Anwar Vs. The State of J. & K
[1970] INSC 140 (7 July 1970)
07/07/1970 DUA, I.D.
DUA, I.D.
CITATION: 1971 AIR 337 1971 SCR (1) 637 1970
SCC (2) 411
ACT:
Constitution of India Articles 19, 20 &
22--Habeas corpus--Claim by foreigners--If maintainable--Foreigner's Act, (31
of 1946) S. 3(2)--Order of deportation if can be passed by the State
Government.
HEADNOTE:
The petitioner a Pakistani national, who had
entered India illegally was detained for the purpose of expelling him from
India. Instead of making any representation against the detention order, he
challenged his detention by filing a writ of habeas corpus in this Court. This
Court directed rule nisi. The state revoked the order of detention and ordered
the deportation of the petitioner from India under section 3(2) of the
Foreigners Act read with the Ministry of Home Affairs Notification issued under
S.O. 590 dated April 9, 1958. Dismissing the petition, this Court.-
HELD : (i) The petitioner was a foreigner as
defined in the Foreigners Act and not being a citizen, he was clearly not
entitled to any fundamental right guaranteed by Article 19 of the Constitution.
His entry into this country was also without any right, he had thus no right to
remain within the territories of India. The order of the deportation was
consistent with the order of detention which was also made with the object of
expelling him from India. The order of his release, if made by this Court,
would, not only result in his presence in a part of India in contravention of
the statutory provisions but would in addition render it somewhat difficult for
the authorities to enforce compliance with the order of his expulsion. In these
circumstances, the restraint on his personal liberty for the purpose of taking
him to the border in order to expel him from India in accordance with the
statutory provisions could by no means be considered to be an illegal custody
justifying an order of release by this Court. [639 B-C, 644 H] (ii) Habeas
corpus, though a writ of right, is not a writ of course. Its scope has grown to
achieve its purpose, of protecting individuals 'against erosion of the right to
be free from wrongful restraint on their rightful liberty.
But, when, as in the present, case, the,
petitioner has no right to move about freely in this country without a proper
legal sanction, the restraint exercised on him for expelling him 'from India
could not be construed on the facts and circumstances of this case to amount to
his custody being illegal so as to require this Court to direct his immediate release.
The constitutional protection against illegal deprivation of personal liberty
construed in a practical way cannot entitle non-citizens like the petitioner to
remain in India contrary to the provisions of the law governing foreigners.
[645 D] (iii) The notification dated April 19, 1958 was a complete answer to
the petitioner's contention that it was the Central Government alone which
could make a lawful order of deportation under s. 3(2)(c) of the Foreigners
Act. Under the said rectifications the State was entrusted with the functions
of the Central Government under s. 3(2) of the Foreigners Act. [641 G] 638
State of Punjab v. Ajaib Singli, [1953] S.C.R. 254; State of U.P. V. Abdul
Samad, A.I.R. 1968 S.C, 1506 followed.
ORIGINAL JURISDICTION : Writ Petition No, 131
of 1970.
Petition under Art. 32 of the Constitution
'of India for a writ in the nature of habeas corpus.
H. K. Puri, for the petitioner.
S. P. Nayar for R. N. Sachthey, for the
respondent.
The Judgment of the Court was delivered by
Dua, J. The petitioner, Anwar alias Raldu son of Basawa Batwal, resident of
Nathu Pora, District Sialkot, (West Pakistan), forwarded to this Court his
application dated March 11, 1970 from Central Jail, Jammu where he was being
detained, praying for a 'Writ in the nature of the habeas corpus for his
production in this Court to enable him to challenge his detention. In the
application it was asserted inter alia that the petitioner had been brought
from Pakistan to the State of Jammu & Kashmir by his uncle Shri Dosa, son
of Jumma who was working for Indian Intelligence.
The petitioner had crossed the cease-fire
line and come to India for the purpose of taking to Pakistan the necessities of
life. His uncle who was inimical towards him got him arrested after he had crossed
the cease-fire line on the basis of the allegation that the petitioner was a
smuggler and had opium on his person. The petitioner was thereafter convicted
and sentenced. His sentence expired in January, 1970. After his release he was
again arrested. His detention after his rearrest was challenged in this
application.
In the return it was sworn by Shri A. K.
Hamdani, Under Secretary, Home Department, Jammu & Kashmir State that the
petitioner had been detained on January 30, 1970 pursuant to an order dated
January 27, 1970. The petitioner was duly informed of the grounds of his
detention and also of his right to make a representation. He, however, made no
representation. His case was referred to the Advisory Board, and the opinion of
the Board was being awaited. The petitioner, according to the return, had been
detained earlier and on the expiry of two years of detention he was re-arrested
with the object of making arrangements for his expulsion from the State of
Jammu & Kashmir.
On June 9, 1970 this case was heard by the
Vacation Judge (Ray, J.) and time was granted to the petitioner up to June 23,
1970 for filing a rejoinder to the return. On June 15, 1970 the State filed an
application stating that the order of the petitioner's detention had since been
revoked and that the petitioner had been 639 ordered on June 9, 1970 to leave
India within ten days.
This application came up for hearing on June
16, 1970 when the State took time for producing the orders of revocation of the
detention order and of the petitioner's deportation.
The case was accordingly adjourned to June
18, 1970 when by means of a short order the writ petition was dismissed and the
petitioner was permitted to be sent out of India. I now proceed to give reasons
for the order.
The petitioner is not a citizen of India. He
is, therefore,, a foreigner as defined in the Foreigners Act.
Not being a citizen, he is clearly not
entitled to any fundamental right guaranteed by Art. 19 of the Constitution.
He has thus no right to remain within the
territories of India. His entry into this country was also without any right
and indeed he himself does not claim to have entered into India in accordance
with the provisions of the Foreigners Act and the Orders made thereunder. The
only rights which he can claim in the present proceedings are those contained
in Arts. 20 to 22. The order dated January 27, 1970 reads as under :
"Whereas Anwar @ Raldu s/o Basawa Batwal
r/o Nathupora District Sialkot presently in the State is a foreigner within the
meaning of the Foreigners Act, 1946, and;
Whereas the Government is satisfied that with
a view to making arrangements for his expulsion from the State, it is necessary
to do so;
Now, therefore, in exercise of the powers
conferred by section 3 (1) (b) read with section 5 of the Jammu & Kashmir
Preventive Detention Act, 1964, the Government hereby direct that the said
Anwar @ Raldu be detained in the Central Jail, Jammu subject to such conditions
as to maintenance, discipline and punishment for breaches of discipline as have
been specified in the Jammu & Kashmir Detenus (General) Order, 1968."
This order was made in exercise of the powers conferred by s. 3 (I) (b) read
with s. 5 of the Jammu & Kashmir Preventive Detention Act, 1964. The
Government felt satisfied that the petitioner who was a foreigner within the
meaning of the Foreigners Act (Act 31 of 1946) should be expelled from the
State of Jammu & Kashmir and it was with a view to making arrangements for
his expulsion that it was considered necessary to detain him., I-, appears that
in the opinion of the Authorities making the order it was necessary to give to
the petitioner an opportunity of making a representation to the Government
against the order of detention. In order to give this opportunity, on February
4, 1970 the grounds 640 of detention were disclosed to the petitioner and he
was further informed that if he so desired he could make a representation to
the Government. It may be recalled that according to the return he was
actually, detained on January 30, 1970 though the order of detention had been
made on the 27th of that month. The petitioner, without making any
representation, apparently sent the present application to this Court through
the jail authorities at Jammu. On April 9, 1970 this Court directed a rule nisi
to issue in his case along with some other cases. Apparently, the State
authorities did not consider it proper to take any further steps for
implementing the orders of the petitioner's expulsion because this Court had
been seized of the habeas corpus proceedings. According to the application
dated June 15, 1970 the order of detention was revoked on June 9, 1970 with the
result that the habeas corpus petition assailing that order must be considered
to have become infructuous.
The question naturally arose it this Court
should order the petitioner's release forthwith on account of their vocation of
the impugned order of detention or it should dismiss the writ petition as
infructuous and send the petitioner back to Jammu to be released from the
detention under the order dated January 27, 1970 and leave it to the Government
to deal with the petitioner-in accordance with law. The petitioner not being a
citizen of India obviously had no right to remain in Delhi and according to the
order of deportation he was bound to leave India by June 19, 1970. The order of
deportation may at this stage be reproduced :
"In exercise of the powers conferred by
clause (c) of sub-section (2) of section 3 of the Foreigners Act, 1946 (Act No.
XXXI of 1946), read with Ministry of Home Affairs Notification issued under
s.o. 590 dated 19th of April, 1958, the Government of Jammu and Kashmir hereby
direct that the persons named below who are foreigners shall not remain in
India and shall leave India within ten days from the date of this order :1.Anwar
@ Raldu s/o Basawa Batwal r/o Nathpora District Sialkot.
.. ... ... ....
This order has to be read with the Ministry
of Home Affairs Notification issued under S.O. 590 dated April 19, 1958.
That notification is in the following terms
"In exercise of the powers conferred by cl. (1) of Art. 258 of the
Constitution and all other powers enabling him in this behalf and in
supersession of all previous notifications on the subject in so far as they
relate to the 641 Act, rules and orders hereinafter mentioned, the President
with the consent of the State Government -concerned hereby entrusts to the
Government of each of the State of A.P., Assam, Bihar, Bombay, J & K,
Kerala, M.P., Madras, Mysore, Orissa, Punjab, Rajasthan, U.P. and West Bengal
the functions of the Central Government, (1) under s. 5 of the Indian Passports
Act, 1920 (34 of 1920), (2) under rules 2 and 4 of the Indian Passports Rules,
1950, (3) under r. 3 of the Registration of Foreigners Rules, 1939, (4) in
making orders of the nature specified in cls. (c), (cc), (d), (e) and (f ) of
sub-s.
(2) of s. 3 of the Foreigners Act, 1946 (31
of 1946) and (5) under the Foreigners Order, 1948 subject to the following
conditions, namely, (a) that in the exercise of that function, the said State
Government shall comply with such general or special directions as the Central
Government may from time to time issue, and (b) that notwithstanding this
entrustment the Central Government may itself exercise any of the said
functions should it deem fit to do so in any case.
I have reproduced this notification because
Shri H. K. Puri, the learned counsel appearing amicus curiae in support of the
petitioners application for habeas corpus, had raised the point that it was the
Central Government alone which could make a lawful order of deportation under
s. 3 (2) (c) of the Foreigners Act. This notification is a complete answer to
this objection because the President has under Art. 258 lawfully entrusted
inter alia to the Government of Jammu & Kashmir the function of the Central
Government under s. 2 (3 ) (c), (d), (e) and (f ) of the Foreigners Act.
Reverting to the fundamental right claimable
by the petitioner who is not a citizen of India it is clear that Art.
20 of the Constitution is not attracted to
this case.
Article 21 merely lays down that no person shall
be deprived of his life or personal Sup. C.I./70-12 642 liberty except
according to procedure established by law.
Article 22 deals with detention of persons in
certain cases. In the case in hand in January, 1970 an order of detention was
made under s. 3 (I) (b) of the J & K Preventive Detention Act which clearly
empowers the Government to detain a foreigner within the meaning of the Foreigners
Act with a view to inter alia making arrangements for his expulsion from the
State. The petitioner not being a citizen of India is, as already stated, a
foreigner and therefore liable to be so detained. The Government, it appears,
considered it incumbent to comply with the provisions of ss. 8 to I 1 of the J
& K Preventive Detention Act even when the petitioner was being detained
for the purpose of expelling him from India. The period fixed for the Advisory
Board to submit its report had not yet expired when the petitioner, without
making any representation, applied to this Court on March 11, 1970 and
initiated the present proceedings. After the present application for a writ of
habeas corpus was entertained by this Court the orders in respect of his
custody were subject to the control and permission of this Court and the State
authorities were naturally reluctant in taking any step towards implementation
of the order of expulsion without this Court's permission. As soon as the order
of detention was revoked the State Government made an order under s. 3 (2)(c)
of the Foreigners Act read with the Ministry of Home Affairs Notification
issued under S.O. 590 dated April 19, 1958 directing the petitioner not to
remain in India and to leave India within ten days from June 9, 1970, the date
of the order. Soon thereafter the State Government filed an application in this
Court stating all the relevant facts.
The petitioner was informed of this ,order
and Shri Puri the learned Counsel appearing; as amicus curaie actually
addressed this Court on its legality after consulting the petitioner. This
order appears to be consistent with the order of detention dated January 27,
1970 which was also made with the object of expelling the petitioner from India.
Since the order dated June 9, 1970 had to be
complied with by June 19, one day earlier, as already noticed, on June 18 this
Court permitted the State authorities to take suitable steps for deporting the
petitioner from India.
The question arises if in these circumstances
it can be said that after the revocation of the detention order the petitioner
was deprived of his personal liberty illegally or without procedure established
by law so as to require this Court to order his immediate release. In State of
Punjab v.
Ajaib Singh(') this Court held that physical
restraint put upon an abducted woman (abducted during the partition of the
undivided Punjab in 1947) in the process of recovering and taking her into
custody without (1) [1953] S.C.R. 254.
643 any allegation or accusation of any
actual or suspected or apprehended commission by her of any offence of a
criminal or quasicriminal nature or of any act prejudicial to the State or the
public interest and handing her over to the custody of the officer-incharge of
the nearest camp under S.
4 of the Abducted Persons (Recovery and
Restoration) Act, 55 of 1949 could not be regarded as arrest and detention
within the meaning of Art. 22(1) and (2). In the State of U.P. v. Abdul
Samad(1) two persons (Mr. & Mrs. Abdul Samad) were in Pakistan in March,
1955. In September, 1955 they obtained a Pakistani passport and came to India
after securing a visa for temporary stay till December 16, 1955. They secured
repeated extension of the period of stay. In 1957 they unsuccessfully applied
for their registration as Indian citizens. Against refusal to register them as
Indian citizens their application under Art. 226 of the Constitution also
failed in 1959. The State Government then directed them to leave India. They
secured several extensions of time for complying with this order. Finally on
July 7, 1960 they were required to leave India within 24 hours. On their
failure to do so they were taken into custody on July 21, 1960 and sent by
train to Amritsar for being deported to Pakistan. They were produced before a
Magistrate at Amritsar who ordered that they be kept in the Civil Lines Thana
till further orders, Meanwhile an application was filed before the Lucknow
Bench of the Allahabad High Court under s. 491, I.P.C. on July 25, 1960.
On being informed that the two persons
concerned having been sent to Amritsar were no longer within its territorial
jurisdiction, the High Court recorded an order that it had no jurisdiction in
the matter and that the proceedings be consigned to records. In the meantime a
spurious telegram and a spurious telephone message purporting to emanate from
Saxena, Under Secretary, Home Department, U.P. were received by the police at
Amritsar stating that the High Court had issued orders for Mr. & Mrs. Abdul
Samad to be brought back to Lucknow to attend the case on July 25, 1960.
Pursuant to this message Mr. & Mrs. Abdul Samad were taken to Lucknow and
produced before the Deputy Registrar of the High Court, but after the court had
disposed of the habeas corpus petition. They were produced before the Deputy
Registrar who directed their production in the High Court on July 26, at 10.15
a.m. An application was thereupon filed on behalf of Mr. & Mrs. Abdul Samad
on July 25, 1960 to revive their earlier habeas corpus petition. A fresh habeas
corpus petition was also filed on July 26, 1960 praying for their release. On
Jully 27, 1960 the High Court passed an interim order of their release on bail
on the fresh habeas corpus petition. That application was ultimately allowed
and Mr. & Mrs. Abdul Samad were released on the ground that after their
arrival in Lucknow at I p.m. on July 25, 1960 they had not been produced before
a (1) A.I.R. 1962 S.C. 1506.
644 Magistrate within 24 hours and this was
in breach of the mandatory provisions contained in Art. 22(2) of the
Constitution. On appeal by the State, the Supreme Court set aside the order of
the High Court and held that there was no violation of Art. 22(2). In this
connection it was emphasised that Mr. & Mrs. Abdul Samad had actually been
produced before the High Court on July 26, 1960 within 24 hours of their
arrival at Lucknow on July 25, 1960 and that they were again produced before
the High Court on July 27, 1960. On both occasions they had full opportunity of
representing their case. The view expressed in this decision would rule out the
argument of non-compliance with Art. 22(2) on the facts and circumstances of
the present case.
As observed earlier the petitioner had no
right to enter and remain within the territories of India and indeed he was
bound, .under the order dated June 9, 1970, to leave India by June 19, 1970.
According to cl. (3) of the Foreigners Order, 1948 no foreigner can enter into
India :(a) otherwise than at such port or other place of entry on the border of
India as a Registration Officer having jurisdiction at that port or place may
appoint in this behalf;
either for foreigners generally or for any
specified class or description of foreigners;
or (b) without the leave of the civil
authority having, jurisdiction at such port or place." Under cl. (5) of
this Order no foreigner can leave India (a) otherwise than at such port or
other recognised place of departure on the borders of India as the Registration
Officer having jurisdiction at that port or place may appoint in this behalf
either for foreigners generally or for any specified class or description of
foreigners; or (b) without the leave of the civil authority having jurisdiction
at such port or place." It would thus be seen that the petitioner who had
illegally and clandestinely entered into India could not stay in any part of
its territory. Indeed, he had, to leave India by June 19, 1970 and this had to be done in accordance with the statutory regulations. The order of his release
by this Court would, therefore, not only have resulted in his presence in a
part of India in contravention of the statutory provisions but would in
addition have rendered it somewhat difficult for the authorities to enforce
compliance with the order of his expulsion. In these circumstances the restraint
on his personal liberty for the purpose of taking him to the border in order to
expel him from India in accordance with the statutory provisions could by no
means be considered to be an illegal custody justifying an order of release by
this Court. While dealing with cases like the present one cannot ignore the
historical fact of Pakistan's extremely hostile attitude towards the State of
Jammu & Kashmir and also the fact that from the borders of the State of
Jammu & Kashmir adjoining those of West Pakistan infiltrators have
constantly been surreptitiously entering that part of the Indian territory for
unfriendly activities which endanger maintenance of public order and security
of the State. The petitioner had on his own showing crossed the cease-fire line
secretly with the object of taking out of India the necessities of life.
Regulations governing the entry into and departure from India as also the
presence in this country of Pakistani infiltrators from across the cease-fire
line on the Jammu & Kashmir border demand strict enforcement and the claim
to personal liberty made by unlawful infiltrators from Pakistan cannot be
placed above the security of the country and maintenance of law and order.
Habeas corpus, though a writ of right, is not a writ of course. Its scope has
grown to achieve its purpose of protecting individuals against erosion of the
right to be free from wrongful restraint on their right full liberty.
But when, as in the present case, the
petitioner has no right to move about freely in this country without a proper
legal sanction, the restraint exercised on him for expelling him from India by
June 19, 1970 cannot be construed on the facts and circumstances of this case
to amount to his custody being illegal so as to require this Court to direct
his immediate release. The constitutional protection against illegal,
deprivation of personal liberty construed in a practical way cannot entitle
non-citizens like the petitioner to remain in India contrary to the provisions
of the law governing foreigners. It is accordingly difficult to hold that the
petitioner is being illegally deprived of his right to personal liberty to stay
and move about in India without restraint. The petition accordingly fails and
is dismissed.
Y.P. Petition dismissed.
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