# NAWABKHAN ABBASKHAN v. THE STATE OF GUJARAT

- **Citation:** [1974] 3 S.C.R. 427
- **Court:** Supreme Court of India
- **Decided:** 1974-02-19
- **Case number:** Criminal Appeal No. 673 of 1968
- **Bench:** V. R. Krishna Iyer, R. S. Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nawabkhan-abbaskhan-v-the-state-of-gujarat-6075
- **Pages:** 13

## Headnote

1127
Do1nbay Police Act, 1951, Sections 56 and 142-Prosecution for contravention of exten11ne11t order-Pending trial High Court quashing the order u11der
Art. 226-EQect of quashing-If void ab ini~io-Natural justice.
The appellant was prosecuted under s. 142 of the Bon1bay Police Act, 1951
on contravention of an cxternment order issued under s. 56 of that Act. During
the pendcncy of the criminal trial, the High Court, in a petition under Art. 226
of the Constitution, quashed the order of extemment on the ground that
no
opportunity to show cause was &iven against allegations relating to areas wh:!;· ·
the acts were alleged to have been committed. In criminal trial, the trial court
acquitted the appellant. On appeal by the St~te the High C6urt convicted the
appellant. It held that the accused bad re-entered the forbidden area during tht
currency of the order. The High Court was of the view that the quashing of thL
order by th: court did not render the order of externment void ad initio but it
only invalidattd the order with effect from the date of the isstie of the writ
quashing the order.
On the question whether the externment order having been quashed by the
High Court during the pendency of the criminal trial the order had become void
ob. initio and there being no quit order there was no offence.
Allowing the appeal,
HELD : that an order which infringed a fundamental
freedom passed in
violation of the audi alteram partem rule was a nullity.
A determination i<i no
determination if it is contrary to the constitutional mandate of Art. 19.
On this
footing the externment order was of no· effect and its violation was no offence.
Any order made without hearing the party affected is void and ineffectual
to
bind parties from the beginning if the injury is to a constitutionally guaranteed
right May be-that in ordinary legislation or at common Jaw a Tribunal having
)Urisdictidn and failing to bear the partie.11 may commit an illegality which may
render the proceedings voidable when a direct attack was made thereon by way
of appeal, revision or review. but nullity is the consequence of unconstitutionality
and so the order of an administrative authority charged with the duty of complv·
tog with natural justice in the exercise of power before restricting the fundamental right of a citizen is void ab initio and of no legal efficacy.
The duty to hear
menacles his jurisdictional exercise and any act is, in its inception, void except
when performed in accnrdancc with the conditions laid down in regard to
hearinr. [432 G. 436 FJ
An ~rder which is vi;>id ma.y b~ di,rec_tty and collateral!"." challenged in legal
proceed1n~. An order ts null and void tf the statute cloth1ng the admini<itrati\"c
tribunal with nower conditions it with the obligation to hear expressly or by
implication.
Beyond doubt an order which infringes a
fu~damental freedom
passed in violation of the audi alterom parte1n rule is a nullity.
When n competen~ ~ourt hol~s such _official act or order invalid, or sets it aside, it operates fro1n
nativity, that 1s, the impugned act or order was never valid.
[439 F]
In the present. case a fuJ!d~mentaJ .right of the petitioner had b:en encroached
uoon by the Pohce Co~m1ss1oner without due hearing. The
Court quashed
that orde~. The legal result !s that the accused .was never guilty of fl'·Jutiog .1n
order which never legally existed.
[439 D-E]
lT~e Cou_rt did not. express its final opinion on the many wideranging prob·
lems tn public law of 111ega1 orders and violation the~eof by citi,z~n·~.J
[439 E]
428
SUPREME COURT REPORTS
[ 1974 J 3 S.C.R.

## Text

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NAWABKHAN ABBASKHAN
v.
THE STATE OF GUJARAT
February 19, 1974
[V. R. KRISHNA IYER AND R. S. SARKARIA, ]J.j
1127
Do1nbay Police Act, 1951, Sections 56 and 142-Prosecution for contravention of exten11ne11t order-Pending trial High Court quashing the order u11der
Art. 226-EQect of quashing-If void ab ini~io-Natural justice.
The appellant was prosecuted under s. 142 of the Bon1bay Police Act, 1951
on contravention of an cxternment order issued under s. 56 of that Act. During
the pendcncy of the criminal trial, the High Court, in a petition under Art. 226
of the Constitution, quashed the order of extemment on the ground that
no
opportunity to show cause was &iven against allegations relating to areas wh:!;· ·
the acts were alleged to have been committed. In criminal trial, the trial court
acquitted the appellant. On appeal by the St~te the High C6urt convicted the
appellant. It held that the accused bad re-entered the forbidden area during tht
currency of the order. The High Court was of the view that the quashing of thL
order by th: court did not render the order of externment void ad initio but it
only invalidattd the order with effect from the date of the isstie of the writ
quashing the order.
On the question whether the externment order having been quashed by the
High Court during the pendency of the criminal trial the order had become void
ob. initio and there being no quit order there was no offence.
Allowing the appeal,
HELD : that an order which infringed a fundamental
freedom passed in
violation of the audi alteram partem rule was a nullity.
A determination i<i no
determination if it is contrary to the constitutional mandate of Art. 19.
On this
footing the externment order was of no· effect and its violation was no offence.
Any order made without hearing the party affected is void and ineffectual
to
bind parties from the beginning if the injury is to a constitutionally guaranteed
right May be-that in ordinary legislation or at common Jaw a Tribunal having
)Urisdictidn and failing to bear the partie.11 may commit an illegality which may
render the proceedings voidable when a direct attack was made thereon by way
of appeal, revision or review. but nullity is the consequence of unconstitutionality
and so the order of an administrative authority charged with the duty of complv·
tog with natural justice in the exercise of power before restricting the fundamental right of a citizen is void ab initio and of no legal efficacy.
The duty to hear
menacles his jurisdictional exercise and any act is, in its inception, void except
when performed in accnrdancc with the conditions laid down in regard to
hearinr. [432 G. 436 FJ
An ~rder which is vi;>id ma.y b~ di,rec_tty and collateral!"." challenged in legal
proceed1n~. An order ts null and void tf the statute cloth1ng the admini<itrati\"c
tribunal with nower conditions it with the obligation to hear expressly or by
implication.
Beyond doubt an order which infringes a
fu~damental freedom
passed in violation of the audi alterom parte1n rule is a nullity.
When n competen~ ~ourt hol~s such _official act or order invalid, or sets it aside, it operates fro1n
nativity, that 1s, the impugned act or order was never valid.
[439 F]
In the present. case a fuJ!d~mentaJ .right of the petitioner had b:en encroached
uoon by the Pohce Co~m1ss1oner without due hearing. The
Court quashed
that orde~. The legal result !s that the accused .was never guilty of fl'·Jutiog .1n
order which never legally existed.
[439 D-E]
lT~e Cou_rt did not. express its final opinion on the many wideranging prob·
lems tn public law of 111ega1 orders and violation the~eof by citi,z~n·~.J
[439 E]
428
SUPREME COURT REPORTS
[ 1974 J 3 S.C.R.
CRIMINAL APPELLATE JURISDICTION :
Criminal Appeal No. 83
A
of J 970.
From the judgment and order dated MarGh 5, 1970 of the Gujarat
High Court at Ahmedabad in Criminal Appeal No. 673 of 1968.
S. K. Dholakia, for the appellant.
G. A. Shah and M. N. Shroff, for the respondent.
The Judgment of the Court was delivered by
KRISHNA (YER, J. The appeal before us raises a thorny issue of
smr.e importance which may be epigramaticatly expressed as when
has the citizen the discretion to disobey an order ? When is a determination not a determination? This riddle has to be solved in the foggy
legal light of conflicting decisions and academic opinions, Indian and
Anglo-American. To appreciate the contention urged in the case a few
facts must be narrated.
·
Section 56 of the Bombay Police Act, 1951, (the Act, for short),
empowers a Police Commissioner to extern any undesirable person on
grounds set out therein and the petitioner fell victim to such a direction
issued on September 5, 1967. On contravention of that order he was
prosecuted under Sec. 142 of the Act but was acquitted by the trial
Court. The State appealed with success, for the High Court held that
the accused had re-entered the forbidden area during the currency of
the order. What is crucial for this case is ·whether the externment
order having been quashed 1'y the High Court under Art. 226 of the
Constitution 011 July 16, 1968-during the pendency of the criminal
trial-it had become void ab initio and there being thus no quit order
in Jaw there was no offence. The learned Judge rejected this effect of
the w.rit issued under Art. 226 and convicted the accused. His reasonit1g, invigorated by surgical imagery, flowed thus :
""Now the contraveption took place on September
17,
1967 whereas the externment order in question has been
quashed about one year thereafter on July 16, 1968.
The
question, therefore, is : can a person against whom an order
of externment under section 56 of the Bombay Police Act has
been issued disobey the said order and contravene the directions contained therein with impunity if subsequently the
order is quashed ? If the argument of the learned counsel
were to be accepted, though the externment order held the
field and had not been quashed at the material time, no offence
would be committed io view of the subsequent quashing of
the order. In other words, though the order had not been
declared invalid at the material time a contravention thereof
would not constitute an offence. A distinction in my opinion
has to be drawn be!ween ·an order which is ab initio void
and an order whkh is subsequently quashed on account of
some technical defect or irregularity. If the order was ab
i11itio void if it was a nu)lity frqm the inception, if it was a
still born chil<f, the matter would have stood on a different
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footing. In the present case the child was alive and kicki,ng
and apparenlly healthy. It bas subse'!Jlently died during the
course of an exploratory operation. The order has been held
to be invalid and is quashed on the ground that it cannot be
sustained on account of some defect, infirmity or irregularity
which has been subsequently discovered. It cannoi be said
that the order was void ab initio.
The order of the High
Court passed on July 16, 1968 does not render the order
nullity from its very inception. It is not retroactive. It
does not render the order of e.xternment •·no11 est". What it
does is to invalidate it with effect from the date of the issue
of the writ quashing the. said order. If the argument of the
learned counsel were to be sustained it would result in an
anomalous situation. The externment order Ca)l be violat~d
with impunity if a subsequent writ petition is allowed and the
order is quashed. The contravention, however, would .consti·
tute an· offence if the writ petition is rejected. It is not possi·
ble to take a view which would result in such an anomalous
situation. There is no principle in upholding the respondent's
claim that he has a right to violate an order passed by an
authority having jurisdiction to pass it, if subsequently he can
persuade the court that there was an in-built lacuna or latent
defect in the said order. In other words he claims to have
the right to judge for himself whether the order is legal or not
and in anticipation of the court upholding his contention, the
right to violate it with impunity. Be it realised that these
powers are vested into the administration to enable it to take
prophylactic action to protect the society from imminent dan·
gers. These powers cannot be allowed to be robbed of their
potency at the sweet will of the person proceeded against in
anticipation of a subsequent favourable verdict of the court."
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There are sonie untoward ootentialities and legal anomalies visualised
by the learned Judge which "lend assurance to the juridical coneept that
an order or act quashed by a court is valid until judicially set aside or
declared void. We have to examine the validity of this temporary
validity imputed to an otherwise bad order. When does a bad order
become bad?
Violation of natural justice is the vice of the order which was
defied by the accused. We will first set out the relevant provision in
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the Act and the ground of decision in the writ petition, shorn of unnecessary portions. Section 56 reads :-
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"Whenever it shall appear in Greater Bombay "lid other
areas for which a Commissioner has been appointed under
section 7 to the Commissioner and in other area or areas to
which the State Government may, by notification ill tr.~ Ofil.·
cial Gaz.ette, extend, the provisions of this section', to the Dis·
trict Magistrate. or the Sub-Divisional Magistrate special!y
empowered by the State Government in that behalf (a) that
the movements or acts of any person are causing or calculated
L9;4 Sup. Cl/74
430
SUPREME COURT REPORTS
[ 1974 l 3 S.C.R.
to cause alarm, danger or harm to person or property, or
(b) that there are reasonable grounds for believing that such
person is engaged or is about to be engaged in the commission
ot an ortence 1n".olving force or violence or an offence punish ..
able under Chapter XII, XVI or XVII .of the Indian Penal
Code, or in the abetment of any such offence, and when in
the opinion of such officer witnesses are not willing to come
forward to give evidence in public against such person by
reason of apprehension on their part as regards the safety of
their person or property, or (c) that an outbreak of epidemic
disease is likely to result from the continued residence of an
immigrant t~e said officer may, by an order in writing duly
served on him or by beat of drum or otherwise as he thinks
fil, direct such person or immigrant so to conduct himself
as shall seem necessary in order to prevent violence and
ala!'ln or the outbreak or spread of such disease or to remove
himself outside the area within the local limits of his jurisdiction (or such area ancl any district or districts, or any part
thereof, contiguous thereto) by such route and within such
time as the said officer may prescribe and not to enter or
return to the said area (or the area and such contiguous dis ..
tricts, or part thereof, as the case may be), from \vhich he was
directed to remove himself."
The vital freedom guaranteed under Art. 19 of the Constitution
becomes a fleeting fragrance if a police or magisterial officer can \\'hisk
you a\vay by' a n1orc executive-than-judicial fiat.
'This strtJnge power,
whose constitutionality is not challenged before us, is hopefully fettered
in its exercise by Section 59 which runs thus :-
"(])Before an order under section 55, 56 or 57 is passed
against any person the officer acting under any of the said
sections or any officer above the rank of an Inspector authorised by that officer shalt inform the person in writing o[ the
general n~ture of the material allegations against him and give
him a reasonable opportunity of tendering an exolanation regarding them. If such person makes an application for the
examination of any witness produced by him, the authority
or officer concerned shall grant such npplication; and examine
such witness, unless for reasons to be recorded in writing, the
authority or officer is of opinion that such application iS made
for the purpose of vexation or delay. Any written statement
put in by such person sha!] be filed with the record of the
case. Such person shall be entitled to appear before the officer proceeding under this section by an advocate- or attorney
for the purpose of tenderin~ his explanation. and examining
the witness produced by him.
(2) The authority or officer proceeding under sub-section
(1) may, for the purpose of securing the attendance of any
person a2ainst whom any order is orooosed to be made under
section 55, 56 or 57, require such perso.n to appear before
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NAWABKHAN v. GUJARAT (Krishna Iyer, J.)
431
him and to pass a security bond with or without sureties for
sucn attendance durmg tne inquiry. If tne person taits to
pass the secunty bona as reqwred or f~ils to appear before
the officer or authority during the inquiry, it shau be lawful
to the. officer or authonty to proceed w1tn the inquiiy and
thereupon such order as was proposed to b~ passed against
him may be passed."
The externment order was subject to this obligation of judicialisation. Mr· Justice Bhagwati (as he then was) in quashing the order
reasoned :-:-
"The show cause notice started with" a general allegation
that the petitioner was desperate and dangerous man and was
committing acts involving force and violence .. ; ........ .
This general allegation was then particularised and four different kinds of ·acts were specifically set out in clauses I to 4
with an overriding statement that these different kinds of •<:ts
were committed by the petitioner during the .period from
January 1967 upto the date of the show cause notice in "the
aforementioned localities'', i.e. the localities knoV11n· as Narol,
Dani Limda Jamapur, Chandola and Benrampura local!ties
situate within the limit of Kagdapity, Gaikwad Havcli
and
Maninagar Police Stations. . . . . . . .. None of the allegations
in the show cause ,notice contained any reference to the area
round about these specified localities and the petitioner was
there:fore .not called upon to meet any allegation in regard to
the area round about the specified localities. Even so, the
Deputy Commissioner of Police relied on
material which
puri;>orled to show that the petitioner was guilty of different
kinds of act in the area rour.d-about the specified localities
and acting on such material proceeded to hold that he was
satisfied that the petitioner was engaged in the commission of
acts involving force and violence . ..... The cxternn1ent order
is so far as ir was based on the satisfaction of the Deputy
Commissioner of Police that the petitioner was engaged i"
the commission of ,acts involving force and violence and acts
punishable under Chapter XVI and XVII of the Indian Penal
Code in the roundabout are~ within the limits of Kagdapity,
Gaikwad. Haveli and Maninagar Police Stations was, there-
·fore, cloarly beyond the scope of the show cause notice. No
opportunity to show cause against any allegation relating to
the roundabout area within the limits of Kagdaoity, Gaikwad
Haveli and Maninagar Police Stations was afforded to the petitioner and the' exter.nment order must therefore be held to be
invalid.
There is also a second ground on which we must hold
the externment order to be invalid. It. is well settled that it
is a mandatory requirement of section 56 that the externing
authority must from a subjective ooinion that witnesses are
not willing to come forward to give evidence in public. against
432
SUPREME COURT REPORTS
[ 19741 3 S.C.R.
the person sought to be ex.terned by reason of apprehension
It.
on their part as regards the safety of their person or property;
This requirement is clearly not satisfied in the present case ...
it is clear tltttt the opinon formed by the Deputy Commissioner
of Police is only as regards the witnesses who are victims of
the said incide.nts and not as regards the other witnesses.
This opinion would clearly not be the requisite opinion con·
templated by the mandatory requirem~nt of section 56.
We therefore allow the petition and make the rule absolute
by issuing a writ quashing and setting aside the externmeitt
order passed by the Deputy Commissioner of Police against
the petitioner."
This judgment is now final an.d binds State and subject alike.
But
does the demolition of the externment order take effect retroactively?
If it does, the accused is not guilty; if not, he is.
The constitutional perspective must be clear in
unlocking
the
mystique of 'void'' and 'viodable' vis-a-vis orders under the Act. The
Act is a constraint on a fundamental right and so the scheme of Art.
19 must be vividly before our minds if ext~aordinary controls over
human rights statutorily vested in administrative tribunals are to be
held in constitutional leash. Freedom of movement, of association, of
profession and property, are founding commitments and severe res ..
traints thereon must be strictly construed, not in the name of natural
justice-an elusive phrase-nor in literal loyalty to Section 59 but in
plenary allegiance to the paramount law. The restriction on the fundamental right must be reasonable and the harsher the restriction the
heavier the onus to prove reasonableness. The High Court in Special
Criminal Application 18. of 1969 held the basic condition clamped on
the authoritv to hear and be satisfied according to the 'due process'
prescriptions of Section 59 had been violated and the order was liable
to be quashed. In short, the finding was that the deprivation of the
petitioner's fundamental right having been effected in a mode whic.h
is not reasonable, as statutorily expressed in Section 59 of the Act, is
i!le~al and unconstitutional. Once the jurisprudential underpinnings
of Section 56 and 59 of the Act arc seen, the invalidatory effect is
p1ain. An unconstitutional order is void, consequential administrative
inconveniences being out of place where an administrator abandons
constitutional discipline and limits of power. What about the peril to
the citizen if an official, in administrative absolutism, ignores the constitutional restrictions on his authority and conden1ns a person to flee
his home ? A determination is no determination if it is contrary to
the constitutional mandate of Article 19. On this footing the externment order is of no effect and it!i violation is no d'ffence.
. Unfortunately, counsel overlooked the basic link-up between con.
stitutionality and deviation from the audi altJeram partem rule in this
jurisdiction and chose to focus on the familiar subject of natural
just1ce as an independent requirement and the illegality following upon
its non·compliance. In Indian constitutional law, natural justice does
not exist as an absohite jural value· but js humanistically read by
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433
courts into those great rights ensh!i\led in Part III as the quintessence
of reasonableness. We are not unmindful that from Seneca·s Medea,
the Magna Carta and Lord Coke, to .the constitutional norms of
modern nations and the Universal Declaration "of Human Rights it is
a deeply rooted principle that 'the body of no free man shall be taken,
· nor imprisoned, nor diss~ised, nor outlawed, nor banished nor destroyed in any way' without opportunity for defen!'e and one of the first
principles of this sense of justice is that you must not permit one side
to use means of influencing a decision which means are not known to
the other side.
Now, we may as well examine the invalidatory consequence
of
violation of natural justice on a judicialised administrative act like
the externment order under Sec. 56. The wider questions of error
versus excess of jurisdiction, <leclaration of invalidity as distinguished
from voidable orders being avoided, order void ab inilio and valid till
voided retroactively by competent tribunal and the directory-mandatory and ministedal-Judicial dichotomies and allied problems, present, on current precedents, a picture of juristic jungle and need not
be ordered into a garden for the limited purp'oses of this case.
A
learned author has cynically said : 'The case law, however, affords the
usual spectacle of anarchy up9n which order can hardly be superimposed'.(')
Here, a tribunal, having jurisdiction over area, person and subjectmatter, has exercised it disreiarding the obligation to give a real hearing before condemning. Does it spell death to the order and make it
still-born so that it can be ignored, defied or attacked collaterally ? Or
dqes it mean nullifiability, not nullity, so that before disobeying it a
court must declare it invalid? Or, •the third alternative, docs it remain
good and binding•~hough voidable at the instance of a party aggrieved
by a direct fhallenge ? And if a court voids the order docs it work
retroactively?
All these lines of approach have received judicial blessings from
the House of Lords in the .landmark case of Ridge v. Baldwin.(")
The legal choice depends not so much on neat logic but the facts of
life-a pragmatic proposition. Where the law invests an
authority
with power to affect the behaviour of others what consequence should
be visited on abuse or wrong exercise of power is no abstract theory
but experience of life and must be solved by practical considerations
woven into legal principle. Verbal rubrics like illegal, void, mandatory,"
jurisdictional, are convenient cloaks but leave the ordinary 111an, like
the petitioner here, puzzled about his remedy. Rubinstein poses the
issue clearly :-
H
"How does the validity or nullity of the decision affect.
the rights and liabilities of the persons concerned? Can the
persons affected by an illegal act ignore and disregard it with
impunity? What are the remedies available to the aggrieved
parties? When will the courts recognize a right to compcnsa-
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(I) Jurisdiction And lllegality-RubinStein.
(2) [19631 2 All E.R 66.
4 34
SUPREME COURT REPORTS
( 1974 l 3 S.C.R,
tion for damage occasioned by an illegal act? All these questions revert to 1he one basic issue; has the act concerned ever
had an existence o: is it merely a nullity ?
Voidable acts are those that can be invalidated in certain
proceedings; these proceedings are. especially formulated for
the purpose of directly challenging such acts ...... On the
other hand, when an act is' not merely voidable but void, it
is a nullity and can be disregarded and impeached in any
proceedings, before any court or tribunal and whenever it is
relied upon.
In other words, it is subject
tq
'collateral
attack'.''
Kelson's view, when a court holds an act a nullity, is that it is not a
declaration of nullity; it is a (fue annulment,
an
annulment
with
retroactive force'.
Even so, the dilemma of the petitioner is, if an authority in excess
or error of jurisdiction directs an illegal act, should the citizen suffer
it until upturned in a legal proceeding directly or collaterally ? Can he
resist the injury even if the seal of authority simulates validity ? The
eloquent words of Wedderburn quoted by Rubinstein in the context of
nullity is pertinent:-
"What is a sentence? It is not an instrument with a bit
of wax and the seal of a court put to it; it is not an instrument with the signature of a person calling himself a register;
it is not such a quantity of ink bestowed upon such a quantity of stamped paper : a sentence is a judicial determination
of a cause agitated between real parties, upon which a real
interest has been settled."
Illegal acts of authorities, if can be defied on self-determined
voidness, startling consequences \Viii follo\v, as the High Court apprehends. A detcnu will beat back, a builder will put his wall on the
forbidden line, a court officer will meet with physical resistance, all
because the order is, on the view of the affected party, a nullity and
is later proved so before a court. Not every action by a Government
agency carries with it the force of law and naturally what should he
do if he concludes that the action is invalid? Should he disobey, face
penal proceedings and get his violation legitimated by Court? Is there
no alternative to breaking the laW or order to expose the 1awlessness
of the law or order? A recent book
('Discretion to
Disobey' by
Kadish and Kadish(!) establishes this line of thought from Benjamin
Couttis, a former Supreme Court justice, who argued to the Senate on
behalf of President Andrew Johnson(sic) during the latter's impeachment trial a century ago :
"I am aware that' it is asserted to be the civil and rnoral
duty of all men to obey those laws which have been passed
through all the forms of legisbtion until they shall have been
decreed by .iudicial authority not to be binding; but this is
too broad a statement of the civil and n1oral duty incun1bent
(t) A Study of Lawful Departures from Legal Rules p. 105 1973-Stanfoni
University Press, California, U.S.A.
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either upon private citizen or public officers. If this is the
measure of duty there never could be a judicial decision that
a law is unconstitutional, inasmuch as it is only by disregarding a law that any question can be raised judicially under it.
I submit to senators that not only is there no such rule of
civil or moral duty, but that it may be and has been a high
and patrotic duty of a citizen to raise a question whether a
law is within the Constitution of tJie country."
435
On this view it is almost as though the Constitution contained the
words to be found in the constitution of one contemporary German
stat• : "It is the right and duty of every man to resist unconstitutionally
exercised public power."
More appooite to the present case are these remarks of the
same
authors:-
"If ~ policeman, in the exercise of his office, orders a
Black person to leave a park in a Southern town, is the
citizen obliged to obey the policeman's order and wait until
later to invoke some remedy to challenge 'its validity ? Can
the citizen be constitutionally convicted of some crime based
on his refusal to obey the policeman's order, even if a court
should later determine" that the order was unconstitutional?
Not long ago the Supreme Court considered just this case.
It had little difficulty reaching a decision. The order was
found to be an unconstitutional violation of the defendant's
rights first because it was designed to enforce racial discrimination in the park, and second because it was based on
the possibility of unlawful troublemaking by others rather
than on any wrongdoing by the defendant. So much was
sufficient to require a reversal-of the defendant's conviction :
"Obviously,. . . one cannot be punished for failing to obey
the command of an officer if that command is itself violative
of the Constitution. The policeman's order was treated like
a statute : obedience to an unconstitutional order of an official
is not required, even though the order has not yet been ruled
invalid by a court. The citizen is at liberty to make his owrr
judgment of the order's validity and to act accordingly. If
he tufns out to be wrong, of course, he is answerable. But
if he turns out to be right, he is not answerable in any way
and not for disobeying the order, since the order was in,
valid, and not for undertaking himself to decide in advance
that the order was invalid, since he was at liberty to make
that decision.
Where the situation escalates into active resistance and
perhaps the use of force, typically involved in cases of resistance to unlawful arrest or to the execution of some process,
such as serving a search warrant, the interest in the physical
welfare of the policeman and the citizen (as well as others)
may often produce a contrary answer. Indeed, an increasing
numper of jurisdictions afford no right to resist an arrest made
under colour of authority, even if the arrest is later determined to be invalid.
The dtizcn is obliged in this circum-
436
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( 1974] 3 S.C.R,
stance to yield and submit his case to the courts. As the
Model Penal Code concludes, '.'It should be
possible to
provide adequate remedies against illegal arrest, without
permitting the arrested person to resort to force-a course
of action highly likely to result in greater injury even to
himself than the detention."
The law in this area is full of alarming conundrums hardly resolved
by academic writing or judicial" dicta.
We may narrow down the scope of the discussion by confining it
to breaches of the audi alteram par/em rule. Does this defect go to
jurisdiction? Perhaps-not all violations of natural justice knock down
the order with nullity. In Dimes v. Grand Junction Canal(') bias or
pecuniary interest in the judge was held to render the proceedings
voidable, not void. It must be conceded that even this proposition is
not out of the penumbra of doubt and dispute (vide A.I.R.
1958
S.C. p. 86). Formali~tic moulds will not solve these issues of life and
juristic policy enacted with clarity into the statute book is the necessity of this lawless region of the rule of Jaw.
The common man and
thei Courts are confronJed with issues we have touched upon; and,
against the background of processual guarantees under the Constitution, the law of jurisdiction and illegality has to be legislatively settled,
not as logical extensions of juridical doctrine but empirical formulations based on experience. Grave implications of law and order lurk
behind this mlll'.ky branch of public law.
Where hearing is obligated by a statute which affects the fundamental right of a citizen, the duty to give the hearing sounds in constitutional requirement and failure to comply with such a duty is fatal.
May be that in ordinary legislation or at common law a Tribunal,
having jurisdiction and failing to hear the parties, may commit an
illegality which may render the proceedingi; voidable when a direct
attack is made thereon by way of appeal, revision or review, but
nullilly is the consequence of unconstitutionality and so without going
into the larger issue and its plural divisions, we may roundly conclude
that the order of an administrative authority charged with the duty of
complying with natural justice in the exercise of power before restricting the fundamental right of a citizen is void and ab illilio of no
legal efficacy. The duty to hear manacles his jurisdictional exercise
and any act is, in its inception, void except when performed in accordance with the conditions laid down in regard to hearing. May be, this
is a radical approach, but the alternative is a travesty of constitutional
guarantees, which leads to the conclusion of post-legitimated disobedience of initially unconstitutional orders. On the other hand law and
order will be in jeopardy if the doctrine of discretion to disobey invalid
orders were to prevail. As Learned Hand observed :-
"The idea that you may resist peaceful arrest. . . . because you are in debate about whether it is lawful or not,
instead of going to the authorities which can determine (the
question is) not a blow for liberty but, on the contrary, a
blow for attempted anarchy."
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(I) [18521 3 H.L.C. 759.
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The opposite view is expressed by the California Supreme Court in a
case where one Yick came into the country unlawfully but was hell!
by the deputy sheriff without authority. He escaped and his abettor in
the escape was convicted but in appeal the Court held :-
"An escaJ?e is classed as a crime against public justice,
.and the law, m declaring it to_ be an offense, proceeds upon
the theory that the citizen should yield obedience to the law;
that when one has been, by its authority or command, confined in a prison, that it is his duty to submit to such confinement until delivered by due course of law. But when the
imprisonment is unlawful, and is itself a crime. the reason
which makes fiight from prison an offense does not exist. In
such a case the right to liberty is absolute, and he who
regains it is not guilty of the technical offense of escape."
American case-law is confiicting and doubtful expressions like "void
on its face" "transparently invalid" have been used. We must remember the words of Justice Frankfurter "If one man can be allowed to
determine for himself what is law, every man can. That means first
chaos, then tyranny". We ·dwell on these PQssible views to underscore
the difficulties o~ solution.
English Judges also have not been uniform. Granting the order
against a party to be void, does it have to be so declared by a court
at bis instance of can the citizen interpret for himself and act on the
basis of invalidity. The problem was considered by the Judicial Com·
mittee in Fernando's(') case where a minister dissolved a municipal
council without opportunity to be heard. Lord Upjobn stated the position thus :-
·
"Apart altogether from authority their Lordships would
be of opinion that this was a case where the Minister's order
was voidable and not a nullity. Though the council should
have been given the opportunity of being beard in its defence,
if it deliberately chooses not to complain and takes no step
to protest against its dissolution, there seems no reason why
any other person shQuld have the right to interfere. To take
a simple example to which their Lordships will have to
advert in some detail presently, if in Ridge v. Baldwin the
appellant Ridge, who bad been wrongly dismissed because
he was not gi-:en the opportunity of presenting his defence,
bad perferred to abandon· the point and accept the view that
he bad been properly. dismissed, .their Lordships can see no
reason why any other' person, such, for example, as a ratepayer of Brightonj should have any right to contend that
Mr. Ridge was still the Chief Constable of Brighton. As a
matter of ordinary common sense, with all respect to other
opinions that have been expressed, if a person in the position
of Mr. Ridge had not felt sufficiently aggrieved to take an)'
action hy reasoo of the failure to afford him his strict right
(I) L.R. [1967] 2 A.C. 337, 35'2 (Darayappah v. Fernando)
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SUPREME COURT REPORTS
[ 1974 J 3 S.C.R.
to put forward a defence, the order of ·the watch committee
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should stand and no one else should have any right to
complain.. . . . . . . . Their Lordships deprecate the use of
the word void in distinc.tion to the word voidable in the field
of Jaw with which their Lordships are concerned because,
as Lord EveI'Shed pointed out in Ridge v. Baldwin quoting
from Sir Frederick Pollock, the words void and voidable are
imprecise and apt to mislead."
B
I,n Ridge v. Baldwin (supra) Lord Reid and Lord Hodson opted
for 'nullity', Lord Evershed and Lord Devlin supported the 'voidable'
theory and Lord Morris of Broth-Y-Gest struck a practical note in
between. The learned Lord said :-
"It was submitted that the decision of the watch comC
mittee was voidable but not void. But this
involves
the
inquiry as to the sense in which the word "voidable", a.word
deriving from the law of contract, is in. this connexion us~d.
!f the appellant had bowed to the decision of the watch
committee and had ncit asserted that it was void, then no
occasion to use either word would have arisen. When the
appellant in fact at once repudiated and challenged the
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decision, so claiming that it was invalid, and when in fact the
watch committee adhered to their decision, so claiming that
it was valid, only the court could decide who was right. If
in that situation it was said that the decision was voidable.
thati was awaited. But if and when the court decides that
the appellant was right, the court is deciding that the
decision of the watch committee was invalid and of no affect
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and null and void. The word "voidable" is, therefore, apposite in the sense that it became necessary for the appellant
to take his stand : he was obliged to take action for unless
he did the view of the watch committee, who were in authority, would prevail. .In that sense the decision of the watch
committee could be said to be voidable."
In Svackman v. Plumstead Board of Works(') (181), Lord SeiberF
ne said:-
''There would be no decision within the meaning of the statute if there was anything of that sort done contrary to the
essence of justice."
In 1959 A. C. 83 Lord Somervell of Harrow highlighted the
dik!l'ma of 'void' and 'voidable' in these effective words :-
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'ls a man to be sent to prison on the basis that an order is a
good order when the court knows it would be set aside if
proper proceedings were taken ? .... , .. The_ distinction between void and voidable is by no means a clear one . ..... "
The test of ex-facie illegality or bad on its face or in Lord Radcliffe's
words 'it bears no brand of invalidity on its forehead', is ~lso unworkable in the work-a-day world of law. Error of jurisdiction and error
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within jurisdiction, have been suggested as a means to cqt the Gordian
Knot. Many great writers have dealt with the subject but few have
offered a fair answer to the questioni is a determination a determination
at all when made without a statutory hearing and when is it void and
to what extent?
Decisions are legion where the conditions for the
exercise of power !1ave been contravened and the order treated as void.
Ancl when there is excess or error of jurisdiction the end product is a
semblance, not an actual order, although where the error is within
jurisdiction it is good, particularly when a finality clause exists. The
order becomes 'infallible in error', a peculiar legal phenomenon like the
hybrid beast of voidable voidness for which, according to a learned
author, Lord Denning is largely responsible. The legal chaos on thi•
branch of jurisprudence should be avoided by evolving simpler concepts
which work in practice in Indian conditions.
Legislation, rather than
judicial law-making will meet the needs more adequately. The. only safe
course, unt.il simple and sure light is shed from a legislative source, is to
treat as void and ineffectual to bind parties from
the
beginning,
any order made without hearing the party affected if the injury is to a
constitutionally guaranteed right. In other cases, the order in violation
of natural justice is void in the limited sense of being liable to be avoided by court with retroactive force.
In the present case, a fundamental right of the petitioner has been
encroached upon by the police commissioner without due hearing. So
the Court quashed it-not killed it then but performed the formal obsequies of the order which had died at birth. The legal result is that the
accused was never gulity of flouting an order which never legally
existed.
We express no final opinion on the many wide-ranging problems in
public law of illegal orders and violations thereof by citizens, grave
though some of them may be. But we do hold that an order which is
void '.!lay be directly and collaterally challenged in legal proceedings,
An order is null and void if the statute clothing the administrative tribunal with power conditions it with the obligation to hear, expressly or
by implication. Beyond doubt, an order which infringes a fundamental
freedom passed in violation of the audi alteram partem rule is a nullity.
When a competent court holds such official act or order invalid, or sets
it aside, it operates from nativity, i.e. the impugned act or order was
never valid. The French jurists call it L'indevistence or outlawed order
(p.127), Brown and Garner, French Administrative Law) and could
not found the ground for a prosecution. On this limited ratio the appellant is entitled to an acquittal. We allow his appeal.
P. B. R.
Appeal allowed.