State of Madhya Pradesh & ANR Vs.
Thakur Bharat Singh  INSC 16 (23 January 1967)
23/01/1967 SHAH, J.C.
RAO, K. SUBBA (CJ) SHELAT, J.M.
BHARGAVA, VISHISHTHA MITTER, G.K.
CITATION: 1967 AIR 1170 1967 SCR (2) 454
RF 1967 SC1836 (33) RF 1971 SC 530 (233) F
1973 SC 106 (27) RF 1973 SC1425 (14) R 1974 SC1232 (10) R 1976 SC1207
(86,90,177,179,359,443,444) RF 1977 SC1496 (18) D 1978 SC 489 (20) R 1982 SC 33
Madhya Pradesh Public Security act, 1959, s.
3(1) (b)- Authorising making of an order requiring a person to reside in
specified place-No Provision for maintenance or subsistence-whether imposed
unreasonable restriction- Therefore Whether violative of Art. 19.
Constitution of India-Art. 358--Scope
of-Legislative or executive action infringing rights of citizens or others
taken during emergency under Art. 352-Action without lawful authority-whether
protected by Art, 358.
On April 24, 1963, the State Government made
an order under s. 3 of the Madhya Pradesh Public Security Act, 1959, directing
that the respondent (i) shall not be in any place in Raipur District, (ii)
shall immediately proceed to and reside in a named town and (iii) shall report
daffy to a police station in that town. The respondent challenged the order by
a writ petition under Articles 226 and 227 of the Constitution on the ground
inter alia, that s. 3 infringed the fundamental rights guaranteed under Art.
19(1), (d) and (e) of the Constitution.
A Single Judge of the High Court declared clauses
(ii) and (iii) of the Order invalid on the view that clauses (b) and (c) of s.
3(1) on which they were based contravened Art. 19, A Division Bench, in appeal,
confirmed the order of the Single Judge holding that s. 3(1)(b) was violative
19(1) (d) and that clauses (ii) and (iii) of
the, impugned order, being inextricably woven, were both invalid.
In appeal to this Court it was contended,
inter alia, on behalf of the appellant State (i) that clause 3(1)(b) did not
impose an unreasonable restriction; (ii) that so long as the state of emergency
declared on October 20,1962, by the President under Art. 352 was in force, the
respondent could not move the High Court by a petition under Art. 226 of the
Constitution on the plea that by the impugned order his fundamental right
guaranteed under Art. 19(1) (d) of the Constitution was infringed; and (iii)
that even if s. 3 (1) (b) was held to be void, Art. 358 protects legislative
and executive action taken after the proclamation of emergency 'and therefore
any executive action taken by an officer of the State could not be challenged
as infringing Art. 19.
HELD : The Order made by the; State in
exercise of the authority conferred by s. 3 (1) (b) was invalid; and for the
acts done to the prejudice of the respondent after the declaration of emergency
under Art. 352, no immunity from the process of the Court could be claimed
under Art. 358 of the Constitution, since the order was not supported by any
valid legislation. [462 C] (i) The High Court was right in holding that s.
3(1)(b) authorised the imposition of unreasonable restrictions in so far as it
required any person to reside or -remain in such place or within such area as
may be specified in the order.
The Act does not give any opportunity to the
person concerned of being heard before the place where he is to remain 455 or
reside is selected. The place selected may be one in which he may have no
residential accommodation, and no means of subsistence. S. 3(1) (b) does not
indicate the extent of the place or the area, its distance from the residence
of the person extermed and whether it may be habituated or inhabitated; and it
makes no provision for his residence, maintenance or means of livelihood in the
[458B-E] (ii) The Act was brought into force
before the declaration of emergency and it was therefore open to the respondent
to invoke Art. 19. If the power conferred by s. 3(1)(b) authorised the
imposition of unreasonable restrictions, the- clause must be deemed to -be void
when enacted 'and it was not revived when the proclamation of emergency was
made by the President. [459 B-C] (iii) All executive action which operates to
the prejudice of any person must have the authority of law to support it, and
the terms of Art. 358 do not detract from that rule. Article 358 expressly
authorises the State to take legislative or executive action provided such
action was competent for the 'State to make or take, but for the provisions
contained in Part III of the Constitution.
Article 358 does not purport to invest the-
State with arbitrary authority to take action to the prejudice of citizens and
others: it merely provides that so long as the proclamation of emergency
subsists laws may be enacted, and executive action may be taken in pursuance of
lawful -authority, which if the provisions of Art. 19 were operative would have
been invalid. [459 F] There was no force in the contention that by virtue of
the provisions of Art.. 162, the State or its officers may, in exercise of
executive authority, without any legislation in support thereof infringe the
rights of citizens merely because the Legislature of the State has the power to
legislate in regard to the subject on which the executive order is issued. [462
B] Rat Sahib Ram Jawaya Kapur v. The State of Punjab  2 S.C.R. 225,
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1066 of 1965.
Appeal from the judgment and order dated
December 4, 1963 of the Madhya Pradesh High Court in Letters Patent Appeal No.
28 of 1963.
B. Sen, and I N. Shroff, for the appellants.
The respondent did not appear.
The Judgment of the Court was delivered by
Shah, J. On April 24, 1963, the' State of Madhya Pradesh made an order in
exercise of powers conferred by s. 3 of the Mad Pradesh Public Security Act,
1959--hereinafter called 'the actdirecting the respondent Thakur Bharat Singh-
(i) "that he shall not be in any place in the Raipur district;
(ii) "that he shall reside in the
municipal limits of Jhabua town, district Jhabua, Madhya Pradesh, and shall
proceed there, immediately on the receipt of this order ; and 456 (iii) that he
shall notify his movements and report himself personally every day at 8 a.m.
and 8 p.m. to the Police Station Officer,
Jhabua." The respondent moved a petition in the High Court of Madhya
Pradesh under Arts. 226 & 227 of the Constitution challenging the order on
the grounds, inter alia, that ss. 3 & 6 and other provisions of the Act
which authorised imposition of restrictions on movements and actions of person
were ultra vires in that they infringed the fundamental freedoms guaranteed
under Art. 19(1) (d) & (e) of the Constitution of India and that the order
was "dis- criminatory, illegal and violated principles of natural
justice." Shivdayal, J., declared cl. (i) of the order valid, and declared
cls. (ii) and (iii) invalid. In the view of the learned Judge the provisions of
s. 3(1)(a) of the Act were valid and therefore the directions contained in cl.
(i) of the order could lawfully be made by the State, but. cls. (b) & (c)
of s. 3(1) of the Act were invalid because they contravened the fundamental
freedom of movement guaranteed under Art. 19 of the Constitution, and therefore
the directions contained in cls. (ii) & (iii) of the order were invalid.
Against the order passed by Shivdayal, J., two appeals were filed under the
Letters Patent of the High Court. A Division Bench of the High Court held that
(a) & (c) of s. 3(1) of the Act were
valid, but in their view cl. (b) of s. 3(1) wits not valid because it violated
the fundamental guarantee under Art. 19(1) (d) of the Constitution. The High
Court however confirmed the order of Shivdayal, J., since in their view the
direction contained in cl. (iii) of the order was "inextricably
woven" with the directions in cl. (ii) and was on that account invalid.
Against the order of the High Court, the
State of Madhya Pradesh has appealed to this Court.
The relevant provisions of the Act may be
briefly set out.
Section 3 of the Act provides :
(1) "If the State Government or a
District Magistrate is satisfied with respect to any person that he is acting
or is likely to act in a manner prejudicial to the security of the State or to
the maintenance of public order, and that, in order to prevent him from so
acting it is necessary in the interests of the general public to make an order
under this section' the State Government or the District Magistrate, as the
case may be, may make an order- (a), directing that, except in so far as he may
be permitted by the provisions of the order, or by such authority or persons as
may be specified therein, he shall not be in any such area or place in Madhya
Pradesh as may be specified in the order 457 (b) requiring him to reside or
remain in such place or within such area in Madhya Pradesh as may be specified
in the order and if he is not already there to proceed to that place or area
within such time as may be specified in the order (c) requiring him to notify
his movements or to report himself or both to notify his movements and report
himself in such manner, at such times and to such authority or person, as may
be specified in the order ;
(d) imposing upon him such restrictions as
may be specified in the order, in respect of his association or communication
with such persons as may be mentioned in the order ;
(e) prohibiting or restricting the possession
or use by him of any such article or articles as may be specified in the order:
(2) (3) (4) If any person is found in any
area or place in contravention of a restriction order or fails to leave any
area or place in accordance with, the requirements of such an order, then,
without prejudice to the provisions of sub-section (5), he may be removed from
such area or place by any police officer.
(5) If any person contravenes the provisions
of any restriction order, he shall be punishable with imprisonment for a term
which may extend to One year, or with fine which may extend to one thousand
rupees, or with both." Section 4 authorises the State to revoke or modify
"the restriction order", and S. 5 authorises the State to suspend
operation of the "restriction order" unconditionally or upon such
conditions as it deems fit and as are accepted by the person against whom the
order is made. Section 6 requires the State to disclose the grounds of the
"restriction order". Section 8 provides that in every case where a
"restriction order" has been made, the State Government shall with in
thirty days from the date of the order place before the Advisory Council a copy
thereof together with the grounds on which it has been made and such other
particulars as have a bearing on the matter and the representation, if any,
made by the person affected by such order. Section 9 provides for the procedure
of the Advisory Council, and s.
16 requires the State to confirm, modify or
cancel the "restriction order" in accordance with the opinion of the
458 By cl. (ii) of the order the respondent
was required to reside within the municipal limits of Jhabua town after
proceeding to that place on receipt of the order. Under cl.
(b) of s. 3(1) the State is authorised to
order a person to reside in the place, where he is ordinarily residing and also
to require him to go to any other area or place within the State and stay in
that area or place. If the person so ordered fails to carry 'out the direction,
he may be removed to the area or place designated and may also be punished with
imprisonment for a term which may extend to one year, or with fine, or with
both. The Act it may be noticed does not give any opportunity to the person
concerned of being heard before the place where he is to reside or remain in is
selected. The place selected may be one in which the person concerned may have
no residential accommodation, and. no means of subsistence. It may not be
possible for the person concerned to honestly secure the means of subsistence
in the place selected. Sub-section 3(1)(b) of the Act does not indicate the
'extent of the place or the area, its distance from the residence of the person
externed and whether it may be habitated or inhabitated: the clause also nowhere
pro- vides that the person directed to be removed shall be provided with
residence, maintenance or means of livelihood in the place selected. In the
circumstances we agree with the High Court that cl. (b) authorised the imposition
of unreasonable restrictions insofar as it required any person to reside or
remain in such place or within such area in Madhya Pradesh as may be specified
in the order.
Counsel for the State did not challenge the
view that the restrictions which may be imposed under cl. (b) of s. 3(1)
requiring a person to leave his hearth, home and place of business and live and
remain in another place wholly unfamiliar to him may operate seriously to his
prejudice, and may on that account be unreasonable. But he contended that
normally in exercise of the power under cl. (b) a person would be ordered to
remain in the town or village where he resides and there is nothing
unreasonable in the order of the State restricting the movements of a person to
the town or place where he is ordinarily residing. It is true that under cl.
(b) an order requiring a person to reside or remain in a place where he is
ordinarily residing may be passed. But in exercise of the power it also open to
the State to direct a person to leave the place of his ordinary residence and
to go to another place selected by the authorities and to reside and remain in
Since the clause is not severable, it must be
struck down in its entirety as unreasonable. If it is intended to restrict the
movements of a person and to maintain supervision over him, orders may
appropriately be made under cls. (c) and (d) of S. 3(1) of the Act.
Counsel for the State urged that in any event
so long as the State of emergency declared on October 20, 1962, by the President
459 under Art. 352 was not withdrawn or revoked, the respondent could not move
the High Court by a petition under Art. 226 of the Constitution on the plea
that by the impugned order his fundamental right guaranteed under Art. 19(1)(d)
of the Constitution was infringed. But the Act was brought into force before
the declaration of the emergency by the President. If the power conferred by s.
3(1)(b) authorised the imposition of unreasonable restrictions, the clause must
be deemed to be void, for Art. 13(2) of the Constitution prohibits the State
from making any law which takes away or abridges the rights conferred by Part
111, and laws made in contravention of Art. 13(2) are to the extent of the
contra- vention void. Section 3(1)(b) was therefore void when enacted and was
not revived when the proclamation of emergency was made by the President.
Article 358 which suspends the provisions of Art. 19 during an emergency
declared by the President under Art. 352 is in terms prospective: after the
proclamation of emergency nothing in Art. 19 restricts the power of the State
to make laws or to take any executive action which the, State but for the
provisions contained in Part III was competent to make or take. Article 358
however does not operate to validate a legislative provision which was invalid
because of the constitutional inhibition before the proclamation of emergency.
Counsel for the State while conceding that if s.
3(1)(b) was, because it Infringed the
fundamental freedom of citizens, void before the proclamation of emergency, and
that it was not revived by the proclamation, submitted that Art. 358 protects
action both legislative and executive taken after proclamation of emergency and
therefore any executive action taken by an officer of the State or by the State
will not be liable to be challenged on the ground that it Infringes the
fundamental freedoms under Art. 19. In our judgment, this argument involves a
grave fallacy. All executive action which operates to the prejudice of any
person must have the authority of law to support it and the terms of Art. 358
do not detract from that rule. Article 358 expressly authorises the State to
take legislative or executive action provided such action was competent for the
State to make or take, but for the provisions contained in Part III of the
Constitution. Article 358 does not purport to invest the State with arbitrary
authority to take action to the prejudice of citizens and others: it merely
provides that so long as the proclamation of emergency subsists laws may be
enacted, and executive action may, be taken in pursuance of lawful authority
which if the provisions of Art. 19 were operative would have been invalid.) Our
federal-.' structure is founded on certain fundamental principles : (1) the
sovereignty of the people with limited Government authority i.e. the Government
must be conducted in accordance with the will of the majority of the people.
The people govern themselves through their
representatives, whereas the official agencies' of the executive Government
possess only such powers as have been confer- 460 red upon them by the people ;
(2) There is distribution of powers between the three organs of the
State-legislative, executive and judicial--each organ having some check direct
or indirect on the other ; and (3) the rule of-law which includes judicial
review of arbitrary executive actions. As pointed out by Dicey in his
"Introduction to the study of the Law of the Constitution", 10th
Edn., at p. 202 the expression "rule of law " has three meanings, or may
be regarded from three different points of view. "It means, in the first
place, the absolute supremacy or predominance of regular law as opposed to the
influence of arbitrary power, and excludes the existence of arbitrariness, of
prerogative, or even of wide discretionary authority on the part of the
government." At p. 188 Dicey points out :
"In almost every continental community
the executive exercises far wider discretionary authority in the matter of
arrest, of temporary imprisonment, of expulsion from its territory, and the
like, than is either legally claimed or in fact exerted by the government in
England : and a study of European politics now and again reminds English
readers that wherever there is discretion there is room for arbitrariness, and that
in a republic no less than under a monarchy discretionary authority on the part
of the government must mean insecurity for legal freedom on the part of its
subjects." We have adopted under our Constitution not the continental
system but the British system under which the rule of law prevails. Every Act
done by the Government or by its officers must, if it is to operate to the
prejudice of any person, be supported by some legislative authority.
Counsel for the State relied upon the terms
of Art. 162 of the Constitution, and the decision of this Court in Rai Sahib
Ram Jawaya Kapur v. The State of Punjab(l) in support of the contention that it
is open to the State to issue executive orders even if there is no legislation
in support thereof provided the State could legislate on the subject in respect
of which action is taken. Article 162 provides that subject to the provisions
of the Constitution, the executive power of a State shall extend to the matters
with respect to which the Legislature of the State has power to make laws.
But Art. 162 and Art. 73 are concerned
primarily with the distribution of executive power between the Union on the one
hand and the States on the other and not with the validity of its exercise.
Counsel for the State however strongly relied upon the observations of
Mukherjea, C. J., in Rai Sahib Ram Jawaya Kapur's case(l) (1)  2 S.C.R.
461 .lm15 "They do not mean, that it is
only when the Parliament or the State Legislature has legislated on certain
items appertaining to their respective lists, that the Union or the State
executive, as the case may be, can proceed to function in respect to them. On
the other hand, the language of article 162 clearly indicates that the powers
of the State executive do extend to matters upon which the State Legislature is
competent to legislate and are not confined to matters over which legislation
has been passed already." These observations must be read in the light of
the facts of the case. The executive action which was upheld in that case was,
it is true, not supported by legislation, but it did not operate to the
prejudice of any citizen. In the State of Punjab prior to 1950 the text-books
used in recognized schools were prepared by private publishers and they were
submitted for approval of the -Government. In 1950 the State Government
published text books in certain subjects, and in other subjects the State
Government approved text-books submitted by publishers and authors. In 1952 a
notification was issued by the Government inviting only "authors and
others" to submit text-books for approval by the Government. Under
agreements with the authors and others the copyright in the text-books vested
-absolutely in the State and the authors and others received royalty on the
sale of those text-books. The petitioners a firm carrying on the business of
preparing, printing, publishing and selling text booksthen moved this Court
under Art. 32 of the Constitution praying for writs of mandamus directing the
Punjab Government to withdraw the notifications of 1950 and 1952 on the ground
that they contravened the fundamental rights of the petitioners guarantee under
It was held by this Court that the action of
the Government did not amount to infraction of the guarantee under Art.
19(1)(g) of the Constitution, since no
fundamental rights of the petitioners were violated by the notifications and
the acts of the executive Government done in furtherance of their policy of
nationalisation of text-books for students.
It is true that the dispute arose before the
Constitution (seventh Amendment) Act, 1956, amending, inter alia, Art.
298, was enacted, and there was no
legislation authorising the State Government to enter the field of business of
printing, publishing and selling text-books. It was contended in support of the
petition in Rai Sahib Ram Jawaya's case(1) that without legislative authority
the Government of the State could not enter the business of printing,
publishing and selling text-books. The Court held that by the action of the Government
no rights of the petitioners were infringed, since a mere chance or prospect of
having particular customers cannot be said to a be (1)  2 S.C.R. 225.
462 right to property or to any interest or
undertaking. It is clear that the State of Punjab had done no act which
infringed a right of any citizen: the State had merely.
entered upon a trading venture. By entering
into competition with the citizens, it did not infringe their rights. Viewed in
the light of these facts the observations relied upon do not support the
contention that the State or its officers may in exercise of executive
authority infringe the rights of the citizens merely because the Legislature of
the State has the power to legislate in regard to the subject on which the executive
order is. issued.
We are therefore of the view that the order
made by the State in exercise of the authority conferred by s. 3(1)(b) of the
Madhya Pradesh Public Security Act 25 of 1959 was invalid and for the acts done
to the prejudice of the respondent after the declaration of emergency under
Art. 352 no immunity from the process of the Court could be claimed under- Art.
358 of the Constitution, since the Order was not supported by any valid
The appeal therefore fails and is dismissed.
R.K.P.S. Appeal dismissed..