dedol-hf/india-case-legal-rag huggingface dataset:
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  opin-
ion on this point.]
JUDGMENT:
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  Magis-
trate,  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,  Brij-
nandan  v.  The  State of Bihar, and of the  High  Court  of
Bombay  in  Criminal Application No. 114 of  1950,  re  Jai-
singhbhai 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-
     523
ment  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  exist-
ing  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  rea-
sonable. The other interpretation is that while the  Consti-
tution 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   restric-
tions 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  cer-
tain  important points, have given clause (5) of article  19
the latter meaning.
524
    In  my opinion, clause (5) must be given its full  mean-
ing.  The question which the Court has to consider is wheth-
er  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  safe-
guards 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  inter-
pretation,  will be entitled to consider  whether  the   re-
strictions 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  substan-
tive part, is necessarily for the consideration of the Court
under clause (5).  Similarly, if the law provides the proce-
dure under which the exercise of the right may be  restrict-
ed, 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  construc-
tion  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  con-
cerned  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  offi-
cer.   In  the  Act such a provision cannot  be  made.   The
satisfaction  of the officer thus does not impose an  unrea-
sonable 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  Pro-
vincial 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  ex-
ternee  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  citi-
zen'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 deten-
tion  for  three months without any remedy.  The  period  of
three months therefore prima facie does not appear unreason-
able.  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 exclu-
sion  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  connec-
tion the fact that the whole Act is to remain in force  only
up  to the 14th August, 1951, cannot be  overlooked.   More-
over,  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  sec-
tion.   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  mean-
ing  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  neces-
sarily  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  Maha-
sabha, 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  communi-
ties.    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  be-
lieved 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  Magis-
trate  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 adopt-
ed, 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  Mukh-
erjea 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  peti-
tioner 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  permis-
sion 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 Consti-
tution 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  prejudi-
cial 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 interpreta-
tion is, in my opinion, not at all warranted by the language
of the sub-clause. What article 19 (1) (d) of the  Constitu-
tion  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  Provin-
cial  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  repre-
sents  an interference with  the. fundamental right  guaran-
teed by article 19 (1) (d) of the Constitution.  The contro-
versy, 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"  occur-
ring 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  restric-
tions, 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  cir-
cumstances  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  restric-
tions  imposed by a law may arise as much from the  substan-
tive 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. Baner-