1954 (2) TMI 21 - SC - Indian Laws

Summary

Issues Involved:
1. Constitutional validity of Section 7 of the Influx from Pakistan (Control) Act, 1949.
2. Whether Section 7 infringes the fundamental rights under Article 19(1)(e) of the Constitution.
3. Whether Section 7 is a reasonable restriction under Article 19(5) of the Constitution.
4. The applicability of Article 14 and Article 20(2) to Section 7.
5. The procedural fairness and opportunity to be heard under Section 7.
6. The distinction between citizens and non-citizens under the Act.

Detailed Analysis:

1. Constitutional Validity of Section 7 of the Influx from Pakistan (Control) Act, 1949:
The primary issue in this batch of appeals was the constitutional validity of Section 7 of the Influx from Pakistan (Control) Act, 1949. Section 7 authorized the Central Government to order the removal from India of any person who has committed, or is reasonably suspected of having committed, an offense under the Act. The Supreme Court concluded that Section 7 is void in so far as it infringes the right of a citizen of India under Article 19(1)(e) of the Constitution.

2. Infringement of Fundamental Rights under Article 19(1)(e):
The Court held that Section 7 infringes the fundamental right of a citizen to "reside and settle in any part of the territory of India" as guaranteed under Article 19(1)(e). The section allows for the removal of a citizen from the country merely based on a reasonable suspicion of having committed an offense under the Act, which is tantamount to taking away their fundamental right.

3. Reasonable Restriction under Article 19(5):
The Solicitor-General argued that the restriction imposed by Section 7 is reasonable and in the interest of the general public under Article 19(5). The Court rejected this argument, stating that the penalty imposed by Section 7 is "utterly disproportionate to the gravity of the offense" and "indefensible." The Court emphasized that a law subjecting a citizen to the extreme penalty of virtual forfeiture of citizenship for a mere breach of permit regulations cannot be justified as a reasonable restriction.

4. Applicability of Article 14 and Article 20(2):
The Court briefly addressed the applicability of Article 14 (equality before the law) and Article 20(2) (protection against double jeopardy). It was argued that the order of physical removal amounts to "double jeopardy." The Court dismissed this contention, stating that there is no second prosecution for the same offense, and therefore, no question of double jeopardy arises.

5. Procedural Fairness and Opportunity to be Heard:
The Court criticized Section 7 for not providing any opportunity for the person concerned to show cause against the order of removal. The section does not require the issuance of a notice or an opportunity to clear one's conduct of the suspicion entertained against them. This lack of procedural fairness was deemed a "travesty of the right of citizenship."

6. Distinction Between Citizens and Non-Citizens:
The Court noted that the Act applies to both citizens and non-citizens alike. However, it was not contended that the executive Government has no authority to direct the removal of a non-citizen. The main contention was whether the Central Government has the power to direct the removal of an Indian citizen under Section 7. The Court held that while the removal of non-citizens may be justified, the removal of citizens under the same provision is unconstitutional.

Separate Judgment by Sudhi Ranjan Das, J.:
Sudhi Ranjan Das, J., dissented from the majority opinion. He argued that the provisions of Section 7 are reasonable restrictions under Article 19(5) of the Constitution. He emphasized the context of the partition of India and the resulting emergency, which necessitated control over the influx of people from Pakistan. He viewed Section 7 as a necessary executive act to implement Section 3 of the Act and prevent espionage and sabotage. He concluded that the provisions of Section 7 were reasonable and necessary in the interest of the general public.

Conclusion:
The Supreme Court declared Section 7 of the Influx from Pakistan (Control) Act, 1949, to be void under Article 13(1) as it conflicts with the fundamental right of a citizen of India under Article 19(1)(e) of the Constitution. The case was remanded to the High Court for a determination of the citizenship status of the appellants. The dissenting opinion by Sudhi Ranjan Das, J., upheld the validity of Section 7 as a reasonable restriction under Article 19(5).