act, 1833, (3 and 4 William IV, c. 41), provides:
It shall be lawful for His Majesty to refer to the said Judicial Committee for hearing and consideration any such other matters whatsoever as His
Majesty shall think fit; and such Committee shall thereupon hear and consider the same; and shall advise His Majesty thereon in manner aforesaid.
Section 60, Canadian Supreme Court Act, 1906, empowers the Governor-General in Council to refer important questions of law touching
certain matters to the Supreme Court for hearing and consideration. The Supreme Court is bound to entertain and answer the reference, and the
opinion of the Court upon such reference is subject to appeal to His Majesty in Council. The Supreme Courts of the Canadian Provinces and
several of the States Supreme Courts in the United States have been invested with similar jurisdiction. The Supreme Court of the United States has
consistently refused to pronounce advisory opinions upon abstract questions of law on the ground that to do so would be incompatible with the
position that it occupies in the Constitution of the United States. The Permanent Court of International Justice was invested with competence to
deliver advisory opinions by Article 14 of the Covenant of the League of Nations which provided:
The Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may
also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly.
It has given advisory opinions on several occasions with very beneficient results. Professor Felix Frankfurter (now Frankfurter J., of the Supreme
Court of the United States) expressed himself on the subject of advisory opinions on legislative proposals 20 years ago in the following terms:
The whole milieu of advisory opinions on proposed bills is inevitably different from that of litigation contesting legislation. However much provision
may be made on paper for adequate arguments (and experience justifies little reliance) advisory opinions are bound to move in an unreal
atmosphere. The impact of actuality and the intensities of immediacy are wanting. In the attitude of Court and counsel, in the vigor of adequate
representation of the facts behind legislation (lamentably inadequate even in contested litigation) there is thus a wide gulf of difference, partly rooted
in psychologic factors, between opinions in advance of legislation and decisions in litigation after such proposals are embodied into law. Advisory
opinions are rendered upon sterilized and mutilated issues. Let any one, for instance, compare the adverse opinion of the Massachusetts Supreme
Court upon the constitutionality of municipal coal and wood yards with the opinion of the Supreme Court sustaining such legislation; the adverse
opinion of the Massachusetts Court on prohibition of trading stamps with the opinion of the Supreme Court sustaining such legislation; the adverse
opinion of the Massachusetts Court on the State''s power to provide for dwelling houses with the opinion of the Supreme Court sustaining such
legislation. These are samples taken from the Court in which, presumably, advisory opinions have been rendered under the most favourable
circumstances.
He concluded with the warning:
It must be remembered that advisory opinions are not merely advisory opinions. They are ghosts that slay.37 Harvard Law Review, pp. 10051008
Writing in 1931, Professor Carleton Kemp Allen expressed himself as follows:
The whole notion of ''consultation'' of the judiciary is, by hypothesis, a contradiction which requires exceptional justification. The Judge does not sit
in the seat of justice in order to be consulted, but in order to decide an issue. If, then, he is to be ''consulted'', his advice must be one of two things
Either it is mere opinion, subject to the same limitations as any other opinionnamely, that the person advised may or may not, at his option, follow
the advice; in this case it is not easy to see the advantage of imposing this additional duty on Judges...Or, in the alternative, it is (like the fictitious
''advice'' of the Judicial Committee) opinion of such a peculiarly authoritative nature that it is not, and is not intended to be, really opinion at all, but
judgment disguised as opinion. There seems to be no cogent motive for extracting opinions from the Bench except to give them an authority which
cannot belong to any lesser opinion. If, then, this opinion is really judgment, it is open to the extremely serious objection that it is anticipatory of
actual facts, which are of infinite complexity, and upon which all judgment, in the sense of the application of principle to circumstances, must
depend... No abstract principle of interpretation laid down in advance by the Courts could be, or at all events ought to be, more than a guide for
the decision of subsequent cases. It is therefore either superfluous, or else it is a signpost with a pointing finger in which we may read a gesture, not
of direction, but of command or of threat.Vol. 47, The Law Quarterly Review, pp. 48-49.
In Attorney-General for Ontario v. The Hamilton Street Railway Company (1903) 1903 A.C. 524 at p. 529, their Lordships of the Judicial
Committee in an appeal from Canada declined to answer certain questions with the following observations:
They are questions proper to be considered in concrete cases only, and opinions expressed upon the operation of the sections referred to, and the
extent to which they are applicable, would be worthless for many reasons. They would be worthless as being speculative opinions on hypothetical
questions. It would be contrary to principle, inconvenient, and inexpedient that opinions should be given upon such questions at all. When they
arise, they must arise in concrete cases, involving private rights; and it would be extremely unwise for any judicial tribunal to attempt beforehand to
exhaust all possible cases and facts which might occur to qualify, cut down, and override the operation of particular words when the concrete case
is not before it.
The desirability and utility of advisory opinions is supposed to have been stressed by Lord Loreburn in the judgment of the Judicial Committee
delivered by him in Attorney-General for Ontario V. Attorney-General for Canada (1912) 1912 A.C. 571 at page 581. A perusal of the
judgment, however, would make it quite clear that in that case the Judicial Committee were concerned (as indeed was bound to be the case) not
with the wisdom of the Canadian provision in respect of advisory opinions, but with the question whether that provision had been validly enacted
by the Canadian Parliament. The very first sentence of the judgment runs:
The real point raised in this most important case is whether or not an Act of the Dominion Parliament authorising questions either of law or of fact
to be put to the Supreme Court and requiring the Judges of that Court to answer them on the request of the Governor in Council is a valid
enactment within the powers of that Parliament.
At page 582 of the Report, Lord Loreburn thus sets out the gist of the arguments advanced on behalf of the Provinces:
Broadly speaking the argument on behalf of the provinces proceeded upon the following lines. They said that the power to ask questions of the
Supreme Court, sought to be bestowed upon the Dominion Government by the impugned Act, is so wide in its terms as to admit of a gross
interference with the judicial character of that Court, and, therefore, of grave prejudice to the rights of the provinces and of individual citizens. Any
question, whether of law or fact, it was argued, can be put to the Supreme Court, and they are required to answer it, with their reasons. Though no
direct effect is to result from the answer so given, and no right or property is thereby to be adjudged, yet, say the appellants, the indirect result of
such a proceeding may be and will be most fatal. When the opinion of the highest Court of appeal for all Canada has been given upon matters both
of law and of fact, it is said it is not in human nature to expect that, if the same matter is again raised upon a concrete case by an individual litigant
before the same Court, its members can divest themselves of their preconceived opinions; whereby may ensue not merely distrust of their freedom
from prepossession, but actual injustice, inasmuch as they will in fact, however unintentionally, be biassed. The appellants further insist that although
the Act in question provides for requiring argument, and directing that counsel shall be heard before the questions are answered, yet the persons
who may be affected by the answers cannot be known beforehand, and therefore will be prejudiced before the Supreme Court has arrived at what
will virtually be a determination, of their rights.
On this he observes (p. 583):
This view, which was most powerfully presented, has a two-fold aspect. It may be regarded as a commentary upon the wisdom of such an
enactment. With that this Board is in no sense concerned. A Court of law has nothing to do with a Canadian Act of Parliament, lawfully passed,
except to give it effect according to its tenor. No one who has experience of judicial duties can doubt that, if an Act of this kind were abused,
manifold evils might follow, including undeserved suspicion of the course of justice and much embarrassment and anxiety to the Judges themselves.
Such considerations are proper, no doubt, to be weighed by those who make and by those who administer the laws of Canada, nor is any Court
of law entitled to suppose that they have not been or will not be duly so weighed. So far as it is a matter of wisdom or policy, it is for the
determination of the Parliament...It cannot be too strongly put that with the wisdom or expediency or policy of an Act, lawfully passed, no Court
has a word to say. All, therefore, that their Lordships can consider in the argument under review is whether it takes them a step towards proving
that this Act is outside the authority of the Canadian Parliament, which is purely a question of the constitutional law of Canada.
Viscount Haldane L.C. in Attorney-General for British Columbia v. Attorney-General for Canada (1914) 1914 A.C. 153 at page 162
observed as follows:
It is clear that questions of this kind can be competently put to the Supreme Court where, as in this case, statutory authority to pronounce upon
them has been given to that Court by the Dominion Parliament. The practice is now well established, and its validity was affirmed by this Board in
the recent case in Attorney-General for Ontario V. Attorney-General for Canada (1912) 1912 A.C. 571. It is at times attended with
inconveniences, and it is not surprising that the Supreme Court of the United States should have steadily refused to adopt a similar procedure, and
should have confined itself to adjudication on the legal rights of litigants in actual controversies. But this refusal is based on the position of that
Court in the Constitution of the United States, a position which is different from that of any Canadian Court, or of the Judicial Committee under the
statute of William IV. The business of the Supreme Court of Canada is to do what is laid down as its duty by the Dominion Parliament, and the
duty of the Judicial Committee, although not bound by any Canadian statute, is to give to it as a Court of review such assistance as is within its
power. Nevertheless, under this procedure questions may be put of a kind which it is impossible to answer satisfactorily. Not only may the
question of future litigants be prejudiced by the Court laying down principles in abstraot form without any reference or relation to actual facts, but it
may turn out to be practically impossible to define a principle adequately and safely without previous ascertainment of the exact facts to which it is
to be applied. It has therefore happened that in cases of the present class their Lordships have occasionally found themselves unable to answer all
questions put to them, and have found it advisable to limit and guard their replies. It will be seen that this is so to some extent in the present appeal.
The view taken by different Lords Chancellor and Judges in the Judicial Committee of the advisability of having recourse to provisions for
obtaining advisory opinions on abstract questions of law was revealed by Lord Haldane in the House of Lords during the debate on Clauses (4) of
the Rating and Valuation Bill to which I have made reference earlier, He there said:
The Dominion of Canada got into the habit many years ago, before my time, of passing Acts submitting abstract questions for the opinion of the
Supreme Court of Canada, and then, by a special clause, to the Privy Council here. The Privy Council was not bound to hear those questions, and
said so; but the Privy Council, from the desire to be helpful, did get into the practice of entertaining them, and the King in Council pronounces upon
them when they come, I have had a long experience of these questions. I have decided scores and scores of them, and anything more
unsatisfactory and more mischievous I do not know.
You get a perfectly general question brought up, without reference to specific factsor, at least, there are no specific facts which enable you to deal
exhaustively with the case; and then what happens? I have heard Lord Chancellor after Lord Chancellor say: We decline to answer the whole of
the questions which are put to us. To do so would be to decide ahead, to go into rigions which we cannot survey, and embarrass at every turn
private litigants who come hereafter.""70 H.L. Deb., 5 S. Col. 629-30
At a later stage he said:
I referred on the last occasion to the likingwhich had grown up in Canada for submitting abstract constitutional questions to the Courts there and
ultimately to the Privy Council. In my opinion experience of that course has led to enormous inconveniences, and successive Lords Chancellor
have objected to and denounced it. The late Lord Herschell said some strong things about it, and at times refused to give an opinion. The late Lord
Loreburn was even stronger, and other Lords Chancellor and other Judges in the Judicial Committee have expressed themselves without restraint
upon a system which they deemed to be very mischievous. It was mischievous because it invited the Court to go beyond the particular case which
it had to decide and to say things beyond the tacts to which the decision would be applied, which might prejudice future suitors.""70 H.L. Deb., 5
S. Col. 765
On the same occasion Lord Merrivale observed:
I want to say two or three words more with regard to the position of His Majesty''s Judges in this matter. It is no part of the business of His
Majesty''s Judges, and never has been part of their business, at any rate since the Act of Settlement, to have any advisory concern in the acts of the
Administration or to take part in advising the Administration. The natural effect of associating them with the Administration and attaching to them
the responsibility for conclusions which are put forward by the Administration will be to weaken the authority of the Judiciary. It can have no other
effect...Why should the Judges be brought in by this side-wind to help the Executive to carry on their business, to replace the Law Officers and to
relieve the Executive of responsibility as to decisions that they ought to arrive at upon the law70 H.L. Deb,, 5 S. Col. 763 ?.
Lord Carson said:
Anything more dangerous or more unfair to the subject I cannot conceive...I cannot imagine anything worse than for us to lay down that such a
procedure should bo taken as one which may be applied to many other matters. Just fancy applying it to the Finance Actsto those complicated
measures which raise all the taxes of the country. A case might be submitted to the Judges as to whether under a particular clause certain persons
should be taxed, and then, if they were advised that that is not the proper construction, they would be told: ''Oh, you were not there; we have got
judgment; that is what the Courts say''. Anything more mischievous I cannot imagine.""70 H.L. Deb., 5 S., Col. 804
Nevertheless, in 1935 Parliament thought it wise to incorporate Section213 in the Constitution Act. We must take it therefore that in the
opinion of Parliament, in spite of the criticism to which provisions of this nature had been subjected, it was desirable that the Governor-General
should be enabled to refer to the Court questions of law which in his opinion were of such a nature and of such public importance that it was
considered expedient to obtain its opinion upon them. It is to be observed that unlike Section 4, Judicial Committee Act, 1833, and Section 60,
Canadian Supreme Court Act, 1906, Section 213 does not make it obligatory upon the Court to arrive at a determination of the questions referred
to it: In re Allocation of Lands and Buildings situate in a Chief Commissioner''s Province (''43) 30 A.I.R. 1943 F.C. 18.
The Court is to report after such hearing as it thinks fit and every report must be made in accordance with an opinion delivered in open Court
with the concurrence of the majority of the Judges present with liberty to a Judge who does not concur to deliver a dissenting opinion. Thus the
procedure has, as far as possible, been approximated to a judicial hearing and determination of the questions referred.
An advisory opinion on the other hand is not in the nature of a judicial pronouncement and the Constitution Act does not make an opinion
appealable to His Majesty in Council. Nor is it binding upon the Governor-General. Whether the pronouncements of the Court in an advisory
opinion could be regarded as ""law declared by the Federal Court"" within the meaning of Section 212, Constitution Act, so as to be recognised as
binding on Courts in British India appears to be open to serious doubt. The very fact that the subject of advisory opinions is dealt with in a section
later than Section 212 is in itself an indication that an advisory opinion would bo no more than an opinion. The marginal note to Section 213
indicates that the whole procedure merely constitutes ""consultation"" between the Governor-General and the Court.
Questions that may be referred to the Court for its opinion under Section213 may fall under different categories, with reference to their nature
and subject-matter and to the stage at which and the form in which they are referred. It may be that, for instance, in the case of a dispute between
the Centre and a Province, questions may bo referred that have reference to concrete matters in controversy between the Governments and it may
be possible to proceed to their determination against that background. In a case of that description, the Court may not be faced with any difficulty
having relation merely to the subject-matter or form of the reference. The Court has already answered references relating to two enactments, one
passed by a Provincial Legislature and the other by the Central Legislature, which shows that where the Court is called upon to deliver an advisory
opinion with reference to existing legislation, it might be able to do so, subject to such reservations and qualifications as the nature of the questions
referred might necessitate. This is not, however, to be taken to mean that in all cases of completed legislation the Court would be able to deliver an
opinion. That must always depend upon the nature of the questions and the material available for their determination.
In the present case we are concerned not with an existing law but with a legislative proposal. That the proposal is of a fiscal nature merely
enhances the difficulty of pronouncing upon it in advance. I will not go so far as to suggest that no legislative proposal could usefully form the
subject of a reference and opinion under Section 213, but I do apprehend that it would be possible for the Court to pronounce upon such a
proposal with confidence only in exceptional cases, A reference relating to a legislative proposal must in a large number of cases be enveloped in a
thick fog of hypotheses and uncertainties and an opinion delivered thereon could only rest upon a forest of assumptions which must rob it of all
value. If a legislative proposal can be cast in a form which does not give rise to difficulties of this character the Court might find it possible to
pronounce upon it. In any event the Court must be furnished with the fullest material on the subject in an exact and precise form and should not be
left to base its opinion upon assumptions or be reduced to the necessity of safeguarding against misapprehension or misconstruction of what it
might have to say by a profuse employment of ""ifs"" and ""buts"" and ""provideds"". In other words, it should be put in a position to arrive at a
determination of the questions referred with confidence that its opinion would furnish some guidance and help. One precaution that might be taken
would be to attaeh to the Reference a draft of the bill which it is proposed to place before the Legislature. I am not to be understood as suggesting
that if such a draft is forwarded, the Court might always find it possible to deliver an opinion, but a draft might be found to be of considerable
assistance. It is true that the bill might subsequently emerge from the Legislature in a shape very different from that in which it had been considered
by the Court. In such a case the opinion of the Court will always be read with reference to the proposal placed before it and there will be no
danger of its being read with reference to the form which the legislation finally takes. Such a precaution would be wise in the case of all legislative
proposals, but I am disposed to regard it as indispensable in the case of fiscal proposals.
With these observations I proceed to the consideration of the reference now before us. We were informed that a reference had become
necessary at this stage as the Governor-General had been advised that a law of the description envisaged in paras, (1) and (2) of the Reference
was not covered by any of the entries in the three Lists of Schedule 7 to the Constitution Act and that therefore this was a case in which the
Governor-General would have to have recourse to his powers under Section 104 of the Act. As this was the first occasion on which such a
contingency had arisen, the Governor-General had thought it prudent to seek the opinion of the Court before taking appropriate action. I fully
appreciate the considerations that have prompted the Reference, but deplore my inability to answer the main questions propounded on the material
made available.
The scheme of the proposed legislation is to levy upon the death of a person a duty in respect of property other than agricultural land passing
upon the death. To make the duty effective and to render evasion impossible or at least difficult it is proposed to enact ""that property passing upon
the death"" shall be deemed to include certain kinds of property which might not otherwise have been regarded as passing upon the death. It is
further proposed to provide that for the purposes of this duty, the situs of moveable property shall be such as may be specified in the contemplated
law itself or prescribed by rules made under that law. We are asked whether the Federal Legislature has power to make a law of this description,
and if not is it not a matter which is not included in any of the Lists of Schedule 7 ?
The difficulty that I have felt in dealing with these questions may be illustrated by inviting attention to para. (2) (b) of the Reference. This
paragraph put by itself would read as follows:
Assuming that the Federal Legislature has power to make a law providing for the levy of an Estate Duty, has it also the power to make a law
providing that for the purposes of that duty the situs of moveable property shall be such as may be specified in the law or prescribed by rules made
under the law ?
The answer must depend upon the actual provision with regard to the situs of moveable property that may be made in the law or that may be
prescribed by rules made under the law. In the absence of a draft of the provision itself, it would be impossible to say whether the Federal
Legislature had or had not the power to enact such a provision. On this being pointed out, it was conceded on behalf of the Governor-General that
to this part of the Reference no answer could be given and the Court was excused from attempting to frame an answer.
The main controversy revolved round para. 1 of the Reference. The contentions raised are summarised in the opinion just delivered by My
Lord and my brother and need not be recapitulated here. It was maintained on behalf of the Governor-General in Council that paras, (1) and (2)
(a) of the Reference indicated the real nature of the duty proposed to be levied with sufficient exactness for us to be able to pronounce an opinion
upon it. I am unable to accept that position. All that para. 1 tells us is that upon the death of a person there shall be levied an estate duty in respect
of property, other than agricultural land, passing upon the death. The expression ""estate duty"" is not a term of art and carries no precise
connotation. I was unable to elicit during the course of the argument what purpose the word ""estate"" before ""duty"" in para, l was intended to serve,
unless it was the psychologic one of directing our minds to the provisions of the English Finance Act of 1894, whereby estate duty was imposed in
England. A law enacting that upon the death of a person there shall be levied a duty in respect of property passing upon the death may well be so
framed as to be completely covered by entry No. 56 of the Federal List, even upon a narrow construction of the term ""succession"" used in that
entry.
We were told that the intention was to levy a duty similar in all material respects to the estate duty imposed in England by the Finance Act of
1894 (and its later amendments) as interpreted and explained by the decisions of the English Courts thereon and we were invited to base our
opinion upon that assumption. This means that we are to read into the Reference all the essential and material provisions of the English Finance Act
of 1894 and all its later amendments as interpreted and explained in the decisions of the English Courts, and further, that whoever seeks to extract
any guidance or derive any profit from the opinion that the Court may be induced to deliver on that assumption must at his peril carry out a careful
study of the whole of the English legislation on the subject and of the very voluminous judicial interpretation thereof. I consider this most
unsatisfactory. Whenever this Court is invited to render an opinion upon questions of law, the questions must be cast in a precise and exact form
and the Reference itself must contain all the material necessary to enable the Court to arrive at a satisfactory determination of the questions. It
should not be left to counsel to supplement the Reference during the course of the hearing by oral submissions. Counsel may as of right enter upon
an exposition and interpretation of the material contained in the Reference, but that is quite different from varying or supplementing it, which,
according to their Lordships of the Judicial Committee is not permissible: Attorney-General for Alberta v. Attorney-General for Canada (''14) 1
A.I.R. 1914 P.C. 166 at p. 369. For instance, the English Finance Act, 1894, levies a duty upon the ""principal value"" of all property passing upon
the death of a person. There is nothing in para, (1) of the Reference which indicates that the duty contemplated in the paragraph is to bear that
characteristic. We were informed that that was the intention and that we should assume that the duty would be so levied.
It was urged that paras, (1) and (2) (a) of the Reference would form the charging sections of the proposed legislation and that the nature of the
proposed duty should be ascertained from the charging sections. When it was pointed out that the Reference contained no information on the
method of assessment and collection of the duty we were told that the machinery provisions could have no bearing upon the nature and character
of the duty. With that I am unable to agree. In determining the true nature of a tax considerable help may be derived from the machinery provisions
and the schedules etc.: Colouhoun v. Brooks (1889) 14 A.C. 493 at p. 507 and Rex v. Lovitt (1912) 1912 A.C. 212 at page 223.
In Attorney-General for British Columbia v. McDonald Murphy Lumber Co. (''30) 17 A.I.R. 1930 P.C. 173 their Lordships found no
difficulty in holding that while a Canadian Act purported to impose a tax on all timber cut within the Province it proceeded in the relative schedules
so to reduce the tax by rebate in the case of timber used in the Province as to leave it to operate only on timber exported and that therefore it was
in effect an export tax. In Commissioner of Stamps, Straits Settlements v. Oei Tjong Swan (1933) 1933 A.C. 378 at p. 389, Lord Macmillan
observed:
It may well be that provisions dealing merely with the machinery of taxation ought not to be presumed to impose a charge, but statutes must be
read as a whole and the language used in so-called machinery sections may be called in aid for the interpretation of the charging sections.
In answer to questions whether we could be given an idea of the machinery provisions proposed to be incorporated in the law levying the duty,
we were informed that the matter had not yet taken any definite shape, though various alternative proposals had been under consideration.
Anybody familiar with conditions in India as compared with those in England would readily appreciate that though the drafting of an Estate Duty
Bill upon the model of the English Finance Act of 1894 may not present any serious difficulty so far as the so-called charging clauses are
concerned, the devising of the machinery for the assessment and collection of the duty might present insurmountable difficulties. The vast bulk of
the people of this country are governed in matters of inheritance and succession by their personal laws and have not the remotest conception of
letters of administration, probate and the like. It may therefore well be that though the proposed duty is given the name of estate duty and is levied
on ""property passing upon death,"" yet the machinery provisions may perforce have to be so framed as to make the duty in effect a ""duty in respect
of succession to property"" within the meaning of entry No. 56 of the Federal List. I do not think the Court could fairly be invited to make a
pronouncement upon the nature of the duty proposed to be levied in the absence of full, information on the subject of machinery, etc., which would
be necessary to make the duty effective.
One of the considerations to which our attention was invited during the course of argument as bearing upon the question whether the
expression ""succession to property"" in entry No. 56 of the Federal List should be given a narrow or wide construction, was that Parliament, which
must be presumed to have been well aware of the technical distinction between a succession duty and an estate duty as understood in England, had
made no express mention of estate duty in any of the Lists. This, it was argued, went to show that ""duties in respect of succession to property"" in
entry No. 56 must be given a wide and liberal construction so as to cover an estate duty. It was urged that Parliament having by entry No. 55 of
List 1 gone so far as to confer upon the Federal Legislature even the power to impose a capital levy it was not to be supposed that it had withheld
from that Legislature the power to levy an estate duty. Our attention was directed to Section 187, Constitution Act which provides that duties in
respect of succession to property shall be levied and collected by the Federation but that the net proceeds thereof shall be assigned to the
Provinces. It was pointed out that if estate duty was not covered by entry No. 56, List I, and was a matter not included in any of the Lists,
Parliament must be deemed deliberately to have left that duty to be allotted at the discretion of the Governor-General to the Provinces or to the
Centre and that it was open to the Governor-General by allotting it to the Centre in effect to deprive the Provinces of the benefit of duties in
respect of succession to property and thus to defeat the purpose of Section 137. Another consequence that would follow would be that whereas
even for purposes of collection duties in respect of succession to property had been divided by the Constitution Act between the Centre and the
Provinces on the basis of property other than agricultural land (entry No. 56, List 1) and agricultural land (entry No. 43, List II), the Governor-
General would be at liberty to allot esate duty to the Centre irrespective of the character of the property upon which it might be levied. To this the
answer given was that para, (1) of the Reference itself showed that it was not proposed to levy estate duty upon agricultural land and that it had
already been declared that the net proceeds of the duty would be distributed among the Provinces. The rejoinder was that what was proposed to
be done was a mere matter of grace and not a matter of legal compulsion and that it was not reasonable to suppose that Parliament had left these
important matters to be adjusted by agreement and not by express provision. The only explanation suggested was that having regard to the
conditions that prevailed in India, to which reference has been made earlier, Parliament might have felt that it would be extremely inconvenient, if
not actually impossible, to levy an estate duty in this country. That again tends to emphasise the consideration already stressed that though the
definition of an estate duty may be retained in the proposed law as set out in para, (1) of the Reference, the machinery provisions may have to be
devised in such a fashion as to make the duty in substance one in respect of succession to property. The material supplied being insufficient to
enable me to pronounce an opinion on the first question, it follows that I am unable to pronounce an opinion upon the second and subsequent
questions.
I may point out that assuming that in the absence of material of the kind that I have indicated, an affirmative answer could have been returned
to the first question, as it stands, it would have been extremely difficult to return an answer to the whole of question (2) (a) in the absence of such
material. It was contended on behalf of the Provinces that if the subject-matter of para. 1 was covered by entry No. 56 of List 1, the various items
set out in para. (2) (a) could be regarded as merely ""incidental"" or ""accessory"" to the main purpose of the duty, designed to make the duty effective
and to check evasion thereof. In the case of some of these items at least, it would not have been possible to arrive at any conclusion one way or
the other in the absence of a draft of the legislative provisions embodying the itmes, Take, for instance, item (4) which relates to property
transferred by the deceased as a gift in contemplation of death or within a speeded period before death. A determination with reference to the first
part of the item would depend upon the definition of a gift in contemplation of death and with reference to the second part upon the period that
may be specified. In the state of the material made available to us, I do not think any useful purpose would be served by my attempting to frame
answers to the questions referred. Indeed, I apprehend, that any such attempt might result in the opinion delivered being, made the foundation of
endless litigation hereafter, apart altogether from any question relating to the vires of the proposed law, and operating to the serious prejudice of
persons whom it might be attempted to bring within the mischief of that law. It is bound to raise ghosts far more troublesome than any that it might
serve to lay. For these reasons I am compelled respectfully to decline to express any opinion on the questions referred.