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TMI Blog1950 (4) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... medabad, his movement throughout the territory of India is restricted and his right to reside and settle in any part of the territory of India is also restricted, and the contention is that these restrictions are in violation of the fundamental rights guaranteed to the citizen and thus the restrictions are bad, The order is justified on the ground that it has been issued under Section 2 (1), Bombay Public Security Measures Act (Bombay VI [6] of 1947). That section enables the Provincial Government if it is satisfied that any person was acting, is acting, or is likely to act, in a manner prejudicial to the public safety, the maintenance of public order, or the tranquility of the Province or any part thereof, to make an order--and we are concerned here with sub-Clause (b) - directing that, except in so far as he may be permitted by the provisions of the order, or by such authority or person as may be specified therein, he shall not be in any such area or place in the Province as may be specified in the order. 2. Now, before I consider whether the order is justified by the provisions of this statute, it is necessary to consider a preliminary point that has been raised. That is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bombay. 3. Now with this background, it is necessary to turn to the provisions of Article 226. In the first place, that article confers upon this Court a very vast territorial jurisdiction, in respect of writs which it used to issue before and the territorially of which was restricted to the ordinary original civil jurisdiction of the High Court Now its jurisdiction his been extended to the whole State of Bombay. Further, its jurisdiction is not merely confined to the writs which it issued in the past, but power has been conferred upon it to issue directions, orders or writs for the enforcement of any of the rights conferred by Part in which deals with fundamental rights. It is not possible to read directions, orders or writs as being ejusdem generis with what follows, because these directions, orders or writs refer to a larger category in which category is included writs in the nature of habeas corpus, mandamus, quo warranto and certiorari. The article further confers upon this Court the power to issue not only writs in the nature of various categories specified in that article, but those writs themselves, and further the article goes on to state that these writs or orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n put limitations upon its own powers. It has been suggested by the Advocate-General--and I agree with him--that the Court will not exercise its power under Article 226 in a matter which it cannot deal with judicially, nor would it take notice of anything which it cannot take notice of judicially, nor would it interfere with the action of an executive officer unless it is satisfied that that executive officer is under an obligation to do something or to forbear from doing something. Therefore, if we have the jurisdiction, as indeed we have, under Article 226 to issue an order against even an executive officer who has issued an administrative order, in order to safeguard the fundamental rights of the citizen, the next question that we have to consider is whether on the facts of this case any fundamental right of the citizen has been violated or is threatened to be violated. 5. The other argument advanced by the Advocate-General is that this order was made, as I pointed out, on 12th December 1949, and inasmuch as the order was made prior to the commencement of the Constitution, the Advocate General contends that in view of Section 6, General Clauses Act, the operation of the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law. There is no limit placed upon the power of the Court to consider the nature of the restrictions. The Court must look upon the restrictions from every point of view. It being the duty of the Court to safeguard fundamental rights, the greater is the obligation upon the Court to scrutinize the restrictions placed by the Legislature as carefully as possible. It has been suggested that as far as these restrictions are concerned, they must be only considered from one or two restricted points of view. The Advocate-General has argued that if the restriction per se is reasonable, then the Court is not entitled to look at anything more. He says, for instance, in this case the citizen is entitled to be anywhere in the Union of India except the District of Ahmedabad, and, therefore, it cannot be said that the restriction is an unreasonable restriction because a large part of the Union of India is left free to the citizen to do what he likes in that part. It is also suggested that perhaps the Court may be able to consider the duration of the restriction, and if the duration is limited and not of an unlimited character, then also the Court would say that the restriction is not unreasonab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (1) (c) deals with the right to form associations or unions, and Sub-clause (4) saves the operation of the law to the extent that it imposes reasonable restrictions in the interests of public order or morality. Mr. Purshottam contends that interests of general public is something different from security of the State, public order, or public morality, and, therefore, the right to move freely throughout the territory of India and to reside and settle in any part of the territory of India can only be restricted on the narrow ground of interests of general public which is much narrower than other grounds mentioned in Sub-clauses (2), (3) and (4). I am unable to accept that contention. Interests of general public is a very wide expression, much wider indeed than any of the expressions used in Sub-clauses (2), (3) and (4). Interests of general public embraces public security, public order and public morality, and. therefore, much wider power is given to the Legislature under Sub-clause (5) to restrict the right given under the Constitution under Article 19(1), Sub-clause (d) and (e). Therefore, the wider the power given to the Legislature, the greater is the duty of the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate-General has pointed out that the Act is for a temporary period and therefore, the duration of the externment order is limited by the duration of the statute. In a sense he is right, but it must also be pointed out that oven a temporary statute can be renewed from time to time by the Legislature and even a permanent statute may be repealed by the Legislature. This very statute which originally was for two years, was amended by the Legislature to be for a duration of three years, and then subsequently for a period of six years. Therefore, there is no limit to the power of the Legislature to continue the duration of the statute. But what is much more important, and to my mind what is fatal to the validity of the restriction placed by the Legislature, is the fact that the person against whom an order of externment is to be made has no right whatever to be heard in his defence before he is asked to leave his home and hearth and go and reside in some other place. There is no obligation upon the authority to tell him what he is charged with or what are the grounds against him which make it incumbent upon the Government to ask him to leave his home town. Nor is there any obligation up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal right is not a reasonable restriction. 10. The Advocate General has attempted to argue that the right of being heard is not a fundamental right guaranteed to the citizen under the Constitution. That is perfectly true and I do not suggest that in the case of every restriction which may be imposed under any of the sub-clauses of Article 19 the right to be heard must necessarily be granted before the Court would hold that the restriction is reasonable. I am now only concerned with Sub-clause (5) and although the right to be heard may not be a fundamental right, I have still got to consider whether the absence of it makes the restriction reasonable or not. The Constitution has made the Courts the custodians of the fundamental rights of the citizen, and it is in that spirit and in that capacity that the Court must look upon the nature of the restriction, and even though the absence of a particular safeguard may not be the violation of a fundamental right as such, even so the absence of such a safeguard may result in the restriction not being a reasonable restriction. 11. Having given the best thought to the matter I have come to the conclusion that the restriction placed upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of such a law. For example, if there was an outbreak of an epidemic in district A, the law could provide that inhabitants of that district shall not, during the pendency of the epidemic, leave that district and persons outside the district shall not enter it. In such a case the restrictions are imposed by the law itself. In the present case, the Public Security Measures Act merely permits the imposition of restrictions on the right of freedom of movement. I do not think that it would be permissible to read Clause (5) as if it read, any law permitting the imposition of reasonable restrictions on the exercise of the rights It is true that before we could say that any particular law which imposes restrictions is void, we have got to hold that the restrictions are unreasonable. But the clause which speaks of imposing reasonable restrictions on the exercise of the rights conferred by the freedom really speaking provides for the determination of the reasonableness or otherwise of a restriction by a consideration of the reasonableness of the law. The Constituent Assembly has provided by Clause (5) of Article 19 for two things : one, that notwithstanding the rights which have been decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Assembly wants the Courts to find out before holding the law valid, is as to whether this abridgement or restriction effected by the legislation, which is impugned, is or is not reasonable. I read Article 19, Clause (5), as if it had provided in connection with new laws to be made, whether by Parliament or the State Legislature, that nothing in Sub-clauses (d), (e) and (f) of the said clause shall prevent the State from making any law reasonably restricting the rights (or the exercise of any of the rights conferred by the said sub-clauses . . . and, of similarly, course, in regard to existing laws. 14. In case the existing laws which restrict the freedoms referred to in Clause (1) of Article 19 must be reasonable it is obvious that they must provide that any person whose right, for example, of freedom of movement, is restricted must be given an opportunity, may be after an interim order restricting his rights is passed ex parte, of showing cause why an order under a Security Act restricting his movements should not be passed. The right of hearing before condemnation is admittedly a component of the rights which taken together constitute rights of natural justice and in my ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n used by it. Shah, J. 16. I regret I am unable to agree with the view taken by My Lord the Chief Justice and my brother Bavdekar, on the question as to the validity of Section 2 (1) (b), Public Security Measures Act, 1947. I differ from them with some hesitation but I am unable to accept the argument which is pressed upon us by Mr. Purshottam, that the provisions of Section 2 (1) (b) Public Security Measures Act are inconsistent with the provisions of Part in of the Constitution of India and there fore void. 17. The application filed by the petitioner mentions that he is a citizen of India and as a citizen of India he is entitled to certain fundamental rights. In the exercise of those fundamental rights, the petitioner claims a right to move freely throughout the territory of India, and to reside and settle in any part of the territory of India. He says that he apprehends that in pursuance of an order made on 12th December 1949, by the District Magistrate, Ahmedabad under which he, the petitioner, is directed not to be in any area in the district of Ahmedabad except with the permission of the District Magistrate of Ahmedabad, he is liable to be arrested contrary to the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 226, a custodian of the fundamental rights which have been guaranteed to the citizen of the State, and for the purpose of protecting those rights and for enforcement of the obligations arising therefrom, it is open to this Court to issue writs, though they may not be writs which have been recognised heretofore. It was argued by the learned Advocate-General that so far as the present application is concerned, by reason of the provisions of Section 6, General Clauses Act, the petitioner is not entitled to claim any fundamental right contrary to the order passed on 12th December 1949. It is difficult to accept that contention. What the petitioner is seeking to do is not to ask for an order or a writ to have the order dated 12th December 1949, set aside, but he is asking this Court to grant him protection against what he conceives to be a threatened action of the executive against his personal liberty which has been guaranteed to him under the provisions of Article 19 of the Constitution. Consequently, there is no question of applying the provisions of Section 6, General Clauses Act. Section 6, General Clauses Act, only effectuates what has already been done or suffered and provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l public or for the protection of the interests of any Scheduled Tribe. The effect of the sub-clause is in my judgment to prevent the provision of Article 13 from having any operation so as to render invalid any preexisting legislation in any State in so far it sought to impose reasonable restrictions on the exercise of the rights which have been conferred under Article 19 or to prevent the State from hereafter making any law imposing any such restrictions. The Bombay Public Security Measures Act was intended to impose restrictions on the exercise of the rights which have now been conferred by Clauses (d) and (e) of Article 19(1) upon the citizens of India. That legislation would not be affected either by the provisions of Article 13 or Article 19, Constitution Act, provided the restrictions are reasonable and imposed in the interests of the general public. 20. But it is contended by Mr. Purshottam, firstly, that the restrictions contemplated to he imposed under Section 2 (1) (a) Public Security Measures Act, are not in the interest of the general public, and, secondly, that the restrictions are not reasonable. It is unnecessary to deal with the first argument in any detail beyo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equate safeguards against the possibility of misuse of the powers conferred, than what it has done. In my judgment the scheme of Article 19 is to provide a balance between the security of the State and the interest of the general public on the one hand, and the fundamental rights guaranteed to the citizens on the other. That article provides for the enunciation of the fundamental rights which would normally be exercised by the citizens but which in the larger interest of the State and the general public may be curtailed or restricted. If the Court is satisfied that the restriction is imposed in the interest of the general public and the restriction is not unreasonable, the Court has no jurisdiction to enquire whether the manner in which the restriction is likely to be imposed by the officer charged with the duty of enforcing it may possibly act unreasonably. The possibility of an abuse of a provision enacted in the interest of the security of the State or in the interests of the general public cannot be a ground for holding the provision as void. The remedy lies with the Legislature to remove the lacuna if any which permits that abuse. It is not in my judgment within the province o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne of the grounds are such as can render the legislation unreasonable. As I said earlier, the validity or otherwise of the legislation is to be judged solely by reference to the restrictions which are contemplated to be imposed upon the exercise of the rights and not by reference to the individual hardship that may be caused by reason of an order passed under the Public Security Measures Act. 23. Now one can very well conceive of cases in which it may be impolitic for the State to inform the externee of the grounds on which an order of externment is passed under the provisions of Section 2 (1) (b), and if in certain cases absence of a provision for informing the externee of the grounds can be justified, it can hardly be said that the entire provision which fails to make a provision for giving grounds can be deemed to be void by reason of the fast that in other cases grounds may be given without any damage being done to the public interest. Obviously the satisfaction as to the necessity of a person being externed can lie only with the executive in the first instance; and if that satisfaction is left to the Government or to an executive officer, it can hardly be contended on any l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before or after the order is passed. It is true that so far as orders of detention are concerned, a provision was made under the Public Security Measures Act of 1947 for a detenu to make a representation after he was detained, against the order of detention and he was entitled to be told as to what action the Government took on his representation. Under Article 22 of the Constitution a provision for supplying grounds to the detenu has been made land he is entitled to make a representation against the order passed. But the sole ground of absence of a provision for being heard either before or after the passing of the order of externment, which is less drastic than an order of detention, cannot, in my opinion, render the provision of Section 2 (1) (b) void or inoperative as from 26th January 1950. The Constitution has not provided for a right of being heard before any restriction on any fundamental right is placed, and in the absence of such a provision made expressly or by necessary implication, a provision which enables an externment order to be passed cannot be deemed to be void merely on the ground that it may be regarded as contrary to rules of natural justice. 24. As to wha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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