Appeal No 21 of 1966
Appeal from the judgment and order dated January 22 1962 of the Patna High Court in Misc
Judicial Case No 757 of 1961
D Goburdhun for the appellant
M K Ramamurthi for the respondents
B Sen and section P Nayar for intervener No 1
L M Singhvi and section P Nayar for intervener No 2
The Judgment of J M SHELAT C A VAIDIALINGAM K section HEGDE and A N RAY JJ
was delivered by HEGDE J SHAH J delivered a dissenting Opinion
Shah J The High Court of Patna has declared the second part of sub section
6 of section 144 of the Code of Criminal Procedure ultra vires
Sub Section 6 reads No order under this section shall remain in force for more than two months from the making thereof unless in cases of danger to human life health or safety or a likelihood of a riot or an affray the State Government by notification in the Official Gazette otherwise directs
 In the view of the High Court an order made by the State Government extending the duration of an order under section 144 imposes an unreasonable restriction on the fundamental freedom of the citizens because the order of the State Government is not subject to judicial scrutiny and the Code provides no machinery for applying for an order of rescission or alteration of the order
Section 144 is enacted to provide for making temporary orders in urgent cases of nuisance or apprehended danger where imme 184 diate prevention or speedy remedy is desirable
It provides that when a Magistrate competent in that behalf is of the opinion that there is sufficient ground for proceeding under the section and immediate prevention or speedy remedy is desirable the Magistrate may make an order in writing against any person or the public generally when frequenting or visiting a particular place if he considers that his direction is likely to prevent or tends to prevent obstruction annoyance or injury or risk of obstruction annoyance or injury to any person lawfully employed or danger to human life health or safety or a disturbance of the public tranquility or a riot or an affray
The order must state the material facts of the case and it must be served in the manner provided by section 134 and may direct a person to abstain from a certain act or to make certain order with certain property in his possession or under his management
In cases of emergency or in cases where the circumstances do not admit of service in due time of a notice upon the person against whom the order is directed it may be passed ex parte
The order remains in force for not more than two months unless the State Government in cases of danger to human life health or safety or a likelihood of a riot or an affray otherwise directs
The order may be rescinded or altered by a Magistrate on his own motion or on the application of any person aggrieved if the order is passed by himself or by any Magistrate subordinate to him or by his predecessor in office
In deciding the application made to him the Magistrate must give an opportunity of appearing before him either in person or by pleader and showing cause against the order  and if the Magistrate rejects the application wholly or in part he shall record in writing his reasons for so doing
This Court in Babulal Parate vs State of Maharashtra and Ors1 held that section 144 is intended to secure the public weal by preventing disorders obstructions and annoyances
The powers conferred by it are exercisable by a Magistrate who acts judicially and the restraints permitted by it are of a temporary nature and may be imposed only in an emergency
The Court further held that the restrictions which the section authorises are not beyond the limits prescribed by cls
2 and 3 of article 19 of the Con stitution for the prevention of such activities as are contemplated by the section is in public interest and therefore no less in the interest of public order
The Court observed that the wide power under the section may be exercised only in an emergency and for preventing obstruction annoyance or injury etc
as specified therein and those factors necessarily condition the exercise of the power and therefore the power is not unlimited or untrammelled and that the section cannot be struck down simply on the ground 1 19613 SCR 423 185 that the Magistrate might possibly abuse his power
Challenge to the validity of section 144 in its entirety was negatived in Babulal Parate s case1
The Court however did not consider the validity of the power vested in the State executive to extend the duration of the order beyond two months apparently because no argument was advanced at the Bar in that behalf
Power conferred upon a Magistrate to make an order under section 1441 is subject to the jurisdiction of the High Court under sections 435  439 of the Code of Criminal Procedure
Again an order under sub section
4 refusing to rescind or alter any order under the section may be rectified by the High Court
The Magistrate may pass an order in the conditions prescribed in sub section
1 and not otherwise
The order does not remain in force for a period longer than two months unless the State Government in cases of danger to human life health or safety or a likelihood of a riot or an affray directs otherwise
The power to otherwise direct involves authority to extend the duration of the Magisterial order for the duration of the danger or emergency
Sub section 6 however does not authorise the State to make the order of the Magistrate permanent
The State must in otherwise directing take into consideration whether it is a case of danger to human life health or safety or of a likelihood of a riot or an affray in respect of which an order has been made by the Magistrate and whether it is necessary to extend the period beyond two months and then to direct that the order shall remain in force for a period longer than two months but not after apprehension of danger or emergency ceases
It was submitted that in the absence on any statutory restriction on the exercise of the power the State may abuse the power and continue it in force either permanently or for a period longer than the apprehension of danger or emergency justifies
But the validity of a statute conferring power is not open to challenge on the plea that the power may possibly be abused by the authority in which it is vested
 The order duration of which is extended by declaration of the State is and continues to remain the order of the Magistrate
The source of the authority of the order is derived not from the State Government but from the Magistrate
The direction of the State Government only extends its duration
The Code it is true provides no machinery for subjecting the direction by the State Gov ernment to a judicial scrutiny
The direction under sub section
6 does not depend upon the subjective satisfaction of the Government
On appropriate grounds the direction may be challenged in a petition under article 226 of the Constitution
Again sub section
4 of section 144 clearly authorises a Magistrate either on his own motion or on the application of any person aggrieved to rescind 1  6Sup
CI70 13 186 or alter any order made under the section
The order is passed by the Magistrate and the source of its authority lies in the exercise of the judicial function of the Magistrate even after its duration is extended by the State Government
Therefore under sub section
4 notwithstanding that the State Government has made a direction extending the duration of the order beyond two months the Magistrate would in my judgment be competent on a judicial consideration of the materials placed before him to rescind or alter the order
It was submitted that a Magistrate exercising power under sub sections
1  4 of section 144 of the Code of Criminal Procedure is an authority subordinate to the State Government and he cannot rescind or alter an order made by the State Government
That argument proceeds upon a misconception of the true nature of the division of powers under our Constitution
Since the ultimate liability for maintaining law and order lies upon the State the Legislature has provided that the order if it is to remain in operation for a period exceeding two months should have the imprimatur of the State Government
But on that account the Magistrate does got become an authority subordinate to the State Government
The State Government is the head of the executive and exercises no authority over the judicial functions of the Magistrates
A Magistrate is independent of the State Government and he is entitled notwithstanding the declaration made by the State Government if the circumstances justify to rescind or alter the order
Under the scheme of division of the executive and judicial functions it is true that power to make an order under section 144 is generally vested in Executive Magistrates who are in some matters responsible to the executive authorities
But even under the scheme of separation of judicial and executive powers the function of the Magistrates exercising power under section 144 remains judicial
To assume in deciding a constitutional issue that in the prevailing administrative set up an Executive Magistrate invested with power under section 144 of the Code of Criminal Procedure may not on extrajudicial considerations rescind a direction of the State Government is to overlook the distinction between abuse of power and noninvolvement of power
If in a given case the order is matte on extra judicial considerations it is it is liable to be set aside by recourse to appropriate remedy
The power to amend or alter the order after its duration is extended by the State Government cannot in my judgment be denied to the Magistrate merely because he is an Executive Magistrate
In adjudging the reasonableness of the restrictions imposed by the exercise of power on the fundamental rights of the citizens absence of a provision for judicial review and of machinery forobtaining an order recalling or amending the order made in exercise of that power have to be given due weight  Virendra vs The 187 State of Punjab and Anr
1 But as already pointed out the State Government has to make an order not on any subjective satisfaction
The order is liable to rescission or alteration under sub section
Validity of an order made by a Magistrate is open to challenge on appropriate ground even after it is extended by the direction of the State Government in a proceeding before the High Court for the jurisdiction of the High Courts to examine the validity of the order of the Magistrate is not affected by the extension of the duration of the order by the direction of the executive
Again under sub section
4 of section 144 a proceeding for withdrawal or modification of the order may be initiated even after the State has by direction extended its duration
I am unable to hold that the order of the Magistrate gets merged into the direction of the State Government when its duration is extended
In terms sub section
6 provides that the order made by a Magistrate shall not remain in force for more than two months from the making thereof unless in the classes of cases specified the State Government otherwise directs
Therefore even after the period is extended by the direction of the State Government the order continues to remain the order of the Magistrate
The declaration made by the State Government only removes the temporaly limit on its operation prescribed by sub section
In State of Madras vs V G Row2 Patanjali Sastri CJ observed that in considering the reasonableness of laws imposing restrictions on fundamental rights the test of reasonableness wherever prescribed should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases
Exercise of power under section 144 is intended to ensure the maintenance of law and order and for that purpose the section authorises the Magistrate exercising judicial power of the State on being satisfied on sufficient grounds and where it is necessary that immediate prevention or speedy remedy is desirable to make an appropriate order
Normally an order made by a Magistrate under sub section
1 of section 144 remains in force so long as it serves its purpose but not longer than two months
In case the danger or emergency or apprehension thereof is deep rooted the State Government is competent by direction to extend the duration of the order
The duty of maintaining law and order ordinarily lies on the executive but since the making of an order under section 144 involves serious infringement of the rights of the citizens exercise of the power is conditioned by a judicial evaluation of the circumstances which necessitate it
Whether the order remains operative for its normal duration or is extended by direction of the execu 1  2  188 tive the Magisterial verdict lends sustenance to it
Apprehension that the executive may abuse the power to extend the duration will not in my judgment justify the Court in holding that the extension shifts the source of authority of the order or vitiates the Magisterial evaluation
I cannot accept the abstract standard that every statute in the execution of which fundamental rights of citizens may be infringed will be adjudged unreasonable if within its framework the statute does not provide machinery for judicial scrutiny or for rescission of the action taken
Nor can I accept the plea that absence of machinery in the Code for approaching the High Court for redress against the direction of the State and absence of express provision for moving the State for rescission or alteration of the duration constitute a test of unreasonableness
Reasonableness of a statutory provision cannot be determined by the application of a set formula it must be determined on a review of the procedural and substantive provisions of the statute keeping in mind the nature of the right intended to be infringed underlying purpose of the restriction contemplated to be imposed gravity of the evil intended to be remedied thereby object intended to be achieved by the imposition of restriction and other relevant circumstances
In my view the appeal must be allowed and the order passed by the High Court set aside
Hegde J
In a proceeding under article 226 of the Constitution initiated by the respondents the High Court of Patna struck down the second part of sub section
6 of section 144 Criminal Procedure Code as being violative of sub cls
b c and d of cl
1 of article 19 of the Constitution
The State of Bihar after obtaining a certificate from the High Court under article 1321 of the Constitution has brought this appeal
The respondents are not represented in this Court
This Court by its order dated April 7 1969 appointed Mr Ramamurthi a senior Advocate of this Court as an amicus curiae to assist the Court at the hearing of the appeal
The Union of India has intervened and it was represented before us by Mr B Sen
As the question involved in this case directly concerns a legislation by the central legislature notice to Attorney General was also given and the Attorney General was represented by Dr Singhvi
The only question that arises for decision in this appeal is whether the second part of sub section
6 of section 144 Criminal Procedure Code namely the words unless in cases of danger to human life health or safety or a likelihood of a riot or any affray the State Government by notification in the Official Gazette otherwise directs are liable to be struck down as being violative of any of the clauses in article 19 1  of the Constitution
189 The facts leading to the present proceedings are as follows It appears that there was dispute between two sections of workers in the Tata Workers Union Jamshedpur
In that connection Shri K N Mishra City Magistrate Jamshedpur passed an order against respondent Verma under sub section
1 of section 144 Criminal Procedure Code on May 211961
He followed up that order by another order against respondents K K Mishra Sadhu Singh P C Joshi and M N Govende on June 20 1961
Thereafter the State Government of Bihar passed an order under sub s 6 of s144 Criminal Procedure Code and notified the same in the Bihar Official Gazette on July 18 1961
It is the validity of this notification that is in issue in this case
That notification reads NOTIFICATION The 18th July 1961
No 8255 C Whereas the following orders have been made under the provision of section 144 Code of Criminal Procedure 1898 V of 1898 by Shri K N Mishra City Magistrate Jamshedpur 1
TO Shri R L Verma Jamshedpur
Whereas it has been made to appear to me that the President Tata Workers  Union Jamshedpur has informed you regarding the adoption of the resolution of ratification of no confidence motion against you in the General Body meeting of TW Union on 17th May 1961 and you received the letter on 18th May 1961 and still you have not refrained from attending the Office of Tata Workers  Union situated
at K Road Jamshedpur and I am satisfied that your going to the office of Tata Workers  Union may lead to a serious breach of the peace the prevention of which is immediately necessary
I K N Mishra City Magistrate Jamshedpur specially empowered under section 144 Criminal Procedure Code therefore hereby restrain you from going to the office of the Tata Workers Union situated at K Road Bistupur Jamshedpur for a period of 60 sixty days with effect from today
You are also called upon to show cause by 25th May 1961at 6 30 am as to why this order under section 144 Criminal Procedure Code should not be made absolute against you
190 Given under my hand and seal of the Court this the 21st day of May 1961
K N Mishra City Magistrate Jamshedpur 21 5 1961
To 1 Shri Kamla Kant Mishra 2 Shri Sadhu Singh 3 Shri P C Joshi and 4 Shri M N Govende all of Tata Workers  Union
Whereas the officer in charge of Bistupur PS has submitted a report that there is serious apprehension of breach of peace in respect of the Tata Workers  Union Office and the same still continues
And whereas I am satisfied that a serious apprehension of breach of peace still exists due to rivalry between two rival groups of the Tata Workers  Union and the same breach of peace cannot otherwise be prevented unless these four members of the OP are prohibited from entering into the office and compound of the Tata Workers  Union at K  Road Bistupur for _a further period of 30 thirty days I K N Mishra City Magistrate Jamshedpur specially empowered under section 144 Criminal Procedure Code do hereby prohibit Shri Kamla Kant Mishra Shri Sadhu Singh Shri P C Joshi and Shri M N Govende from entering into the office and compound of the
Tata Workers  Union situated at K  Road Bistupur for a further period of 30 thirty days with effect from today the 20th June 1961 and also call upon you to show cause why this order under section 144 Criminal Procedure Code should not be made absolute against you Cause if any be on 29th June 1961 at 6 30 am
Given under my hand and the seal of the Court this 20th day of June 1961
K N Mishra City Magistrate Jamshedpur 20 6 1961
And whereas the above orders expire on the 19th July 1961 and whereas the Governor of Bihar is satisfied that the conditions which rendered these orders necessary still exist and that there is apprehension that they may continue to exist for a longer time and that it is necessary that these orders should be tended for 191 a further period beyond the present date of their expiry in the interest of the safety of the life of the inhabitants of the town of Jamshedpur and in order to avoid the risk of riotor affray
Now therefore in exercise of the powers conferred by sub section 6 of the Section 144 of the said Code the Governor of Bihar is pleased to direct that the above orders will continue to remain in force for a period of four months with effect from the date of publication of this notification in the Bihar Gazette unless previously withdrawn by a notification in the said Gazette
By Order of the Governorof Bihar M Sinha Deputy Secretary to Government
 At this stage we may mention that the validity of the orders made by the City Magistrate Jamshedpur on May 21 1961 and June 20 1961 was not challenged in the present proceedings
Nor was the validity of any portion of section 144 other than mentioned earlier was assailed
The validity of parts of section 144 other than that impugned in the present proceedings has been upheld by this Court in Babulal Parate vs State of Maharashtra and Ors
In order to consider the validity of the impugned part of section 144 Criminal Procedure Code it is necessary to have before us the entire section
That section reads thus  1 In cases where in the opinion of a District Magistrate a Chief Presidency Magistrate Sub Divisional Magistrate or of any other Magistrate not being a magistrate of the third class specially empowered by the State Government or the Chief Presidency Magistrate or the District Magistrate to act under this section there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable such Magistrate may by a written order stating the material facts of the case and served in the manner provided by section 134 direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management if such Magistrate considers that such direction is likely to prevent or tends to prevent obstruction annoyance or injury or risk of obstruction annoyance or injury to any person lawfully employed or danger to human life health or safety or a disturbance of the public tranquillity or a riot or an affray 1  192 2 An order under this section may in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed be passed ex parte
3 An order under this section may be directed to a particular individual or to the public generally when frequenting or visiting a particular place
4 Any Magistrate may either on his own motion or on the application of any person aggrieved rescind or alter any order made under this section by himself or any Magistrate subordinate to him or by his pre decessor in office
5 Where such an application is received the Magistrate shall afford to the applicant an early opportunity of appearing before him either in person or by pleader and showing case against the order and it the Magistrate rejects the application wholly or in part he shall record in writing his reasons for so doing
6 No order under this section shall remain in force for more than two months from the making thereof unless in cases of danger to human life health or safety or a likelihood of a riot or an affray the State Government by notification in the Official Gazette otherwise directs
 It may be noted that orders under sub sections
1 2 3 4 and 5 of section 144 can only be passed by superior Magistrates
This Court in Babulal Parate s case1 sustained the validity of an order made by a Magistrate under section 1441 because of the various safeguards provided in the section
It may be seen that an order made by a Magistrate under section 1441 Criminal Procedure Code is open to be revised on the basis of any representation made by the aggrieved party and is also revisable by the High Court
An analysis of the section shows that an order under that provision is subject to the following safeguards  1 It has to be made by a superior Magistrate 2 While making the order the Magistrate has to act judicially 3 The order will be in operation for a short period an order of a temporary nature 4 An opportunity is given to the aggrieved party of showing cause against that order 5 Reasons have to be recorded by the Magistrate for rejecting an application under s 1444 and 1  193 6 The order of the Magistrate being a judicial order it can be challenged in revision before the High Court under section 435 read with section 439 Criminal Procedure Code
It was urged by Mr Ramamurthi that whereas the legislature had provided adequate safeguards in respect of orders made by Magistrates it has failed to provide for any safeguard in respect of orders made by the State Government under the second part of sub section
6 of section 144 Criminal Procedure Code before making an order under that provision the State Government is not required to make any inquiry no opportunity is given to the aggrieved party to show cause against the order the order made by the State Government need not be of a temporary nature and the order of the State Government is neither appealable nor revisable
Hence according to him the restriction imposed on the fundamental rights guaranteed to the respondents under article 191bc d viz to assemble peaceably without arms to form associations or unions and to move about freely throughout India is an unreasonable restriction
The State has not been consistent in its stand
Before the High Court in its grounds of appeal filed as well as in the initial stage of the arguments of Mr Goburdan learned counsel for the State of Bihar and Dr Singhvi the stand taken was that the order made by the State Government is on administrative order and as such is not amenable to any judicial review
But after some discussion and after obviously realising the untenability of their contention they drastically changed their stand and contended that the only operative orders are those made by the Magistrate the Government merely extended the duration of those orders the order of the Government got merged in the orders of the Magistrate the extended order is open to review under sub section 4 of section 144 Criminal Procedure Code and the same is revisable under section 435 read with section 439 Criminal Procedure Code
We shall now proceed to consider whether there is any basis for the new line of argument advanced in this Court
We have earlier seen the scheme of section 144 Criminal Procedure Code
Its first sub section empowers the appropriate Magistrate to make any order contemplated therein
The second sub section confers power on the Magistrate to pass the ex parte order under certain circumstances
The third sub section sets out the person against whom the order made by the Magistrate can be directed
The fourth sub section provides for the review of the order by the Magistrate who made the order or his successor in office or by his superior either suo moto or on the representation made by the aggrieved party
The fifth sub section lays down the procedure to be adopted by the concerned Magistrate to deal with the repre 194 sentation received
The first part of the sixth sub section fixes the period during which the order made by a Magistrate would be in operation
Once the process set but above comes to an end the Magistrate has no further function
Thereafter it is clear he becomes functus officio in relation to the order made by him
The power conferred on the Government under the second part of the sixth sub section is an independent power
Before issuing any direction under that sub section the Government has to examine afresh whether the danger to human life health or safety or a likelihood of a riot or an affray continues and if it continues how long the original order made by the Magistrate should be kept alive
It is true that the basic order is the Magistrate s order but the decision that the circumstances mentioned in sub section
6 of section 144 Criminal Procedure Code continue to exist and the original order should be continued for a certain period of time or indefinitely is that of the Government
It is not a case of the Government order getting merged in the Magistrate s order
It is rather the converse
The Magistrate s order is adopted by the Government as its own order
Once the Government notifies its direction
the responsibility for the continuance of the original order is that of the Government
It may be noted that the direction given by the Government has to be notified in the Official Gazette
We have earlier seen that the order with which we are concerned in this case was made in the name of the Governor and signed by a Secretary to the Government
That is the usual procedure adopted in issuing directions under section 1446
From all these it is clear that the direction in question is an executive act of the State Government coming within article 166 of the ConstitutiON
If the direction given under section 1446 is intended to merely keep alive a judicial order the legislature would have entrusted that function to a judicial authority as has been done in the case of an order under section 1441 Criminal Procedure Code
Further it is least likely that the legislature would have prescribed that such a direction should be notified in the Official Gazette
It we bear in mind our legislative practice it is difficult to accept the contention that the legislature had conferred upon the Magistrate power to review the directions given by the Government
Section 1444 says in clearest possible terms that the Magistrate may rescind or alter any order made under that section by himself or any magistrate sub ordinate to him or by a predecessor in office
It is not possible to bring within the scope of this section the order made by the State Government
If the legislature intended to bring within the scope of this sub section direction which really means order given by the State Government it would have stated so particularly when it specifically referred to the order made by the Magistrate s predecessor in office or that made by a subordinate Magistrate
The scheme of the section
the language employed therein and our legislative practice militate against the new line of defence adopted 195 on behalf of the State of Bihar Union of India and the Attorney General in this Court
From a plain reading of section 1446 Criminal Procedure Code it is clear that the power conferred on the State Government is an independent power and it is an executive power
It is not expected to be exercised judicially
It is open to be exercised arbitrarily
The directions given in the exercise of that power need not be of a temporary nature
The ambit of that power is very large and it is uncontrolled
Dr Singhvi at one stage urged that the only check on the exercise of that power by the Government is the searching scrutiny of governmental actions expected from our legislators
We shall assume as Dr Singhvi wants us to do that de executive actions of the Government are constantly being watched by the legislators
But that does not absolve this Court s responsibility
To quote the felicitous expressions of one of the illustrious former Chief Justices of this Court Sri Patanjali Sastri in State of Madras vs Y G Row1 that as regards the fundamental rights the Constitution has assigned to this Court the role of a Sentinel on the quivive
Proceeding further the learned Chief Justice observed in that case that while this Court naturally attaches great weight to the legislative judgment it cannot desert its own duty to determine finally the constitutionality of an impugned statute
It will be neither fair nor just to this Court or to our Constitution or even to our representatives if this Court deserts its duty on the assumption that the other organs of the State would safeguard the fundamental rights of the citizens
Dr Singhvi s contention ignores the very character of the fundamental rights the basic principles underlying them and the safeguards carefully erected by our Constitution against the legislative encroachment of the fundamental rights of citizens
Further it is based on an over simplification of the concept of the rule of the majority in a parliamentary democracy
It overlooks the fact that these safeguards are primarily intended to protect the rights of the minority
Dr Singhvi s contention also overlooks the fact that the fundamental rights constitute a protective shield to the citizens as against State actions
Therefore there is no point in saying that the legislators would see that those rights are not impugned
The real question for decision is whether impugned restriction is a reasonable restriction
Unless that restriction can be considered as a reasonable restriction it does not get the protection of Sub articles
3 4 and 5 of article 19 which means that restriction is violative of article 19 1  b c and d
1  196 As observed in Dr Khare vs State of Delhi1 and reiterated in V G Rao s case 2  that in considering reasonableness of laws imposing restrictions on fundamental rights both substantive and procedural aspects of the law should be examined from the point of view of reasonableness and the test of reasonableness wherever prescribed should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases
It is not possible to for mulate an effective test which would enable the court 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
In other words in order to be a reasonable restriction the same must not be arbitrary or excessive and the procedure and the manner of imposition of the restriction must also be fair and just
Any restriction which is opposed to the fundamental principles of liberty and justice cannot be considered reasonable
One of the important tests to find out whether a restriction is reasonable is to see whether the aggrieved party has a right of representation against the restriction imposed or proposed to be imposed
No person can be deprived of his liberty without being afforded an opportunity to be heard in defence and that opportunity must be adequate fair and reasonable
Further the courts have to see whether the restriction is in excess of the requirement or whether it is imposed in an arbitrary manner
Although the object of a restriction may be beyond reproach and may very well attract the protection of Sub articles
1 to 6 of article 19 if the statute fails to provide sufficient safeguards against its misuse the operative sections will be rendered invalid see The State of Madhya Pradesh vs Baldeo Prasad3
A restriction imposed under section 31 of the Punjab Special Powers Act 1956 was struck down by this Court in Virendra vs State of Punjab4 on the ground that the Act did not provide for any time for the operation of an order made thereunder nor for a representation by the aggrieved party
Now adverting to the restriction impugned in this case the power to impose the same is conferred on the executive Government and not to any judicial authority
There is no provision to make representation by the aggrieved party against the direction given by the Government no appeal or revision is provided against that direction and the order made need not be of temporary nature
Hence we agree with the High Court that impugned provision is 1  2  3  4   197 violative of article 1 9 1 b c and d and is not saved by article 193 4 or 5
In the result this appeal fails and the same is dismissed
ORDER In accordance with the opinion of the majority the appeal is dismissed


Summary:
Sub section 6 of section 144 of the Code of Criminal Procedure provides that no order under s 144 shall remain in force for more than two months from the making thereof unless in cases of danger to human life health or safety or a likelihood of a riot or an affray the State Government by notification in the Official Gazette otherwise directs
The City Magistrate of Jamshedpur passed orders under section 1441 against the respondents which were later extended by the State Government of Bihar in exercise of its powers under section 1446
In a writ petition filed by the respondents the High Court of Patna struck down the second part of sub s6 of section 144 as being violative of sub cls
b c and d of cl
1 of article 19 of the Constitution
The State appealed and contended that the only operative orders were those made by the Magistrate and the Government merely extended those orders
Further since the order of the Government got merged in the orders of the Magistrate the extended order was open to review under sub section
4 of section 144 and the same was also revisable under section 435 read with section 439 of the Code of Criminal Procedure
HELD  Per Shelat Vaidialingam Hedge and Ray JJ i The Magistrate s order is no doubt the basic order
But after the process in the first five sub sections of section 144 is completed he becomes functus officio
The decision that the circumstances mentioned in sub section
6 of section 144 Criminal Procedure Code continue to exist and the original order should be continued is that of the Government
It is not a case of the Government order getting merged in the Magistrate s order
Rather the Magistrate s order is adopted by the Government as its own order
194 A C The order of the Government is made in the name of the Governor and signed by a Secretary to the Government
It is published in the Official Gazette
It is thus clearly an executive act of the Government coming within article 166 of the Constitution
If the direction given under section 1446 is intended to merely keep alive a judicial order the legislature would have entrusted that function to a judicial authority as has been done in the case of an order under section 1441
194 E F Section 1444 says in clearest possible terms that the Magistrate may rescind or alter any order made under that section by himself or any magistrate subordinate to him or by a predecessor in office
It is not possible to bring within the scope of this section the order made by the State Government
for if it was so intended it would have been mentioned in the section
194 G From a plain reading of section 1446 it is clear that the power conferred on the Government is an independent executive power not expected to be exercised judicially
It is open to be exercised arbitrarily
The direc 182 tions given in the exercise of that power need not be of a temporary nature
The ambit of that power is very large and is uncontrolled
195 B ii The fact that the Legislature is expected to keep a check on governmental actions does not absolve this Court s responsibility
The fundamental rights constitute a protective shield to the citizen as against State actions and the Court cannot desert its duty on the assumption that the other organs of the State would safeguard the fundamental right of the citizens
195 C D iii In order to be a reasonable restriction within the meaning of article 19 of the constitution the same must not be arbitrary or excessive and the procedure and the manner of its imposition must also be fair and just
Any restriction which is opposed to the fundamental principles of liberty and justice cannot be considered reasonable
One of the im portant tests to find out whether a restriction is reasonable is to see whether the aggrieved party has a right of representation against the restriction imposed or proposed to be imposed
Further the courts have to see whether it is in excess of the requirement or imposed in an arbitrary manner
Although the object of a restriction may be beyond reproach and may very well attract the protection of sub articles
1 to 6 or article 19 if the State fails to provide sufficient safeguards against its misuse the operative sections will be rendered invalid
196 C F Since section 1446 gives the power to impose the restrictions contemplated by it to the executive Government and not to a judicial authority and there is no right of representation appeal or revision given to the aggrieved party against an order which may not be of a temporary nature it must be held that the said impugned provision is violative of article 19 1 b c and d and is not saved by articles 193 4 or 5
196 G Babulal Parate vs State of Maharashtra and Ors   referred to
State of Madras vs V G Rao   Dr Khare V State of Delhi   State of Madhya Pradesh vs Baldeo Prasad  and Virendra vs State of Punjab   applied
Per Shah J dissenting
Sub section
6 of section 144 does not authorise the State Government to make the order of the Magistrate permanent
It cannot direct it to continue after apprehension of danger or emergency ceases
The validity of a statute conferring power is not open to challenge on the plea that the power may possibly be abused by the authority in which it is vested
The order duration of which is extended by declaration of the State is and continues to remain that of the Magistrate
The source of the authority of the order is derived not from the State Government but from the Magistrate
It cannot be said that the order of the Magistrate gets merged with that of the Government when its duration is extended
Although no provision is made in the Code for a judicial review of the State Government s order under section 1446 the said order does not depend on the subjective satisfaction of the Government and is capable of being challenged in a petition under article 226 of the Constitution  Further the Magistrate who passed the original order may in considera tion of the materials placed before him under section 1444 rescind or alter the State Government s order
In the exercise of his judicial functions 183 the Magistrate is independent of the Government and not subordinate to it
The principle applies even in the case of an Executive Magistrate who under the scheme of separation of powers may be responsible to the executive authorities
The above remedies being available the provision in section 1446 cannot be held to be unreasonable on the mere ground that there is no express provision in the Code for redress against the State Government s order
Reasonableness of a statutory provision cannot be determined by the application of set formulas  it must be determined on a review of the procedural and substantive provisions of the statute keeping in mind the nature of the right intended to be infringed underlying purpose of the restriction contemplated to be imposed gravity of the evil intended to be remedied thereby object intended to be achieved by the imposition of restriction and other relevant circumstances
B D Case law referred to