VINAYA P N Vs. STATE OF KERALA

JUDGEMENT

(1.) 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 views of the following Authors: