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Haren Kalita Vs. the State - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Case NumberCriminal Misc. No. 1 of 1953
Judge
ActsAssam Maintenance of Public Order Act, 1947 - Sections 2(1), 3 and 4B(3); Constitution of India - Article 19
AppellantHaren Kalita
RespondentThe State
Appellant AdvocateN.M. Lahiri, Adv.
Respondent AdvocateD.N. Medhi, Government Adv.
DispositionApplication dismissed
Excerpt:
.....to reside or remain in such place or within such area in assam as may be specified in the order, and if he is not already there, to proceed to the place of area within such time as therein specified. the import of clause (5) of article 19 has been considered in various decisions and it is now well settled that it is for the court to consider whether the restrictions imposed by an impugned legislation on the exercise of the fundamental rights in question are reasonable or not, and in doing so, the court would be entitled to take into account the reasonableness of both the substantive as well as the procedural part of the law in all its bearings; but there can be no doubt that it is a well-recognised objective standard by which courts can be guided. i may refer in this connection to the..........of section 4-b, unless earlier revoked. there is also a proviso to section 3 which states that the state government may, if and so often as they may deem necessary or expedient, before the date on which under the section any such order would otherwise have ceased to be in force, and after giving an opportunity to the person concerned to make any representation in writing which he may desire to make, and after referring the matter to the advisory council and considering its report, direct that the order should continue in force for a further period not exceeding one year at a time as may be specified in the order. this proviso has been very seriously assailed in arguments, and i may have, to refer to it at a later stage in this judgment. the act then provides that when an order is made in.....
Judgment:

Sarjoo Prosad, C.J.

1. This is an application under Article 226 of the Constitution. The petitioner, who claims to be working for the upliftment of the workers and peasants of Assam, has moved against an order of internment, dated 11-8-52, passed by the Governor of Assam, purporting to have been made by him in the exercise of the powers conferred by Clauses (b), (c), (d), (e) and (f) of Sub-section (1) of Section 2 read with Sub-section (4) of that section of the Assam Maintenance of Public order Act, 1947 (Act 5 of 1947) as amended. This order was subsequently confinned by the Governor on 23-10-1952, after a consideration of the report of the Advisory Council.

2. The petitioner has moved for a Writ to quash the orders in question and a Rule nisi was issued by this Court on 23-2-53. The matter has, therefore, been heard in the presence of the opposite party, the State of Assam which has shown cause against the Rule.

3. The petitioner alleges that on 8-11-50 he was arrested under Section 2 (6) (b) of the Assam Maintenance of Public Order Act, as amended, in village Moran Habi Gaon under Sonari police Station in the District of Sibsagar. He is said to have remained in custody for a fairly long period as an under-trial urisoner until he was convicted on 5-5-51 and sentenced to one year's rigorous imprisonment under that section. After serving the sentence, he was released from Tezpur Jail on 30-4-52, but he was re-arrested at the Jail gate. This arrest was ostensibly made under Section 151 of the Cr. P. C. He then alleges that he was from time to time, after this arrest, transferred to various jails, and a copy of an order purporting to have been passed by the District Magistrate of Kamrup under Sections 3 and 4 of the Preventive Detention Act, 1950, as amended, was served on him in the Nowgong Special Jail. The petitioner thereupon on 20-8-52 submitted a petition from Jail under Article 226 of the Constitution to this Court, challenging the bona fides and legality of the order, but on 28-8-52 he was released from Jail. Immediately on his release he was served with a copy of the order which he now seeks to impugn.

4. The order in question directs that for a period of twelve months, with effect from the date of service of the order, the petitioner should remain and reside within the limits of the Gouhati town, P. S. Gauhati, and should not leave the area without the written permission of the District authorities; that the petitioner should not associate or communicate with persons carrying on subversive activities and inciting people to violence; that he should not attend any meeting in which speeches inciting people to violence or to carry on activities subversive of the security of the State are delivered; that he should not disseminate or propagate any rumour or false news or any matter which may directly or indirectly incite people to violence; that he should every Monday, between the hours of 10 A. M. to 4 P. M. report in person to the Officer-in-Charge of Gauhati Police Station; and lastly, that he should execute a Personal Recognizance Bond of Rs. 500/- within 15 days of the time of the service of the order, with two sureties for the like amount, for the due performance of the conditions aforesaid and undertake to produce himself whenever called upon to do so, and on failure, to forfeit the bond in question.

5. The petitioner was served with a copy of the grounds on the basis of which the internment order was made and he was allowed to make representation to Government against the order aforesaid. The matter was then placed before the Advisory Council which submitted its report leading to the confirmation of the order by the Governor of Assam.

6. The petitioner has attacked the order on various grounds, which I propose to consider separately.

7. His first contention is that Section 2 of the Assam Maintenance of Public Order Act, 1947 (Act 5 of 1947) as amended, is inconsistent with the provisions of Article 19 of the Constitution and is, as such, void. He claims that under Clauses (d) and (e) of Article 19, he is entitled to move freely throughout the territories of India and to reside and settle in any part of the territories as a citizen of the land. The section in question purports to abridge the fundamental rights conferred under Article 19 of the Constitution, and being in contravention of the provisions of the third part of the Constitution, must be held to be void unless saved under Clause (5) of that Article. The relevant provisions of the Assam Maintenance of Public Order Act have undergone various amendments, but the provisions as they now stand can be formulated thus:

Under Section 2(1) the Provincial Government, if satisfied with respect to any particular person that with a view to prevent him from acting in any manner prejudicial to the public safety and the maintenance of public order, it is necessary so to do, may make an order requiring him to reside or remain in such place or within such area in Assam as may be specified in the order, and if he is not already there, to proceed to the place of area within such time as therein specified. It may also require him to notify his movements or to report himself or both, in such manner and at such time and to such authority or person as may be specified in the order. It may also impose upon him restrictions in respect of his employment or business, in respect of his association or communication with other persons, and in respect of his activities in relation to the dissemination of news of propagation of opinions. It may also otherwise regulate his conduct in any particular manner. These provisions are found embodied in the various clauses of Section 2(1) of the Act, within which the Governor of Assam has purported to pass the order which is now impugned. The order made under Sub-section (1) of Section 2, as provided in Section 3 of the Act, is to remain in force for such period as may be specified, but not exceeding one year from the date on which it is confirmed or modified under Sub-section (3) of Section 4-B, unless earlier revoked. There is also a proviso to Section 3 which states that the State Government may, if and so often as they may deem necessary or expedient, before the date on which under the section any such order would otherwise have ceased to be in force, and after giving an opportunity to the person concerned to make any representation in writing which he may desire to make, and after referring the matter to the Advisory Council and considering its report, direct that the order should continue in force for a further period not exceeding one year at a time as may be specified in the order. This proviso has been very seriously assailed in arguments, and I may have, to refer to it at a later stage in this judgment. The Act then provides that when an order is made in respect of any person under Sub-section (1) of Section 2, or as soon thereafter, the authority making the order shall communicate to the person affected thereby, subject to exceptions in public interest, the grounds on which the order has been made against him so as to enable him to make, if he wishes, a representation against the order. On receipt of the representation, the State Government is to place before the Advisory Council the grounds on which the order has been made, and the representation, if any, made by the person concerned; and the Advisory Council, after considering the materials placed before it and if necessary, after calling for such further information from the State Government or the person concerned as it may deem necessary, submit its report to the State Government before the expiry of 4 months from the date of the order made under Sub-section (1) of Section 2. The State Government then, after considering the report of the Advisory Council, may confirm, modify or cancel the order made under Sub-section (1) of Section 2.

8. These provisions no doubt constitute an inroad upon the freedom of movement and residence guaranteed under Article 19 of the Constitution, and would be prima facie void unless they are saved under Clause (5) of that Article. Clause (5) of Article 19 requires that nothing in Clauses (e) and (f) of the Article 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 interest of the general public or for the protection of the interest of any Scheduled Tribe. Under Clause (5), therefore, the State is entitled to make any law imposing reasonable restrictions on the exercise of the rights to move freely throughout the territory of India or to reside and settle in any part of the territory of India as conferred by Sub-clauses (d) and (e) of Article 19(1) of the Constitution. The import of Clause (5) of Article 19 has been considered in various decisions and it is now well settled that it is for the Court to consider whether the restrictions imposed by an impugned legislation on the exercise of the fundamental rights in question are reasonable or not, and in doing so, the Court would be entitled to take into account the reasonableness of both the substantive as well as the procedural part of the law in all its bearings; in regard to territory, in regard to duration, in regard to the nature of the restrictions, and the circumstances and the manner of their enforcement etc. The test of reasonableness is bound to be conditioned by the understanding and prudence of the individual who applies it to the facts and circumstances of each case; but there can be no doubt that it is a well-recognised objective standard by which Courts can be guided. I may refer in this connection to the well-known decision of the Supreme Court in--'Dr. N. B. Khare v. State of Delhi', AIR 1950 S. C. 211 (A), where Kama C. J. pointed out that

'if the law provides the procedure under which the exercise of the right may be restricted, 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 that 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 construction sought to be put on the expression, to restrict the Court's power to consider only the substative law on the point, is not correct.' The same view was taken of the meaning and scope of Clause (5) of Article 19 by the learned Judges who delivered the dissenting judgment in the case. B. K. Mukherjea, J. in the leading dissenting judgment, held as follows: 'I do not 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 restrictions, 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 circumstances 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 restrictions imposed by a law may arise as much from the substantive 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.'

From the above quotations, it is obvious that it is for the, Court to see whether the restrictions imposed by the law framed by a particular State, either in its substantive or in its procedural part, are reasonable, and in doing so, the Court can take into consideration all the attendant circumstances as also the object and purpose of the legislation.

9. The learned counsel contends that the section purports to leave it entirely to the satisfaction of the Provincial Government to take action in order to restrict the rights of the petitioner. It thus takes away the jurisdiction of the Court to apply any objective test to the matter and to determine whether the satisfaction of the Provincial Government was or was not justified on the materials. It is argued that the satisfaction of the State Government may or may not be reasonable, and in any event it is a subjective matter in regard to which, upon the terms of the Act, the Courts could not apply any objective test of reasonableness. There is also nothing to show in the Act that it is left to the satisfaction of any particular individual, but it merely involves the satisfaction of some unknown individual officially purporting to represent the Government. The learned counsel has, in support, relied upon the Full Bench decisions of the Patna and Bombay High Courts in--'Brajnandan Sharma v. State of Bihar', AIR 1950 Pat 322 (B) and--'Jeshingbhai Ishwarlal v. Emperor', AIR 1950 Bom 363 (C), respectively, where it was held in respect of legislations containing in some measure analogous provisions that the legislations were void. In the former case, Meredith, C. J. refused to entertain the contention that it was not open to the Courts to consider the reasonableness or otherwise of the provisions and the Legislature itself was the sole judge of the matter. His Lordship held that if such an argument were accepted, the word 'reasonable' in Clause (5) would be rendered completely nugatory. When the Constitution provided that the restrictions must be reasonable, it intended obviously that it was for the Courts to decide whether the restrictive provisions were reasonable or not. There is undoubtedly an objective test of reasonableness and that is what the Courts have to apply,--a test which any reasonable individual of normal average intelligence would apply in the circumstances of a particular case. Such a test is essentially an objective test. It must be remembered, however, that in the case in question, the Legislature not only left it to the satisfaction of the State Government to impose restrictions upon the rights of the citizens, but the Act did not provide for any opportunity being given to the individual affected to vindicate himself or challenge the order or even to learn about the reasons of the order. The Act did not even provide for the service upon him of the grounds of the order. In those circumstances, their Lordships were justified in holding that the restrictions were not reasonable.

Chagla C. J., similarly expressed himself in the Bombay case. He held that it was for the Court of law to consider the reasonableness of the restrictions imposed upon the rights guaranteed under the relevant clauses of Article 19 of the Constitution. 'Reasonable' was an objective expression and its objectivity was to be determined judicially by the Court of law. There being no limit placed upon the power of the Court to consider the nature of the restrictions, the Court should look upon the restrictions from every point of view and it being its duty to safeguard fundamental rights, the greater is the obligation upon it to scrutinise the restrictions placed by the Legislature as carefully as possible. In that case also it appears that the person concerned against whom the order of externment was made, had no right to be heard in his defence. There was no obligation upon the authorities to tell him what he was charged with or what were the grounds against him which made it incumbent upon the Government to ask him to leave his home town. Nor was there any obligation upon the authorities to hear the person in his defence. These factors, it is to be noticed from the provisions which I have already indicated above, are absent in the present case. Here the law has provided for serving the grounds on which the order is made upon the person affected and for enabling him to make a representation to the Advisory Council against that order. The petitioner has, therefore, made no grievance on these points and this case is clearly distinguishable. The present legislation is clearly distinguishable from the legislations which came up for consideration in the above Patna and Bombay cases. The learned counsel has merely based his attack on the ground that here the satisfaction was merely the satisfaction of the Provincial Government and, as such, the order was void. In my opinion, this, by itself, cannot render it unreasonable and the matter seems to be concluded by the decision of the Supreme Court in 'Dr. Khare's case (A)' referred to by me. In that case also, the contention presented was that the power to make the order of externment was given to the Provincial Government or the District Magistrate whose satisfaction was final, and that the decision was not open to review by the Court and, therefore, the restriction was unreasonable. Kania, C. J., characterised the argument as unsound. He held that the advisability of passing an individual order of externment has to be left to an officer, and in the Act itself it could not be said which particular officer has to make that order. The mere fact that the order depends upon the satisfaction of the officer does not necessarily impose any reasonable restrictions on the exercise of the citizen's right. Mukherjea J., in his leading dissenting judgment took almost a similar view on this point. He also held that the provisions of the Act impugned before him could not be pronounced to be unreasonable simply because the order could be passed by the Provincial Government or the District Magistrate on their own personal satisfaction, and not on materials which satisfies certain objective tests. He also pointed out that preventive orders should not be made after any judicial enquiry or trial and if emergent steps had to be taken to prevent apprehended acts which are likely to jeopardise the interest or safety of the public, somebody must be given the power of taking the initial steps on his own responsibility. Even the preventive provisions of the Criminal Procedure Code were based on similar principles. That being so, it is impossible to uphold the contention of the petitioner that Section 2(1) of the Act should be held to be ultra vires merely on the ground that the order contemplated by that section depends on the satisfaction of the Provincial or the State Government.

10. The next argument of the learned counsel is directed against the proviso to Section 3 of the impugned Act. I have already reproduced the substance of the proviso to Section 3. The maximum period for which the order under Section 2(1) of the Act is to remain in force is one year from the date on which it is confirmed or modified under Sub-section (3) of Section 4-B of the Act unless revoked earlier. The proviso, however, gives the power to the State Government to extend the period at a time for a further period of one year, 'if and so often as it considers it necessary or expedient so to do before the expiry of the previous order. The only safeguard contemplated is to give an opportunity to the person concerned to make a representation in writing to refer the matter to the Advisory Council, but there is no provision in the Act that the report of the Advisory Council will be binding on the State Government. It is, therefore, urged that the provisions as to representation being made by the person affected or the report of the Advisory Council are almost meaningless. The State Government can, therefore, at its will indefinitely continue the order passed under Section 2(1), on the authority of this proviso. It is, therefore, contended that on the face of it the proviso is quite unreasonable and inasmuch as it cannot be severed from Section 3 itself or the other portions of the Act, the whole legislation must be held to be void. Prima facie there is force in the contention. The proviso does apparently give power to the State Government to extend the date of the order passed under Section 2(1) of the Act almost indefinitely, and the mere observance of the formality or having a representation from the person concerned or of making a reference to the Advisory Council will not be of any substantial advantage to the person affected, because there is no provision in the Act that the report of the Council will be binding on the State Government. But it is not necessary to examine the proviso in any great detail because the present order passed against the petitioner is not affected by the proviso and we are definitely of the opinion that it is severable from the first part of Section 3. Therefore, even if it is held to be unreasonable, it will not affect the validity of the remaining portion of Section 3 or that of the other sections on the ground of unreasonableness. The contention, therefore, is not of any advantage to the petitioner in the present case.

11. Lastly, it has been urged that there should have been no period fixed in the order itself, as the fixation of such a period was likely to prejudice the case of the petitioner before the Advisory Council. In this context, the learned counsel has drawn our attention to a decision of the Supreme Court in--'Makhan Singh v. State of Punjab', AIR 1952 S. C. 27 (D), where it was observed that the Government should have fixed the period of detention not before but after the Advisory Board had considered the matter. The Supreme Court held that the fixation of the period of detention in the initial order was contrary to the scheme of the Act and could not be supported. The case, however, depended upon the interpretation of the relevant provisions of the Preventive Detention Act of 1950 which required that every case of detention was to be placed before an Advisory Board constituted under the Act and if the Board reported that there was sufficient cause for the detention, then the 'appropriate Government' could 'confirm the detention order and continue the detention of the person for such period as it thinks fit'. It was plain on the reading of Section 11 of that Act itself that the period of detention had to be fixed after the report of the Advisory Board. The above observations, therefore, have no application to the present Act where there is no such condition at all. Here the impugned Act purports to be a permanent statute and the senior Government Advocate rightly observes that a fixation of time in the order itself was not prejudicial but to the advantage of the petitioner. Under the provisions of the law the order could continue for a period of one year from the date on which it was confirmed or modified under Sub-section (3) of Section 4-B of the Act, unless earlier revoked. The Advisory Council was not concerned with the duration of the order but it had to consider on the materials placed before it as to whether there was sufficient ground for the making of the order and then on the report of the Advisory Council the State Government could confirm, modify or even cancel the order made under Sub-section (1) of Section 2.

12. The petitioner has also endeavoured to challenge the detention order on the ground of mala fides, but we do not see any substance in this contention at all.

13. The result is that the application fails and must be dismissed, and the Rule is accordingly discharged.

14. The prayer for granting a certificate to move the Supreme Court is refused.

Ram Labhaya, J.

15. I agree.


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