Abstract
This chapter is a comprehensive treatment of the subject. The most important comparative finding of this chapter is the total lack of any comparable legal concept in India and the consequent inevitable conceptual confusion surrounding this phrase. Again, the chapter places the concept in a comparative perspective by surveying the legal position in the three studied jurisdictions and attempts to draw important comparative lessons. These are also likely to impact constitutional decision-making in India and some of its neighboring jurisdictions.
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Notes
- 1.
Birkhimer [1].
- 2.
See, e.g., India Const. art. 352, § 1 (that talks about the President’s power to proclaim an emergency on the ground, inter alia, of war), and art. 355 (that talks about the duty of the Union to ensure that there is no breakdown of constitutional machinery). Whereas art. 352(1) clearly authorizes the President to use the armed forces of the Union of India in the event of a war, art. 355 can potentially be argued to be authorizing the Union of India to use its armed forces in the event of an “internal disturbance” or “external aggression” in situations that are not warlike but yet grave enough to merit emergency action. See also Report of The Sarkaria Commission ¶ 7.7.02 (1988) (noting that the use of military to maintain day to day administration of law and order has been avoided for the past seventy five years, and recommended that the Army ought not to be deployed “except as a last resort when the para-military forces cannot by themselves handle an acute internal disturbance situation.”); Extra-Judicial Execution Victim Families Association v. Union of India (2016) 14 SCC 536, 597–600 (using the observations of Justice Puncchi’s report on center–state relations to draw a distinction between art. 352 and art. 355 and art. 356 and the role played by the Army to restore Public Order as envisaged in Naga People’s case); Vladeck [2].
- 3.
- 4.
See, e.g., Commonwealth of Massachusetts v. Laird 451 F.2d 26 (1971) (1st Cir.) (discussing whether the US involvement in Vietnam is unconstitutional since no war had been declared.); Drinan v. Nixon 364 F. Supp. 854 (1973) (D. Mass.); Kucinich v. Obama 821 F. Supp. 2d 110 (2011) (D.C.) (discussing the strikes ordered by President Obama in Libya without a formal declaration of war and whether they circumvented the Congress’s power to declare war).
- 5.
Dicey [5].
- 6.
- 7.
Engdahl [6, p. 1, 9].
- 8.
Id. at 9–10.
- 9.
Id. at 26.
- 10.
Willoughby [9].
- 11.
Rankin [10].
- 12.
Id. at 77 (Emphasis added).
- 13.
Id. at 84 (“Punitive when the courts are not functioning in the proper manner…”).
- 14.
Id. at 84 (“… and preventive when it is desired that the troops act as aid to the civil authorities.”) (Emphasis added).
- 15.
Birkhimer [1, p. 482, 488].
- 16.
This distinction has been drawn in the context of administration of criminal law during civil disorders. See Pye and Lowell [11].
- 17.
But far more common were the cases in which soldiers were called to aid civil officials in dispersing mobs or suppressing riots precipitated by hotly contested elections or other public issues, or in other ways to assist the civilian officers. It was well understood that when they were used under such circumstances the soldiers were not used in their military character, but merely as civilian assistants subject to the command of ordinary civil officers, and no more privileged in their use of force against citizens than the civil officers were themselves.
Engdahl [6, p. 1, 50] (Internal citations omitted).
- 18.
See Birkhimer [1, p. 488]; Note, Martial Law, 42 S. Cal. L. Rev. 546, 548 (1969) (authorities cited in note 11). In this context, it has been argued that the deployment of the armed forces by the Union of India under the Armed Forces Special Powers Act, 1958 amounts to a de facto proclamation of Martial Law. Gautam [12].
- 19.
Chalmers and Asquith [13].
- 20.
Id. at 362.
- 21.
Id. at 362 (“Still, circumstances may exist which make it the duty of the troops to ignore or act in independence of the orders of the magistrate, or, indeed, of their own superior officers.”).
- 22.
See, e.g., Neocleous [14].
- 23.
Neocleous [14, p. 489, 508]. See also Note, A Republic of Emergencies: Martial Law in American Jurisprudence, 36 Conn. L. Rev. 1397 (2004) (urging “… the US Supreme Court to narrowly interpret congressional authorization of emergency powers as a means to limit excessive emergency measures imposed by the executive.”).
- 24.
See, e.g., Krum [15].
- 25.
Note, Riot Control and the use of Federal Troops, 81 Harv. L. Rev. 638, 640 (1968).
- 26.
Campbell and Connolly [16].
- 27.
See, e.g., U.S. Const. art. IV, § 4; 10 USC §§ 331, 334.
- 28.
Engdahl [6, p. 1, 71].
- 29.
Bishop v. Vandercook, 228 Mich. 299, 306 (1924) (Mich.); State v. McPhail, 182 Miss. 360, 390 (1938) (Miss.). However, for a slightly contrary position see Herlihy v. Donohue, 161 Pac. 164, 167 (1916) (Mont.); Engdahl [6, p. 1, 71].
- 30.
This point is illuminated by a similar thing that was done in Canada. The military could be called for assisting in law enforcement functions by the provincial Attorney General, but in 1998 the Canadian Parliament amended the law and vested this authority in the federal authorities. This was criticized as, “Unlike the traditional aid of civil power, there is no requirement that the provinces be consulted before the troops are called out.” See, e.g., Editorial, Calling out the Troops, 48 Crim. L.Q. 141 (2003). The Canadian Supreme Court also expressed its concerns as this move impinged the provincial jurisdiction over administration of justice. See R v. Nolan, [1987] 1 S.C.R. 1212 (Canada). These issues have been raised in Australia as well. See, e.g., Head [17]. The definition of martial law in a 1967 Michigan statute also supports this point. Here martial law is defined as, “… exercise of partial or complete military control over domestic territory in time of emergency because of public necessity.” See Mich. Stat. Ann. § 4.678(105)(j) (1968 Supp.).
- 31.
See, e.g., Campbell and Connolly [16, p. 341, 349].
- 32.
Dyzenhaus [18].
- 33.
This point has been noted by Colonel Robin Evelegh (who was the Commanding Officer of an infantry battalion in Belfast, Ireland) in his book Peace-Keeping in a Democratic Society (1978) reviewed in, and quoted from, Book Reviews, 8 Anglo-Am. L. Rev. 65, 66 (1979).
- 34.
- 35.
Waranoff [20].
- 36.
Warnoff [20, p. 1, 2] citing the Report of the National Advisory Commission on Civil Disorders 275 (1968) at note 9.
- 37.
See, e.g., 10 U.S.C. § 261.
- 38.
See, e.g., Johnson v. Powell, 414 F. 2d. 261 (1969) (5th Cir.) (10 U.S.C. § 261, which regulates individuals who are members of the US National Guard, and this body being a reserve component of the US Army, is supportable under constitutional clause giving the Congress the power to raise and support armies though not supportable under US Const. art. 1, § 8, cl. 15; hence habeas corpus applications by petitioner for release from active military duty in Vietnam rejected.).
- 39.
Warnoff [20, p. 1, 2] citing the Report of the National Advisory Commission on Civil Disorders 275 (1968) at note 9.
- 40.
Ela v. Smith, 71 Mass. (6 Gray) 121 (1855) (Supreme Judicial Court, Mass.).
- 41.
Manley v. State, 62 Tex. Crim. 392 (1911) (Tex.).
- 42.
Franks v. Smith, 134 S. W. Rep. 484 (1911) (Ky.).
- 43.
Fluke v. Canton, 123 P. 1049 (1912) (Okla.).
- 44.
Bishop v. Vandercook, 228 Mich. 299 (1924) (Mich.).
- 45.
Orr v. Burleson, 214 Ala. 257 (1926) (Ala.).
- 46.
United States ex rel. Palmer v. Adams, 26 F.2d 141 (1927) (D. Colo.).
- 47.
Russell Petroleum Co. v. Walker, 162 Okla. 216 (1933) (Okla.).
- 48.
- 49.
State v. McPhail, 182 Miss. 360 (1938) (Miss.).
- 50.
State v. McPhail, 182 Miss. 360, 389 (1938) (Miss.).
- 51.
State v. McPhail, 182 Miss. 360, 390 (1938) (Miss.) (Emphasis added).
- 52.
Wilson & Co. v. Freeman, 179 F. Supp. 520 (1959) (D. Minn.).
- 53.
Wilson & Co. v. Freeman, 179 F. Supp. 520, 525 (1959) (D. Minn.).
- 54.
Wilson & Co. v. Freeman, 179 F. Supp. 520, 526 (1959) (D. Minn.) (Emphasis added).
- 55.
See §§ 130–31 The Criminal Procedure Code 1973, No. 2 of 1974, Code Crim. Proc. (India).
- 56.
In Ela v. Smith, 71 Mass. (6 Gray) 121 (1855) (Mass.), the Mayor called out the militia; and in Chaplin v. Ferry, 15 L.R.A. 116 (1891) (Wash.), the Iowa statutes allowed the sheriff to do so for his own county but the Governor had to be asked for other counties.
- 57.
Most cases accept this position. See, e.g., Bishop v. Vandercook, 228 Mich. 299 (1924) (Mich.); Chaplin v. Ferry, 15 L.R.A. 116 (1891) (Wash.) and Franks v. Smith, 134 S.W. Rep. 484 (1911) (Ky.).
- 58.
See Seaney v. State, 188 Miss. 367 (1940), 194 So. 913, 915 (Miss.) (upholding the power of the National Guard to execute search warrants, the Court held, “It is not necessary for the governor to await the request of the sheriff or the judge of the circuit court or any other local officer”).
- 59.
To quote the Supreme Court of Montana in Herlihy v. Donohue, 161 P. 164, 166 (1916) (Mont.).
When the organized militia was called into the service of the state in 1914, it but performed the function of the strong arm of the executive by which he could aid in executing the law or in suppressing the insurrection. Independently of the executive, it had no power or authority, except possibly with reference to its own internal affairs. It acted as an executive agency, subject to the orders of the Governor and bound by the authority which he might lawfully exercise. (Emphasis Added).
- 60.
Franks v. Smith, 135 S.W. 484 (1911) (Ky.). See also Flood [22].
- 61.
Franks v. Smith, 135 S.W. 484, 489–90 (1911) (Ky.).
- 62.
Id. at 490–91.
- 63.
Id. at 492–93.
Upon this point, after mature consideration, we have reached the conclusion that any military order, whether it be given by the Governor of the state or an officer of the militia or a civil officer of a city or county, that attempts to invest either officer or private with authority in excess of that which may be exercised by peace officers of the state is unreasonable and unlawful; and if it is obeyed, the officer or private giving obedience subjects himself to such punishment and liability as the penal and civil laws of the state might inflict against a private individual guilty of similar transgression of the law or the rights of the citizen. We feel at liberty to thus define the limits within which soldiers may lawfully act, because all the authorities agree that the courts may at the instance of any person who has been aggrieved or on behalf of the commonwealth inquire into their acts and doings and determine whether or not they have been guilty of any conduct that would subject them to liability or punishment. The only difference between our ruling and that obtaining in the authorities cited is that we define more precisely than they do what orders a soldier is justifiable in executing, and hold as a matter of law that these orders are confined to such as a peace officer in the discharge of his duty might execute. In respect to these orders, the powers of the military and local civil officers of the state are identical. What one cannot do, neither can the other; what one may do, so may the other. The soldier has the same measure of protection and is subject to the same liability, whether he is acting under the orders of a military officer, independent of the local civil authorities, or is acting under immediate direction of these authorities. Neither has the right to give any orders or directions except those that a peace officer of the state might rightfully execute; and if the soldier does only what a peace officer may do, then he is entitled to the immunity afforded peace officers in the performance of their duty. This rule of conduct is of course not free from objection, but upon the whole we think it furnishes a reasonable guide for the militia, and describes with as much accuracy as conditions will permit the lines within which they may act with safety and beyond which they may not go without peril. Its observance will protect the quiet and orderly citizen from disturbance, and arrest and leave the lawbreaker to be dealt with as his conduct deserves. (Emphasis Added)
- 64.
Ela v. Smith, 71 Mass. (6 Gray) 121, 140 (1855) (Mass.).
But while thus recognizing the authority of civil officers to call out and use an armed force to aid in suppressing a riot or tumult actually existing, or preventing one which is threatened, it must be borne in mind that no power is conferred on the troops, when so assembled, to act independently of the civil authority. On the contrary, they are called out, in the words of the statute, “to aid the civil authority,” not to usurp its functions, or take its place. They are to act as an armed police only, subject to the absolute and exclusive control and direction of the magistrates and other civil officers designated in the statute, as to the specific duty or service which they are to perform. The statute does not even enlarge the power of the civil officers by giving them any military authority; but only places at their disposal, in the exercise of their appropriate and legal functions, an organized, disciplined and equipped body of men, capable of more efficient action in an emergency, and among a multitude, than an ordinary police force. Nor can the magistrate delegate his authority to the military force which he summons to his aid, or vest in the military authorities any discretionary power to take any steps or do any act to prevent or suppress a mob or riot. They must perform only such service and render such aid as is required by the civil officers. This is not only essential to guard against the use of excessive force and the exercise of irresponsible power; but it is required by the fundamental principles of our constitution, which provides that “the military power shall always be held in an exact subordination to the civil authority, and be governed by it. (Emphasis Added)
See also Fluke v. Canton, 123 P. 1049 (1912) (Okla.) and Bishop v. Vandercook, 228 Mich. 299 (1924) (Mich.). These cases reiterate the remarks as made in Franks v. Smith, 135 S.W. 484 (1911) (Ky.). Similar remarks have been made in Orr v. Burleson, 214 Ala. 257 (1926) (Ala.), Seaney v. State, 188 Miss. 367 (1940), 194 So. 913 (Miss.) and Scheuer v. Rhodes, 416 U.S. 232 (1974).
- 65.
See, e.g., Allen v. Gardner, 182 N.C. 425, 109 S.E. 260 (1921) (N.C.), where a soldier’s power and liabilities are equated to that of a civilian. On the other hand, the decision in Manley v. State, 62 Tex. Crim. 392, 137 S.W. 1137 (1911) (Tex.) does not distinguish between the powers of a peace officer or a citizen.
- 66.
Franks v. Smith, 135 S.W. 484 (1911) (Ky.).
- 67.
Allen v. Gardner, 182 N.C. 425, 109 S.E. 260 (1921) (N.C.).
- 68.
Orr v. Burleson, 214 Ala. 257, 259 (1926) (Ala.) (“The arrest was made without a warrant; but an officer may arrest any person at any time “when a felony has been committed”—in this case the dynamiting of the passenger train—“and he has reasonable cause to believe that the person arrested committed it; or when he has reasonable cause to believe that the person arrested has committed a felony, although it may afterwards appear that a felony had not in fact been committed; or on a charge made, upon reasonable cause, that the person arrested has committed a felony.”… These questions were proper as going to show that Guice-or Burleson, if he was responsible in any way-had reasonable cause for believing that plaintiff had been party to a felony). In Luther v. Borden, 48 U.S. 1 (1849), and Mitchell v. Harmony, 54 U.S. 115 (1851), the US Supreme Court had stated that guardsmen could make lawful arrests or lawful expropriation of property only if reasonable grounds exist for such action.
- 69.
Moyer v. Peabody, 212 U.S. 78, 85 (1909).
- 70.
Valdez v. Black, 446 F.2d. 1071 (1971) (10th Cir.).
- 71.
Nicholas B. Waranoff (1972), 1, 14–15.
- 72.
See Luther v. Borden, 48 U.S. 1 (1849) and Mitchell v. Harmony, 54 U.S. 115 (1851).
- 73.
Scheuer v. Rhodes, 416 U.S. 232 (1974). See also Foster [23].
- 74.
Piersen v. Ray, 386 U.S. 547 (1967).
- 75.
Scheuer v. Rhodes, 416 U.S. 232, 245 (1974).
- 76.
Scheuer v. Rhodes, 416 U.S. 232, 247 (1974) (“In short, since the options which a chief executive and his principal subordinates must consider are far boarder and far more subtle than those made by officials with less responsibility, the range of discretion must be comparably broad”).
- 77.
Scheuer v. Rhodes, 416 U.S. 232, 247–48 (1974).
- 78.
See, e.g., 42 USC § 1983 which is titled Civil Action for Deprivation of Rights and reads as:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
- 79.
Coolidge v. Hampshire, 403 U.S. 443 (1971) (holding that search and seizure under illegal warrant not issued by a neutral and detached magistrate is invalid); Camara v. Municipal Court, 387 U.S. 523 (1967) (holding that refusal to permit building inspectors to inspect defendant’s residence without warrant does not justify criminal prosecution under ordinance).
- 80.
Warden v. Hayden, 387 U.S. 294 (1967) (holding that entry without warrant to search for robber reported to have escaped in vicinity is not unconstitutional because the “exigencies of the situation made that course imperative”).
- 81.
Chimel v. California, 395 U.S. 752 (1969) (upholding the power of search incident to arrest subject to qualifications, although applications of the test lead to invalidation of police action in the instant case).
- 82.
Marron v. US, 275 U.S. 192 (1927) (holding that to prevent the seizure of one thing under warrant describing another, the 4th Amendment requires particularization of items to be seized; thus, a warrant allowing seizure of intoxicating liquors does not allow seizure of a ledger and bills for service).
- 83.
United States v. Hinton, 219 F.2d. 324 (1938) (7th Cir.) (holding that a single search warrant may cover several different places or residences in a single building, but probable cause must be shown for searching each residence).
- 84.
Warnoff [20, p. 1, 16].
- 85.
State v. McPhail, 182 Miss. 360 (1938) (Miss.).
- 86.
Seaney v. State, 188 Miss. 367 (1940) (Miss.), McBride v. State, 221 Miss. 508 (1954) (Miss.); Brady v. State, 229 Miss. 677 (1957) (Miss.).
- 87.
Herlihy v. Donohue, 161 Pac. Rep. 164 (1916) (Mont.). The Governor of Monatana declared Silver Bow county to be in a state of insurrection, called out the militia to restore order but did not proclaim martial law. The commander of troops issued an order restricting the opening hours of places where intoxicating drinks could be purchased. Herlihy’s saloon was entered by guardsmen and his liquor stock destroyed for allegedly violating the closure order. The Supreme Court of Montana, in an action for damages for trespass and destruction of property, treated the case as one involving the use of military in aid of the civil authority and found for the plaintiff. The Court examined the state of affairs existing in the area and concluded that there was no military necessity as there was no state of war; that the liquor was not needed for the use of troops; that its destruction was not necessary to prevent liquor falling into the hands of the rioters; that the latter were not threatening to break into saloons to obtain intoxicants and that the more efficacious alternative to temporary arrest and imprisonment of Herlihy by the civil authorities was not followed.
- 88.
Mitchell v. Harmony, 54 U.S. 115 (1851).
- 89.
Mitchell v. Harmony, 54 U.S. 115, 134 (1851).
- 90.
Scheuer v. Rhodes, 416 U.S. 232 (1974).
- 91.
Jenkins v. Averett, 424 F.2d. 1228 (1970) (4th Cir.); Whirl v. Kern, 407 F.2d. 781 (1969) (US Court of Appeals, 5th Cir.); Joseph v. Rowlen, 402 F.2d. 367 (1968) (7th Cir.).
- 92.
See, e.g., Bishop v. Vandercook, 200 N. W. 278, 283 (Mich.). An award of damages for injury to person and automobile were upheld on the ground of use of excessive force. The Court said:
The use of the log to ditch automobiles, if drivers thereof should refuse or neglect to stop, was an unlawful and wanton and wilful disregard of human life, open to no justification, and no defense of contributory negligence. … It was intended and well calculated to inflict injury upon anyone not observing or not obeying its challenge to disaster, and placed across the roadway after it was apparent a driver might not stop on signal, and left there to ditch him for not stopping.
- 93.
42 U.S.C. § 1983 under the heading of Civil Action for Deprivation of Rights reads as:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
- 94.
Scheuer v. Rhodes, 416 U.S. 232, 243, 248 (1974).
- 95.
Sterling v. Constantin, 287 U.S. 378, 387–88 (1930). Chief Justice Hughes said:
… Governor Sterling, learning that the orders made by the Railroad Commission could no longer be enforced, issued his oral and written orders to General Wolters to limit the production of oil … this was the limit fixed by the Railroad Commission’s order of October 10th the enforcement of which was subject to the restraining order.
- 96.
Russell Petroleum Co. v. Walker, 19 P.2d. 582 (1933) (Okla.).
- 97.
United States v. Phillips, 33 F. Supp. 261 (1940) (D. Okla.).
- 98.
Fabus v. US, 254 F.2d. 797 (1958) (8th Cir.).
- 99.
Fluke v. Canton, 31 Okla. 718 (1912) (Okla.).
- 100.
In Re Debs 158 U.S. 564 (1895).
- 101.
Id. at 582.
- 102.
Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579 (1952).
- 103.
United States v. U.S. District Court (Keith), 407 U.S. 297 (1972).
- 104.
Tribe [24].
- 105.
Listed in the Queen’s Regulations for the Army (1962; loose-leaf service) J1164–J1165.
- 106.
- 107.
Finlason [27].
- 108.
- 109.
For example, at various points in his charge to the grand jury in R v. Eyre [1868] to consider a bill indicating Governor Edward Eyre for alleged misdemeanors during martial law in Jamaica in 1865, Blackburn, J. dealt with the law relating to military action in aid of civil authority. See Finlason’s Sp. Rep. 56–59, 81 (1868).
- 110.
- 111.
- 112.
That is a group of able-bodied free men, usually between 15 and 60 years old, who were pressed into service to assist in the maintenance of law and order and the preservation of the King’s peace, by the King’s local and civil representatives (e.g., the sheriff). See Radzinowicz [30].
- 113.
Id at 110–11; see also Hayter [33, p. 140].
- 114.
See Report of the Select Committee on Employment of Military in Cases of Disturbances, H.C. 236 VII ¶ 9 (1908); Greer [32, p. 581].
- 115.
Greer [32, pp. 586–87].
- 116.
That is during the Featherstone Riots. See Report of the Committee Appointed to Inquire into the Circumstances Connected with the Disturbances at Featherstone on 7th of September 1893 (HMSO, 1893) (C.7234); Report of the Interdepartmental Committee on Riots Appointed by the Home Secretary May 1894 (HMSO, 1895) (C. 7650).
- 117.
For example, during the miners’ strike in South Wales in 1910, the Glamorganshire Chief Constable sought military assistance to combat the Tonypandy rioters and was immediately sent military forces by the competent military authority. See Wilcox [34, p. 405].
- 118.
See generally Jeffrey & Hennessey, States of Emergency (1983), which contains a historical discussion of the numerous occasions when the military has been used in Britain in aid of civil authority since 1919. The authors show, inter alia, that at least since that year, both policy planning and operational control in respect of use of military in aid of civil authority during industrial unrest of strikes has been in the hands of various organizations or departments established for this purpose within the central government. Starting with the transitional Industrial Unrest Committee (IUC) in 1919, such organizations have included the Supply and Transport Committee (STC), the Supply and Transport Organization (STO), the Organization for Maintenance of Supplies (OMS), the Industrial Emergencies Committee (IEC) and, now, the so called Civil Contingencies Unit (CCU), established in 1972 after the miners’ strike and headed, since 1982, by Mr. Author Goodall. The existence of the CCU is not publicly acknowledged by the government. On the role of the central government in the use of military, especially in industrial disputes, see Mark [35].
- 119.
Greer [32, pp. 576–78, 588–90, 598–99].
- 120.
See Queen’s Regulations for the Army J1164 (loose-leaf service) (1962). However, this does require, except in sudden emergencies, that the military “inform the Ministry of Defense and his immediately superior authority.” (Emphasis supplied).
- 121.
See, Report of the Select Committee on Employment of Military in Cases of Disturbances, H.C. 236 at 376, col. 2 (1908) (evidence of Sir Edward Troup).
- 122.
See Report of the Committee appointed to inquire into the circumstances with the Disturbances at Featherstone on September 7, 1893 (London, HMSO, 1893), (C.-7234) ¶ 24 which recommended that all requests for military aid by the magistracy must be routed through the Chief Constables. This led to a suitable change in the Queen’s Regulations. The same point is made by the Report of the Select Committee on Employment of Military in Cases of Disturbances, H.C. 236 (1908) 9.
- 123.
See, inter alia, Miller v. Knox (1838) 574 132 Eng. Rep. 910; Fisher v. Oldham Corporation [1930] 2 KB 364; AG, NSW v. Perpetual Trustee Co. [1955] AC 457 (JCPC); R. v. Commissioner of Police of Metropolis Ex parte Blackburn [1968] 2 QB 118,135–37 (Salmon, L.J.).
- 124.
Cf. Evelegh [36] (quoting the remarks of Assistant Chief Constable of Thames Valley Police Force as published in The Guardian on 25/9/1975: “We do not act accordingly to Home Office instructions. Chief Constables are not subject to any form of political control.”).
- 125.
See the 1969 incident in Northern Ireland?
- 126.
Council of Civil Service Unions v. Minister for Civil Service [1984] 3 All ER 935.
- 127.
See Lord Diplock’s obiter in In Re Attorney-General for Northern Ireland Reference (No. 1 of 1975) [1976] 2 All ER 937, 946.
- 128.
Chandler v. DPP [1964] AC 763, 791.
- 129.
Id. at 807–08, 810–811 (Lord Devlin).
- 130.
Nor was the issue decided in the earlier decision of the Court of Appeal in China Navigation Co. v. AG [1932] 2 KB 197 where an application by ship owners for a declaration that the Crown provide free armed protection for their vessels against pirates near Hong Kong was rejected. See id at 211, 213 (Scrutton, L.J.).
- 131.
Burdett v. Abbott (1811) 104 Eng. Rep. 501. Chief Justice Mansfield remarked in obiter:
…I will correct a strange mistaken notion which has got abroad, that because men are soldiers, they cease to be citizen; a soldier is gifted with all the rights of other citizens, and is bound by all the duties of other citizens…
To similar effect see Report of the Committee appointed to inquire into the circumstances with the Disturbances at Featherstone on September 7, 1893 (London, HMSO, 1893), (C.7234). See also Manual of Military Law ¶ 3 (1968); Report of the Select Committee on Employment of Military in Cases of Disturbances, H.C. 236 at 376, col. 1 (1908) (evidence of Sir Edward Troup).
- 132.
Manual of Military Law ¶ 2 (1968); Report of the Committee appointed to inquire into the circumstances with the Disturbances at Featherstone on September 7, 1893 (London, HMSO, 1893) (C.7234).
- 133.
Report of the Interdepartmental Committee on Riots appointed by the Home Secretary, May 1894 (London, HMSO, 1895) (C. 7650) ¶ 23; Manual of Military Law ¶ 3 (1968); Report of the Select Committee on Employment of Military in Cases of Disturbances, H.C. 236 (1908) (evidence of Sir Edward Troup at 376, cols. 1–2). The current Queen’s Regulations allow suo moto action by the military commander without request from civil authorities in cases which “demand his immediate intervention to protect life and property.”.
- 134.
Radzinowicz [30, p. 107].
- 135.
1 Geo. 1, Stat. 2, c. 5. Earlier Riot Acts of similar nature include the 1411 Act (13 Hen. 4, c.7) and the 1414 Act (2 Hen. 5, stat 1). All these Acts were abolished by the Criminal Law Act 1967, c. 58 (UK) § 10 (2), Sch. 3, parts I & II.
- 136.
Report of the Committee appointed to inquire into the circumstances with the Disturbances at Featherstone on 7th of September 1893 (London, HMSO, 1893) (C.7234).
- 137.
Report of the Interdepartmental Committee on Riots appointed by the Home Secretary, May 1894 (London, HMSO, 1895) (C.7650) ¶ 16.
- 138.
R v. Pinney (1832) 172 Eng. Rep. 962.
- 139.
R v. Kennet (1781) 172 Eng. Rep. 976; Redford v. Birley (1822) 171 Eng. Rep. 773; R v. Pinney (1832) 172 Eng. Rep. 962; R v. Brown (1841) 174 Eng. Rep. 522; R v. Eyre (1868) Finlason Sp. Rep. 56–59, 81; Lynch v. Fitzgerald [1938] 1 IR. 382 (Ir.); Devlin v. Armstrong [1971] NI 13 (NICA).
- 140.
R v. Pinney (1832) 172 Eng. Rep. 962, 964.
- 141.
R v. Pinney (1832) 172 Eng. Rep. 962, 971.
- 142.
Redford v. Birley, (1822) 171 Eng. Rep. 773.
- 143.
Id. at 115 (Bayley, J.); Id. at 120–21 (Best, J.); Id. at 127 (Holroyd, J.).
- 144.
Id. at 111.
- 145.
Similarly, the Royal Commission on the Featherstone Riots emphasized in 1893 that the necessity for the impugned acts established after due judicial scrutiny, could alone justify the action of individuals, whether civil peace offers, soldiers or civilians. See C.7234 (1893).
- 146.
See Criminal Law Act 1967, c. 58 § 2 (UK); Police and Criminal Evidence Act 1984, c. 60 §§ 24 & 25 (UK).
- 147.
See Lord Diplock’s obiter in In Re Attorney-General for Northern Ireland Reference (No. 1 of 1975) [1976] 2 All ER 937, 946.
- 148.
Franks v. Smith, 134 S.W. 484 (1911) (Ky.).
- 149.
Evelegh [36, pp. 6–8].
- 150.
Id., with the repulsion and exhaustion of the police forces, and in the absence of the army, the Protestant mob invaded Bombay Street in the Falls Road area of Belfast and burnt it completely.
- 151.
See Gautam [12, p. 117].
- 152.
Rankin [10, p. 75, 77] (observing that “Military troops are sometimes used as an aid to the civil authorities when martial law is not declared. The troops then act a role similar to deputy sheriffs, and do nothing under their own responsibility but act directly under the civil power. This use of troops is easily recognizable from the use of troops under martial law because there is no declaration of martial law, and the troops act in entire subordination to the civil authorities.” A Government of India report, set up to review national security, seems to share this position. See Government of India, Report of the Group of Ministers on National Security 44 (2001) available at https://www.vifindia.org/sites/default/files/GoMReportonNationalSecurity.pdf (observing that, “The reins of Government must, of course, never be handed over to the Armed Forces. The civil face of the governance must remain visible at all levels, even in situations of militancy and terrorism. The Armed Forces of the Union can be used only in aid of civil power and not in suspension of it.”).
- 153.
See Gautam [12, pp. 117, 140–143] (discussing the total or near-total breakdown of civilian administration as the key factor behind the issuance of successive “disturbed area notifications” under Sect. 3 of the Armed Forces Special Powers Act, 1958).
- 154.
See Government of India, Report of the Group of Ministers on National Security 44 (2001) available at https://www.vifindia.org/sites/default/files/GoMReportonNationalSecurity.pdf. The Report notes that, “The Union Government and the State Government have the constitutional responsibility for running the administration, in accordance with the Constitution. Although problems affecting public order are to be dealt with by the state police forces, the State may sometimes seek assistance from the Centre, and the Central Para-military Force/Army may be deployed in aid of civil power. The Standard Operating Procedure (SOPs) for doing this are laid down in the Instructions on Aid to Civil Authorities by the Armed Forces, 1970/SOP of CPMFs.”
The Standard Operating Procedures of Ministry of Home Affairs, Instructions on Aid to the Civil Authorities by the Armed Forces (1970). These operational protocols envisage broad situations, such as internal disorders, natural calamities, maintenance of essential services etc., when the armed forces can be pressed into assistance.
- 155.
Id. See also, Commission on Centre-State Relations, Task Force Report V. 1 (annex.) at 83 (2010)
When called out to quell civil disturbances or help during natural or man-made calamities the role of the defence forces is clearly defined, but when these forces are employed for long periods of counter insurgency or cross-border terrorism the laid down norms prove inadequate.
- 156.
See Code of Criminal Procedure, 1973, §§ 130, 131.
- 157.
See Indian Penal Code, § 141 (for the legal definition of an “unlawful assembly”).
- 158.
Code of Criminal Procedure, 1973, § 130(1).
- 159.
Id. § 129(1).
- 160.
Id. § 129(2).
- 161.
Id. § 130(3).
- 162.
Id. § 131.
- 163.
Id. § 132.
- 164.
Naga People’s Movement of Human Rights v. Union of India, (1998) 2 SCC 109, 147 (Agrawal, J., quoting with approval ‘a list of “Dos and Don’ts” that are issued by the Army Headquarters from time to time).
- 165.
Id. at 147–50. The list of “Dos and Don’ts” issued by the Army Headquarters applicable to the armed forces included a detailed list of things pertaining to “Action before Operation”, “Action during Operation”, “Action after Operation”, and “Dealing with Civil Court”.
- 166.
See Gautam [12, pp. 140–143].
- 167.
See, e.g., Armed Forces (Special Powers) Act § 4(a), (“Special Powers of the Armed Forces.” If [any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces] is of opinion that it is necessary so to do for the maintenance of public order, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or things capable of being used as weapons or of firearms, ammunition or explosive substances.”).
- 168.
Naga People’s Movement of Human Rights v. Union of India, (1998) 2 SCC 109, 147.
- 169.
Id. at 149.
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Singhvi, A., Gautam, K. (2020). Military Acting in Aid of Civilian Authority. In: The Law of Emergency Powers. Springer, Singapore. https://doi.org/10.1007/978-981-15-2997-9_3
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