1950 (4) TMI 20 - HC - Indian Laws

Summary

Issues Involved:

1. Violation of Fundamental Rights under Article 19(1)(d) and (e) of the Constitution.
2. Jurisdiction of the High Court under Article 226 to issue writs.
3. Reasonableness of restrictions imposed under Section 2(1)(b) of the Bombay Public Security Measures Act, 1947.
4. Validity of the Bombay Public Security Measures Act in light of Article 13(1) of the Constitution.
5. Procedural fairness and the right to be heard.

Issue-wise Detailed Analysis:

1. Violation of Fundamental Rights under Article 19(1)(d) and (e) of the Constitution:

The petitioner challenged an order issued by the District Magistrate, Ahmedabad, restricting his presence in the district, arguing it violated his fundamental rights under Article 19(1)(d) and (e). These clauses guarantee the right to move freely throughout India and to reside and settle in any part of the territory. The petitioner contended that the order restricted his movement and residence rights, thus violating his fundamental rights.

2. Jurisdiction of the High Court under Article 226 to issue writs:

The Court examined whether it had jurisdiction to issue an order against the District Magistrate. It was noted that a writ of certiorari could not be issued against the opponents as the order was administrative, not judicial or quasi-judicial. However, the Court's jurisdiction under Article 226 was considered, which extends to issuing directions, orders, or writs for enforcing fundamental rights. The Court concluded that its jurisdiction under Article 226 was extensive and could be used to safeguard fundamental rights, even against administrative orders.

3. Reasonableness of restrictions imposed under Section 2(1)(b) of the Bombay Public Security Measures Act, 1947:

The Court analyzed whether the restrictions imposed by the Act were reasonable. Article 19(5) allows the State to impose reasonable restrictions on the rights conferred by Article 19(1)(d) and (e) in the interests of the general public. The Court emphasized that the reasonableness of restrictions must be determined judicially, considering the nature, manner, extent, and duration of the restrictions. It was concluded that the restrictions imposed by the Act were unreasonable as they did not provide the person affected with the right to be heard or know the grounds for the order.

4. Validity of the Bombay Public Security Measures Act in light of Article 13(1) of the Constitution:

Article 13(1) invalidates any law inconsistent with the fundamental rights conferred by Part III of the Constitution. The Court examined whether the Act, to the extent it empowered the Government to issue externment orders, was void under Article 13(1). It was held that the Act imposed unreasonable restrictions on fundamental rights, making it void to that extent.

5. Procedural fairness and the right to be heard:

The Court highlighted the lack of procedural fairness in the Act. Unlike detention orders under Section 2(1)(a), which required the Government to furnish grounds and allow representation, externment orders under Section 2(1)(b) did not. The absence of a right to be heard before or after the order was made was deemed a significant flaw, rendering the restrictions unreasonable. The Court emphasized that even though the right to be heard is not a fundamental right, its absence could make a restriction unreasonable.

Separate Judgments:

R.S. Bavdekar, J.:

Bavdekar, J. concurred with the majority but added that the reasonableness of restrictions should consider not just the nature and duration but also the procedure followed before imposing the restriction. He emphasized that the right to be heard is a component of natural justice and should be considered in determining the reasonableness of restrictions.

Shah, J.:

Shah, J. dissented, arguing that the reasonableness of restrictions should be judged by the nature of the restriction itself, not the procedure of imposition. He contended that the Court should not declare a statute void based on the possibility of abuse by the executive. Shah, J. believed that the absence of a provision for being heard did not make the restriction unreasonable per se.

Conclusion:

The Court directed the respondents to refrain from preventing the petitioner from entering the district of Ahmedabad, emphasizing that the restrictions imposed by the Act were unreasonable and void, thus safeguarding the petitioner's fundamental rights.