Analysis of The Defence of India Act, 1962

Introduction

At the time of emergency during the period of war defence act came into force to prevent detention enactment. The Defence Act of India, 1962 is one such act that was promulgated by the President of India during the Sino-Indian war, 1962. This was presidential ordinance later, the parliament applied this act and continued as laws.

The application of the ordinance as laws started from December 1962 onwards. The objective of the defence act was to manage and structure the military force and to defend, protect and fight for the people in its country as per the Indian Constitution.

 Any person whoever is held under this act Is suspended with access to their basic fundamental rights and there is also a special provision for the same. In the other provision the government is allowed to arrest or hold any person in detention without giving him the purpose or explanation about the same which suspends the rights of that person i.e Article 22 of Constitution will be not applicable in this situation and there will be no such provision for habeus corpus also.

History

The Defence Act of India, 1962 was brought into force during India-China war[1] with the promulgation of the President.

The war of India-China started from October1962 which was a huge fight against the boundries and dispute for Himalayan border.

China’s People’s Liberation Army invaded India in Ladakh and some regions on October 20, 1962. When the war was started India did not expect that the war may happen and therefore they made a less effort towards the defence. When China feared war and started India was not confident because it made a life preparation for the same. By assuming this India had deployed only two divisions of troops in the region of the defence whereas on the other hand China was much alert and confident when compared to India and it also was ready with three regiments positioned in the conflict.

Later, China had tried many other ways like launching an infantry attack from the rear, lighting the bush to confuse the Indian army and other typical ways which led Indian army to lose the war.

At this time, The Defence Act of India, 1962 came into force for the protection of the people and defend for the country’s republic.

The Defence Act of India, 1962[2]

1. The act provided provisions for civil defence, military operations and emergency rules, penalties for the same. This act is applicable to all the citizens of India including overseas citizens also majorly it applies to military, air force, navy and aircraft people.
2. Objective of this act was to provide protection of people and ensure public safety. As contained under Article 352 clause (1) of Indian Constitution says if any emergency is exists and which threatens the security of the public safety then it is very essential to make such special provisions which protect the public safety and people.
3. It also focuses on the penalties and punishments to be granted to such offences of done.
4. If any person commits an attempt to contreven the rules of this act and if cound supporting other countries to wage war against India then that person shall be held under Rule 5 which led to punishable for life imprisonment or ten years of imprisonment or may be liable to pay the fine.
5. There is also special provisions for the Indian Official Secrets Act,1923, Aircraft Act, 1934, the payment of wages act, 1936 and the motor vehicles act, 1939.
6. This act talks about civil defence service according to which means that, the services provided for wholly or mainly for defence only.
7. The person who works in the national service will be liable under Rule 20 of this act, it says that the citizens who are not under army force of India in terms of reserves in India would be called up for services in defence in any emergency.
8. Rule 26 contains the procedure of penalties.
9. There is special provision regarding requisitioning and acquisition of immovable property which is under Rule 29.
10. If the property is been requisitioned in this act then that would be considered as valid and the rules of the act will be applicable to the same.
11. Every rule made will be further sent to the parliament and if the house of parliament will be in the session they may agree to the rules or may decide to modify any rule as per their decision in the parliament.

Emergency Powers

Emergency powers are mentioned in Chapter 2 under Section 3(1) – (57) of The Defence Act of India, 1962. The Central Government possesses certain powers to make rules in the emergency situation in India such as World War or War between India with other country.

1. The central Government can make any rules for security of the defence of India and the same will be notified in the official gazette.
2. Any work prejudicing the defence or civil defence of India would be prevented and prohibited.
3. Insisting, abetting or assisting any enemy person who is in the act of prejudicing the defence of India is prohibited.
4. Requiring any person to serve for defence and civil defence schemes.
5. Impressment of animals, vessels, aircrafts for transportation purpose.
6. Controlling the supply, distribution and generation of electricity energy.
7. Controlling agriculture land and agriculture products.
8. Requisition of services of any person who maintains the supply and essential services to the benefit of life of the community.
9. Securing any building which is unexpectedly under foreign attack.
10. Prohibiting the spreading news on media regarding the new innovation and designs evolving in India.
11. Any official secrets must be not published and the same is prohibited.
12. Prevention of buildings, properties and disposal of dead from damages.

Section 3(7) of The Defence Act of India, 1962

(a) This clause prohibits the publication of any matter which is prejudicial to the defence of India. The information regarding military operation and supply or purchase of defence equipment of civil defence of India should not be mentioned or published in any media such as in news-letter, newspaper, book etc.

(b) Civil defence possesses the power to control the media and forfeiting (suppress) the information regarding of the defence for the security of civil defence. 

 (c) Defence authorities have the power to order of forfeiture on media.

(d) Civil defence has the power to close any such press or place which is used for publishing the information even after ordering the forfeiture of the same.

Impact of The Defence Act of India, 1962[3]

Defence act was very helpful for the military force because it managed the whole troops in a structured manner and from which the plans made by the army troops were able to apply it on that situation.

Army of India was very strong that though they were not expecting the war to happen as soon as they got aware about the war they did preparations according to the defence act and defence rules of India, 1962.

There was adverse effect of this act, from which though the army was strong from India side following few rules from this act made India to lose the war against China.

Case Laws

Arvind Mohan Sinha v. Amulya Kumar Biswas And Others[4] on 17 January, 1974

Amulya Kumar and other were arrested for carrying gold bars and sovergeins for which has foreign markeing into India  seized by Kolkata custom officers the gold which they were carrying was not paid duty for the same .

Also found guilty under section 126P(1)(i) and 126P(2)(ii) of the Defence of India Rules, 1962 for failure to make a declaration in respect of the gold found in their possession. And these boys were the medium for importing the gold to India as they were doing the work for arranging money for there sister’s marriage.

The respected court held in this particular case that referring to probation of offenders act 1958 says any person who is not punished with life imprisonment or death should be released if they have good conduct on condition of not entering into any bond and suirity and also should be present himself whenever he is called upon for enquiring, on this note he was set free.

Dr. Ram Manohar Lohia petitioner v. State of Bihar and another[5] 7 September, 1965

Writ petition (heabus corpus) was filled for release of a Dr. Ram Manohar Lohia, Loka Sabha member has moved to the court under Art. 32 of the Constitution requested his release from detention under an order passed by the District Magistrate of Patna. The order was made under r. 30(1)(b) of the Defence of India Rules, 1962. He was earlier arrested for precautionary to public safety and the maintenance of law under section 30 (1)(b). Dr. Ram Manohar Lohia was arrested on prejudicial for maintaining public safety is justiceable as his fundamental rights of movement is violated for on ambegious assumption and the order under defence act 1962 is applicable to this.

The court held that the detention of a person for maintenance of public order can be justifiable but detention for maintaining public safety on doubtful action of person is not justiceable. So the defendant should be set free from the punishment.

Hari Chand Aggarwal vs Batala Engineering Co, Ltd[6] on 24 September, 1968

The appellant was a Commission Agent in machines from last 10 years as a tenant on a monthly rental of Rs. 20. According to the allegations made by the appellant herein in the petition which he filed in the High Court under Article 226 and 227 of the Constitution. The additional district magistrate of Batala has passed an act on order requisitioning a shop belonging to respondent under Section 29 of the Defence Act of India which was occupied by the appellant as tenant. The court has quashed the case on grounds of the requisition power is obvious in nature and involve fundamental rights in respect to property and the additional district magistrate could not serve to confer as district magistrate under Section 29 of The Defence Act of India, 1962.

Ram Kishan Mehra And Ors. vs Union Of India And Ors.[7] on 31 January, 1972

The eleven petitioners are co-owners of Bungalow and made several representations to the respondents praying for de-requisitioning of the property and restoration of its possession on the expiry of the tenure of the requisition orders of April and May, 1963.

Which there was no finding no justification in the letter so it was latter on sent to district magistrate. The court held that the respondent must comply with compensation of Rs. 250 on respect of expiry of Requisition order given to him which effects the defence Act 1962 under Section 30.

State of Maharashtra vs. Prabhakar Pandurang Sangzgiri[8] 6^th September, 1965

The respondant was detained by the Maharashtra government under r. 30(1)(b) of the Defence Act of India on grounds of request on publication of the book written by him in the jail for publication. The rejection of the same was the ground to file the petition under Art. 226 of Constitution. The High Court held that there was no act of prejudicial to the defence of India and allowed him for publication of his book and the appeal was dismissed.

Conclusion

The Defence Act of India 1962 is one of the most important acts because it has saved India from destroying. Emergency acts like the defence act will help out the army troops for the betterment of preparation for wars and it automatically boosts the confidence of the people. This act also strengthens the army. This act became famous because it was brought after world war 2 in India, though there was a lot of effort made due to lack of confidence and less preparation India failed to fight against China in the Sino-India war, 1962. But compared to the 20’s century if the same defence act will be applied then there would be a huge loss since India has advanced technology now it would hope for a new amendment on this act which may lead to success in the war if it may happen.

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References:

[1]Vikram, 1962 India – China war: Why India needed that jolt, October 15, 2012 (last visited: 7:00) https://m.economictimes.com/news/politics-and-nation/1962-india-china-war-why-india-needed-that-jolt/articleshow/16703076.cms.

[2] The Defence Act of India, 1962.

[3] Zorawar Daulet Singh, “Why India and China went to war in 1962”, The Tribune, October 15, 2012, (Last visited: 7:00) https://www.tribuneindia.com/news/nation/why-india-and-china-went-to-war-in-1962-100860.

[4] Arvind Mohan Sinha v. Amulya Kumar Biswas and Others 1974 AIR 1818, 1974 SCR (3) 133.

[5] Ram Manohar Lohia petitioner v. State of Bihar and another 1966 AIR 740, 1966 SCR (1) 709.

[6] Hari Chand Aggarwal vs. Batala Engeneering Co, Ltd, 1969 AIR 483, 1969 SCR (2) 201

[7] Ram Kishan Mehtra and ors. Vs. Union of India and ors. AIR 1972 P H 433.

[8] State Of Maharashtra vs Prabhakar Pandurang Sangzgiri, 1966 AIR 424, 1966 SCR (1) 702