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TMI Blog1955 (2) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... me necessary to make arrangements for your expulsion from India and for this purpose you are required to be detained under section 3 (1) (b) of the Preventive Detention Act, 1950 until the issue of an appropriate order of expulsion from the Central Government . On the day after his arrest, namely on the 19th September, 1954 he wrote to the Consul-General of West Germany at Calcutta saying that be had been arrested and- asking for an early interview. This was granted. On the 21st of September 1954, the petitioner wrote to the West Bengal Government asking it to be kind enough to pass an order for our immediate repatriation from India and to do the necessary arrangement for our transmission out of India . On the 9th of October 1954 the Calcutta Police handed the petitioner's passport over to the West German Consul at the Consul's request. This passport was issued to the petitioner by the West German Government at Nurenburg in West Germany on the 27th of November 1953. When the passport was handed over to the West German Consul it had on it a number of visas, including an Indian, all of which had on them the condition while the passport is valid . When t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they have been made and signed but are being held in abeyance pending the decision of this petition. The petitioner contended that his detention was invalid for the following, among other, reasons: (1) Because section 3(1)(b) of the Preventive Detention Act, the section under which the order was. made, is ultra vires the Constitution on three grounds- (a) that it contravenes articles 21 and 22; (b) that it contravenes article 14, and (c) that it was beyond the legislative competence of Parliament to enact such a law; (2) Because section 3(1) (b) is not a law of preventive detention within the meaning of article 22(3) and therefore it contravenes article 22 (1) and (2); and (3) Because, in any event, the order was made in bad faith. The High Court decided against the petitioner on all points and dismissed the petition on 10-12-1954. He thereupon made the present petition to this Court on the same grounds, presumably under article 32 of the Constitution. It was filed oil 10-1-1955. We will first consider the vires of section 3(1) (b). It is in these terms: The Central Government or the State Government may ............... (b) if sat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no public hearing and no trial in the ordinary courts of the land. But in this particular case, the relation is even more direct, for the provision here is for detention with a view to making arrangements for a foreigner's expulsion from India. A foreign State has a very deep interest in knowing where and how its subjects can be forcibly expelled against their will. The legislative competence of Parliament to deal with this question is, we think, clear; and this covers not only section 3(1) (b) of the Preventive Detention Act but also the Foreigners Act, 1946 (Act XXXI of 1946) in so far as it deals with the powers of expulsion and the right of the Central Government to restrict the movements of foreigners in India and prescribe the place of their residence and the ambit of their movements in the land. The learned Attorney-General sought to base the legislative competence upon other Entries as well and claimed that Parliament is not confined to Entry 9 in List I and Entry 3 in List III (the only Entries that touch directly on preventive detention). He claimed, for example, that laws for the preventive detention of foreigners can also be based upon Entry 17 in List I which r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion from the country you are not preventing anything, or trying to, but are facilitating the performance of a positive act by the State, namely the act of expulsion. We do not agree and will first examine the position where an order of expulsion is made before any steps to enforce it are taken. The right to expel is conferred by section 3(2)(c) of the Foreigners Act, 1946 on the Central Government and the right to enforce an order of expulsion and also to prevent any breach of it, and the right to use such force as may be reasonably necessary for the effective exercise of such power is conferred by section 11(1), also on the Central Government. There is, therefore, implicit in the right of expulsion a number of ancillary rights, among them, the right to prevent any breach of the order and the right to use force and to take effective measures to carry out those purposes. Now the most effective method of preventing a breach of the order and ensuring that it is duly obeyed is by arresting and detaining the person ordered to be expelled until proper arrangements for the expulsion can be made. Therefore, the right to make arrangements for an expulsion includes the right to make arrang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Government and the satisfaction required by section 3(1)(b) can be of either Government. The right to satisfy itself that the drastic method of preventive detention is necessary to enable suitable arrangements for expulsion to be made is therefore expressly conferred on the State Government and as a State Government cannot expel, the conferral of the right can only mean that the State Government is given the power to decide and to satisfy itself whether expulsion is desirable or necessary, and if it thinks it is, then to detain until proper arrangements for the expulsion are made, one of them, and an essential one, being reference to the Central Government for final orders. It is evident that the authorities must be vested with wide discretion in the present field where international complications might easily follow in a given case. Unless a State Government has authority to act in anticipation of orders from the Centre, it might be too late to act at all. We now turn to the argument that section 3 (1) (b) is ultra vires because it offends article 14 of the Constitution. Actually, the attack here is on section 3 (2) (c) of the Foreigners Act but as section (3) (1) ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of challenge on this ground. He is not a British subject and so is not a member of the only class that could claim to be aggrieved on this score. This Court has decided in earlier cases that the only persons who can impugn any given piece of legislation under article 32 are those who are aggrieved thereby. As the petitioner is not a person aggrieved, so far as this point is concerned, he not being a British subject, he cannot attack the section on this ground. We hold that the impugned portions of section 3(1)(b) of the Preventive Detention Act and section 3(2)(c) of the Foreigners Act, 1946 are intra vires. We now turn to a wider question that brings us to the fringe of International law. It arises in this way. The good faith of the Government of the State of West Bengal in making the order of detention was challenged on the following, among other, grounds. It was argued that the real object of Government in continuing the detention was to keep the petitioner in custody so that it would be in a position to hand him over to the West German authorities as soon as a suitable German boat arrived. It will be remembered that the West German Government wants the petitioner for offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was academic and should not be considered because no order of expulsion had yet been served on the petitioner and no one knows the terms of the order. We do not think it is in view of what the learned Attorney-General told us, namely that an order of expulsion has actually been made and signed but is kept in abeyance pending our decision. We see no force in the first part of the petitioner's argument. We are at bottom considering the question of the West Bengal Government's good faith. The order of detention was made before the West German Consul wrote his letter, so there was no connection between that letter and the order. After that there is no material to indicate that the West Bengal Government changed its mind and continued the deten- tion for another purpose. The note referred to is the note of a Secretary to Government and embodies his suggestion about what should be done. It cannot be used either as an order of Government itself or as an indication of its mind. The second point raises a question of wider import touching the status and rights of foreigners in India, and the question we have to determine is whether there is any law in India vesting the executiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Extradition Act applies to everybody, citizen and foreigner alike, and to every class of foreigner, that is to say, even to foreigners who are not nationals of the country asking for extradition. But, as has been seen, because of article 19 no citizen can be expelled (as opposed to extradition) in the absence of a specific law to that effect; and there is none; also, the kind of law touching expulsion (as opposed to extradition) that could be made in the case of a citizen would have to be restricted in scope. That is not the case where a foreigner is concerned because article 19 does not apply. But a citizen who has committed certain kinds of offences abroad can be extradited if the formalities prescribed by the Extradition Act are observed. A foreigner has no such right and he can be expelled without any formality beyond the making of an order by the Central Government. But if he is extradited instead of being expelled, then the formalities of the Extradition Act must be complied with. The importance of the distinction will be realised from what follows; and that applies to citizen and foreigner alike. The Extradition Act is really a special branch of the law of Criminal Proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this behalf and its scope, and as to the third question the law on this matter in India is embodied in the Foreigners Act which gives an unfettered right to the Union Government to expel. But there is this distinction. If the order is one of expulsion, as opposed to extradition, then the person expelled leaves India a free man. It is true he may be apprehended the moment he leaves, by some other power and consequently, in some cases this would be small consolation to him, but in most cases the distinction is substantial, for the right of a foreign power to arrest except in its own territory and on its own boats is not unlimited. But however that may be, so far as India is concerned, there must be an order of release if he is in preventive custody and though he may be conducted to the frontier under detention he must be permitted to leave a free man and cannot be handed over under arrest. In a case of extradition, he does not leave a free man. He remains under arrest throughout and is merely handed over by one set of police to the next. But in that event, the formalities of the Extradition Act must be complied with. There must be a magisterial enquiry with a regular hearing and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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