1. The petitioner is an Advocate of several years standing and is a member of the High Court Bar. He says in this application of his filed under Art. 226 of the Constitution that the 'Supreme Commander of Defence Forces of the Union of India, Rashtrapathi Bhawan, New Delhi', who is the first respondent and the Cabinet Secretary to the Union Government of India, New Delhi the second respondent, should be directed to show cause why they should not be ordained to invoke 'Martial Law' as a panacea to the present constitutional impasse for the rest of the term of the Lok Sabha to be replaced by general poll.
2. This is an extraordinary application even in these extraordinary times through which our country is passing. The Government at the Centre that came into the office about 28 months ago with the massive mandate of the people, resigned over a week back in the context of a no confidence motion without yet a new Government taking over the reins of the Government. It may be as the petitioner says in his argument that in the annals of modern history of Parliamentary form of Government, this continuance of a care taker Government for such prolonged period is unprecedented. But is the writ plea for the imposition of Martial law on the whole country by the President of India referred to in the petition as the 'Supreme Commander of the Defence Forces' legally tenable? Is the President of India Constitutionally comeptent to impose Martial Law on the country in the present circumstances? Has this Court got power and jurisdiction to issue this writ?
3. The petitioner in his affidavit states that the President of India knows fully well that no single party or group commands majority in the Lok Sabha at present. He further states that the present constitutional impasse is unsurmountable. The care taker Government., the petitioner argues, can only be there for a few days at best and can never be continued constitutionally for a prolonged period of time. The petitioner says that the present constitutional impasse spells national disaster leading to chaos and anarchy and constitutional uncertainty and instability. He therefore says that proclamation of Martial Law for the rest of the term of the present Lok Sabha is the only alternative political solution in the circumstances and accordingly he files this writ petition.
4. This writ petition in our view is totally misconceived. Technically no writ of this Court can go to the President of India whom the petitioner chooses to describe as the 'Supreme Commander of the Armed Forces'. Article 361, Cl. (1) of the Constitution which declares 'The President, or the Governor of Rajpramukh of a State, shall not be answerable to any Court for the exercise and performance of the powers and duties of his Office', operates as a complete bar to the maintainability of this writ petition against the President of India. This writ petition is liable to be dismissed on that short ground alone.
5. Even assuming for the sake of argument that a writ could issue it would still be extraordinary for a Court of law to direct the Head of a Republic to impose Martial Law on the entire country.
6. The term 'Martial Law' is more used as a description of a particular situation affecting the maintenance of law and order by reason of rebellion or Civil commotion than as a description of a particular system of law. In the words of late Desmith
'It is a state of affairs, not a settled body of rules though rules and orders will be promulgated and enforced by Military authorities'.
We have a state of Martial Law when the Civil authorities being unable to cope with widespread disorders or armed conflict authorize or acquiesce in the imposition of military Government upon Civilians for the purpose of restoring order. It follows from the above that the most vital question viz., whether the use of military force against the citizens should or should not be permitted in the name of Martial Law, is dependant upon for its answer on the existence of certain state of affairs. In other words. In ordinary times and under ordinary circumstances, the Courts would not abdicate their responsibility of protecting the citizens and permit the imposition of military Government upon the civilians. The Courts therefore reserve the power to themselves to decide whether such a state of affairs exists or not. This decision will be arrived at by the Courts giving very heavy weight to the opinion of the military authorities. But, finally it is the Courts' duty and responsibility to answer this question. One of the tests adopted to find out whether such a situation justifying imposition of Martial law exists or not is to find out whether the Courts are open and are functioning regularly. Where the Courts are open and are regularly functioning, the Court would normally refuse to recognize the existence of state of affairs warranting the imposition of Martial Law. The illustrative decision in R. (Garde) v. Strickland ( (1921) 2 Ir Rep 313) is a clear authority for this position. The Court ruled in that case.
'A somewhat starling argument was addressed to us by Mr. Sargeant Hanna, that it was not competent for this court to decide whether a state of war existed or not, and that we were bound to accept the statement of Sir Nevil Macready in this respect as binding upon the Court. This contention is absolutely opposed to our judgment in Allen's case (1921) 2 Ir Rep 241) and is destitute of authority, and we desire to state, is the clearest possible language, that this court has the power and the duty to decide whether a state of war exists which justifies the application of Martial law.'
The American Supreme Court in ex parte Milligan (1865-67) 18 L Ed 281) held that even the congress cannot authorize the declaration of Martial Law in a locality when no war is raging in that locality. But under the English Law, which is never applied within England, once the Courts hold that Martial Law is justified by the circumstances, the Courts would decline to review the legality of anything done by the military authorities in the purported discharge of the military responsibilities for that period. This rule of English law meant exclusively for export to foreign nations is not approved by the American Supreme Court in Duncan v. Kahanamoku ((1946) 327 US 304) where Justice Black held that 'Martial Law' while intending to authorize the military to act vigorously for the maintenance of orderly civil Government did not intend to authorize supplanting the Courts by Military Tribunals.
7. Applying the above, no one can say that our conditions are such that would warrant or justify the imposition of Martial Law. The petitioner has not mentioned either in the petition or in the extensive argument, a single incident of rebellion or insurrection in the country because there are none. There is no Presidential declaration imposing either internal or external emergency. Our courts are regularly functioning , we are living in normal and peaceful conditions. In these circumstances, it appears to us to be a total lack of responsibility to speak of the imposition of Martial Law in the country. We therefore reject this application as wholly unwarranted by the aforementioned facts.
8. This petition is faced with a far more formidable legal hurdle, we have noted that the imposition of Martial Law directly results in the withdrawal of courts' effective supervision of the orders of the military authorities operating to the detriment of citizens' life, liberty and property. If the orders of the military tribunals are subjected to the tests of legality ordinarily applied by the law courts then the very purpose of imposition of Martial Law would be defeated. The English Courts therefore discovered the theory that the military courts are not Courts amenable to writ jurisdiction. The authority of the House of Lords in Re Clifford and O' Sullivan, (1921) 2 AC 570 is generally cited in this behalf although this decision was severely criticized by Desmith. Without however going into the correctness of that decision we can say that the whole theory underlying that decision that the orders of the Military Tribunals made during the period of Martial law, cannot be reviewed by ordinary courts is plainly inapplicable to the constitutional Courts in India. When a citizen makes a complaint of infringement of his fundamental rights, say under Art. 21, under what authority of law can a High Court or a Supreme Court refuse to pass upon the merits of that complaint. There are no such words of limitation in Arts. 32 and 226 making those powers unavailable to the citizen during the Martial Law, although Art. 136 contains such words of limitation. Further one of the fundamental rights of the Indian citizen is Art, 32 itself. It follows therefore that so long as Art. 21 is operational the Courts under Art. 32 or 226 cannot refuse to review the legality of the orders of Military Tribunals depriving the citizen of his life and liberty. The technical question whether the Military Tribunals are or are not Courts amenable to writ jurisdiction which haunted the House of Lords in Re Sullivan's case would not bother our Courts in enforcing the fundamental rights to life and liberty against any State action. It is therefore clear that the regime of Martial Law in our country can never claim freedom from the supervisory control of the constitutional Courts like the High Court and the supreme Court, Mr. Seervai's statement to the contrary is clearly wrong and wholly ignores the Indian situation.
9. It follows from the above discussion that so long as Art. 21 is in full force, there is no legal way under our constitution for the imposition of Martial Law. What follows is a constitutional anomaly. While Art, 34 read with Item II (A) of list I of 7th Sch. Clearly contemplates imposition of Martial law , the scheme of fundamental rights and the device of remedial enforcement provided for by the constitution makes the effectiveness of the Martial Law regime legally impossible. This position was first judicially noticed by Justice Bhagawati in A. D. M. Jabalpur v. Shivakant Shukla, : 1976CriLJ945 . The learned Judge observed:
' It is, therefore, obvious that merely declaring Martial Law would not, by itself , deprive the Courts of the power to issue the writ of habeas corpus or other process for the protection of the right of the individual protection of the right of the individual to life and liberty. In our country, unlike England, the right to life and liberty is secured as a fundamental right and the right to move the Supreme Court for enforcement of this right is also guaranteed as a fundamental right........... they could never have intended that the Government should have the power to declare Martial law and yet it should be devoid of the legal effect which must inevitably follow when Martial Law is in force'.
From the above it follows that the Martial Law in our country cannot effectively be imposed so long as right to life and liberty guaranteed by Art. 21 is not taken away. Now, any right guaranteed by Part III of our Constitution cannot be taken away either by the exercise legislative power or executive power both of which are subordinated to the regime of fundamental rights. The only device therefore provided for the taking away of Art. 21 is to be found in Art. 352. Under Art. 352, the president can make declaration of emergency and during the period of emergency , the President can by an order under Art. 359 suspend the right guaranteed by Art. 21 of the constitution. During the last emergency Art 21 was in fact suspended by an order made by the Presidential under Art. 359 and this Presidential order was interpreted by the Supreme court in the aforesaid judgment of A. D. M. Jabalpur V. Shukla (suprs) as denying the right of the citizen to obtain an appropriate writ from the Supreme Court for the protection of his right to life and liberty. One of the amendments effected by the Constitution 44th Amendment Act is to nullify the effect of this judgment by denying to the president the power to suspend the right to life and liberty guaranteed under Arts. 20 and 21 . the resulting position today is the Indian citizen's right to life and liberty remains always within the care and protection of the constitutional courts and can never be given away to the control of military authorities or tribunals. In other words, even during the Martial Law or any emergency any order made by the executive or military affecting a citizen's right for its validity and legality in the ordinary Court. It follows therefore now after the Constitution 44th Amendment Act. No effective Martial Law could be imposed under our Constitution. The acts of indemnity contemplated by Art. 34 to be passed by the parliament would not, in any way detract from the above argument. It is therefore now impossible under our constitution to impose any effective Martial Law. This clear constitution Provision makes the petitioner's untenable plea for the imposition of Martial law even more untenable. In these circumstances, it would be wholly inappropriate for this Court to direct any State authority to impose Martial law.
10. It is also difficult to understand how the imposition of Martial Law could save the country from the constitution impasse and what rational connection is there between the constitution impasse and the Martial Law. The crisis in the life of a democratic nation can only be solved by resorting to democratic methods. The difficulties we are now confronted with are not insurmountable and are plainly capable of being resolved by the democratic processes. The short-cut of appealing to Martial Law is only an act in despair.
11. Even in principle this court would not be justified in entering into the political thicket of deciding what a co-ordinate branch of the Government should do. Such an exercise of power by the judiciary would wholly be in violation of the principle of separation of powers on the basis of which our Constitution is founded.
12. For all the aforesaid reasons, we refuse to grant rule nisi and dismiss this writ petition.
13. Petition dismissed.