Judgment :- The petitioner who is a woman Police Constable feels aggrieved by Ext.P5 circular prescribing a separate uniform for women Constables. According to her, it is a discrimination practised on the basis of gender. So she has chosen to disobey that circular and has worn the uniform usually worn by men Constables. The third respondent on receiving report about the disobedience to the direction regarding dress code contained in Ext.P5, issued Ext.P3 charge memo proposing to take disciplinary action. She has submitted Ext.P4 reply. Now this OP is filed challenging Ext.P3 memo of charges and also Ext.P5 circular. 2. The interesting aspect of the case is that the petitioner does not dispute that she has violated Ext.P5. Her case is that some of the Clauses of Ext.P5 which prescribe separate dress items for women Constables are unconstitutional and, therefore, the violation of those Clauses cannot be a ground for action against her. In other words, she is claiming the right to disobey an order which is unconstitutional according to her. Now most of the books on jurisprudence deal with the newly claimed right of the citizen to disobey orders which are unconstitutional. According to some learned authors he can take the risk of disobeying the orders and in case he is prosecuted he can set up the defence that the order disobeyed by him is unconstitutional. Ultimately, if the competent court upheld the contention of the citizen he can go free; otherwise he will have to suffer the consequences. See the view of the following Authors: Hilaire Barnett (Constitutional and Administrative Law). "The question which then arises is whether the individual has a "right" to disobey the law? A government true to democratic precepts of representativeness and fairness must be sensitive to demands for change. If it fails in that regard it is at least arguable that demands for change, while entailing technical breaches of the law, should be accommodated within the constitutional framework." R.W.M. Dias (Dias Jurisprudence - 5th Edition). "Civil disobedience has become a problem in many societies in recent times, and changes have been brought about in consequence. The question is how far, if at all, disobedience can be accommodated within a theory of law. "Civil disobedience has become a problem in many societies in recent times, and changes have been brought about in consequence. The question is how far, if at all, disobedience can be accommodated within a theory of law. On the face of it, there is an obvious contradiction here; but if law is thought of in a continuum and ability to change is regarded as a condition of the continuity of law, then disobedience could, within limits, be included among the phenomena inducing legal change." Edgar Bodenheimer (Jurisprudence) "It may, however, happen that an oppressive regime enacts rules into law which utterly defy all civilized standards of decency. Suppose, for example, a government orders the extermination or sterilization of an unpopular religious, racial, or national minority, sanctions the lynching of or national minority, sanctions the lynching of persons by mobs, commands (like King Herod in the New Testament) the killing of innocent children, or compels persons at the threat of torture to inform on close relatives who have citicized the government. If (as well usually be the case under a tyrannical regime) no bona fide legal procedures for challenging the authority of such utterly iniquitous laws are available, a right to resist the application and execution of such commands ought to be accorded to legal officials as well as private citizens. The exigencies of legal security demand, however, that his right be limited to extreme and inextricable situations in which an outrageous wrong is being committed by the government. Furthermore, the person making use of the right of resistance must be held to the risk of having misjudged the stringent prerequisites for the legitimate exercise of this right." Ronaid Dworkin (Taking Rights Seriously) "In a democracy, or at least a democracy that in principle respects individual rights each citizen has a general moral duty to obey all the laws, even though he would like some of them changed. He owes that duty to his fellow citizens, who obey laws that they do not like, to his benefit. But this general duty cannot be an absolute duty, because even a society that is in principle just may produce unjust laws and policies, and a man has duties other than his duties to the State. He owes that duty to his fellow citizens, who obey laws that they do not like, to his benefit. But this general duty cannot be an absolute duty, because even a society that is in principle just may produce unjust laws and policies, and a man has duties other than his duties to the State. A man must honour his duties to his god and to his conscience, and if these conflict with his duty to the State, then he is entitled, in the end, to do what he judges to be right. If he decides that he must break the law, however, then he must submit to the judgment and punishment that the State imposes, in recognition of the fact that his duty to his fellow citizens was overwhelmed but not extinguished by his religious or moral obligation." In Nawabkhan Abbaskhan v. The State of Gujarat ((1974) 2 SCC 121), the Apex Court considered this novel concept in Jurisprudence: "Illegal acts of authorities, if can be defied on self-determined voidness, startling consequences will follow, as the High Court apprehends. A detenu 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 it 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 lawlessness of the law or order? A recent book (Discretion to Disobey by Kadish and Kadish) establishes this line of thought from Benjamin Curtis, 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 moral duty of all men to obey those laws which have been passed through all the forms of legislation until they shall have been decreed by judicial authority not to be binding; but this is too broad a statement of the civil and moral duty incumbent 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 patriotic duty of a citizen to raise a question whether a law is within the Constitution of the country. On this view it is almost as though the Constitution contained the words to be found in the constitution of one contemporary German State: "It is the right and duty of every man to resist unconstitutionally exercised public power": More apposite to the present case are these remarks of the same authors: "If a 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 own judgment of the order's validity and to act accordingly. If he turns out to be wrong, of course, he is answerable. The citizen is at liberty to make his own judgment of the order's validity and to act accordingly. If he turns out to be wrong, of course, he is answerable. But if he turns out to be right, he is not answerable in any way - not for disobeying the order, since the order was invalid, 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 number 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 citizen is obliged in this circumstance 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. (V.R. Krishna Iyer, J.) Normally, no Court will consider the constitutional validity of a statutory instrument unless the same is absolutely necessary for the determination of the case. In this case the determination of the validity of Ext.P5. circular arises if only the petitioner is punished basing on the violation of Ext.P5. Now the challenge to the disciplinary proceedings as well as the challenge to Ext.P5 is premature. Therefore this OP is closed as premature without prejudice to the contentions of the petitioner. All her contentions are kept open. In case ultimately she is punished for violation of Ext.P5, she will be free to work out her remedies.