Dr. N.B. Khare Vs. The State Of Delhi
[1950] INSC 19 (26 May 1950)
KANIA, HIRALAL J. (CJ) FAZAL ALI, SAIYID
SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND MUKHERJEA, B.K.
CITATION: 1950 AIR 211 1950 SCR 519
CITATOR INFO :
R 1952 SC 75 (15) D 1952 SC 196 (15,17,18) R
1956 SC 559 (8) R 1957 SC 510 (15) RF 1957 SC 896 (11,13) E 1958 SC 578 (169) R
1959 SC 459 (48) R 1962 SC1371 (35) RF 1964 SC1279 (6) R 1968 SC 445 (14) R
1971 SC1667 (27) RF 1973 SC1461 (242,451) R 1974 SC 175 (14) R 1974 SC1044 (24)
R 1975 SC2299 (485) R 1978 SC 851 (24) RF 1979 SC 25 (31) R 1980 SC1382 (81)
ACT:
Constitution of India, Art. 19, cls. (1) (d)
and (5) Fundamental rights--Freedom of movement--Law imposing restrictions-Validity--Reasonableness
trictions Scope of enquiry--East Punjab Public Safety Act, 1949, s. 4 (1)(c),
(3), (6)--Provisions empowering Provincial Government or District Magistrate to
extern persons making satisfaction of externing authority final, authorising
externment for indefinite period, and directing that authority "may
communicate" grounds of externment--Whether reasonable--Construction and
Validity of Act. 67 520
HEADNOTE:
Section 4, sub-s. (1) (c), of the East Punjab
Public Safety Act of 1949 which was passed on the 29th March, 1949, and was to
be in force until the 14th August, 1951, provided that "The Provincial
Government or the District Magistrate, if satisfied with respect to any
particular person that with view to preventing him from acting in any manner
prejudicial to the public safety or the maintenance of public order it is
necessary to do so, may, by order in writing, give a direction that such person
shall remove himself from, and shall not return to, any area that may be
specified in the order." Sub-section (3) of s. 4 provided that "an
order under sub-s. (1) made by the District Magistrate shall not, unless the
Provincial Government by special order otherwise directs, remain in force for
more than three months from the making thereof," and sub-s. (6) laid down that
"when an order has been made in respect of any person under any of the
clauses under s. 4, sub-s. (1) or sub-s. (9.), the grounds of it may be
communicated to him by the authority making the order, and in any case when the
order is to be in force for more then three months, he shall have a right of
making a representation which shall be referred to the Advisory Tribunal
constituted under s. 3, sub-s. (4)." The petitioner, against whom an order
under (1) (c) of the Act was passed applied to the Court under Art. 39, of the
Constitution for a writ of certiorari contending that the order was illegal
inasmuch as the provisions of the above mentioned Act under which the order was
made infringed the fundamental right to move freely throughout the territory of
India which was guaranteed by Art. 19 (1) (d) of the Constitution and were
accordingly void under Art. 13 (1) of the Constitution:
Held, per KANIA C.J., FAZL ALl and PATANJALI
SASTRI, J3.
(MAHAJAN and MUKHERJEA, JJ. dissenting)--(i)
that there was nothing unreasonable in the provision contained in sub-s.
(1) (c) empowering the Provincial Government
or the District Magistrate to make an externment order, and making their
satisfaction as to the necessity of making such an order final, or in the
provisions contained in sub-s. (3) of s. 4 that an order of a District
Magistrate may remain in force for three months and that the Provincial
Government may make an order, or keep alive an order made by a District
Magistrate, for a period exceeding three months without fixing any time limit;
(ii) with regard to sub-s. (6), the word "may" in the expression
"may communicate" must, in the context, be read as meaning
"shall" and under the sub-section it is obligatory on the authority
making an order to communicate the grounds to the externee;.(iii) the restrictions
imposed by the above-mentioned provisions of the Act upon the fundamental right
guaranteed by Art. (19) (1) (d) were not, therefore, unreasonable restrictions
within the meaning 01 Art. 19 (5) and the provisions of the Act were not void
under Art. 13 (1), and the order of externment was not illegal.
Per MUKHERJEA J. (MAHAJAN J.
concurring)--Though certain authorities can be invested with power to make 521
initial orders on their own satisfaction in cases of this description, and s. 4
(1) (c) of the East punjab Public Safety Act cannot be pronounced to be
unreasonable simply because an order I could be passed by the Provincial Government
or the District Magistrate on their own personal satisfaction and not on
materials, which satisfy certain objective tests, yet, the position would be
different if the order thus made is allowed to continue for any indefinite
period of time without giving the aggrieved person an opportunity to say what
he has got to say against the order; and inasmuch as sub-s. (3) of s. 4
prescribes no limit to the period of time during which an externment order
would remain in force if it is made by the Provincial Government, and the
Provincial Government is also given power to keep an order made by a District
Magistrate in force for an indefinite period, the provisions of sub-s. (3) are
manifestly unreasonable. The provisions of sub-s. (6)of s. 4 are also
unreasonable as they make it entirely optional with the authorities to communicate
to the person affected, the grounds upon which the order is made. Neither
sub-s. (3) nor sub-s. (6) of s. 4 can, therefore, be said to have imposed
restrictions which are reasonable in the interests of the general public within
the meaning of Art. 19 (5) and these provisions of the Act were consequently
void and inoperative under Art. 13 (1)of the Constitution, and the externment
order was illegal.
Held also, per KANIA C.J., FAZL ALI, MAHAJAN
and MUKHERJEA JJ.--Whether the restrictions imposed by a legislative enactment
upon the fundamental right guaranteed by Art. 19 (1) (d) are reasonable within
the meaning of Art. 19 (5) of the Constitution would depend as much on the
procedural portion of the law as the substantive part of it] and in considering
whether such restrictions are reasonable the Court is not therefore bound to
confine itself to an examination of the reasonableness of the restrictions in
the abstract with reference to their duration and territorial extent. The Court
can also consider the reasonableness of the procedural part of the law and the
circumstances under which, and the manner in which, the restrictions have been
imposed. [PATANJALI SASLUP, I J. did not express any opinion on this point.]
ORIGINAL JURISDICTION: Petition No. XXXVII of
1950.
Application under article 32 of the
Constitution of India for a writ of certiorari and prohibition. The facts are
set out in the judgment.
B. Banerji for the petitioner.
M.C. Setalvad, Attorney-General for India
(Gyan Chand, with him) for the opposite party.
522 1950. May 26. The following judgments
were delivered:-KANIA C.J.--This is an application for a writ of 'certiorari
and prohibition under article 32 of the Constitution of India.
The petitioner who is the President of the
All India Hindu Mahasabha since December, 1949, was served with an order of
externment dated the gist of March, 1950, that night. By that order he is
directed by the District Magistrate, Delhi, not to remain in the Delhi
District, and immediately to remove himself from the Delhi District and not to
return to the District. The order was to continue in force for three months. By
another order of the Madhya Bharat Government he was directed to reside in
Nagpur. That order has been recently cancelled. The petitioner disputes the
validity of the first order on the ground that the East Punjab Public Safety
Act, 1949, under which the order was made, is an infringement of his
fundamental right given under article 19 (1) (d) of the Constitution of India.
He further contends that the grounds of the order served on him are vague,
insufficient and incomplete. According to him the object of the externment
order passed by the District Magistrate, Delhi, was to suppress political
opposition to the policy of the Government in respect of Pakistan and the
Muslim League. It is alleged that because the petitioner and the Hindu
Mahasabha are against the Government policy of appeasement this order is served
on him. It is therefore mala fide and illegal. In support of his contention about
the invalidity of the East Punjab Public Safety Act and its provisions as
regards externment, counsel for the petitioner relied on the recent unreported
judgments of the Patna High Court in Miscellaneous Judicial Case No. 29 of
1950, Brijnandan v. The State of Bihar, and of the High Court of Bombay in
Criminal Application No. 114 of 1950, re Jaisinghbhai Ishwarlal Modi.
It is necessary first to ascertain the true
meaning of article 19 (1) (d) read with clause (5) of the same article.
There is no doubt that by the order of extern
mint the right of the petitioner to freedom of movement throughout the
territory of India is abridged. The only question is whether the limits of
permissible legislation under clause (5) are exceeded. That clause provides as
follows:--"19. (5) Nothing in subclauses (d), (e) and (f) of the said
clause shall affect the operation of any existing law in so far as it imposes,
or prevent the State from making any law imposing, reasonable restrictions on
the exercise of any of the rights conferred by the said sub clauses either in
the interests of the general public or for the protection of the interests of
any Scheduled Tribe." It is clear that the clause permits imposition of
reasonable restrictions on the exercise of the right conferred by sub clause
(d)in the interests of the general public. The rest of the provision of clause
(5) is not material and neither side relies on it. Two interpretations of the
clause are put before the Court. It is argued that grammatically understood the
only question before the Court is whether the impugned legislation imposes
reasonable restrictions on the exercise of the right. To put it in other words,
the only justiciable issue to be decided by the Court is whether the
restrictions imposed by the legislation on the exercise of the right are
reasonable. If those restrictions on the exercise of the right are reasonable,
the Court has not to consider whether the law imposing the restrictions is reasonable.
The other interpretation is that while the Constitution permits a law laying
down reasonable restrictions on the exercise of the rights mentioned in
sub-clause 19 (1) (d), the reasonableness has to be of the law also. It is
submitted that in deciding whether the restrictions, on the exercise of the
right are reasonable, the Court has to decide not only on the extent and nature
of the restrictions on the exercise of the right but also as to whether the
conditions under which the right is restricted are reasonable. The majority
judgments of the Patna and the Bombay High Courts, although the impugned Acts
of the State Legislatures before them were materially different on certain
important points, have given clause (5) of article 19 the latter meaning.
524 In my opinion, clause (5) must be given
its full meaning. The question which the Court has to consider is whether the
restrictions put by the impugned legislation on the exercise of the right are
reasonable or not. The question whether the provisions of the Act provide
reasonable safeguards against the abuse of the power given to the executive
authority tO administer the law is not relevant for the true interpretation of
the 'clause. The Court, on either interpretation, will be entitled to consider
whether the restrictions on the right to move throughout India, i.e,, both as
regards the territory and the duration, are reasonable or not. The law
providing reasonable restrictions on the exercise of the right conferred by
article 19 may contain substantive provisions as well as procedural provisions.
While the reasonableness of the restrictions
has to be considered with regard to the exercise of the right, it does not
necessarily exclude from the consideration of the Court the question of
reasonableness of the procedural part of the law. It is obvious that if the law
prescribes five years externment or ten years externment, the question whether
such period of externment is reasonable, being the substantive part, is
necessarily for the consideration of the Court under clause (5). Similarly, if
the law provides the procedure under which the exercise of the right may be
restricted, the same is also for the consideration of the Court, as it has to
determine if the exercise of the right has been reasonably restricted. I do not
think by this interpretation the scope and ambit of the word
"reasonable" as applied to restrictions on the exercise of the right,
is in any way unjustifiably enlarged. it seems that the narrow construction
sought to be put on the expression, to restrict the Court's power to consider
only the substantive law on the point, is not correct. In my opinion this
aspect of the construction of article 19 (5) has escaped the minority judgment
in the two matters mentioned above. I am not concerned with the conclusions of the
two Courts about the invalidity of the provisions of the Acts they were asked
to consider. To the extent they help in the interpretation of article 19 (5)
only they are helpful.
525 The next question is whether the impugned
Act contains reasonable restrictions on the exercise of the right given under
article 19 (1)(d)or (e). It was argued on behalf of the petitioner that under
section 4 the power to make the order of externment was given to the Provincial
Government or the District Magistrate, whose satisfaction was final.
That decision was not open to review by the
Court. On that ground it was contended that there was an unreasonable
restriction on the exercise of the citizen's right. In my opinion, this
argument is unsound. This is not legislative delegation. The desirability of
passing an individual order of externment against a citizen has to be left to
an officer. In the Act such a provision cannot be made. The satisfaction of the
officer thus does not impose an unreasonable restriction on the exercise of the
citizen's right.
So far as the Bombay High Court is concerned
Chagla C.J. appears to have decided this point against the contention of the
petitioner.
It was next urged that under section 4 (3)
the order made by the District Magistrate shall not, unless the Provincial
Government by special order otherwise direct, remain in force for more than
three months. It was argued that the period of three months itself was
unreasonable as the externee had no remedy during that time. It was contended
that when the Provincial Government directed the renewal of the order no limit
of time was prescribed by the legislature for the duration of the order. The
order therefore can be in operation for an indefinite period. This was argued
to be an unreasonable restriction on the exercise of a citizen's right. In this
connection it may be pointed out that in respect of preventive detention, which
is a more severe restriction on the right of the citizen, the Constitution
itself under article 22 (4) to (7) permits preventive detention for three
months without any remedy. The period of three months therefore prima facie
does not appear unreasonable. Under the proviso to section 4 (5) the Provincial
Government is not permitted to direct the exclusion or removal from the
Province of a person ordinarily residing in the Province, and similarly 526 the
District Magistrate is not permitted to order the exclusion or removal of a
person ordinarily resident in his district from that district. This is a great
safeguard provided under the East Punjab Public Safety Act. The further
extension of the externment order beyond three months may be for an indefinite
period, but in that connection the fact that the whole Act is to remain in
force only up to the 14th August, 1951, cannot be overlooked. Moreover, this
whole argument is based on the assumption that the Provincial Government when
making the order will not perform its duty and may abuse the provisions of the
section. In my opinion, it is improper to start with such an assumption and
decide the legality of an Act on that basis.
Abuse of the power given by a law sometimes
occurs; but the validity of the law cannot be contested because of such an
apprehension. In my opinion, therefore, this contention of the petitioner
cannot be accepted.
It. was next argued that there is no
provision in the Act for furnishing grounds of externment to the citizen.
Section 4 (6) provides that when an
externment order has been made its grounds may be communicated to the externee by
the authority making the order and in any case when the order is to be enforced
for more than three months he shall have a right of making a representation
which shall be referred to the advisory tribunal constituted under section 3
(4). While the word "may" ordinarily conveys the idea of a discretion
and not compulsion, reading it with the last part of the clause it seems that
when an externment order has to be enforced for more than three months an
absolute right is given to the cxternee to make a representation. He cannot
make a representation unless he has been furnished grounds for the order. In no
other part of the Act a right to obtain the grouuds for the order in such a
case is given to him. Therefore, that right has to be read as given under the first
part of section 4 (6). That can be done only by reading the word
"may" for that purpose as having the meaning of "shall" If
the word "may" has to be so read for that purpose, it appears to be
against the well-recognised canons of construction to 527 read the same
"may" as having a different meaning when the order is to be in force
for less than three months. I do not think in putting the meaning of
"shall" on "may" in the clause, I am unduly straining the
language used in the clause. So read this argument must fail.
It was next argued that there is no provision
in the Act showing what the advisory board has to do when it receives a
representation. A reference to the advisory board necessarily implies a
consideration of the case by such board.
The absence of an express statement to that
effect in the impugned Act does not invalidate the Act.
It was finally contended on behalf of the
petitioner that the grounds for the externment order supplied to him are vague,
insufficient and incomplete. The grounds are stated as follows :-"Your
activities generally and particularly since the recent trouble in East and West
Bengal have been of a communal nature tending to excite hatred between
communities and whereas in the present composition of the population of Delhi
and the recent communal disturbances of Delhi feelings are roused between the
majority and minority communities, your presence and activities in Delhi are
likely to prove prejudicial to the maintenance of law and order, it is
considered necessary to order you to leave Delhi." These grounds cannot be
described as vague, insufficient or incomplete. It is expressly stated that the
activities of the petitioner, who is the President of the Hindu Mahasabha,
since the recent disturbances between two communities in the East and West
Bengal have particularly been of a communal nature which excites hatred between
the communities. It is further stated that having regard to the recent
disturbance in Delhi, the population of which is composed of both these communities,
the excitement of such,hatred is likely to be dangerous to the peace and
maintenance of law and order. Apart from being vague, I think that these
grounds are specific and if honestly believed can support the order. The
argument that the order 528 was served to stifle opposition to the Government
policy of appeasement has little bearing because the District Magistrate of
Delhi is not concerned with the policy of the Government of appeasement or
otherwise. The order is made because the activities of the petitioner are
likely to prove prejudicial to the maintenance of law and order and the grounds
specified have a direct bearing on that conclusion of the District Magistrate.
I therefore think that this contention of the petitioner must be rejected.
The result is that the petition fails and is
dismissed.
FAZL ALI J.--I agree.
PATANJALI SASTRI J.--I agree that this
application must fail. As I share the views expressed by my Lord in.the
judgment just delivered by him on the reasonableness of the restrictions
imposed by the impugned legislation whichever construction of article 19 (5) of
the Constitution is adopted, I consider it unnecessary to express any opinion
on the true scope of the judicial review permitted under that article, and I
hold myself free to deal with that point when it becomes necessary to do so.
MAHAJAN J.--I concur in the judgment which my
brother Mukherjea is delivering and for the reasons given by him I allow the
petition and quash the order of externment.
MUKHERJEA J.--This is an application under
article 32 of the Constitution, praying for quashing of an externment order
made by the District Magistrate of Delhi, against the petitioner Dr. N.B.
Khare, on 31st March, 1950, by which the latter was directed to remove himself
immediately from the Delhi District and not to return to that District so long
as the order remained in force. The order is for three months at present.
Complaint was also made in the petition in respect of another and a subsequent
order passed by the Government of Madhya Bharat which was served on the petitioner
on his way to Nagpur and which 529 directed him to reside within the limits of
the Nagpur Municipality and not to leave that area without the permission of
the District Magistrate of that place. This order of the Government of Madhya
Bharat, we are told, has since been withdrawn and we are not concerned with
that order or the Act under which it was passed in the present proceeding.
The substantial contention raised on behalf
of the petitioner is that the particular provision of the East Punjab Public
Safety Act, 1949, under which the District Magistrate of Delhi purported to
make the externment order, became void and ceased to be operative after the new
Constitution came into force, by reason of these provisions being inconsistent
with the fundamental rights guaranteed under article 19 (1) (d) of the
Constitution read with clause (5) of the same article. The argument is that any
order passed under such void legislative provisions must necessarily be void
and of no effect in law.
In order to appreciate the merits of this
contention, it may be convenient to advert to the material provisions of the
East Punjab Public Safety Act which are alleged to have become void as well as
to the articles of the Constitution, upon which reliance has been placed by the
learned counsel for the petitioner.
The East Punjab Public Safety Act came into
force on 29th March, 1949, and its object, as stated in the preamble, is to
provide for special measures to ensure public safety and maintenance of public
order. Section 4 (1) of the Act provides:
"The Provincial Government or the
District Magistrate, if satisfied with respect to any particular person that
with a view to preventing him from acting in any manner prejudicial to the
public safety or the maintenance of public order it is necessary so to do, may,
by order in writing, give anyone or more of the following directions, namely
that such person ...................................................
(c) shall remove himself from, and shall not
return to, any area that may be specified in the order." , 530 Sub-section
(3) of the section lays down that "An order under sub-section (1) made by
the District Magistrate shall not, unless the Provincial Government by special
order otherwise directs, remain in force for more than three months from the
making thereof." The contention of the petitioner is that the restrictive
provisions mentioned above, under which a person could be removed from a
particular area or prohibited from returning to it are inconsistent with the
fundamental right guaranteed by article 19 (1) (d) of the Constitution under
which all citizens shall have the right "to move freely throughout the
territory of India." This right indeed is not absolute and the extent to
which it could be curtailed by legislation is laid down in clause.(5)of article
19 which runs as follows:
"Nothing in sub-clauses (d), (e) and (f)
of the said clause shall affect the operation of any existing law in so far as
it imposes, or prevent the State from making any law imposing, reasonable
restrictions on the exercise of any of the rights conferred by the said
sub-clauses either in the interests of the general public or for the protection
of the interests of any Scheduled Tribe." Thus the primary question which
requires consideration is, whether the impugned legislation which apparently
seems to be in conflict with the fundamental right enunciated in article 19 (1)
(d) of the Consitution is protected by clause (5) of the article, under which a
law would be valid if it imposes reasonable restrictions on the exercise of the
right in the interests of the general public. It is not disputed that the
question of reasonableness is a justiciable matter which has to be determined
by the Court. If the Courts 'hold the restrictions imposed by the law to be
reasonable, the petitioner would certainly have no remedy. If, on the other
hand, they are held to be unreasonable, article 13 (1)of the Constitution
imposes a duty upon the Court to pronounce the law to be invalid to the extent
that it is inconsistent with the fundamental rights guaranteed under Part III
of the Constitution.
531 It has been urged, though somewhat
faintly, by the learned Attorney-General that the right of free movement
throughout the Indian territory as enunciated in article 19 (1) (d) of the
Constitution contemplates nothing else but absence of inter-State restrictions,
which might prevent citizens of the Indian Union from moving from one State to
another. A law which does not impose barriers of this kind, it is said, cannot
be inconsistent with the fundamental right secured by this clause. Such a
restricted interpretation is, in my opinion, not at all warranted by the
language of the sub-clause. What article 19 (1) (d) of the Constitution
guarantees is the free right of all citizens to go wherever they like in the
Indian territory without any kind of restriction whatsoever. They can move not
merely from one State to another but from one place to another within the same
State and what the Constitution lays stress upon is that the entire Indian
territory is one unit so far as the citizens are concerned. Clause (c) of
section 4 (1) of the East Punjab Public Safety Act, 1949, authorises the Provincial
Government or the District Magistrate to direct any person to remove himself
from any area and prohibit him from entering the same. On the face of it such
provision represents an interference with the. fundamental right guaranteed by
article 19 (1) (d) of the Constitution. The controversy, therefore, narrows
down to this, whether the impugned legislation is saved by reason of its being
within the permissible limits prescribed by clause (5) of article 19.
With regard to clause (5), the learned
AttorneyGeneral points out at the outset that the word "reasonable"
occurring in the clause qualifies "restrictions" and not
"law'".
It is argued that in applying the clause, all
that we have to see is whether the restrictions that are imposed upon the
exercise of the right by law are reasonable or not and we have not to enquire
into the reasonableness or otherwise of the law itself. The reasonableness of
the restrictions can be judged,' according to the learned Attorney-General,
from the nature of the restrictions themselves and not from the manner in which
or the authorities by which they are 532 imposed. The question whether the
operation of the law produces hardship in individual cases is also a matter
which is quite irrelevant to our enquiry.
I do agree that in clause (5) the adjective
'reasonable' is predicated of the restrictions that are imposed by law and not
of the law itself; but that does not mean that in deciding the reasonableness
or otherwise of the restrictions, we have to confine ourselves to an
examination of the restrictions in the abstract with reference merely to their
duration or territorial extent, and that it is beyond our province to look up
to the circumstances under which or the manner in which the restrictions have
been imposed. It is not possible to formulate an effective test which would
enable us to pronounce any particular restriction to be reasonable or
unreasonable per se. All the attendant circumstances must be taken into
consideration and one cannot dissociate the actual contents of the restrictions
from the manner of their imposition or the mode of putting them into practice.
The question of reasonableness of the restrictions imposed by a law may arise
as much from the substantive part of the law as from its procedural portion.
Thus, although I agree with the learned Attorney-General that the word
"reasonable" in clause (5) of article 19 goes with
"restrictions" and not with "law," I cannot accept his
suggestion as regards the proper way of determining the reasonableness of the
restrictions which a legislation might impose upon the exercise of the right of
free movement.
Coming now to the provisions of the impugned
Act, Mr. Banerjee's main contention is that section 4 (1) (c)of the East Punjab
Public Safety Act, which provides for passing of orders removing a person from
a particular area, on the satisfaction of the Provincial Government or the
District Magistrate, cannot be a reasonable piece of legislation inasmuch as
the only pre-requisite for imposition of the restrictions is the personal satisfaction
of certain individuals or authorities, the propriety or reasonableness of which
cannot be tested by the application of any external rule or standard. It is
said that any law which places the liberty 533 of a subject at the mercy of an
executive officer, however high placed he might be and whose action cannot be
reviewed by a judicial tribunal, is an arbitrary and not a reasonable exercise
of legislative powers. The contention requires careful examination.
It is not disputed that under clause (5) of
article 19, the reasonableness of a challenged legislation has to be determined
by a Court and the Court decides such matters by applying some objective
standard which is said to be the standard of an average prudent man. Judged by
such standard which is sometimes described as an external yard-stick, the
vesting of authority in particular officers to take prompt action under
emergent circumstances, entirely on their own responsibility or personal
satisfaction, is not necessarily unreasonable. One has to take into account the
whole scheme of the legislation and the circumstances under which the
restrictive orders could be made. The object of the East Punjab Public Safety
Act is to pro vide for special measures to ensure public safety and maintenance
of public order.
Under section 4 (1) (c) of the Act, the
Provincial Government or the District Magistrate may make an order directing
the removal of a certain person from a particular area, if they are satisfied
that such order is necessary to prevent such person from acting in any way
prejudicial to public safety or maintenance of public order. Preventive orders
by their very nature cannot be made after any judicial enquiry or trial. If
emergent steps have got to be taken to prevent apprehended acts which are
likely to jeopardise the interests or safety of the public, somebody must be
given the power of taking the initial steps on his own responsibility;
and no reasonable objection could be taken if
the authority, who is given the power, is also entrusted with the responsibility
of maintaining order and public peace in any particular district or province.
The preventive provisions of the Criminal Procedure Code are based on similar
principle. In my opinion, therefore, the provision of section 4 (1) (c) of the
East Punjab Public Safety Act cannot be pronounced to be unreasonable, simply
because the order could be passed by the Provincial Government 534 or the
District Magistrate on their own personal satisfaction and not on materials
which satisfy certain objective tests.
But though certain authorities can be
invested with powers to make the initial orders on their own satisfaction in
cases of this description, the position would certainly be different if the
order thus made is allowed to continue for any indefinite period of time
without giving the aggrieved person an opportunity to say what he has got to
say against the order. I have already set out the provisions of sub-section (3)
of section 4 which deals with duration of the orders made under the various
clauses of sub-section (1). It will be seen from this sub-section that there is
absolutely no limit as to the period of time during which an externment order
would remain in force if the order is made by the Provincial Government. The
Provincial Government has been given unlimited authority in this respect and
they can keep the order in force as long as they chose to do so.
As regards orders made by a District
Magistrate, the period indeed has been fixed at three months, but even here the
Provincial Government is competent to extend it to any length of time by means
of a special order. The law does not fix any maximum period beyond which the
order cannot continue; and the fact that the Act itself would expire in August,
1951, is, in my opinion, not a relevant matter for consideration in this
connection at all. I have no hesitation in holding that the provision of
sub-section (3) of section 4 is manifestly unreasonable and cannot be supported
on any just ground. One could understand that the exigencies of circumstances
might justify the vesting of plenary powers on certain authorities which could
pass orders on their' own personal satisfaction temporarily and for a short
period of time; but if these orders are to continue indefinitely, it is only
fair that an opportunity should be given to the person against whom such order
is made to say what he has to say in answer to the allegations made against
him.
There may not be an investigation by a
regular Court but it is necessary that the aggrieved person should be given a
fair hearing and that by an 535 impartial tribunal. The provision of the
impugned Act which has bearing on this point is contained in sub-section (6) of
section 4 and it runs as follows:
"When an order has been made in respect
of any person under any of the clauses under section 4, sub-section (1), or
sub-section (2) the grounds of it may be communicated to him by the authority
making the order and in any case, when the order is to be in force for more
than three months, he shall have a right of making a representation which shall
be referred to the Advisory Tribunal, constituted under section 3, sub-section
(4)." It will be noted that the first part of the subsection makes it
entirely optional with the authorities to communicate the grounds, upon which
the order is made, to the person affected by it. The grounds need not be
communicated at all if the authorities so desire. As regards the right of
representation the latter part of the sub-section seems to imply that when the
order is to remain in force for more than three months, the right of
representation should be given to the aggrieved person and the representation
shall be referred for consideration to the advisory tribunal constituted under
section 3, sub-section (4), of the Act.
The right, however, is purely illusory as
would appear from the fact that even in cases where the order is to be operative
for more than three months, there is no obligation on the part of the
authorities to communicate to the person the grounds upon which the order was
made. The aggrieved person consequently may not at all be apprised of the
allegations made against him and it will be impossible for him to make any
adequate or proper representation, if he is not told on what grounds the order
was passed. In my opinion, this is an equally unreasonable provision and
neither sub-section (3) nor sub-section (6) of section 4 of the Act can be said
to have imposed restrictions which are reasonable in the interests of the
general public. My conclusion, therefore, is that under article 13 (1) of the
Indian Constitution, these provisions of the Act became void and inoperative
after the Constitution came into 536 force, and consequently the order made by
the District Magistrate in the present case cannot stand.
I would, therefore, allow the application and
quash the externment order that has been passed against the petitioner.
Petition dismissed.
Agent for the petitioner: Ganpat Rai.
Agent for the opposite party: P.A. Mehta.
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