06-02-1974-Under the Constitution, protection against impairment of the guarantee of fundamental rights is determined by the nature of the right, the interest of the aggrieved party and the degree of harm resulting from the State action. Impairment of the right of the individual and not the object of the State in taking the impugned action, is the measure of protection. To concentrate merely on power of the State and the object of the State action in exercising that power is therefore to ignore the true intent of the Constitution. In this Court, there is, however, a body of authority that the nature and extent of the protection of the fundamental rights is measured not by the operation of the State action upon the rights of the individual, but by its object Thereby the constitutional scheme which makes the guaranteed rights subject to the permissible restrictions within their allotted fields fundamental got blurred and gave impetus to a theory that certain Articles of the Constitution enact a code dealing exclusively with matters dealt with therein, and the protection which an aggrieved person may claim is circumscribed by the object of the State action.
(1975) CriLJ 661 : (1974) 15 GLR 875
GUJARAT HIGH COURT
( Before : S.H. Sheth, J; J.B. Mehta, J )
JAYANTILAL MOHANLAL PATEL — Appellant
ERIC RENISON AND ANOTHER — Respondent
Decided on : 06-02-1974
Constitution of India, 1950 – Article 134, Article 20, Article 21, Article 226, Article 227
Criminal Procedure Code, 1973 (CrPC) – Section 129, Section 130, Section 134, Section 144
Penal Code, 1860 (IPC) – Section 188
S.H. Sheth, J.—The petitioner is a citizen of India residing in the city of Ahmedabad. He has filed this petition for a declaration “that any notification issued either by respondent No. 1 or 2 u/s 144 of the Code of Criminal Procedure announcing that a person committing breach of such order shall be liable to be shot at, is illegal and inoperative” and for an appropriate writ “against the respondents restraining them and their agents from taking any action under the said notification.”
2. The facts of the case, briefly stated, are as under.
3. On account of the disturbed conditions to the city of Ahmedabad the Commissioner of Police, Ahmedabad City, issued u/s 144 of the Code of Criminal Procedure an order on 27th January, 1974 (hereinafter referred to as ‘the curfew order1 as it is otherwise known). The material part of that order when translated into English reads as under.
Whereas tense situation prevails in the area of the City of Ahmedabad under the jurisdiction of the Police Commissioner on account of violent incidents resulting from breaking of shops, arson and stone-throwing and since human lives are in danger, there are sufficient reasons under the aforesaid circumstances to issue the curfew order and I am satisfied that there are sufficient reasons for making an ex parte order also.
Therefore, I. E. V. Renison, I. P. S., Police Commissioner, Ahmedabad City, in exercise of the powers conferred upon me by Section 144 of the Code of Criminal Procedure, 1898, order that the persons- residing in the
Then follows the Schedule which describes the areas to which the curfew order has been made applicable and specifies the dates and hours during which it shall remain in operation. The Schedule further states as exceptions the classes of persons to whom it shall not apply and the circumstances under which it shall not apply to them. The last paragraph of this curfew order states that the order shall be announced in the city of Ahmedabad through loud-speakers carried oil vehicles, the local press and by affixing copies thereof at public places. The endorsement made below the curfew order shows that it was sent for publication in the Official Gazette and that a copy thereof was also sent to this High Court. The Department of Information, Government of Gujarat, made on the same date an important announcement. It has been styled as ‘Important Announcement The announcement contains 11 clauses which, when translated into English, read as follows.
1. Armed forces have been called in aid of civil authorities to quell the disturbances in the City of Ahmedabad and to maintain law and order. The armed forces shall enter upon their duties at 12 noon, on January 28, 1974.
2. The curfew will be relaxed at 6 a. m. on 28th January 1974. It shall be enforced again from 12 noon the same day and will continue to be in force until another order is made in that behalf.
3. The curfew shall be enforced very strictly. It is advisable that all persons concerned return home before the operation of the curfew commences.
4. If anyone moves out of his house during curfew hours, be is likely to be shot at
5. Persons holding permits recognized during curfew hours and identity cards should hold their permits and identity cards in their hands in such manner as they are clearly visible and then approach the security forces. Such persons shall be permitted to move further only after they have been completely identified.
6. If stones or any other substances are thrown from any place including a house, it shall be regarded as an objectionable act and there will be a possibility of such an offender being shot at
7. The owner of a house from where stones are thrown shall be held liable for it and he shall be proceeded against accordingly.
8. The following classes of persons are exempted and on the production of their identity cards they will be allowed to move during curfew hours for the performance of their essential duties.
(a) Members of police, fire-brigade, red-cross, ambulance, home-guards and military forces.
(b) Mill-workers, doctors and nurses shall have to produce their identity cards.
(c) Such of the employees of the Railway, Municipal Corporation, Ahmeda-bad Electricity Company and Posts and Telegraph Department as have been given by the Heads of their institution identity cards for the purpose of performance of their duties in emergency.
9. All curfew permits issued until now shall cease to be recognized with effect from 12 noon on 28th January 1974. New permits will be issued under the authority of the Police Commissioner and they will be available from the office of the Director, Anti-Corruption Bureau, Bungalow No. 17, Camp, Ahmedabad.
10. Temporary permits will be available from the nearest Police Station in case of an emergency.
11. If the situation so demands, all curfew permits issued and the exemptions granted shall be liable to be withdrawn at any time without any notice,
The curfew order and the announcement were broadcast to the people by All India Radio and were widely published the next day in English and Gujarati daily news-papers circulating in the city. It may be noted that the ‘Important Announcement’ issued by the Department of Information, Government of Gujarat has reference to the armed forces being called in aid of civil authorities to maintain law and order in the city.
4. The petitioner has alleged that the press and the radio had in the wake of the curfew order and the ‘Important Announcement announced in their turn to the people that anyone who commits breach of fee curfew order would be liable to be shot at. This averment made by the petitioner has not been controverted by the Commissioner of Polico in bis affidavit-in-reply.
5. The question which Mr. H. R. Thakor has raised before us is whether the law and order forces of the State have authority under law to shoot at a person for a mere breach of the curfew order. The learned Advocate General after having addressed us on merits in reply to the arguments raised by Mr. H. R. Thakor has raised a preliminary objection to the maintainability of this petition. In order to substantiate his preliminary objection he has invited our attention to some of the averments made by the petitioner hi paragraph 6 of his petition. According to him, the following averment made by the petitioner disentitles him to any relief from this Court
The petitioner submits that nobody would like to commit a breach of orders deliberately, except under exceptional circumstances. It is equally possible that a person like petitioner, who believes in nonviolent and peaceful agitation, may like to commit a breach of such an order and go to jail and suffer the maximum penalty laid down u/s 188 of the Indian Penal Code. The petitioner further submits that we are governed by the Constitution and to live in democracy.
The preliminary objection which the learned Advocate General has raised before us is founded on the averments made by the Com’ missioner of Police in paragraph 2 of his affidavit-in-reply. The material part of his averments made in that behalf is as under.
I say that petitioner has no right to invoke the extra-ordinary jurisdiction of the High Court under Article 226 or 227 of the Constitution of India and that he is not entitled to any of the reliefs prayed for in the petition. I say that petitioner has no right to commit breach of a lawful order made u/s 144 of the Criminal P. C., 1898 (hereinafter referred to as ‘the Code’). I say that I in exercise of the powers conferred upon me by Section 144 of the Code had issued Order No. C/GPK/483/S. B/809/1974 dated 27th January, 1974 imposing curfew in the areas mentioned therein commencing from 12 noon on 28th January, 1974 and ending at 12 noon on 30th January, 1974….I further say that it is not open to the petitioner to file a petition contending that ha has a right to do something illegal and contrary to a valid curfew order and that he is prevented from doing so by reason of the impugned Important Announcement made on the 27th January, 1974 and that the petitioner cannot claim and/or be given any relief on the basis of such a contention. Without prejudice to the aforesaid I say and submit that this Hon’ble Court will not in any event exercise its discretion in favour of the petitionee and will refuse to the petitioner the reliefs sought by him as the reliefs are sought to enable him to commit, a breach of or circumvent lawful orders made at aforesaid by me.” Basing his preliminary objection on tha fid averments it has been argued by the learned Advocate General that the Court cannot lend its assistance to anyone who wants to circumvent law. It may be noted at this stage that the validity of the curfew order itself is not under challenge before us. He has invited our attention to Halsbury’s Laws of England, 4th Edition, Volume I, paragraph 91. The following are the relevant observations in paragraph 91 which have been marshalled by the learned Advocate General to the aid of his preliminary objection.
The grant of an order of mandamus is as a general rule a matter for the discretion of the Court. It is not granted as of right and it is not issued as a matter of course. Accordingly, the Court may refuse the order not only upon the merits but also by reason of the special circumstances of the case. On the other hand, the Court may grant leave to apply for an order of mandamus even though the right in respect of which it is sought appears to be doubtful.
In order to elucidate the nature of special circumstances under which an order of mandamus may be refused, he has invited our attention to the Queen’s Bench decision in Regina v. Brentwood Supdt. Registrar of Marriages, Ex parte Arias reported in (1968) 2 QB 956. It has been laid down in that decision that the Court would not grant the discretionary remedy of mandamus simply to asist parties to a proposed marriage to circumvent personal laws valid in another country relating to status. The facts which led to the enunciation of the aforesaid principle were that a spinster of Spanish nationa-alty domiciled in Switzerland gave to the superintendent registrar of marriages due notice of intention to be married to an Italian national. The Italian national was also domiciled in Switzerland where he had been married to, and divorced from, a Swiss woman, who had validly remarried but where he, nevertheless, was not free to remarry. The spinster and the Italian national had gone to England temporarily to marry and intended to return to, and remain domiciled in, Switzerland. The registrar on merits felt that there was a lawful impediment u/s 32 (2)(a) of the Marriage Act which existed in his way of issuing a certificate. He, therefore, refused to issue a marriage certificate to the spinster and the Italian national. The refusal to issue a marriage certificate by the Registrar of Marriages led to an application for an order of mandamus directing the Registrar to issue the certificate on the ground that he had erred in law in refusing to do so. The Queen’s Bench felt that the issue of order of mandamus directing the Registrar of Marriages to issue a marriage certificate to the spinster and the Italian national would circumvent the laws of Switzerland where they were otherwise domiciled and where they intended to remain in future. The Queen’s Bench, therefore, took the view that the grant of an order of mandamus, discretionary as it is, could not be made in favour of parties on the strength of which they would circumvent personal laws valid in another country where they had domiciled and where they intended to continue to remain in future.
6. In our opinion, the principle laid down by the Queen’s Bench in the aforesaid decision cannot be applied to the facts of the present case. The petitioner before us canvasses a question in which he wants a declaration of law in public interest and not for his personal benefit. If the declaration sought for by him is issued, it will have the effect of protecting and saving human lives. If he had filed this petition for vindicating his personal rights, and in our opinion that is not the object with which he has filed this petition, we would have seriously considered whether we should grant a writ of mandamus to him in order to enable him to circumvent the lawful order. Taking into account the prayer which he has made and which we have reproduced hereinabove we find that the object underlying it is to serve public interests and to vindicate a public cause and not to enforce any personal rights. Next, in a democratic country which is governed by a written Constitution which in its turn guarantees to its citizens fundamental rights a writ of mandamus must be issued where legal or constitutional rights are found to have been violated, more particularly so in a case where it is the right to life and liberty which is in danger. Considerations which prevail in a Court of law which has to decide such controversies under the written Constitution are altogether different from the considerations which prevail with Courts of law in a country where there is no written Constitution and no guarantee of fundamental rights, Thirdly, even in absence of the averment made by the petitioner to which the learned Advocate General has called our attention th petition would have been maintainable. Next. the aforesaid averment has no bearing whatsoever upon the prayer which the petitioner has made in the petition and which we have reproduced above. Therefore, no undue stress can be laid upon the aforesaid averment made by the petitioner in order to defeat the petition. If the petition otherwise serves a laudable purpose, it cannot be thrown away in limine merely on account of an averment made by a petitioner which has no direct bearing on the issue before the Court and on the relief claimed by the petitioner. For these reasons we are unable to accede to the argument advanced by the learned Advocate General that this petition should be dismissed in limine. The preliminary objection raised by him is, therefore, rejected.
7. We now turn to the examination of the merits of the case. In order to do so it is necessary to turn to Section 144 of the Code of Criminal Procedure, 1898 which is the source of power for issuing the curfew order. Sub-sections (1) and (3) are relevant for the purpose of the present case. Subsection (1) of’Section 144 provides as follows.
In cases where, in the opinion of a District Magistrate, a Chief Presidency Magistrate, the Commissioner of Police, Sub-Divisional Magistrate, or of any other Executive Magistrate specially empowered by the State Government or the Chief Presidency Magistrate or the District Magistrate to act under this section, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate or the Commissioner of Police may, by a written order stating the material facts of the case and served in manner provided by Section 134, direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if such Magistrate or the Commissioner of Police considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury to any person lawfully employed or danger to human life, health or safely, or a disturbance of the public tranquillity, or a riot, or an affray.
Sub-section (3) thereof provides as follows:
An order under this section may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place.
The curfew order which we have quoted above has been issued by the Commissioner of Police under Sub-section (3) of Section 144 read with Sub-section (1) thereof. The consequences of breach of the curfew order issued u/s 144 of the Code of Criminal Procedure have been provided in Section 188 of the Indian Penal Code. It provides as follows:
Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction.
shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both;
and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may attend to six months, or with fine which may extend to one thousand rupees, or with both.
Explanation. It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm.
It is not in dispute before us that a breach of’ a curfew order entails the consequences specified in Section 188 of the Indian Penal Code. It is noteworthy that the third paragraph of Section 188 of .’he Indian Penal Code provides that the disobedience by an offender of such an order, even if it tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray is punishable with imprisonment of either decription for a term which m?y extend to &;x months, or with fine which may extend to one thousand rupees, or with both.
8. Our attention has been invited by Mr. H. K. Thakor to Clause (1) of Article 20 and Article 21 of the Constitution, Clause (1) of Article 20 provides as follows:
No person shall be convicted of an offence except for violation of a law in force at the time of the commission of the act charged as an offence, ncr be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.” Article 21 provides as follows:
No person shall be deprived of his life or personal liberty except according to procedure established by law.
These provisions upon which Mr. H. R, Thakor has placed reliance make it crystal clear that none can be shot at for a mere breach of the curfew order issued u/s 144 of the Code of Criminal Procedure, 1898. The maximum penalty to which such person renders himself liable is provided by Section 188 of the Indian Penal Code which hi its turn is a trifling nothing as compared to the threatening penalty of being shot at. In our opinion, therefore, the contention which has been raised by Mr. H. K. Thakor has indeed great force and apparently deserves to be upheld. It is not the contention of the learned Advocate General that the Executive has greater power in the matter than the law provides for. The arguments which he has raised in reply are different. In our opinion, it cannot be gainsaid that the Executive has no power, authority or jurisdiction to threaten to inflict punishment upon one who commits a mere breach of the curfew order greater than the maximum penalty to which he would be liable only upon a judicial trial1 before a Court of law.
9. In reply the first argument which the learned Advocate General has raised is that though the curfew order is a statutory order, it does not threaten anyone with being shot at. Therefore, according to him, neither the petitioner nor any citizen cnn make any complaint of the present type against that order. He U right in his submission that the curfew order is the only statutory order by a statutory authority and that it by itself does not threaten anyone with any such thing for its breach. But we are unable to uphold his argument that the petitioner or for that matter any citizen residing in this city cannot make before us any complaint of the present type. Along with the issuance of the curfew order the ‘Important Announcement’ was issued. Clauses 4 and 6 of that announcement make express reference to the likelihood or possibility of a curfew breaker being shot at. When Clause 4 is read in light of the preceding clauses it appears to us to be stating that there is a likelihood of a curfew breaker being shot at. Great stress has been laid by the learned Advocate General on its character. He has argued that the directions which the ‘Important Announcement’ contains are not statutory. He is right in his submission that they are not statutory directions. But we cannot overlook that it is an official publication for all citizens to obey and the law and order forces to act upon. He has indeed argued that the instructions contained in the ‘Important Announcement’ are not the instructions for the law and order forces to act upon. We are unable to uphold that argument of his. All the 11 directions contained in the ‘Important An. nouncement’ have been reproduced by us hereinabove. Clause 3 of the ‘Important Announcement, inter alia, states that the curfew order shall be strictly enforced. It is both a direction to the law and order forces to enforce it strictly and to the members of the public to obey it. Similarly, CI. 4 states that a curfew breaker is likely to be shot at. Unless the law and order forces have been instructed to shoot at curfew-breakers there was no point in warning ‘he members of the public against any such danger. Similarly, Clause 5 directs the permit holders or the holders of identity cards to display their permits or identity cards clearly in their hands and to approach the security forces who in their turn would allow such persons to proceed further if they are fully satisfied with their identity. It is both a direction to the law and order forces in the matter of enforcing the curfew order and also a warning and advice to the members of the public as to how in such a situation they should act. Similarly, Clause 6 which renders liable the owner of a house front; where stones are thrown states that any person who indulges in any such activity is liable to be shot at. Unless there is a direction to the law and order forces to shoot at such a miscreant there is no point in warning the members of the public against any such danger. Similarly, Clause 8 which specifies the exempted categories of persons is more intended for the law and order forces to act upon than fop any other purpose. Similarly, Clause 9 which provides for cancellation of all permits issued prior to 28th January, 1974 is both an advice to the members of the public and a direction to the law and order forces not to honour any such permit. By necessary implication the latter part of Clause 9 provides that permits issued by the Office of the Director, Anti- Corruption Bureau, Ahmedabad shall be valid permits. It is a direction to the law and order forces to honour such permits. Clause 10 which provides for issuance of temporary permits by the nearest Police Station to a person placed in an emergency is both a direction to the law and order forces to issue such permits and an advice to the members of the public. In our opinion, therefore, the executive directions contained in the ‘Important Announcement’ are both directions to the law and orders forces and an advice or warning to the members of the public. The reference to armed forces mado in Clause 1 of the ‘Important Announcement’ appears to us to be a reference to the provisions of Section 129 of the Code of Criminal Procedure. It provides that if any such assembly cannot be otherwise dispersed, and if it is necessary for the public security that it should be dispersed, Magistrate of the highest rank who is present may cause it to be dispersed by the armed forces.” Sub-section (1) of Section 130 which has an implied reference to Section 129, inter alia, provides that
When a Magistrate determines to disperse any such assembly by the armed forces, he may require any officer thereof in command of any group of persons belonging to the armed forces to disperse- such assembly with the help of the armed forces under his command, and to arrest and confine such persons forming part of it as the Magistrate may direct, or as it may be necessary to arrest and confine in order to disperse the assembly or to have them punished according to law.
10. It has been argued by the learned Advocate General that the directions contained in the ‘Important Announcement’ are not intended to hold out to the members of the public any threat but that they have been issued to them only for their safety. Whether they are directions issued for public safety or whether they have an element of threat therein depends, in our opinion, upon what impression they produce upon the public mind and upon the mind of law and order forces. That is the test which, in our opinion, must bo applied. The reasons why we adopt this test are as follows. The Government issues official executive directions for what the learned Advocate General calls public safety, but the ultimate action which may be taken in pursuance thereof depends upon those who are actually charged with the maintenance of law and order. The Government which issues them does not itself implement them. Similarly, the Commissioner of Police who is the Head of the police forces in the city himself does not implement them. In the affidavit-in-reply made by the Commissions of Police be has averred that the intention underlying the aforesaid executive directions was to inform the members of the public that they might endanger their lives if they committed breach of the- curfew order and if shooting operations were going on to maintain law and order situation. In other words, he is asking us to adopt the test of intention. While looking at and analysing the aforesaid executive directions, in our opinion, no such test can be applied because what is material is not what the Commissioner of Police or the State Government intended but what law and order forces, in charge of the actual implementation of the curfew order, and the members of the public who were subjected to the observance thereof understood, because the law and order forces, in charge of the actual implementation of the curfew order, seek or purport to derive their authority to shoot at a curfew-breaker from the official directions and not from the intention of the Commissioner of Police or the State Government It may be noted that the curfew order itself does not state what jeopardy a curfew-breaker subjects himself to. The danger or jeopardy or liability to which a curfew-breaker subjects himself is written in Section 188 of the Indian Penal Code which lacs of citizens and thousands of members of the law and order forces can hardly be expected to read, much less understand. It is what is written in the ‘Important Announcement’ that the citizens and law and order forces read or are supposed to read. It is that document which is, therefore, very important. Since, in our opinion, they are the directions issued to the members of the law and ordel forces and an advice or warning to the members of the public, the law and order forces are supposed to act upon them while implementing the curfew order. In other words, it is their de facto source of power or authority to act against a curfew-breaker. Such executive directions cannot, in our opinion, lay down any consequences different from those which Section 188, I. P. C. lays down. The test of intention to which the Commissioner of Police has averred in his affidavit-in-reply is, therefore, irrelevant and inapplicable.
11. The next argument which the learned Advocate General has raised before us is based upon the construction of Cls. 4 and 6 of the ‘Important Announcement.’ It is true that Clause 4 in particular states that there is a likelihood of a curfew-breakef running the risk of being shot at. In his attempt to convince us that Clause 4 of the ‘Important Announcement’ does not lay down anything which is different from law, he has asked us to apply the test of literal construction. In our opinion, the test of literal construction is equally irrelevant and inapplicable for the following reasons. The law and order forces who go out to implement the curfew order do not pause for a moment and construe the words of the ‘Important Announcement as we do a Court-rooms and then act upoa them. They go by their impression of the directions issued to them. If the ‘Important Announcement’ is the de facto and actual source of their power or authority to act, as we believe it is, it is very widely different from the provisions of Section 188 of the Indian Penal Code which is a legal or legislative provision. Therefore, the real test in a matter of this type is the test of impression which these executive directions produce or are likely to produce on tha public mind and on the mind of the members of the law and order forces. There is no doubt in our mind that the impression which the directions contained in the ‘Important Announcement’ have produced on public mind as well as on the mind of the law and order forces is that a curfew-breaker is liable to be shot at or that there is a probability of a curfew breaker being shot at or that he runs the risk of being shot at. Two daily newspapers circulating in the city have been produced before us. In the issue of ‘Sandesh’ dated 28th January, 1974 the very head-lines under which the news in this behalf was published state that the curfew order shall be strictly enforced and that a curfew-breaker will be shot dead. Similarly, in the issue of Gujarat Samachar’ dated 28th lanuary, 1974 the very head-line in which this utws has been published states that an order of shooting at sight a curfew-breaker has been issued. To the petition the petitioner has annexed an extract from the issue of ‘Indian Express’ dated January 28, 1974. The second paragraph of that extract which is a news report from a staff reporter of that newspaper states as follows.
Any one coming out of the houses during curfew hours is liable to be shot at. Those holding valid curfew passes or identity cards will, however, be allowed to proceed after they are properly identified.
We have, therefore, no doubt in our mind that the executive directions hold out to the public mind a threat that even for a mere breach of the curfew order a curfew-breaker may be shot at. We apply this test because what the law and order forces understand by the executive instructions will produce actual consequences. It is, therefore, a correct test.
12. In Commissioner of Police, Bombay Vs. Gordhandas Bhanji, it has been observed by the Supreme Court in regard to public ordert as follows.
An attempt was made by referring to the Commissioner’s affidavit to show that this was really an order of cancellation made by Mm and that the order was his order and not that of Government. We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public erfect and are intended to affect the actings and conduct of those to whom they arc addressed and must be construed objectively with reference to the language used in the order itself.
The application of the principle laid down by the Supreme Court in this decision leads us to reject the test of intention and the test of literal construction canvassed by the learned Advocate General and to adopt the test of impression which it has created on public mind and on the mind of law and order forces.
13. It is apposite in this connection to note a few observations made by the Supreme Court in Rustom Cavasjee Cooper Vs. Union of India (UOI), :
Under the Constitution, protection against impairment of the guarantee of fundamental rights is determined by the nature of the right, the interest of the aggrieved party and the degree of harm resulting from the State action. Impairment of the right of the individual and not the object of the State in taking the impugned action, is the measure of protection. To concentrate merely on power of the State and the object of the State action in exercising that power is therefore to ignore the true intent of the Constitution. In this Court, there is, however, a body of authority that the nature and extent of the protection of the fundamental rights is measured not by the operation of the State action upon the rights of the individual, but by its object Thereby the constitutional scheme which makes the guaranteed rights subject to the permissible restrictions within their allotted fields fundamental got blurred and gave impetus to a theory that certain Articles of the Constitution enact a code dealing exclusively with matters dealt with therein, and the protection which an aggrieved person may claim is circumscribed by the object of the State action.
Protection of the right to property or personal freedom is most needed when there is an actual threat. To argue that State action which deprives a person permanently or temporarily of his right to property or personal freedom, operates to extinguish the right or the remedy is to reduce the guarantee to an empty platitude. Again to hold that the extent of, and the circumstances in which, the guarantee of protection is available depends upon the object of the State action, is to seriously erode its effectiveness. Examining the problem not merely in semantics but in the broader and more appropriate context of the constitutional scheme which aims at affording the individual the fullest protection of his basic rights and on that foundation to erect a structure of a truly democratic polity, the conclusion, in our judgment, is inevitable that the validity of the State action must be adjudged in the light of its operation upon the rights of the individual and the groups of individuals in all their dimensions.
But it is not the object of the authority making the law impairing the right of a citizen nor the form of action taken that determines the protection he can claim; it is the effect of the law and of the action upon the right which attract the jurisdiction of the Court to grant relief. If this be the true view and we think it is, in determining the impact of State action upon Constituional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of the Legislature nor by the form of the action, but by its direct operation upon the individuals right.
14. The learned Advocate General has next argued that none in the city has been shot at for a mere breach of the curfew order. This argument has been advanced by him in order to bring home to us his proposition that neither the members of the public nor the law and order forces have understood the curfew order in the manner in which it has been analysed before us by the petitioner. In our opinion, this is no argument at all. A person who has committed a mere breach of the curfew order cannot come before us and complain of infliction of greater penalty upon him after he has been shot at and shot dead. Such complaints must necessarily be made before any such untoward incident happens. The argument advanced by the learned Advocate General really asks us to hold the stable after the horse has run away. There is no point in inquiring into the problem after a citizen has lost his life because there is nothing dearer to a man than his life whether he is a prince or a pauper, whether he rolls in riches or whether the public foot-path is his dear home, whether he exercises supreme power on earth or is one in solitary confinement deprived of all his freedom, liberty and reasonable means to sustain his interest in life. To every man in whatever circumstances he may have been placed his life has remained in him the most precious and invaluable possession and it has been so since the birth of humanity. In a human society governed by a democratic constitution and rule of law, as we are governed, the action of the State or Government is always controlled by law in absence of which it is likely to assume at times the despicable dimension of ferocity. Therefore, the right to life and personal liberty has been the greatest prize which the people of India, by accepting, enacting and giving unto them the Constitution, have conferred upon the citizens. It has been conferred by the Constitution which is founded upon the will of people and the Rule of law. Therefore, any threat which the Executive issues to the life of a citizen without the authority of law must be viewed very seriously. Where cases of this type come to the notice of the Judiciary in a country such as ours it is the duty of the Judiciary to cry halt and say: ‘Thus far and no further.”
15. The next question which arises, therefore, fcr our consideration is this: What do we find in the instant case? Neither Section 188 of the Indian Penal Code nor Section 144 of the Code of Criminal Procedure empowers the Executive to threaten the life of a citizen for a mere breach of the curfew order. Such a threat is, therefore, illegal. When the aforesaid sections are read in light of Clause (1) of Article 20 and Article 21 of the Constitution it is unconstitutional also. It, therefore, infringes the fundamental right to life and liberty guaranteed by the Constitution to the citizens of this country. It will be apposite to note in this connection what the Supreme Court has stated in the case of District The District Collector of Hyderabad and Others Vs. Ibrahim and Co., etc., . Mr. Justice Shah, speaking on behalf of the Court, has observed in paragraph 7 of the report that “the rights of the respondents could not be taken away by an executive order in a manner plainly contrary to the provisions of the statutory orders.” It has been further observed by the Supreme Court in that decision that a vital constitutional provision (right to life and personal liberty in the present case) cannot be so construed as to make a mockery of the declared guarantee and the constitutional restrictions on the power of the Legislature. If the power of the State Legislature is restricted in the manner provided by the Constitution, it is impossible to hold that the State by an executive order can do something which it has not done by legislation. What, in our opinion, the State has done by issuing the executive directions to its law and order forces to act upon is what it has not done by enacting a legislation. In our opinion, therefore, the executive directions contained in the ‘Important Announcement’ in so far as they hold out to the members of the public the threat that a curfew-breaker for a mere breach of the curfew order is liable to be shot at is ultra vires their powers and also ultra vires Section 144 of the Code of Criminal Procedure, Section 188 of the Indian Penal Code and Articles 20 and 21 of the Constitution and are, therefore, void and of no effect whatsoever. It is needless to add that different considerations will prevail in cases where there is more than a mere breach of a curfew-order.
16. We have no doubt in our mind that any law and order situation which develops or arises in any area must be dealt with effectively. But we have also no doubt in our mind that it must be dealt with lawfully and constitutionally. This proposition presupposes that the principle of de minimus must be applied to every such situation. In “Riots Prevention and Control” by S. K. Ghosh this is how the proposition has been dealt with.
When applying force, the basic rule is to use only the minimum force necessary in order to control the situation effectively, ill-advised or excessive application of force will not only result in charges of police excesses, but may also prolong the disturbance. The force should be applied in degrees to avoid unnecessary bloodshed. Every policeman on duty should realise that human lives are precious. Order to fire should be contemplated as the last resort when all other means have failed to restore order.
We have quoted this paragraph from the aforesaid book because it is that principle which, in our opinion, Section 130 of the Code of Criminal Procedure incorporates. It provides as follows:
Every such officer shall obey such requisition in such manner as he thinks fit, but in so doing he shall use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly and arresting and detaining such persons.” The principle of use of minimum force in order to deal with a law and order situation will, in our opinion, strike even balance between authority on one hand and liberty on the other hand. The threat of shooting at a mere curfew-breaker violates all the aforesaid principles and legal provisions.
17. In the result, therefore, we declare that the law and order forces of the State of Gujarat have no authority to shoot at anyone for a mere breach of the curfew order and, therefore, the executive directions contained in the ‘Important Announcement’ in so far as they direct the threat of such an action are void and unlawful. We direct the respondents by a writ of mandamus to instruct their law and order forces civil or military to forbear and desist from shooting at anyone for a mere breach of curfew order or from taking any such action. Rule is made absolute to the aforesaid extent.
18. The learned Advocate General applies on behalf of both the respondents orally at the conclusion of this judgment for a certificate of fitness under Article 134(1)(c) in order to enable the respondents to appeal to the Supreme Court against thw decision. All that we have done is to interpret the ‘Important Announcement’ containing executive directions after applying well-settled principles. In our opinion, therefore, this is not a case which is fit for appeal to the Supreme Court. We, therefore, reject the oral application made by the learned Advocate General.
The District Collector of Hyderabad and Others Vs. Ibrahim and Co., etc., AIR 1970 SC 1275 : (1970) 1 SCC 386 : (1970) 3 SCR 498
Rustom Cavasjee Cooper Vs. Union of India (UOI), AIR 1970 SC 564 : (1970) 40 CompCas 325 : (1970) 1 SCC 248 : (1970) 3 SCR 530
Commissioner of Police, Bombay Vs. Gordhandas Bhanji, AIR 1952 SC 16 : (1952) 1 SCR 135
Categories: Criminal administration