J.W.F. Beaumont, C.J.
1. These are seventeen petition or relief in the nature of habeas corpus under Section 491, Criminal Procedure Code, and the common law jurisdiction of the Court.
2. The Advocate-General questions whether the Court has any common law jurisdiction in the matter, but as the provisions of Section 491 are wide enough to cover the relief claimed, that question had not been considered.
3. The features common to all these cases are that each petitioner was charged and convicted at Sholapur between 8-30 P.M. on 12th May and 345 P.M. on 18th May of offences against Martial Law Regulations and each petitioner was sentenced by Military Court or Tribunal acting under those Regulations.
4. Before dealing with facts I will state what I conceive to be the law applicable to the case. According to English constitutional law, where state of war or insurrection amounting to war, exists it is competent for the Grown, in the exercise of its prerogative, to place the country affected under Martial Law. Martial Law in that sense, as has often been said is no law at all: the ordinary Courts ex hypothesi are not functioning except under military protection, and the effect of Martial Law--in the sense in which I am now using the expression--is to substitute for the ordinary law of the land the will of the Military Commander. The liberty, property and even the lives, of the persons in the effected area are placed at the mercy of the military. But, as by the law of England, which applies in India, the Crown is not above the law, the Crown can only declare Martial Law in cases of absolute necessity, and when the necessity ends normal legal conditions are automatically restored. Where Martial Law has been declared it is competent for the Courts--and is indeed the duty of the Courts if called upon--after the restoration of normal conditions to decide whether and to what extent Martial Law was justified. It is obvious that the consideration whether the facts proved constitute a state of necessity, and if so, he w long that necessity lasted, may involve difficulty, and that Martial Law is a somewhat dangerous weapon to use. It is, no doubt, for that reason that in the case of countries not free from the risk of foreign invasion or civil strife, it is found convenient to arm the executive in cases of emergency with a weapon more easy to control and more certain in its operation. In France there is the 'state of seige.' In England there is the Defence of the Realm Act under which during the late war the Crown had power to frame Regulations necessary for the public safety and to authorize the trial and punishment by Courts-martial of persons offending against such Regulations, In India the matter is governed by Section 72, Government of India Act of 1915.
5. As the question in this case, in my judgment, turns upon this section, I will quote it in full.
6. It runs: 'The Governor-General may, in cases of emergency, make and promulgate Ordinances for the peace and good government of British India or any part thereof, and any Ordinance so made shall, for the space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature; but the power of making Ordinances under this section is subject to the like restrictions as the power of the Indian Legislature to make laws; and any Ordinance made under this section is subject to like disallowance as an Act passed by the Indian Legislature, and may be controlled or superseded by any such Act.'
7. It is to be noticed that the section applies 'in cases of emergency.' The question whether the determination as to the existence of an emergency is an administrative act to be decided by the Governor-General alone, or whether it is a question of fact which can be inquired into by the Courts has been discussed by the High Court of Lahore in the case of Des Raj v. Emperor 126 Ind. Cas. 177 : A.I.R. 1930 Lah. 781 : 31 P.L.R. 677 : 31 Cri. L.J. 987 : (1930) Lah. 705 and the learned Judges, who decided that case differed upon the point. In my opinion the judgment of Bhide, J., is correct, and the question, whether an emergency exists or not is one of fact which the Courts can inquire into. But inasmuch as the Governor-General is the person who must, in the first instance, decide whether or not there is an emergency upon which the ought to act, and inasmuch as he may frequently have information which in the public interest he may be unwilling to disclose, and which no Court can compel him to disclose, I think all that the Courts can do is to inquire whether there is evidence upon which the Governor-General may reasonably conclude that an emergency exists. If that question be answered in the affirmative, there is an end of the matter.
8. That being the state of the law I will now come to the facts. It is clear from the affidavit of Mr. Knight, the District Magistrate of Sholapur, whose evidence is not contradicted that on 12th May a very serious state of civil insurrection existed in Sholapur, mobs had attacked the Police on the 6th, and on several occasions the Police had had to open fire, and two unarmed constables had been murdered. The facts disclosed appear to show a deliberate intention on the part of the crowd to attack constituted authority, and the Police were insufficient to deal 'with the situation. Accordingly, Mr. Knight, as the senior executive officer, decided to hand over the control of Sholapur to the military authorities, and this, in my opinion, constituted a state of Martial Law in the strict sense. The Officer Commanding the military on the morning of 13th May, issued certain Martial Law Regulations declaring certain acts to be offences punishable as in the Regulations mentioned. If I thought it necessary definitely to determine whether the condition of affairs on 12th constituted such a state of insurrection amounting to war as to justify handing over the control of Sholapur to the military, I should require some further evidence on the matter. I am not altogether satisfied that it would not have been possible for the civil authorities to have got the situation under control by calling in the military in aid of the civil authority. Mr. Knight in para. 12(4) of his affidavit states that the military orders prevented the use of troops in place of Police, or for patrolling. I do not know to what orders he is referring. It is the duty of every citizen and not least of those who are in the service of Grown to aid in quelling disorder: Phillips v. Eyre (1870) 6 Q.B. 1 : 10 B. & S. 1004 : 40 L.J.Q.B. 28 : 28 L.T. 869 No doubt, the military authorities, in the interest of military discipline, can stipulate as to the way in which the troops are to be employed and the persons from whom they are to take orders but I should certainly not assume in the absence of definite evidence on the point, that the military authorities had refused to assist the civil authority, except on the terms of Martial Law being declared. Martial Law is a serious matter not only for the civil population whose rights under the common law are abrogated, but also for the military, who are called upon to perform acts essentially lawless, under the cloak of Martial Law and whose position may be one of embarrassment if the cloak was obtained by any undue pressure.
9. In my view, he wever, it is not necessary to determine whether the declaration of Martial Law on 12th May was justified, and for this reason. On 15th May the Governor-General at Simla issued an Ordinance under Section 72 of the Act reciting that an emergency had arisen in Sholapur which made it necessary to provide for the proclamation of Martial Law in the town of Sholapur and its vicinity, to empower military authorities to make Regulations and issue orders, to provide for the public safety and the restoration and maintenance of order and to provide for other matters connected with the administration of Martial Law. Then, the Ordinance provides amongst other things in Section 2: 'In any area to which this Ordinance extends Martial Law shall be in force and shall be proclaimed by such means and in such manner as the Local Government may direct; and shall remain in force in any such area until withdrawn by the Governor-General in Council by notification in the Gazette of India....
10. Section 4: 'Subject to the provisions of this Ordinance the Military Commander shall have power to make Regulations to provide for the public safety and the restoration and maintenance of order and as to the powers and duties of military Officers and others in furtherance of that purpose'.
11. Section 7: 'All offences punishable under this Ordinance shall be dealt with by the ordinary Criminal Courts exercising jurisdiction in the administration area, in the ordinary course of law'.
12. Section 10 provides for the validation of Regulations and orders made before the proclamation of Martial Law under Section 2.
13. Section 11 is in the following terms: 'Where, on or after the 12th day of May, 1930, and prior to the proclamation of Martial Law under Section 2 in any administration area, any sentence has been passed by any officer acting in the exercise of military control for the purpose of providing for the public safety or the restoration or maintenance of order in respect of any contravention of a Regulation or order made or issued within the same period by any such officer, such sentence shall be deemed to be as valid as if it were a sentence passed under this Ordinance in respect of an offence against a Regulation or a Martial Law order in force in that area under this Ordinance.'
14. This Ordinance seems to me to have introduced a modified form of Martial Law; the trial of offences was not left to the will of the Military Commander but was to be dealt with by the ordinary Criminal Courts. On the other hand, the state of Martial Law was not to determine with the necessity for it, but was to continue until brought to an end by a notification in the Gazette of India.
15. In accordance with the provision of Section 2 and of an order made by the Government of Bombay on 17th May, 1930, Martial Law proclaimed under Section 2 of the Ordinance at 3-45 p. M. on 18th May, and thereupon the Military Commander issued fresh Regulations substantially identical with those previously in force. Notwithstanding the igenious argument of Mr. Thakor, it seems to me that the effect of Section 11 of the Ordinance is perfectly clear. All sentences passed by any officer acting in the exercise of military control between 13th May and 3-45 P.M. on 18th May are to be deemed as valid as if they were sentences passed under the Ordinance in respect of an offence against a Regulation or a Martial Law order in force under the Ordinance. If that is the effect of the section the question whether Martial Law was properly proclaimed on 12th May does not arise and all that the Courts can do is to give effect to the Ordinance: cf. Tilonko v. Attorney-General of Natal (1907) A.C. 93 : 76 L.J.P.C. 29 : 95 L.T. 853 : 23 T.L.R. 21.
16. It was argued by Mr. Thakor that there was no emergency within the meaning of Section 72 of the Act. In my opinion the state of affairs disclosed in Mr. Knight's affidavit, coupled with the fact that the military had actually been placed in charge of the town of Sholapur on 12th May constituted an emergency on 15th May which clearly justified the Governor-General in taking action.
17. It was further argued that the validating Sections 10, 11 and 12 of the Ordinance were, in any case, ultra vires. It is only necessary to express an opinion as to Section 11. If the sentences already passed by the military authorities were valid, no question of validation: arises, but on the assumption that they were not valid and that the persons sentenced might be released under writs of habeas corpus, it seems to me to have been clearly within the competence of the Governor-General to take the view that such a thing would be detrimental to the peace and good government of British India, and, therefore, to provide against it in the Ordinance.
18. It was further suggested that the Ordinance took effect from the date on which it was issued at Simla, viz., on 15th May and that the sentences by the Military courts after that date were, therefore, invalid. But this construction seems to me quite inconsistent with Sections 2, 10 and 11 of the Ordinance.
19. It was further argued by Mr. Thakor that, inasmuch as Section 11 of the Ordinance does not say that the sentences were to be valid, but only that they were to be deemed to be as valid as if passed under the Ordinance, the effect is to make the sentences subject to the powers of this Court by way of appeal or revision, treating the sentences as though they had been passed by the ordinary Criminal Courts under Section 7. This point is not raised in any of the petitions, but as the point has been argued, I will express my opinion upon it. The ordinary rule is clear that sentences passed by Military Tribunals in time of war are not justiciable: D.F. Marais, Ex parte (1902) A.C. 109 : 71 L.J.P.C. 42 : 85 L.T. 734 : 50 W.R. 273 Attorney-General for the Cape of Good he pe v. Van Reenen (1904) A.C. 144 : 73 L.J.P.C. 13 : 89 L.T. 591 : 20 T.L.R. 90 Section 11 of the Ordinance does not provide that sentences of the military are to be treated for all purposes as if passed under the Ordinance but only that they shall be deemed as valid as if passed under the Ordinance. They are left as the sentences of Military Courts, and cannot, in my opinion, be treated as sentences of the ordinary Criminal Courts subject to the usual rules as to appeal and revision.
20. In my judgment the sentences passed upon all the petitioners were validated by the Ordinance in so far as they may have been originally invalid, and the petitions must, therefore, be dismissed.
Madgavkar, J.
21. These are applications in habeas corpus by the wives or relatives of seventeen persons convicted and sentenced by the military authorities at Sholapur on various dates between 14th and 18th May, 1930, and now under detention in the Bijapur Jail. A rule has been granted in each case, and it is our duty to consider the legality of these sentences.
22. Riots took place in Sholapur on 18th May 1930, following the arrest of Mr. Gandhi on the 6th. The details are stated in the affidavit of the District Magistrate, Mr. Knight. A toddy shop was wrecked, toddy trees were cut down, and when persons were arrested the Police lorries were obstructed on the road and stones thrown. The Police fired, some persons were wounded, and the crowd thereupon revenged itself by attacking an unarmed Police station and murdered an Excise Inspector and two Police Constables. The unarmed Police were disorganised. The Court buildings were burnt. A company of Military arrived on the 8th. No further outrages took place although the District Magistrate was apprehensive of trouble in two other towns, Barsi and Pandharpur. Further military assistance arrived on the 12th and at 8.30 p.M. on 12th May the Military took charge of the town from the civil authorities and proclaimed Martial Law, and on the 13th published certain Regulations of which it is necessary only to refer to Regulations VIII and XI under which most of these convictions purport to fall These two Regulations run as follows:
No. VIII:
So person shall:
(a) Disobey or neglect to obey any order duly made in accordance with Martial Law Ordinance 1930 (hereinafter called the Ordinance) or
(b) obstruct, impede or interfere in any manner with any officer or other person who is carrying out the orders of any authority administering Martial Law, or who is otherwise acting in the execution of his duty under Martial Law, or,
(c) make any false statement which he knows to be false in order to obtain a pass issued under Martial Law.
Maximum punishment five years' rigorous imprisonment and fine.
No. XI:
No person shall display the Congress or so-called national flag or similar emblem, commit any act or be guilty of any omission,
(a) which is to the prejudice of good order or of the public safety, or
(b) which is calculated to mislead, or hamper the movement or imperil the success of His Majesty's Forces, or
(c) which is likely to be interpreted as meaning as that person is performing or pretending to perform any duty or duties normally performed by persons appointed by constituted authority, himself not being appointed for the performance of that duty.
23. Maximum punishment ten years' rigorous imprisonment and fine.'
24. On 15th, Ordinance IV to provide for the proclamation of Martial Law in the town of Sholapur was formally published in Simla in the Gazette of India of 15th May and on 18th May the proclamation was made in Sholapur under Section 2. On 30th June, 1930 the Ordinance was withdrawn.
25. The arguments have covered much larger ground than in the view we have taken was necessary. Shortly, the petitioners' contentions, are, firstly, that we have jurisdiction both under Section 491, Criminal Procedure Code, and under our common law jurisdiction. Secondly, there was no state of war or armed insurrection against the Crown or public necessity to justify the civil authorities in abdicating and handing over charge to the military authorities, but that at the most, it was a case of riots which had ceased after the 8th, so that tranquillity was restored and could have been preserved and the ordinary laws maintained, at the worst with the help of the military. Thirdly, Ordinance IV of 1980 is invalid in law or at least in regard to Section 10, 11 and 12.
26. It was argued for the Crown that we had no common law jurisdiction but were confined to Section 491, Criminal Procedure Code, Secondly, a state of war or insurrection existed from the 12th onwards sufficient to justify super session of the ordinary laws and tribunals, and we would have no power of revision of the sentences of the military authorities under Section 491, Criminal Procedure Code, even if the Ordinance had never been passed. Thirdly, the Ordinance is legal and valid, validates the sentences, and legalizes the detentions in the case of all the petitioners.
27. On the third point I agree with the reasoning and the conclusions of the learned Chief Justice, and have little to add. Unlike legislation in India, the validity of Statutes of Parliament cannot be questioned in the Courts of British India, Section 72, Government of India Act, empowers the Governor-General to pass such Ordinances in cases of emergency. It is argued for the petitioners that the omission of any word is such as 'in the opinion of the Governor-General' after the word 'emergency' suffices to enable us to consider whether there was such an emergency as to justify the passing of the Ordinance, and further to examine also its provisions to see he w far they make 'for the peace and good Government of British India'. Two learned Judges of the Lahore High Court have considered the former question in the case of Des Raj v. Emperor 126 Ind. Cas. 177 : A.I.R. 1930 Lah. 781 : 31 P.L.R. 677 : 31 Cri. L.J. 987 : (1930) Lah. 705 Their difference of opinion seems to me more apparent than real. Section 72, as a whole hardly empowers the Court to consider whether the Governor-General was right or wrong in his conclusion that an emergency existed, much less to examine he w far the provisions of the Ordinance tend to the peace and good government of the country. That responsibility the Statute has laid on the Governor-General and not on the Courts. Unless the Governor-General thought that there was an emergency, and he alone under the section is the judge thereof, he would not promulgate the Ordinance to meet that particular emergency. The Statute does not require that the Legislative Assembly should be sitting as a necessary precedent to the exercise of the power of passing an Ordinance. Therefore, the fact that in some the Act of Indemnity has been passed ii by the Central Legislature and not by way of Ordinances by the Governor-General is immaterial.
28. The argument of Mr. Karandikar that Section 72 is governed by Section 65, and that the present Ordinance, particularly Sections 10 to 12, by reason of interference with the general laws and the liberty of the subject, affect the allegiance to the Crown and are, therefore, invalid, has been rejected by their Lordships of the Privy Council in Bugga v. Emperor 56 Ind. Cas. 440 : A.I.R. 1920 P.C. 23 : 21 Cri. L.J. 456 : 47 I.A. 128 : 1 Lah. 326 : (1920) M.W.N. 326 : 2 U.P.L.R. 50 : 24 C.W.N. 650 : 18 A.L.J. 455 : 22 Bom. L.R. 609 : 39 M.L.J. 1 :12 L.W. 296 : 5 P.W.R. 1920 Cr : 36. T.L.R. 340 In regard to the liberty of the subject it is to be noticed, that apart from Section 72, Bengal Regulation III of 1818, Bombay Regulation XXV of 1827, and Madras Regulation II of 1819, empower the Governor-General to detain without trial any Indian subject for an unlimited period; and I am unable to see that Section 65 violates the liberty of the subject any more than these three Regulations or is more inconsistent with allegiance to the Crown. The argument founded on English constitutional law, even as expounded by so high an authority as Dicey, is, if I may say so without disrespect, if not a petitio principii from its basis fallaaious. He himself observes: (Dicey's Law of the Constitution, 8th Edition page 282): '...whereas under many foreign constitutions the rights of individuals flow, or appear to flow, from the articles of the constitution, in England: the law of the constitution is the result he t the source of the rights of individuals'. It becomes, too, more and more apparent that the means by which the Courts have maintained the law of the constitution have been the strict insistence upon the two principles, first of 'equality before the law,] which negatives exemption from the liabilities of ordinary citizens or from the jurisdiction of the ordinary Courts, and secondly, of 'personal responsibility of wrongdoers'.'
29. India in this respect is different from both. There is no constitution in this sense and no common law. Apart from any common law jurisdiction we have inherited through the Supreme Court it cannot be said that there is any common law in India in the sense of the common law in England. Neither the common law of England nor the Petition of Rights he lds good in India. The liberty of the subject on the one hand and the powers of the executive on the other are widely different in England and in India. The entire argument for the petitioners, therefore in so far as it is based upon the constitutional law or the common law of England is quite inapplicable to the powers of the executive or the liberty of the subject in India, and, if I may say so, appears to cloud and confuse the real issue rather than to assist as in arriving at a correct conclusion in law. We are not concerned with the law as appears to some persons it should be, but only with the law as it is If a rough generalization is needed I should say that the normal powers of the executive in India, as for instance the Regulations above mentioned and the power to promulgate Ordinances, not only equal but they far exceed, the powers with which Parliament had armed the executive during the Great War under the Defence of the Realm Act and the rules there under And so long as these powers exist, we cannot on the analogy of the English constitutional law interfere with the exercise of these powers by the executive. The learned Advocate-General in fact has invited us to he ld that even our decision in Mahomedalli Allabux v. Ismailji Abdulali : AIR1926Bom332 following In re Kochuni Elaya Nair 68 Ind. Cas. 26 : A.I.R. 1922 Mad. 215 : 23 Cri. L.J. 490 : 45 M. 14 : 41 M.L.J. 441 : 14 L.W. 465 : (1921) M.W.N. 708 in respect of our powers under the common law as tohabeas corpus jurisdiction, is wrong, and that we should overrule it and follow the decision in Girindra Nath Banerjee v. Birendra Nath Pal : AIR1927Cal496 . We declined to go into this question as it appeared to us unnecessary in the present applications. In this view it is not necessary to consider the decisions of the English Courts in the matter of habeas corpus from Wolfe Tone's case (1788) 27 St. Tr. 613 to Secretary of State for he me Affairs v. O'Brien (1923) A.C. 603 which show with what jealousy the Courts in England have maintained their habeas corpus jurisdiction and the liberty of the subject.
30. On the second point the learned Advocate-General contended that even irrespective of the validity of the Ordinance and its validating Clause 10 to 12, any executive officer down to the lowest, such as the mamlatdar of the taluka or the Police patil, was competent to abdicate and to abolish the laws and the Courts and to hand over charge to the military, if in his own opinion it was so necessary, and that the sentences of the military under such circumstance were legal and beyond our power to question or to revise. The argument for the Grown was pressed to such an extent that Mr. Thakor for the petitioners understood the learned Advocate-General to deny even our power to go into the question whether a state of necessity existed, though on the last day our power to go into this question was admitted for the Grown. But, even with this theoretical admission, the whole spirit of the argument for the Grown, if it came to anything, was that it was really a matter for the executive authority on the spot to decide on this necessity, and this decision of the man on the spot was practically conclusive. For the petitioners it was argued that the power did not exist to the extent that was contended, was not so wide or so deep, and that such sentences were prima facie subject to our scrutiny as to legality.
31. The law on the point has been laid down by their Lordships of the Privy Council in cases such as Phillips v. Eyre (1870) 6 Q.B. 1 : 10 B. & S. 1004 : 40 L.J.Q.B. 28 : 28 L.T. 869; D.F. Marais Ex parte (1902) A.C. 109 : 71 L.J.P.C. 42 : 85 L.T. 734 : 50 W.R. 273 and Tilonko v. Attorney-General of Natal (1907) A.C. 93 : 76 L.J.P.C. 29 : 95 L.T. 853 : 23 T.L.R. 21 The first was a case of rebellion in Jamaica and was an action for damages by a planter against the Governor of Jamaica in respect of measures taken for the suppression of that rebellion. The second was a case during the Boer War when military operations extended even into Cape Colony rendering it necessary for the General in Command of the Lines of Communication to take measures against the Boers in Cape Town on the lines of communication, who sympathized with the Boers carrying on the war. The third was concerned with a native rising in Natal. All the three cases, he wever, leave no doubt on the following points: Firstly, a state of war and armed rebellion or insurrection must exist and not merely a state of riot which could be put down with the aid of the military and other citizens. Secondly, neither the military nor citizens can refuse or impose conditions on such aid. Thirdly, the necessity must be proved, not merely of re-course to the military, but also of the impossibility of functioning of the ordinary civil laws and the necessity of their abolition for the time being, and the Courts have power to go into the question whether such necessity existed. Fourthly, it is only when the existence of war, whether against foreigners or rebels, and necessity are established, that the jurisdiction of the Courts ceases. Fifthly, the powers exercised by the military commonly but incorrectly known as 'Martial Law' in fact are no law at all and would be, if the fact of necessity for a war is not established, illegal, and therefore, need Acts of Indemnity, if they are not to be questioned.
32. Thus in Elphinstone v. Bedreechund (1830) 1 Knapp. P.C. 316 when the military, after the conquest of Poona in 1818, seized certain treasure in the hands of the treasurer of the last Peshwa, the decree of this Court for damages in a suit by the treasurer against the Resident, Mr. Mountstuart Elphinstone was set aside by the Privy Council on the ground (page 360 Page of (1830) 1 knapp. P.C.--[Ed.]) 'of he stile seizure made, if not flagrante, yet nondum cessante bello.' In D.F. Marais, Ex parte (1902) A.C. 109 : 71 L.J.P.C. 42 : 85 L.T. 734 : 50 W.R. 273 Lord Halsbury, in delivering the judgment of the Privy Council, observed, page 115 Page of (1902) A.C--[Ed.]of: 'The truth is that no doubt has ever existed that where war actually prevails the ordinary Courts have no jurisdiction over the action of the military authorities.
33. 'Doubtless cases of difficulty arise when the fact of a state of rebellion or insurrection is not clearly established.
It may often be a question whether a mere riot, or disturbance neither so serious nor so extensive as really to amount to a war at all, has not been treated with an excessive severity, and whether the intervention of the military force was necessary; but once let the fact of actul war be established, and there is a universal consensus of opinion that the Civil Courts have no jurisdiction to call in question the propriety of the action of military authorities.
34. Again in Tilonko v. Attorney-General of Natal (1907) A.C. 93 : 76 L.J.P.C. 29 : 95 L.T. 853 : 23 T.L.R. 21 Lord Halsbury observed (page 94 Page of (1907) A.C.--[Ed.]): 'It is by this time a very familiar observation that what is called 'Martial Law' is no law at all. The notion that 'Martial Law' exists by reason of the proclamation--an expression which the learned Counsel has more than once used--is an entire delusion. The right to administer force against force in actual war does not depend upon the proclamation of Martial Law at all. But the question whether the war existed or not may, of course, from time be a question of doubt, and if that had been the question in this case, it is possible that some of the observations of the learned Counsel with regard to the period of trial, and the course that has been pursued, might have required consideration. But no such question arises here. An Act of Parliament has been passed in Natal which in terms enacts the legality of the sentences in question, and provides that they shall be deemed to be sentences passed in the regular and ordinary course of criminal jurisdiction. This Board has no power to review these sentences, or to inquire into the propriety or impropriety of passing such an Act of Parliament.'
35. Parliament has by the Government of India Act, 1915 (5 & 6 Geo. V, C. 61) and 1919 (9 and 10 Geo. V, C. 101), under Section 44 placed a restriction on the power even of the Governor-General in Council to declare war or commence he stilities. The learned Advocate General has in his argument referred to the existence of telegraphic and other speedy communications in the present day. But they all render armed assistance, Police and military, more easily available no less than reference to the Governor-General and legalisation by Act or Ordinance before the executive authority on the spot abdicates, rather than after. And I am quite unable to assent to the proposition that notwithstanding Bail way, telegraphic and wireless communications, when Parliament itself has limited the power of the Governor-General in Council any executive officer, even the lowest, if his orders are questioned or riots occur, has the right, because of a certain number of evildoers who break the peace, to declare war against every other person in a large area as a rebel, abolish at one stroke the ordinary laws and tribunals, and place the military in possession free to deal and to punish as they will and restore tranquillity so called through terror. It was sought indeed to justify this proposition on the not unusual ideal basis of the man on the spot.
36. The law, he wever, does not invest the man on the spot with superhuman attributes. Being a man, he may be weak or incapable. He may be out of touch with the people. He may be nervous or even vindictive. He may exaggerate a riot with sticks into an armed insurrection, and disobedience of his own orders into a rebellion. Parliament has not, as far as I know, ordained that the existence of the laws and the working of the Courts should cease on the ipse dixit and at the will of the man on the spot whether District Magistrate, mamlatdar or Police patil; or that excesses and breach of peace, arson, or even murder on the part of a small minority of the population should justify the man on the spot into exaggerating disaffection into rebellion, or riot into an armed insurrection and abdicating himself in favour of the military with the abolition of the ordinary law. Such a state is not the first stage in the suppression of any disorder but the last resort of the civil power. It is not a sword hanging over the heads of an entire population by reason of disorder or disobedience by a minority to the man on the spot. It is not a sign of his strength and duty discharged to the end, but rather a confession of helplessness and complete impotence to suppress breaches of the peace and to maintain laws even with the aid of the military. It is only when practically the entire population of a certain area is so widely and so deeply disaffected and so armed that it is able to enforce its own law, and the King's law and writ do not run, that an armed rebellion or insurrection as distinguished from riot can be said to exist and necessity to arise. In short, the laws of the State exist and the Courts function through the will of Parliament and subordinate Legislatures within the powers delegated to them by Parliament not at the will or during the pleasure of the executive or any officer high or low.
37. It was said, I think, in the argument that the military might not be willing to come to their aid unless the ordinary laws and tribunals were abolished. No section of the Army Act or any other Act has been cited to us to show that the military in India occupy in this respect a position different from that of His Majesty's military forces in any other part of the dominions, and, if so, it is the right of the civil authorities to demand, and the duty of the military to furnish, all the armed aid that may be necessary in the suppression of disorders and breaches of peace, I go even further and must point out that this duty is cast not only upon the military but also upon all loyal citizens and subjects of the Grown actively to aid in the suppression of disorders. It may be that owing to the peculiar circumstances of India, historical and political, the duty of citizens to aid in the maintenance of law and order is not so well realized as it ought to be. But as I nave already said above, we are only concerned with laying down the law as it is. Arid if on the one side the law ordains the last and the extreme necessity, all other means being exhausted as the only circumstance justifying the abolition of the ordinary laws and tribunals; on the other it is not less incumbent upon us to declare in no uncertain voice that the maintenance of lawB and of liberty depends, in the first instance, upon the loyal co-operation of the subject in assisting to keep the peace and to suppress disorder. If authority is needed for this proposition it suffices to refer to Rex v. Pinnay (1832) 5 C. & P. 254 : 3 B. & Ad. 947 : 3 State Trials 11 : 37 R.R. 599 and to the observations of Dicey (op: cit 284): 'The Crown has the right to put down breaches of the peace. Every subject, whether a civilian or a soldier, whether what is called a 'servant of the Government' such for example as a Policeman, or a person in no way connected with the administration not, only has the right, but is, as a matter of legal duty, bound to assist in putting down breaches of the peace. No doubt, Policemen or soldiers are the persons who, as being specially employed in the maintenance of order, are most generally called upon to suppress a riot, but it is clear that all loyal subjects are bound to take their part in the suppression of riots.'
38. This duty is not limited by the terms of Sections 127 to 132, Criminal Procedure Code, in regard to unlawful assemblies but extends far beyond.
39. On the question of indemnity, the argument for the Crown, if I understood the learned Advocate-General right, was that so long as the executive and the military acted bona fide, the actions of the military were not subject to the ordinary laws of tribunals and needed no validating Ordinance. This position is, in my opinion, entirely untenable. The justification for the acts of the military lies not merely in their bona fides but in the existence of necessity, i.e., in the proof of such a state of war, insurrection or armed resistance as to justify the cessation of the ordinary law and its replacement by military force pure and simple. The question of necessity or whether the proved facts amount to necessity is a question of fact for the Courts. If necessity is proved, as in the eases referred to above, then the acts of the military are not justiciable by the ordinary Courts. Unless it is proved, they are so justiciable and 'the Courts have, at any rate in time of peace, jurisdiction in respect of acts which have been done by military authorities and others during a state of war.'
40. Dicey, (op: cit: page 545): 'The protection of military men and others against actions or prosecutions in respect of unlawful acts done during a time of war, bona fide, and in the service of the country, is an Act of Indemnity (page 547).
An Act of Indemnity is a Statute the object of which is to make legal transactions which, when they took place, were illegal, or to free individuals to whom the Statute applies from liability for having broken the law (page 547).
This doctrine of immunity is, he wever, open to the very strongest objections (page 551).
41. Therefore, the second contention for the Crown that this Court has no power to revise the sentences of the military Courts even if the Ordinance had never been passed, is, in my opinion, incorrect. On the contrary, it is for the Crown to prove the necessity and the legality of any sentences, civil or military, if not under the ordinary law, then under any Act of Indemnity such as the Ordinance in the present case. On the question of necessity in the present case, the only material, strictly speaking, is the affidavit of the District Magistrate, Mr. Knight. The petitioners have put in the evidence of the three Police Officers in respect of the Sholapur riots in Criminal Application No. 305 of 1930 in this Court. One of the petitioners in Criminal Application No. 312 of 1930, who has applied for a rule on behalf of her husband, the editor of a local paper, has put in a translation of an article from that paper of 10th May, which alleges that after the murders of the constables at the Police Station and the burning of the Court, building, the armed Police patrolled the city from 1-30 P.M. to 7-30 P.M. on the 8th, killed twenty-five innocent persons and injured fifty others. The article gives twenty-two names. But the facts alleged in this article are not sworn upon affidavit and, he wever proper a subject of inquiry by Government, they cannot be treated as evidence which we can consider in this Case. Nor can I accept the content in for the petitioners that having omitted to put in the necessary affidavits, this Court should now remand the question of necessity for an inquiry under Rule 46, Appellate Side Rules. Such a procedure, for obvious reasons, is, at this stage, inconvenient and undesirable.
42. Confining myself, therefore, to the affidavit of the District Magistrate and in the light of the law as formulated above, my merits or demerits of prohibition, the wrecking of the liquor shop, the cutting down of toddy trees, resistance to arrests were indefensible, and the obstruction to the Magistrates and the Police are facts which entirely justified firing on the first mob. The murder of the Excise Inspector and of the unfortunate constable and the burning of the Court he use were acts for which no condemnation could be too strong. It was not merely the right but also the plain duty of the Police to suppress the disorder and to arrest the guilty. But, on the other hand, there is equally the fact that the Arms Act was in force, the mob had no arms but only sticks and stones, the attack on the Police post and the Court he use must from the nature of things have been the work of the scum and not of persons with a stake in the town, and after the 8th, serious disorder ceased and a company of the military arrived. The single allegation that an order of the Magistrate under Section 144, Criminal Procedure Code, whatever it was, was not obeyed, does not, in my opinion, suffice to establish the plea of necessity, which the law demands. Sholapur is on the main line with three cantonments within easy distance by rail, and troops were available from Poona, Ahmednagar and Secunderabad. While I am satisfied that the unarmed Police had become disorganized, and an addition to the armed force at the disposal of the executive was necessary, the point on which I am not satisfied is why, as in the case of similar riots in Ahmedabad in 1921, military aid alone did not suffice, without the handing over of charge by the civil authority to the military, which in law makes all the difference possible.
43. On the question of jurisdiction, as I have already stated, but for the Ordinance we would have had, in my opinion, jurisdiction to examine the legality of these sentences and to order the release of the petitioners, unless the convictions and sentences were proved to be legal. Into the details of these sentences I do not propose to go in view of the conclusions which we have reached on the third point. A large majority of them appear to be for running away in the attempt to arrest or refusing to come quietly In Application No. 312 of la30, referred to above from Rajwade, the sentence is passed for circulating his newspaper with the articles mentioned. The sentences vary from one to two years' rigorous imprisonment with fines of Rs. 500 and above. In the case of Rajwade the sentence is of seven, years and a fine of Rs. 10,000.
44. The third point on which our decision really rests has been dealt with in detail in the judgment of the learned Chief Justice. I have already held that the Ordinance is within the power of the Governor General, and that it is not open to us to examine its provisions and whether, if at all, they go beyond the necessities of peace and good Government, within the meaning of Section 72, Government of India Act. The Ordinance, expressly and read as a whole, is designed, in my opinion, firstly, to proclaim Martial Law under Section 2, secondly, to validate the Regulations and orders made after the 12th and before the Ordinance came into force under Section 10; thirdly, to validate the sentences under Martial Law passed by the military between these dates and prior to the proclamation of Martial Law under Section 11; fourthly, to protect the military against legal proceedings by reason of their acts between these dates under Section 12; and lastly, under Section 7 to give jurisdiction to the ordinary Criminal Courts alone to try subsequent offences. All these sections are, in my opinion, valid, and the sentences passed did not necessarily terminate with the cessation of the Ordinance on 30th June, 1930, or the detentions under them become illegal thereafter. I am unable to accede to the contention for the petitioners that the Ordinance only validated the sentences passed by the Officer-in-Command, Colonel Paige, and not by other officers or that because these sentences under Section 11 'shall be deemed to be as valid as if they were sentences passed under this Ordinance,' therefore, they become sentences passed under Section 7 'dealt with by the ordinary Criminal Courts' subject to appeals or revisions by this Court. On the question as to when the Ordinance came into force, the petitioners contend that it came into effect on the 15th, the date of the publication in Simla, while it is argued for the Crown that it came into effect on the 18th, passed after its proclamation. The Ordinance in express terms is: 'To provide for the proclamation of Martial Law in the town of Sholapur and its vicinity.' These words are repeated in the preamble and an express provision is made in Section 2 for such proclamation. Under the General Clauses Act (X of 1897), Section 5(1): 'Where any Act of the Governor-General in Council is not expressed to come into operation on a particular day, then it shall come into operation on the day on which it receives the assent of the Governor-General.'
45. If the Ordinance were not passed 'to provide for the proclamation,' it might have been a tenable contention that it came into effect from the date of its publication on the 15th. But providing as it does for this proclamation and being inter alia expressly passed for the purpose, the argument for the Crown is, in my opinion, right that the Ordinance came into effect not from the date of its publication but from the date of the proclamation on the 18th, so that, as all the sentences in question are after the 12th and before 3-30 P.M. on the 18th, they are all validated by the Ordinance and are not subject to our revision.
46. In the result the petitioners succeed on the first two points but fail on the last. I agree with the learned Chief Justice that the present applications fail and must be dismissed and the Rules discharged.
Black well, J.
47. In showing cause against the Rules obtained by the seventeen applicants, all of whom had been convicted and sentenced by a Military Tribunal at Sholapur between 8 30 P.M. on 12th May find 3-45 P.M. on 18th May 1930, for offences against Martial Law Regulations promulgated by the military authorities, the Advocate-General has advanced two main arguments: (1) that where a state of war exists the Civil Courts have no jurisdiction over the action of the military authorities, and consequently cannot question sentences passed by Military Tribunals; and (2) that in any event, whether a state of war existed or not which justified the civil authorities in handing over control to the military, the sentences passed were validated by the Ordinance made and promulgated by the Viceroy and Governor-General on 15th May, 1930.
48. It is clear law that the civil authorities are not entitled to abrogate their duties and to hand over control to the military except in cases of necessity. The reason for this is plain, inasmuch as Martial Law is no law at all, see the remarks of Lord Halsbury in Tilonko v. Attorney-General of Natal (1907) A.C. 93 : 76 L.J.P.C. 29 : 95 L.T. 853 : 23 T.L.R. 21 The existence of Martial Law consequently places all citizens in the area to which it extends under the unfettered control of the military authorities, whose acts are not justiciable by the Civil Courts: see D.F. Marais, Ex parte Marais, Ex parte (1902) A.C. 109 : 71 L.J.P.C. 42 : 85 L.T. 734 : 50 W.R. 273 A declaration of Martial Law is thus a very serious matter affecting as it does the ordinary rights of citizens. It is, therefore, plainly the duty of the civil authorities, assisted by all loyal subjects, whether civil or military: see Phillips v. Eyre (1870) 6 Q.B. 1 : 10 B. & S. 1004 : 40 L.J.Q.B. 28 : 28 L.T. 869 Marais Ex parte (1902) A.C. 109 : 71 L.J.P.C. 42 : 85 L.T. 734 : 50 W.R. 273 to carry on the civil administration, and not to hand over control to the military, unless the necessity of the case demands it. As was pointed out by Lord Halsbury in D.F. Marais Ex parte (1902) A.C. 109 : 71 L.J.P.C. 42 : 85 L.T. 734 : 50 W.R. 273 it may often be a difficult question whether the circumstances were in a particular case so serious as to justify the civil authorities in handing over control to the military. It is undoubtedly the duty of the Courts, if the necessity is challenged, to inquire into the matter, and if the necessity is not established, then any persons who have committed acts not sanctioned by the ordinary law are liable to be attacked in the Courts at the instance of those who have suffered from their lawless acts. Hence, upon a due consideration of the circumstances, Acts of Indemnity have often been passed by the Legislature adopting and ratifying the acts done and enacting that they shall be 'made and declared lawful and confirmed.'
49. The facts detailed in the affidavit of Mr. H.F. Knight, the District Magistrate of Sholapur, dated 16th August, 1930, which are relied on as establishing the necessity for handing over control to the military undoubtedly prove that a very serious state of affairs existed in that city. They have not been contradicted by any evidence adduced on behalf of the applicants and the existence of the necessity, if necessity there was has not been challenge in any of the petitions which are before us.
50. Referring, as shortly as possible, to the more important facts deposed to, it appears that on 7th May a large crowd threw stones at the District Superintendent of Police and a small body of armed Police and liquor and toddy shops were wrecked.
51. On 8th May toddy booths were wrecked and trees cut. Then six or eight people having been arrested, the District Magistrate and the Police found the road blocked by a large crowd having Congress flags, there being a lorry full of men armed with lathis coming up. The District Magistrate and the Police were continually stoned from the road and the fields on either side. Then notwithstanding that two rounds had been fired, the crowd, then estimated to be about ten thousand strong, blocked the road with large stones and concrete, water pipes and continued to throw stones heavily from three sides from undercover of he uses. The crowd was again fired upon and dispersed but nevertheless again cut through under cover of the he uses and attacked an Excise Sub-Inspector. In the city itself the Police were attacked, the partially burned body of a Head Constable was discovered in a fire burning in the road in front of Mangalwar Police Chowki and a second Policeman was so severely wounded that he died. In another part of the city a gutted Police Chowki was found with a fire in front of it, and one of the Court buildings had been set on fire. Further during the afternoon of 8th May, the Police while on patrol were attacked in several places.
52. Next it appears that, despite the presence of the military of whom one company had arrived on 8th May, the behaviour of the crowds was such that they were prepared to defy the orders made on 9th May under Section 144, Criminal Procedure Code, Indeed a crowd estimated at 2,000 actually surrounded a military lorry that broke down, and refused to disperse at the orders of a Magistrate.
53. On 11th May a Police Station within 200 yards of a military post was looted and its contents burnt on the road. Further, a meeting was held outside Congress he use at which threats were made to kill any Policeman, and a Magistrate on duty for an inquest was threatened by the crowd.
54. The above are the events deposed to by Mr. Knight. They are uncontradicted. The extreme seriousness of the situation is proved not only by these events, but by the fact that after the attacks made on the Police on 8th May, Mr. Knight considered it necessary to withdraw the Police from the city, and also from the fact that the unarmed Police were disorganized and that many of them did not report for duty for days. There were only about 60 armed Police available to deal with a disturbed city of 1,20,000 inhabitants and four other places in the District and most of these had been on duty from the morning of 7th May, Mr. Knight having been informed by the Deputy Inspector-General of Police that no Police assistance could be sent from other Districts It was in these circumstances that Mr. Knight considering that it was not possible to carry on the normal civil administration as stated by him in his affidavit, reported the facts to the Local Government, and with their approval handed over charge of the situation to the military authorities at 8-30 P.M. on 12th May.
55. Having regard to the Ordinance dated 15th May, which in my opinion validated the sentences with which we are concerned, it is not I think necessary for us to decide whether the circumstances were such as to justify the civil authorities in handing over control to the military. If it had been necessary to decide this question, I should myself have had no hesitation in he lding that the civil authorities were justified. In my opinion the facts desposed to by Mr. Knight prove, not mere sporadic riots and disturbances such as might be coped with by the civil authorities, if necessary with the assistance of the military, but an organized rebellion against established authority, and a determination on the part of those joining in it to reduce the civil administration to impotence. This in my judgment, amounts to waging war against the State. In such circumstances if the civil authorities attempted to carry on the civil administration even with the help of the military, I think that the damage to life and property might be very greatly increased. In my opinion, they are not bound to take such a risk, but are entitled to meet war with war, and to hand over control to the military authorities.
56. Turning now to the Ordinance, the first question to be determined is whether it was validly made in exercise of the powers conferred upon the Governor-General by Section 72, Government of India Act. That section, subject to certain restrictions which do not in this matter arise, authorizes the Governor-General 'in case of emergency' to make Ordinances for the peace and good Government of British India or any part thereof and any Ordinance so made is for a period of not more than six months to have the force of an Act passed by the Legislature.
57. It was contended by Mr. Thakor for the applicants that no case of emergency had been established. I do not agree with this contention. The reasons which moved the Governor-General are set out at the end of the Ordinance. On the materials placed before him, the Governor-General was in my opinion clearly entitled to conclude that an emergency had arisen. I, therefore, think it unnecessary to decide whether the Court is empowered to enquire into the question whether an emergency existed, or whether that is a matter solely for the determination of the Governor-General. There has been a difference of judicial opinion upon this question in the Lahore High Court: see Des Raj v. Emperor 126 Ind. Cas. 177 : A.I.R. 1930 Lah. 781 : 31 P.L.R. 677 : 31 Cri. L.J. 987 : (1930) Lah. 705 I incline strongly to the view that the Court is entitled to inquire into the matter. Assuming that it is, the Court is not, in my opinion, entitled to inquire into the question whether the facts placed before the Governor-General were accurate or inaccurate. The Governor-General must obviously act promptly, and may sometimes have to make up his mind on information which may afterwards be found to be erroneous. In considering whether there was a case of. emergency within the meaning of Section 72, the Court, in my opinion, Is only entitled to require to be satisfied that facts were placed before the Governor-General which if true might reasonably lead him to conclude that an emergency existed.
58. It was next contended by Mr. Thakor that the Ordinance came into force on 15th May, and that having regard to Section 7, which provides that all offences punishable under the Ordinance should be dealt with by the ordinary Criminal Courts, any sentences passed by the Military Tribunals after that date were illegal. This argument appears to me to overlook the fact that the Ordinance itself states that it is an Ordinance so provide for the proclamation of Martial Law in the town of Sholapur and its vicinity, and to empower military authorities to make Regulations for administering it. Until Regulations were made in accordance with Section 4, the occasion for applying Section 7 would not have arisen. Accordingly in order to provide for the period intervening between 12th May and the proclamation of Martial Law, which was required to be made under Section 2, Section 11 provided for the validation of Martial Law sentences prior to proclamation.
59. On the construction of Section 11, Mr. Thakor argued that any sentence, validated by the section must have been passed by the particular officer who had made or issued the order which had been contravened. On the wording of the section this argument appears to me to be untenable. Further, in reference to the concluding words of the section, namely: 'such sentence shall be deemed to be as valid as if it were a sentence passed under this Ordinance in respect of an offence against a Regulation or a Martial Law order in force in that area under this Ordinance,' he contended that the sentences with which we are concerned must be treated as if they had been passed by the ordinary Criminal Courts, and were, therefore, open to appeal or revision. The petitions do not raise this contention, and strictly speaking, the question involved in it is not before us. Nevertheless, I think it right to say that, in my opinion, the contention is unsound. The sentences which were passed by Military Tribunals are not by Section 11 to be deemed to be sentences passed by the ordinary Civil Courts. They are sentences which are to be deemed to be as valid as if they had been passed by the ordinary Civil Courts. They still remain sentences passed by Military Tribunals.
60. Mr. Thakor also argued that as the Ordinances ceased to be in force after 30th June, 1920, the sentences passed by Military Tribunals ceased to be operative as from 1st July. Having regard to the prov. 2, Section 2 of the Ordinance, this argument appears to me to be untenable. In my opinion the sentences in question were validated by the Ordinance and these Rules should be discharged.