Pakistan Supreme Court deserves to be complimented profusely. It has acted bravely to uphold the rule of law. A few months back, in April 2012, it convicted the Pakistan Prime Minister Yusuf Raza Gilani of contempt for refusing to reopen an old corruption case against Asif Ali Zardari, the President of Pakistan. Gilani had to vacate the office of the Prime Minister after this conviction. Later, the Supreme Court initiated a contempt case also against the new Prime Minister of Pakistan, Raja Pervez Ashraf, for the same reason, i.e., failing to reopen the said old corruption case against the President; however, subsequently, the Prime Minister Raja Pervez Ashraf agreed to obey the order of the Supreme Court for reopening of the said corruption case. Now, on 19 October 2012, Pakistan Supreme Court has passed in unprecedented order calling for action against a former army chief and a former ISI chief of Pakistan who are alleged to have acted on certain alleged illegal orders of the then President of Pakistan (see, below, for details). In doing so, Pakistan Supreme Court has not only upheld the rule of law, but has also taken on the powerful army and ISI establishment in Pakistan.
In its order, Pakistan Supreme Court has stated that a political cell was formed in the President House in 1990 and the then ISI Chief Assad Durrani, the then Army Chief Aslam Beg and the then President of Pakistan Ghulam Ishaq Khan were involved in the rigging of elections. It is reported that General Aslam Beg had argued that he was simply following the orders of then President Ghulam Ishaq Khan when he authorised the distribution of millions of rupees to politicians in a bid to defeat the Pakistan Peoples Party in the 1990 polls. In its aforesaid order dated 19 October 2012, Pakistan Supreme Court (a bench of 3-Judges headed by the Chief Justice Iftikhar Muhammad Chaudhry) has ordered that the then Army chief, the then (late) President and the then ISI Chief were involved in rigging the elections of 1990 by acting in violation of the Constitution and has ordered for an inquiry by the FIA (Federal Investigation Agency) against all those involved. It has also directed the Federal government to take necessary steps under the Constitution and law against them.
No doubt, this judgment of Pakistan Supreme Court is very important for upholding the rule of law and for holding that the Constitution is supreme, and thereby implying that the institutions of army and the ISI are not above the law. This judgment also raises an important question of law as to whether acting in compliance of illegal orders of superiors can be a valid defence in a case before a court of law? In other words, it is permissible to disobey the illegal orders of a superior? These questions also have relevance under Indian laws.
We, in India, have a written Constitution. The Constitution is supreme and is binding on all authorities as well as on the people. All laws and authorities in India derive their validity and powers, respectively, from the Constitution. All authorities are required to uphold the Constitution and the laws of the land. Article 60 of the Constitution requires the President of India to make an oath or affirmation, inter alia, to preserve, protect and defend the Constitution and the law. Article 69 of the Constitution requires the Vice President of India to “bear true faith and allegiance to the Constitution of India as by law established”. As per the provisions of clause (4) of Article 75 of the Constitution, read with Third Schedule thereof, the Prime Minister and other ministers are required to “bear true faith and allegiance to the Constitution of India as by law established” and also to “do right to all manner of people in accordance with the Constitution and the law”. Similar oath or affirmation is required to be made by other constitutional authorities, including the Chief Justice of India, judges of the Supreme Court, Comptroller and Auditor General of India, and Members of Parliament.
These provisions unequivocally show the supremacy of the Constitution. All authorities are bound by the provisions of the Constitution and the laws made thereunder. In as much as the powers and responsibilities of Government officers of various levels are specifically laid down in various laws enacted by the competent legislature and/or in the rules and regulations framed under the authority of such laws, it goes without saying that all such Government officers are also equally bound by the provisions of the Constitution and the laws.
Thus, all the authorities are required to act as per the commands of law. They cannot act in a manner that can be termed as “illegal”. It is impermissible for a superior officer or authority to issue an “illegal” order to his subordinate authority or officer. As a natural corollary, it follows that an authority or officer is not required to obey an “illegal” order of a superior.
It is not for nothing that the Conduct rules applicable to Government officers specifically lay down requirement of issuing written orders by the superiors. For example, Rule 3 of the All India Services (Conduct) Rules, 1968, which are applicable to the IAS and IPS officers, requires that the direction of the official superior shall ordinarily be in writing, and that where the issue of oral direction becomes unavoidable, the official superior shall confirm it in writing immediately thereafter. This rule further lays down that a member of the Service who has received oral direction from his official superior shall seek confirmation of the same in writing, as early as possible and in such case, it shall be the duty of the official superior to confirm the direction in writing. Clearly, this rule is meant as a safeguard to ensure that “illegal” orders are not made in the form of “oral directions” by superior officers. The requirement of making only “written” orders, or of confirming the “oral directions” in writing subsequently if issuance of such oral directions was unavoidable, has a salutary effect since no authority would like to pass “written” orders if they are illegal or against the provisions of law. It is unfortunate that several officers still obey “illegal” orders of the superiors which are usually made “orally” without being confirmed in writing thereafter. The aforesaid safeguard against “oral directions” is already available in the statutory rules to the Government officers if only they wish to avail of it.
Coming back to the original issue of whether one can take the defence of having acted in compliance of (illegal) orders of a superior and whether it can be a valid defence in a court of law, let us analyse the legal position as it prevails in India.
There is an old famous legal maxim of the English common law: ignorantia facti excusat, ignorantia juris non excusat. It means “ignorance of facts excuses, ignorance of law does not excuse”. In simple language, it means that while the ignorance (or mistake) of fact may be a valid defence, ignorance (or mistake) of law is not a valid defence in a case. Thus, a mistake of law is never a defence in law, whether civil or criminal. This legal maxim has been enacted in Indian laws. For example, Section 76 of the Indian Penal Code states as under:
“76. Act done by a person bound, or by mistake of fact believing himself bound, by law.—Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it.”
Thus, if a person commits an act, by reason of a mistake of fact, in good faith believing himself to be bound by law to do it, he has not committed any offence. However, this section excludes from such exemption of having committed an offence a similar act which is committed by reason of a mistake of law.
Likewise, Section 79 of the Indian Penal Code lays down as under:
“79. Act done by a person justified, or by mistake of fact believing himself justified, by law.—Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.”
Here again, while a mistake of fact may be a valid defence to an offence, mistake of law is not.
Thus, ignorance of law is no excuse. The above rule can also be stated thus: “Every man is presumed to know law”. Therefore, if you commit an act which is declared an offence under a law, you cannot take the defence that you are ignorant of such act having been declared as an offence. Notwithstanding your ignorance of law, notwithstanding that you might not have been aware that committing such an act is an offence under a law, you are liable to be punished for having committed such an offence. At first look, it may appear to be harsh. You are being punished for an act which you did not even know to be an offence. After all, even top lawyers are supposed to be fighting in courts as to what the law is, and it is not rare to see even the judges being unaware of the exact provisions of law. How can then a common man (such as an illiterate person) be supposed always to know what the law is? However, the correct reason why the ignorance of law is not a valid defence is that if it were the defence then every accused person will take the defence that he was not aware that such act was made an offence under a law. This would require that in every case it will have to be established first that the person accused of an offence was aware that such act had been declared as an offence under a law. This would mean that a large number of criminals will evade conviction and punishment. Mainly for this reason, a legal principle or a so-called legal fiction exists laying down that ignorance of law is no excuse.
It has been held that mistake of law ordinarily means mistake as to the existence or otherwise of any law on a relevant subject as well as mistake as to what the law is [Tustipada Mandal (1950) Cut 75]. It is also held that ignorance of the municipal law of the Kingdom, or of the penalty thereby inflicted upon offenders, doth not excuse any, that is of the age of discretion and compos mentis, from the penalty of the breach of it; because every person of the age of discretion and compos mentis is bound to know the law and presumed so to do [1 Hale P.C. 42]. If any individual should infringe the statute law of the country through ignorance or carelessness, he must abide by the consequences of his error, it is not competent to him to aver in a Court of Justice that he was ignorant of the law of the land, and no Court of Justice is at liberty to receive such a plea [Fischer, (1891) 14 Mad 342, 354, F.B.].
The said maxim ignorantia juris non excusat, in its application to criminal offences, admits of no exception, not even in the case of a foreigner who cannot reasonably be supposed in fact to know the law of the lands [Esop, (1836) 7 C. & P. 456]. It has further been laid down in respect of the plea of ignorance of a statute which has been newly passed, that, although a person commits an act which is made an offence for the first time by a statute so recently passed as to render it impossible that any notice of the passing of the statute could have reached the place where the offence has been committed, yet his ignorance of the statute will not save him from punishment [Bailey’s case, 1800- Russ & Ry. 1].
Thus, it may be seen that the plea of ignorance of law is not available even to a foreigner and also even in respect of a statute passed recently.
This being the legal position prevailing in India, how can an authority or an officer in India plead ignorance of law? How can they claim that they were not aware of what was “legal” and what was “illegal”? Once they are supposed to be aware what is “illegal”, how can they take the defence of having acted in compliance of “illegal” directions of a superior? More so, when they are expected to uphold the Constitution and the laws of the land? Likewise, when they are duty-bound to abide by the provisions of the Constitution and the laws?
What cannot be done directly, cannot be done indirectly. If a person is not allowed to do an “illegal” thing by himself, how can he be allowed to do an “illegal” thing under the orders of a superior?
It is pertinent to mention that in the case of R.S. Nayak v. A.R. Antulay, (1986) 2 SCC 716 (at p. 769): AIR 1986 SC 2045 : 1986 Cri LJ 1922, the Supreme Court has held that “…the superior’s direction is no defence in respect of criminal acts, as every officer is bound to act according to law and is not entitled to protection of a superior’s direction as a defence in the matter of commission of a crime”.
It, thus, follows that if any person obeys an “illegal” order of a superior, he shall be doing it at his own peril. The law will not protect him. He cannot take a defence in a court of law that he was acting in compliance of the orders of the superiors though that order itself was an “illegal” order. Thus, under Indian laws, complying with or obeying an illegal order of a superior may expose the concerned person to legal action under relevant provisions of law, which may include a criminal prosecution in appropriate cases.
Does it mean that one can disobey illegal orders? Of course, one can. There are sufficient safeguards in law to protect a person refusing to obey illegal orders. Unfortunately, in practice, it becomes highly subjective whether the orders were illegal. Moreover, in practice, a person disobeying illegal orders may be subjected to witch-hunt under some other pretexts or in some other matters. That is, of course, a professional hazard that one has to consider. However, the fact remains that obeying illegal orders of a superior may land one in trouble, as the aforesaid judgment of Pakistan Supreme Court shows that it can happen to even those who have been the mightiest persons in the land (army chief and ISI chief), though it is true that the last word in this episode is yet to be written. One hopes that the legal position in India should in fact be clearer than this.
[Note: Some details mentioned in this article have been taken from a previous article of the author.]