Issue of illegal/irregular orders by State Governments

Issue of illegal/irregular orders by State Governments
15.20 In their anxiety to ensure police performance in accordance with the appreciation of the situation by the political party in power, some State Governments are known to have issued executive instructions restricting the scope for police action even in situations where a specific line of action by police is, enjoined on them by law itself. We have a typical instance in West Bengal in what has come to be known as the "Jay Engineering Works Case". This case arose from the executive instructions issued by the Government of West Bengal on 27th March, 1967, laying it down that in cases of "gherao" of industrial establishments by ' their workers resulting in the confinement of managerial and other staff, the matter should be referred to the Labour Minister and his directions obtained before deciding upon police intervention for the rescue of the confined personnel. When an affected party obtained an injunction from Calcutta High Court against the implementation of this order, a further order was issued by the State Government on 12th June, 1967, stating that "the police must not intervene in legitimate labour movements and that, in case of any complaint regarding unlawful activities in connection with such movements, the police must first investigate carefully whether the complaint has any basis in fact before proceeding to take any action provided under the law". Executive instructions conveyed in both these circulars were later struck down by Calcutta High Court as contrary to law, without jurisdiction and invalid. In view of the importance of the legal position clearly set out in this judgment, a copy of extracts from AIR 1968 Calcutta 407 (V 55 84) which give the ruling of the Court on the specific issues raised in this case along with copies of the three circulars dated 7th February, 1956, 27th March, 1967 and 12th June. 1967 of the Government of West Bengal, is enclosed as Appendix V.
15.21 We have seen another instance in another State (U.P.) where the following executive instructions were issued in March 1977, governing police action in law and order situations :"Whenever a situation likely to have a bearing on the general law and order situation arises in the district, the Superintendent of Police will immediately inform the District Magistrate by the quickest means available and seek his instructions in regard to the steps to be taken to meet the situation, unless circumstances make it impracticable to do so. Further action to meet the situation will be taken according to the instructions of and in close and continuous consultation with and guidance from the District Magistrate."[U.P. Government Order No. 7850/VUI-1-51-A/ 76 dated 21st March 1977]This insistence on prior consultation with the executive functionary who has direct contact with Government before taking action to deal with a law and order situation would definitely inhibit the police from taking even such steps as are enjoined on them directly by law in a given situation. To that extent we feel that these executive instructions must be deemed to be illegal.
15.22 We are also aware that in several States executive instructions have been issued conferring a kind of supervisory and inspecting role on the subordinate executive magistrates vis-a-vis the police. Section 3 of the Police Act, 1861, runs as under :—"3. SUPERINTENDENCE IN THE STATE GOVERNMENT—The superintendence of the police throughout a general police district shall vest in and be exercised by the State Government to which such district is subordinate, and except as authorised under the provisions of this Act, no person, officer or court shall be empowered by the State Government to supersede or control any police functionary."The Act itself does not confer any supervisory or inspecting role on the subordinate ranks of executive magistrates in a district and, therefore, any executive instructions issued by the Government empowering them to control the police in any manner should be deemed to be illegal.
15.23 We have referred to the above-mentioned instances to underline the fact that in the garb of executive instructions that flow from the Government from time to time. attempts have been made to subordinate police personnel to executive requirements, without regard to the requirements of law as such. Interference with police by political, executive or other extraneous sources have to be seen as a part of this philosophy and therefore, require to be analysed from the point of view of propriety or impropriety of such an approach.