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HILE the administration of Martial Law in the Punjab has been widely discussed in the press, the legal aspects of the sub

ject have received comparatively little attention from the public. It is neither practicable nor desirable to go into the merits of any individual case, but it is worth while considering the scope and effect of the regulations and ordinances under which action has been taken and the powers of the Crown and the military authorities apart from any specific enactments.

The regulation under which Martial Law has been introduced in the Punjab is the Bengal State Offences Regulation 1804, which has been declared to be in force in the Punjab by section 3 of the Punjab Laws Act 1872. Section 2 of this regulation empowers the Governor-General-inCouncil to suspend or direct the suspension of, wholly or partially, the functions of the ordinary criminal courts and to establish Martial Law therein during the existence of any war or open rebellion against the authority of the Government and also to direct the immediate trial by CourtsMartial of all persons owing allegiance to the British Government, who may be guilty of certain offences. The only offences, which can be taken cognizance of, are those specified in the second paragraph of section 2. The persons who can be tried by Courts-Martial under this regulation are subjects of the British Government, who shall be taken :

1.

3.

BY

SIR P. S. SIVASWAMI AIYER.

4.

2.

In the act of opposing by force of arms the authority of the Government, or

In the actual commission of any overt act of rebellion against the State, or

In arms in open hostility to the British Government, or

In the act of openly aiding and abetting the enemies of the British Government within any part of the territories in question.

The punishments provided by section 3 are, death and forfeiture of property. Having regard to the severity of the punishments provided and the language of sections 1 and 2 and the whole scheme of the regulation, there can be no doubt as to the correctness of the opinion of AdvocateGeneral Spankie that the manifest intention of the regulation was, that none but cases of the

simplest and most obviously criminal nature should be the subject of trial by the Courts Martial, that only persons, who were taken in the actual commission of overt acts of rebellion or hostility should be tried by such courts and that complex cases depending upon circumstantial proof and requiring either a long examination of facts or a discriminating inference from facts in themselves equivocal were purposely withdrawn Where from the cognizance of these tribunals. persons concerned in acts of rebellion were not taken in the actual commission of the offences specified in the regulation, the intention of the legislature evidently was, that they should be handed over to the civil power for trial by the ordinary criminal courts, as will appear from the instructions issued by the Governor-General on the 11th April 1805. (See Harrington's Bengal Regulations edition of 1821, page 350).

The Martial Law Ordinance-I of 1919-recites that the functions of the ordinary criminal courts have been suspended in respect of the offences described in section 2 of the regulation and provides for trials in respect of such offences being held by commissions of three persons appointed by the local Government instead of by CourtsMartial. The object of this substitution was presumably to secure the presence in the tribunal of judges in the civil employ of the Government. As a consequence of this constitution of the tribunal the right of the accused to challenge the members of the tribunal has been excluded and the necessity for confirmation of the finding and sentence as required by sections 94 and 98 of the Army Act has also been provided against. Though this ordinance came into force at mid-night on the 15th April 1919 it was expressly rendered applicable to all persons referred to in Regulation 10 of 1804, who were charged with any of the offences therein described, committed on or after the 13th April 1919. The question has been raised in some quarters whether the ordinance is valid, in so far as it purports to give retrospective effect To the mind of a lawyer, there can be no doubt as to the validity of an express provision of this sort. Though the inclination of the courts would be against the retrospective operation of penal laws in cases, in which the language of the statute admits of reasonable doubt, there can be

no question as to the validity of an express provision for giving retrospective effect. The only offences which can be taken cognizance of by the commissions under this ordinance are those described in section 2 of the regulation above referred to. It is not every offence under Chapter VI of the Penal Code that could be brought under this ordinance, for instance, section 124-A dealing with sedition, would fall outside the class of offences described in the regulation; so also offences under section 129. Whether offences under section 121-A or 123 of the Penal Code could be taken cognizance of or not under the Martial Law Ordinance would depend upon the circumstances of the case. The Martial Law Ordinance does not authorise the military authorities to enact any rules or regulations or to create any new offences in respect of infringement of any rules or orders, which may be issued by them. Whether apart from the provisions of the Martial Law Ordinance, the Crown or the military authorities have any power to issue such regulations and how breaches of such regulations may be punished are distinct questions, which will be examined later on. As regards the sentences which may be imposed by a commission constituted under this ordinance, they could not pass any sentence except that of capital punishment, and forfeiture of the property of the person convicted was an automatic and necessary result of the conviction under section 3 of the regulation. To obviate this hardship the Martial Law (sentences) ordinance was issued on the 18th April 1919 and it enabled the tribunals to pass any sentence of transportation for life or for any period not less than 10 years or of rigorous imprisonment for a term of not less than 7 and not more than 14 years and it further provided that forfeiture of property should not follow a conviction automatically, but only when so directed by the court or commission. The only other ordinance, which it is necessary to notice is, the Martial Law (further extension) ordinance, which was passed on the 21st April 1919. This ordinance gives an extraordinary extension to the scope of the Martial Law Ordinance-I of 1919. Whereas by the first ordinance only persons charged with the offences described in section 2 of the regulation could be tried, the fourth ordinance provides for the trial of any person charged with any offence committed on or after the 30th March 1919. It may be anything punishable under the Indian Penal Code, or for the matter of that, even under a special or a local law. The offence may be, simple trespass,

defamation, bigamy or nuisance. It need not involve the safety of the British possessions or the security of the lives and property of the inhabitants. Of course, it is not at all likely that such cases will be actually tried by the commission, for this extended jurisdiction of the commissions is made dependent upon a general or special order to be issued by the local government and they are not likely to refer ordinary cases not connected, in their opinion, however directly or indirectly, with the recent disturbances. The provision is referred to here merely for the purpose of showing how entirely it is left to the local government to displace the ordinary criminal courts and introduce the procedure of CourtsMartial. Under the regulation it is, no doubt, open to the Governor-General-in-Council to direct any public authority to order suspension of the ordinary criminal courts, wholly or partially, but the extent to which such suspension or the ordinary criminal courts may take place, may be gathered from the general scheme of the regulation. The suspension of the functions of the ordinary criminal courts and the exercise of jurisdiction by Courts-Martial constituted under the regulation are co-extensive. In as much as the jurisdiction of Courts-Martial under section 2 of the regulation is confined to the 4 classes of crimes described therein, which are all more or less overt acts of hostility or rebellion to the State, the functions of the ordinary criminal courts cannot also be suspended to any greater extent or except as regards these crimes. Even in respect of the crimes specified, the regulation (section 4) displays a solicitude to avoid the institution of Courts- Martial, except where trial by them appears to be indispensably necessary. In view of the fact that Martial Law was established in exercise of the powers conferred by section 2 of the regulation that the procedure of CourtsMartial was also introduced in exercise of the same powers, that the commissions appointed under the Martial Law Ordinance are only a convenient substitute for the tribunals prescribed by the Indian Army Act of 1911 and that the procedure to be followed by these commissions is the procedure prescribed for Courts-Martial by the Indian Army Act, the legality of the extension of the scope of the Martial Law Ordinance to persons other than those referred to in regulation 10 of 1804 and other than those subject to the Indian Army Act and to all kinds of offences, even those not falling under the regulation of the Army Act, appears extremely doubtful. In pas

sing it may be observed that a sentence of whipping would not be a legal punishment either under regulation 10 of 1804 or under the Martial Law (sentences) ordinance of 1919 or under the Army Act. Though corporal punishment is permitted under the Army Act, it is only in respect of persons subject to the Act and under the rank of Warrant Officer. Any sentence of corporal punishment can only be justified under the Ordinary Criminal Law. It is conceivable that a Military Officer charged with the duty of suppressing a rebellion may have to resort to corporal punishment, but it can only be inflicted as a matter of unavoidable military necessity and not under the show of any legal trial.

It may perhaps be argued, that notwithstanding the fact that ordinance 4 of 1919 was intended to extend the scope of the Martial Law Ordinance, which was brought into existence under the conditions described in regulation 10 of 1804, it is open to the Governor General to do anything he may please in the exercise of his powers under section 72 of the Government of India Act 1915. Under this section 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 has, for the space of not more than six months, the same force of Law as an act passed by him in Legislative Council. The power is subject to the same restrictions and disallowance as an Act of the Indian Legislative Council. It may be said that the ordinance making power of the Governor-General is practically unlimited and that it is legally open to him to suspend all courts or to abolish the Evidence Act or to order any and every offender to be tried by Courts-Martial, There are, however, two conditions laid down in the section, that it must be a case of emergency and that the ordinance must be for the peace and good government of the country. Whether in the existing circumstances in the Punjab the Ordinary Criminal Courts should be regarded as unfit for bringing offenders to justice or whether it is indispensable for the peace and good government of the province that their functions should be suspended and offenders should be tried by the procedure of Courts-Martial, is a question of fact upon which a divergence of views may be reasonably possible and it would be a matter for regret if the Government were not guided by the same solicitude for preserving the jurisdiction of the Ordinary Criminal Courts as is apparent in regulation 10 of 1804. Prima facie, one would be inclined

to think that this unlimited delegation to the local government of the power to suspend the functions of the Ordinary Criminal Courts in respect of offences outstrips the necessities of the case. It seems a reasonable view to take that the power conferred by section 72 of the Government of India Act represents the prerogative of the Crown, which has been defined as the residue of discretionary authority, which at any given time is legally left in the hands of the Crown, or, in other words, the executive government and that the exercise of the emergency power under section 72 should, in practice, if not in theory, be guided by the same considerations and limitations as the exercise of the prerogative by the Crown under similar circumstances in England.

The circumstances under which Martial Law may be proclaimed in the case of a rebellion, the significance of the proclamation and the validity of measures taken upon such proclamation have been discussed by eminent text-writers and the weight of authority is in favour of the view that, while it is the duty and the prerogative of the Crown to suppress revolts and it is also competent to employ military force so far as may be necessary for the purpose, it is illegal for the Crown to resort to Martial Law for the purpose of punishing offenders. In his history of the Criminal Law of England Mr. Justice Stephen sums up the result of his discussion on pages 215 and 216 of Volume I as follows:

i. Martial Law is the assumption by officers

of the Crown of absolute power exercised by military force for the suppression of an insurrection and the restoration of order and lawful authority. ii. The officers of the Crown are justified

excess.

in any exertion of physical force extending to the destruction of life and property to any extent and in any manner that may be required for the purpose. They are not justified in the use of cruel and excessive means but are liable civilly or criminally for such They are not justified in inflicting punishment after resistance is suppressed and after the ordinary courts of justice can be re-opened. iii. The courts-martial by which Martial Law is administered are not, properly speaking, courts-martial or courts at all. They aremerely committees formed for the purposeof carrying intoexecution the discretionary powerassumed by theGovernment,

It may be taken as settled law in England that if in the suppression of a rebellion and the effort to restore peace and order any subjects of the Crown are punished or put to death by a trial under court-martial, such punishment may be challenged in the ordinary courts after the restoration of order and can only be justified on the ground of necessity which must be proved as a fact. Necessity is the measure of the duration and extent of the force to be employed. The fact that the summary execution of rebels, whose crimes can be punished by the ordinary courts of law may check the spread of treason does not show that the execution is necessary or legal. (See Appendix Note x on Martial Law-Dicey's law of the Constitution 7th edition pages 538 to 554). In opposition to the view put forward by Professor Dicey it is urged by Sir Ecle Richards that in as much as military operations cannot be conducted in time of war or rebellion without interference with rights of property and person and such interference is according to the authorities not contrary to law, it follows that the interference must include also the right of trial and the infliction of punishment (See Law Quarterly Review, Vol. XVIII page 139.) The conclusion deduced from the premises is, by no means, necessary. Sir Erle Richards assumes that if a commanding officer has the power of controlling the movements of the civil population he must also have the power of punishing those who are guilty of a breach of his orders. An infringement of the orders of the military authorities may be either an offence or not an offence. If it is an offence, the civil courts cannot punish and the military authorities also should not interfere by way of punishment. Sir Erle Richards does not sufficiently distinguish between the nature of the coercive measures which may be taken to prevent a breach or avert its consequences and the measures necessary by way of punishment for a breach. The former class of powers must necessarily vest in the military authorities, but the latter power is not so vested. The necessity for the tria! and punishment of civilians by the military authorities may conceivably exist in some cases; as for instance, where it is impossible for the ordinary civil courts to exercise their functions. But even in such cases, the correct view to take is, that put forward by Mr. Justice Stephen that the courts martial are merely committees formed for the purpose of carrying into execution the discretionary power of the Crown. The case of Wright es FitzGerald

27, State Trials, page 765 is opposed to the contention of Sir Erle Richards, who relies chiefly upon the decision of the Privy Council in Exparte Marais (1902), A.C. 109. This decision has been canvassed at length by several critics and the most acceptable view is that the courts will not and cannot interfere with actual military operations or whilst war is actually raging entertain proceedings against military men and others for acts done under the so-called Martial Law. The judgment of the Privy Council asserts nothing as to the jurisdiction of the courts wher peace is restored in respect of acts done during time of war and eminent jurists have held that even in time of war the exercise of jurisdiction by the ordinary courts is rather rendered impossible than superseded. (See-Dicey's Law of the Constitution, 7th edn. page 546). With reference to this case of Exparte Marais, the remarks in noted on page 403 of Vol. 6 of Halsbury's Laws of England are of interest when it is remembered that the judgment of the Privy Council was delivered by Lord Halsbury. Here it is said, it is doubtful how far sentences of fine and imprisonment passed by Courts Martial upon civilians would be valid in law after the war or insurrection is over. According to Sir James Frederick Pollock, the only point decided by Exparte Marais was that the absence of visible disorder and the continued sitting of the courts are not conclusive evidence of a state of peace. Sir Frederick Pollock holds the view that the justification of any particular act done in a state of war is ultimately examinable in the ordinary courts and that a person justifying his act must show not merely that he acted in good faith but also that there was reasonable and probable cause according to the apparent urgency of the circumstance. (See Law Quarterly Review, Volume XVIII page 156 to 158.) Sir Frederick Pollock's view is criticised at length by Professor Dicey at pages 551 to 554 of note x in the Appendix to his Law of the Constitution. The difference between the two eminent jurists consists in this: that the tests proposed by Sir Frederick Pollock would justify acts not dictated by immediate necessity, while according to Professor Dicey and a number of other jurists immediate necessity is the only ground of justification.

It will be clear from the foregoing statement that in England, there cannot at common law be any supersession of the civil courts by the exercise of the prerogative of the Crown. If, however, the disturbance of the country

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renders it impossible for the ordinary courts of law to sit or enforce the execution of their

judgments in such cases Martial Law is indulged rather than allowed as a law and it is a rude substitute for the ordinary courts. In the language of Sir James Mackintosh, while the laws are silenced by the noise of arms the rulers of the armed force must punish as equitably as they can those crimes which threaten their own safety and that of society, but no longer. While the closure of the courts owing to the impossibility of exercising their functions is a reason for indulging Martial Law, the fact that the courts may be actually sitting is not conclusive evidence of a state of peace. The Ordinary Courts of Justice may, as a matter of fact, will be exercising their functions as a matter of sufferance by the military authorities. (See Ex parte Marais 1902) Appeal cases 109; Elphinstone vs. Bedree Churd, I. Knapp, P.C. 316).

Applying these principles to the case of the Punjab, could it be said that it was impossible for the ordinary courts to sit or exercise their functions or that if they did, it was only by sufferance of the military authorities. There is nothing to show this. It does not appear that the establishment of Martial Law in respect of offences other than those specified in Regulation 10 of 1804 was called for by the impossibility of the ordinary courts exercising their functions. The fact, the trial by Courts Martial is bound to be swifter or would serve as an example of terror to others and to keep the rest in due awe and obedience is not a sufficient justification in policy for the establishment of Martial Law. Even taking it for granted that the establishment of Martial Law was originally justified, the question whether the state of open rebellion or such circumstances as justified the introduction of Martial Law have continued in existence so as to justify the continuance of Martial Law, is also a question of fact.

One question which naturally arises with reference to the administration of Martial Law is, whether the Crown or the military authorities have any power at common law to create any new offences. According to the law in England, they clearly do not possess any such power. Where it is necessary to enable the military authorities to issue any rules or regulations affecting civilians and where it is necessary to treat any infringements as offences, the practice in England has been to confer such powers by statute. Witness, for instance, the English Defence of the Realm Consolidation Act 1914, 5 Geo. 5 Chapter 8.

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Section I of the statute expressly confers power to issue regulations and authorise trial and punishment by courts-martial. It will be interesting to note that by the Defence of the Realm Amendment Act 1915, 5 Geo. 5 Chapter 34, Section I, any person not subject to the naval discipline Act or to Military Law, who is alleged to be guilty of an offence against any regulations made under the Defence of the Realm Consolidation Act 1914 is entitled to claim to be tried by a civil court with a jury instead of being tried by Court-Martial.

The officer administering Martial Law in Lahore has issued a large number of proclamations partaking of the character of regulations and providing for the trial and punishment of persons guilty of an infringement of these regulations. These proclamations merely recite that the Government of India have proclaimed Martial Law and that superior military authority has appointed him to administer Martial Law. No other source of authority is quoted and while the officer-in-charge was entitled to take measures reasonably necessary for the safety and peace of the area under his commaud, he had, to all appearance, no valid authority empowering him to create any new offences or try and punish civilians for infringements of his regulations. The Government of India, no doubt, are empowered by the Defence of India Act, IV of 1915, Section 2, to make rules for securing the public safety and the Defence of British India and to create offences in respect of contraventions of such rules but it does not appear that the Governor-Generalin-Council has any power to delegate his powers under section (2) to the military authorities. We do not know whether the officer administering Martial Law tried and punished any persons for infringements of his regulations, but if he did, his proceedings cannot be treated as ipso fucto valid. A perusal of the different orders passed by him also creates a doubt whether they were called for by the military necessities of the situation or by a desire to strike fear into the minds of the inhabitants by a show of exuberant severity or to secure certain conveniences for the public or particular sections thereof which could have been secured by the Civil Government. Whatever might have been the reason of the regulations, any infringement of them could not be an offence unless it was one under some other law.

[The above contribution reached us too late for publication in the last issue.-Ed., Indian Review.]

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