Right to disobey illegal orders

On the question of abuse of official's power for collateral purposes several persons have pleaded in the past to ensure such a system as would effectively prevent abuse of civil servant's authority by political bosses or the Government in power for illegal and collateral purposes. While viewing, this plea with sympathy one cannot but observe that in the ultimate analysis it is only the moral fibre of the civil service and the will of the people in general to resist illegal orders at any cost that can really ensure such a system. Speaking at the golden jubilee celebration of the Mathura Bar Association in January, 1978, Justice H. R. Khanna observed, "It is a mistake to suppose that Rule of law can be ensured by drafting well-worded codes. It will depend, in the long run, upon the way those codes are worked and more essentially upon the general attitude of the people.1 It is rather trite to say that even the best of laws and the best of constitutional provisions will be of no avail if there is a failure in the quality of the human personnel who will enforce those laws and the Constitution.  Police as Agent of the Law It is also hackneyed to say that "the policeman is nobody's servant.......... He executes a public office under the law and it is the law which is the policeman's master above observations of Geoffrey Marshall in his famous book Police and the Government holds equally good in the Indian soil, for sections 76 and 79 of the Indian Penal Code make it abundantly clear that police is bound only to carry out the lawful orders of the Government. Section 23 of Police Act, 1861 too enjoins the police to carry out lawful orders and warrants. The penal law of the country does not recognise the duty of blind obedience to the commands of the superiors2.So blind obedience to illegal orders affords no protection to a policeman from liability under the law. The maxim respondant superior has no application to such a case.3 In this context one wonders why so much of fuss is created when one asks the police not to carry put illegal orders. At best, one is stating the bare law contained in sections 76 and 79 of the Indian Penal Code and Section 23 of the Police Act. To quote Geoffrey Marshall again "They (i.e. police) must deploy independent judgment in exercising a right to disobey manifestly illegal commands" (italics added).  Obedience to illegal orders, what to speak of an official superior, even of a sovereign, is no excuse when the act adversely affects a citizen, for as between sovereign and his subject there can be no such thing as an act of State? Thus it is manifestly clear that no illegal action against a subject even at the instance of the Government in power can be justified either on the ground of State policy or as an act of State. The Courts of law are there for the express purpose of limiting public authority in its conduct towards individuals. And as Stephen observed :  "I understand by an act of State an act injurious to the person or to the property of some person who is not at the time of that act a subject of Her Majesty which act is done by any representative of Her Majesty's authority, Civil or Military, and is either previously sanctioned or subsequently ratified by Her Majesty."4 He further added :  "If one British subject puts another to death or destroys his property by express command of the king, that command is no protection to the person who executes it unless it is itself lawful, and it is the duty of the proper courts of justice to determine whether it is lawful or not." [Ibid (emphasis supplied)]. The legality of the Sovereign's act towards his own subjects can be questioned in the civil court.5 If the act is in excess of the power granted or is an abuse or misuse of power, the matter is capable of interference and rectification by the Court [Partap Singh v. State of Punjab, AIR 1964 SC 72 (83)] The personal immunity of the Sovereign or the head of State (e.g. Governors or President in the India context) does not bar any suit or writ being issued against the Government concerned or against an officer thereof.6 The position becomes worse if a Government servant commits an offence while carrying out an illegal order affecting a citizen. In such a situation, what to speak of the so-called defence of 'Superior Order', the giver of the order himself will be liable under the law as the abettor and the officer carrying out the illegal order will be regarded as the principal offender. Thus where a constable of the National Volunteer Corps in compliance with the orders of a superior officer fired a gun and killed a woman inside a tent in which gambling was going on and no violent mob had gathered around the place (i.e. when there were no circumstances justifying action under section 129 Cr. P.C.), it was held that the Constable was guilty of the offence of murder, that the order of the superior officer was unlawful and obedience to unlawful orders did not exonerate or excuse the person who committed the offence as a consequence of such an order. It has further been held that if commands are obviously illegal, an inferior would be justified in refusing to execute such commands, but as long as the orders of the superior are not obviously in opposition to the law of the land they must be obeyed. [Charan Das v. State, (1950) 52 Pun LR 391 : AIR 1950 East Punj 321 (FB)].  But to disobey illegal orders one must have a moral courage of a high order and an indomitable will to uphold the Rule of law. Indeed, Rule of law requires a fearless and honest band of public servants who will uphold the behest of law at all cost and without any fear or favour.  In many countries such a fine tradition of public service has been built up merely on the basis of convention. If in India, with constitutional guarantees in favour of the civil servants, such moral courage cannot be expected even from its superior services, then one wonders on whom should the citizens pin their hopes for the proper enforcement of the law and upholding the Rule of Law." Regardless of consequences an honest civil servant has to take these "occasional risks when the orders are of doubtful legality."7 In Litifkhan's case, Jardine, J. has rightly said that "only superior is law". In fact the relationship between the superior and the subordintate is also created by law." Therefore discipline in Government service means discipline to law and not to the man who is authority for the time being. When that man himself goes against the law, disobedience to him cannot be called indiscipline in the eye of the law."8 What to speak of a civilian government servant even in the case of a soldier law does not recognise blind obedience to the illegal order of a superior as a valid defence.9 A high authority like Dicey too observed, "when a soldier is put on trial on a charge of crime, obedience to superior is not of itself a defence." [A. V. Dicy, Law of Constitution, 10th Edition, p. 302] And as for the police the matter has been clinched beyond all shadow of doubt by section 23 of the Police Act, 1861 which enjoins a police-officer "to obey and execute all orders and warrants lawfully issued to him by any competent authority". By necessary implication it means that a police-officer has no duty to carry out unlawful order [Nagpal: Op. cit, p. 399]. The decision of the Calcutta High Court in Shaw Mangal Singh's case10 too does not say anything different. In this case, it was held "If the order is not necessarily and on the face of it illegal, such as, an order to shoot an innocent passerby or to torture a person, the Policeman carrying out the order is certainly entitled to protection under the law." In fact, in the said case the accused police officers get the benefit of lawful superior order as there were enough facts in paragraphs 3 and 9 of the report to show that there was an unlawful assembly which had attacked the police party causing injuries to an Assistant Commissioner of Police and another. In the circumstances, in Shaw Mangal Singh's case the Police had not only the right to cause dispersal of the unlawful assembly by use of force under section 129(2) Cr. P.C. but they had also the right to act in exercise of their right of private defence of life and property. So on appeal, the Supreme Court held in the very case that where the order of the Superior was lawful, there was no need to apply the provisions of S. 76, I.P.C.11  A civil servant confronted with a manifestly illegal order must have the courage to point out the illegality of the order to the giver of the order whether he be the political boss or an official superior. If in spite of that, there is an insistence on carrying out the order, the public servant must have further courage to disobey such illegal direction, even if given in writing, for an illegal order does not exonerate the civil servant from liability under the law. At best it may only be considered as a mitigating factor in his favour [Chomanlal v. Crown ILR (1940) Lah 521 : (1940) 41 Cri LJ 639] and would help him to pin responsibility also on the order giver as an abettor. If a particular Government in power feels that a particular law is in just or is causing difficulty, the best course for the Government would i be to first change the law in accordance with its policy and then issue orders in tune with the amended law. Fairness, political honesty and adherence to democratic principles leave no other course open to the Government, So long the law is not changed, no political boss, no government, no executive has any authority to subvert the Rule of law by giving directions contraty to law, for legal mala fide is inherent in such illegal directions. It has been held by the Supreme Court in no uncertain terms that: "When a power is exercised for a purpose or with an intention beyond the scope of or not justified by the instrument creating the power, in legal parlance it would be a case of fraud on a power though no carrupt motive or bargain is implied" [Partap Singh v. State of Punjab, AIR 1964 SC 72 (82)]. And to sum up one needs only to reproduce the celebrated observations of Lord Denning in Lagarus Estate case wherein he remarked, "No judgment of a court, no order of a Minister, Can be allowed to stand if it has been obtained by fraud."  Interference in Statutory Duties Interference with the statutory duties of the police or other executive officers has to be deprecated at all times and more so perhaps in the performances for their duties in the maintenance of pulbic order and investigation of cases. Deprecating political and administrative interference in police work the committee on Police training, appointed by Ministry of Home Affairs Govt. of India, observed, "Political or administrative pressures in the working of the police lead to abuse of authority and indecision and delays in dealing with situations because of a sense of fear that the officer concerned may be transferred or removed if he happens to displease particular individuals or groups.12 Thus direct or indirect instructions like not to promulgate orders under section 144 of the Criminal Procedure Code without prior approval13 or not to have recourse to firing,14 or hot to interfere in gheraos,15 or not to enter the university campus or a place of worship despite a deteriorating law and order situation unless permitted by the authorities even though the law of the land gives such power to the police and the magistracy16 — all seem to be illegal orders. Rather, sections 149—152 of the Criminal Procedure Code enjoin on the police to interpose and, to the best of their ability, prevent the commission of any cognizable offence. Many officers have thus felt baffled by this kind of direct clash between what they honestly conceive to be their duty under the law and the so-called executive instructions which go to stultify it. In Jay Engineering Works, a Special Bench of the Calcutta High Court struck down the executive instruction of the Government whereby policemen were forbidden to interfere even in cases of gherao amounting to offences of wrongful confinement and being members of unlawful assemblies without first consulting the Labour Minister. The Court held that the Government circulars clearly conflicted with the law contained in sections 54, 127 (now sections 42 and 129 of the Criminal Procedure Code), 15 and 157 of the Criminal Procedure Code, and were therefore illegal. The reference to section 127 (now section 129 of the Criminal Procedure Code) which gives the officer-in-charge of a police-station power to order dispersal of an assembly is most germane in the context of public order. This statutory power rests in the police and they have to perform their duties under the law. Almost to the same effect had been the observations of the High Courts of Tamil Nadu and Mysore in two other similar cases.17 The Courts further held that if the police did not perform its duty under the law, the High Court could direct it under Article 226 of the Constitution or section 561A of the Criminal Procedure Code (now section 482 of the Criminal Procedure Code) to take appropriate action.  The High Court of the land too has held, though in a different context, that statutory provisions must prevail over executive instructions . Thus in Chief Settlement Commissioner, Punjab v. Om Prakash, AIR 1969 SC 33, the Supreme Court observed : "It is essential to emphasise that under our constitutional system the authority to make the law is vested in the Parliament and the State legislatures and other law making bodies, and whatever legislative power the executive administration possesses must be directly from the delegation of legislature and exercised validly only within the limits prescribed. The notion of inherent or autonomous law-making power in the executive administration is a notion that must be emphatically rejected".  What to speak of inherent law making power of the executive administration, even the legislature, the real law-making body under our Constitution cannot overstep the field of its competency directly or indirectly, its legislative field is circumscribed by the specific legislative entries and the fundamental rights created by the Constitution. The Court has thus power to scrutinise a law to ascertain whether the legislature by devise has purported to make a law which though in form appears to be within its sphere, in effect and substance has reached beyond it [Gullapalli Nageswara Rao v. Andhra Pradesh Road Transport Corpn., AIR 1959 SC 308 (316)].  In the context of political interference one has also to take into account the undue pressure that is some times put on the executive magistracy or the police or the prosecution to do or not to do certain things either during a state of public disorder, or at the stage of the investigation, or during the pendency of the proceedings before the Court. Emphasising the need to keep police free from political interference the National Police Commission too has said that a policeman gets more corrupt because of political interference. "If he does a lot of unfair things to please his political bosses, why should he not do the same thing for himself" [Vicil, Calcutta dt. 22-2-80 P.S.]. Smt. Indira Gandhi too is reported to have said that police should not be used for political purposes. [The Statesman, Calcutta dt. 1-7-79]. Here again it must be said that the discretion to detain, arrest or not to arrest, to challan or not to challan a particular person has been given to an officer of the police or other officers under the law and not to any political boss or other extraneous agency. If a complainant in a cognigable case feels aggrieved by the police action, he can certainly file a protest petition, to the court and it would then be open to the court to take cognizance of the matter [Gopal Vijay Verma v. Bhuneswar Prasad Sinha, (1982) 3 SCC 510]. Even if the police after investigation files a final report in a cognizable case, it is still open to the Magistrate to take cognizance of the case under section 190(l)(b) of Criminal Procedure Code on the final report itself or under section 191(1 )(c) of the Criminal Procedure Code if the final report does not set out the facts constituting the offence and the Magistrate having regard to the final report and other police records has reason to suspect that an offence has been committed. The Magistrate, however, cannot direct the police to submit a charge-sheet, for the formation of an opinion as to whether or not there is a case to place the accused on trial, is the final step in the investigation and that final step is to be taken only by the police and by no other authority.18 It must however, be admitted that exercising its power of superintendence under section 3 of the Police Act, 1861, the State Government without directing submission of a charge-sheet of a final report has undoubted authority to direct further investigation even by a different police agency into a case after submission of a final report if the circumstances so warrant and there is nothing in the Code of Criminal Procedure providing to the contrary so as to limit or fetter that power [State of Bihar v. Saldoha J.A.C., 1980 Cri LJ 98 : AIR 1980 SC 326]. So any direction to the police or other officials beyond the law by an extraneous agency including the political executive will, apart from demoralising the officials, be clearly illegal and mala fide.  In Eshugbayi case19 Lord Atkin observed :  "In accordance with British Jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice. And it is the tradition of British Justice that Judges should not shirk from deciding such issue in the face of executive."  Conclusion Thus : on all hands there is not an iota of doubt that an illegal order even of the highest authority cannot be contenanced, what to speak of being obeyed. It is alleged that deposing before the Sharma Sarkar Commission at Calcutta the Chief Minister of West Bengal had said, "Police personnel or administrative officers could not be left to decide on whether or not to defy illegal orders as this would put the Administration in a difficult situation" [The Statesman, Calcutta, dt. 20-2-1980]. With due respect one cannot but submit that this is an utterly untenable position in a country governed by the concept of Rule of law. An illegal order is not at all an order under the law and it affords no protection to an officer who carries it out. And since an officer is an agent of the law and also does not get any protection of the law for carrying out an illegal order, it is he and he alone, as has been said by Geoffrey Marshall, who should be left free to decide as to whether he would or would not carry out the illegal order. It would be highly unjust to deny him this bare freedom when in the long run it is he who has to face the music before the bar of justice. And between the risk of a departmental action consequent on disobedience of an order which art officer in good faith, that, is, after due care and attention (S. 52, I.P.C.) thinks to be manifestly illegal and the risk of being prosecuted on a criminal charge for having committed an offence by carrying out an illegal order of a superior, the latter risk seems to be infinitely graver than the former. In any case, here again the officer concerned must decide for himself as to which of the two risks he should take when he is placed between the horns of a dilemma like this, Dicey aptly summarised the position when he wrote thus :  "Hence the position of a soldier is in theory and may be in practice a difficult one. He may, as it has been well said, be liable to be shot by a Court martial if he disobeys an order and to be hanged by a Judge and Jury if he obeys it [A. V. Dicey, Law of the Constitution, 10th Edition, p. 303]. The saving grace in favour of a civilian officer is that he is not so hard put to it as the unfortunate soldier, for he does not have to face the firing squad for non-compliance with an order.

Author Name: Prof. R. Deb