TMI Blog1974 (2) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... ealed with success, for the High Court held that the accused had re-entered the forbidden area during the currency of the order. What is crucial for this case is whether the externment order having been quashed by the High Court under Art. 226 of the Constitution on July 16, 1968-during the pendency of the criminal trial-it had become void ab initio and there being thus no quit order in law there was no offence. The learned Judge rejected this effect of the writ issued under Art. 226 and convicted the accused. His reasoning, invigorated by surgical imagery, flowed thus: Now the contravention took place on September 17, 1967 whereas the externment order in question has been quashed about one year thereafter on July 16, 1968. The question, therefore, is : can a person against whom an order of externment under section 56 of the Bombay Police Act has been issued disobey the said order and contravene the d irections contained therein with impunity if subsequently the order is quashed ? If the argument of the learned counsel were to be accepted, though the externment order held the field and had not been quashed at the material time, no offence would be committed in view of the subse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some untoward potentialities and legal anomalies visualised by the learned Judge which lend assurance to the juridical concept that an order or act quashed by a court is valid until judicially set aside or declared void. We have to examine the validity of this temporary validity imputed to an otherwise bad order. When does a bad order become bad ? Violation of natural justice is the vice of the order which was defied by the accused. We will first set out the relevant provision in he Act and the ground of decision in the writ petition, shorn of unnecessary portions. Section 56 reads:-- Whenever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed under section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, extend, the provisions of this section', to the Dis- trict Magistrate, or the Sub-Divisional Magistrate specially empowered by the State Government are that behalf (a) that the movements or acts of any person are causing or calculated Sup. CI/74 to cause. alarm, danger or, harm to person or property, or (b) that there are reasonable grounds for believi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson shall be entitled to appear before the officer proceeding under this section by an advocate or attorney for the purpose of tendering his explanation and examining the witness produced by him. (2) The authority or officer Proceeding under subsection (1) may, for the purpose of securing the attendance of any person against whom any order Is proposed to be made under section 55, 56 or 57, require such person to appear before him and to pass a security bond with or without sureties for such attendance during the inquiry. If the person fails to pass the security bond as required or fails to appear before the officer or authority during the inquiry, it shall be lawful to the officer or authority to proceed with the inquiry and thereupon such order as was proposed to be passed against him may be passed. The externment order was subject to this obligation of judicialisation. Mr. Justice Bhagwati (as he then was) in quashing the order reasoned:- The show cause notice started with a general allegation that the petitioner was desperate and dangerous man and was committing acts involving force and violence This general allegation was then particularised and four different kind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esses. This opinion would clearly not be the requisite opinion contempl ated by the mandatory requirement of section 56. We therefore allow the petition and make the rule absolute by issuing a writ quashing and setting aside the externment order passed by the Deputy Commissioner of Police against the petitioner. This judgment is now final and binds State and subject alike. But does the demolition of the externment order take effect retroactively ? If it does, the accused is not guilty; if not, he is. The constitutional perspective must be clear in unlocking the mystique of '.Void' and 'viodable' vis-a-vis orders under the Act. The Act is a constraint on a fundamental right and so the scheme of Art. 19 must be vividly before our minds if extraordinary controls over human rights statutorily vested in administrative tribunals are to be held in constitutional leash. Freedom of movement, of association, of profession and property, are founding commitments and severe restraints thereon must be strictly construed, not in the name of natural justice-an elusive phrase-nor in literal loyalty to Section 59 but in plenary allegiance to the paramount law. The restriction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atural justice on a judicialised administrative act like the externment order under Sec. 56. The wider questions of error versus excess of jurisdiction, declaration of invalidity as distinguished from voidable orders being avoided, order void ab initio and valid tilt voided retroactively by competent tribunal and the directory-mandatory and ministerial-Judicial dichotomies and allied problems, present, on current precedents, a picture of juristic jungle and need not be ordered into a garden for the limited purposes of this case. A learned'author has cynically said : 'The case law, however, affords the usual spectacle of anarchy upon which order can hardly be super- imposed'. Here, a tribunal, having jurisdiction over area, person and subject matter, has exercised it disregarding the obligation to gave a real hearing before condemning. Does it spell death to the order and make it still-born so that it can be ignored, defied or attacked collaterally ? Or does it mean nullifiability, not nullity, so that before disobeying it a court must declare it invalid ? Or, the third alternative, does it remain good and binding though voidable at the instance of a party aggrieved b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the signature of a person calling himself a register; it is not such a quantity of ink bestowed upon such a quantity of stamped paper : a sentence is a judicial determination of a cause agitated between real parties, upon which a real interest has been settled,. Illegal acts of authorities, if can be defied on self- determined voidnes, startling consequences will follow, as the High Court apprehends. A detenu will beat back, a builder will put his wall on the forbidden line, a court officer will meet with physical resistance, all because the order is, on the view of the affected party, a nullity and is later proved so before a court. Not every action by a Government agency carries with it the force of law' and naturally what should he do if he concludes that the action is invalid? Should he disobey, face penal proceedings and get his. viola'tion legitimated by Court ? Is there no alternative to breaking the law or 'order to expose the lawlessness of the law or order? A recent book ('Discretion to Disobey' by Kadish and Kadish(1) establishes this line of thought from Benjamin Courtis, a former Supreme Court justice, who argued to the Senate on behalf of Pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute : obedience to an unconstitutional order of an official is not required, even though the order has not yet been ruled invalid by a court. The citizen is at liberty to make his own judgment of the order's validity and to act accordingly. If he turns out to be wrong, of course, be is answerable. But if he turns out to be right, he is not answerable in any way and not for disobeying the order, since the order was invalid, and not for undertaking himself to decide in advance that the order was invalid, since he was at liberty to make that decision. Where the situation escalates into active resistance and perhaps the use of force, typically involved in cases of resistance to unlawful arrest or to the execution of some process, such as serving a search warrant, the 'interest in the physical welfare of the policeman and the citizen (as well as others) may often produce a contrary answer. Indeed, an increasing number of jurisdictions afford no right to resist an arrest made under colour of authority, even if the arrest is later determined to be invalid. The citizen is obliged in this circumstance to yield and submit his case to the courts. As the Model Penal Code conclude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with the conditions laid down in regard to hearing. May be, this is a radical approach, but the alternative is a travesty of constitutional guarantees, which leads to the conclusion of post-legitimated disobedience of initially unconstitutional orders. On the other hand law and order will be in jeopardy if the doctrine of discretion to disobey invalid orders were to prevail. As Learned Hand observed :- The idea that you may resist peaceful arrest.... because you are in debate about whether it is lawful or not, instead of going to the authorities which can determine (the question is) not a blow for liberty but, on the contrary, a blow for attempted anarchy. The opposite view is expressed by the California Supreme Court in a case where one Yick came into the country unlawfully but was held by the deputy sheriff without authority. He escaped and his abettor in the escape was convicted but in appeal the Court held :- An escape is classed as a crime against public justice, and the law, in declaring it to be an offense, proceeds upon the theory that the citizen should yield obedience to the law; that when one has been, by its authority or command, confined in a prison, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd a defence, the order of the watch committee should stand and no one else should have any right to complain Their Lordships deprecate the use of the word void in distinction to the word voidable in the field of law with which their Lordships are concerned because, as Lord Evershed pointed out in Ridge v. Baldwin quoting from Sir Frederick Pollock, the words void and voidable are imprecise and apt to mislead. In Ridge v. Baldwin (supra) Lord Reid and Lord Hodson opted for 'nullity', Lord Evershed and Lord Devlin supported the 'voidable' theory and Lord Morris of Broth-Y-Gest struck a practical note in between. The learned Lord said :- It was submitted that the decision of the watch committee was voidable but not void. But this involves the inquiry as to the sense in which the word voidable , a word deriving from the law of contract, is in this connexion used. If the appellant had bowed to the decision of the watch committee and had not asserted that it was void, then no occasion to use either word would have arisen. When the appellant in fact at once repudiated and challenged the decision, so claiming that it was invalid, and when in fact the watch comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be avoided by evolving simpler concepts, which work in practice in Indian conditions. Legislation, rather than judicial law-making will meet the needs more adequately. The only safe course, until simple and sure light is shed from a legislative source, is to. treat as void and ineffectual to bind parties from the beginning, any order made without hearing the party affected if the injury is to a constitutionally guaranteed right. In other cases, the order in violation of natural justice is void in the limited sense of being liable to be avoided by court with retroactive force. In the present case, a fundamental right of the petitioner has been encroached upon by the police commissioner without due, hearing. So the Court quashed it-not killed it then but performed the formal obsequies of the order which had died at birth. The legal result is that the accused was never gulity of flouting an order which never legally existed. We express no final opinion on the many wide-ranging problems in public law of illegal orders and violations thereof by citizens, grave though some of them may be. But we do hold that an order which is void may be directly and collaterally challenged in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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