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Amrit Bhattacharjya Vs. the State - Court Judgment

LegalCrystal Citation
Subject;Constitution
CourtGuwahati High Court
Decided On
Case NumberCriminal Misc. Case No. 25 of 1951
Judge
ActsAssam Maintenance of Public Order Act, 1947 - Sections 2; Constitution of India - Articles 19(5) and 22(4); Assam Maintenance of Public Order (Amendment) Act, 1950
AppellantAmrit Bhattacharjya
RespondentThe State
Appellant AdvocateB.C. Barua, Adv.
Respondent AdvocateF.A. Ahmed, Adv. General and D.N. Medhi, Senior Govt. Adv.
DispositionPetition dismissed
Excerpt:
.....whenever called upon, and in failure, to forfeit the bond. the law providing reasonable restrictions on the exercise of the right conferred by article 19 may contain substantive provisions as well as procedural provisions. with all respect, i am unable to share the view that unless in a law imposing restrictions on a citizen's movement provision is made for a procedure or tribunal for consideration of the representation that may be made by the person against whom an order restraining his movement is made, for a review of the order, it is a good ground for holding that the act offends the constitution of india......of the powers conferred by clauses (b), (c), (d), (e) and (f) of sub-section 1 of section 2, assam maintenance of public order act, 1947 (act 5 of 1947), as amended, the governor of assam is pleased to direct you to observe and abide by the following conditions for a period of six months with effect from the date of service of this order. 1. that you shall remain and reside within the limits of silchar town in the district of cachar and shall not leave the area without the written permission of the district magistrate, or, in his absence, that of the additional district magistrate. 2. that you shall not associate or communicate with the persons to be named by the district magistrate, or in his absence, by the additional district magistrate, cachar, from time to time in the interest.....
Judgment:

Thadani, C.J.

1. This is a petition under Article 226 of the Constitution of India for a writ of 'Habeas Corpus' in the matter of an order, dated 11-4-51, passed against the petitioner by the Governor of Assam under Clauses (b), (c), (d), (e) and (f) of Sub-section (1) of Section 2, Assam, Maintenance of Public Order Act, 1947 (Act 5 of 1947), as amended. The order is in these terms:

'No. C. 739/49/24.--Whereas the Governor of Assam is satisfied with respect to you, Shri Amrita Bhattacharjee alias Shib Chakravarty, s/o Ambica Bhattacharjee, of village Raigarh, P.S. Golapganj, Dist. Sylhet, of Silchar Town, and Dhubri Town, Assam, that with a view to prevent you from acting in a manner prejudicial to the public safety and the maintenance of public order, it is necessary to make the following order :

Now, therefor, in exercise of the powers conferred by Clauses (b), (c), (d), (e) and (f) of Sub-section 1 of Section 2, Assam Maintenance of Public Order Act, 1947 (Act 5 of 1947), as amended, the Governor of Assam is pleased to direct you to observe and abide by the following conditions for a period of six months with effect from the date of service of this order.

1. That you shall remain and reside within the limits of Silchar Town in the District of Cachar and shall not leave the area without the written permission of the District Magistrate, or, in his absence, that of the Additional District Magistrate.

2. That you shall not associate or communicate with the persons to be named by the District Magistrate, or in his absence, by the Additional District Magistrate, Cachar, from time to time in the interest of public safety.

3. That you shall not attend, address and participate in any political meetings, private or public, and shall not join or organise any political demonstration or procession.

4. That you shall report in person to the O. C., Silchar P. S., every Monday between the hours of 10 A.M. to 4 P.M.

5. That you shall execute a P. R. Bond of Rs. 500/- (rupees five hundred) at the time of service of this order and shall execute a bond within 15 days with two securities of Rs. 500/- (rupees five hundred) each for due performance of these conditions and undertake to produce yourself whenever called upon, and in failure, to forfeit the bond.

A copy of the grounds of internment is attached herewith, and you are at liberty to make a representation to Government against this order.'

2. The grounds upon which the order is founded are these:

'(a). That, when free, you were an active member of the Communist Party, the aim and. object of which is to overthrow the present order by forcible methods and mass demonstration.

(b) That you promote industrial unrest in Dhubri and have been advocating the use of unlawful means by the employees of the Match Company against the Management.'

The petitioner has not made any representation to the State Government against the order.

3. The petitioner's case is that the restrictions imposed upon his movements restricting them to the town of Silchar, are unreasonable in view of the fact that he will not be able to earn his livelihood as an Insurance Agent working in the town of Gauhati; the grounds supplied to him are vague and indefinite, and not sufficient to enable him to make a representation to the Government of Assam; Section 2, Assam Maintenance of Public Order Act, 1947, offends the Constitution of India in that it authorises detention or internment beyond a period of 3 months without reference to an Advisory Board as required under Article 22 of the Constitution of India; in any case, the restrictions imposed upon his movements are unreasonable from the point of view of procedure and substantive law; moreover, having regard to certain orders passed against the petitioner before the 'present order, the present order is mala fide. This contention, however, was abandoned at the hearing.

4. The contention that Section 2, Assam Maintenance of Public Order Act, 1947, offends the Constitution of India, was apparently raised in ignorance of the fact that the preamble to the Assam Maintenance of Public Order Act, 1947, has been amended by the Assam Maintenance of Public Order Act of 1950 (Act 21 of 1950) whereby the words 'restrictions on movement' have been substituted for the words 'preventive detention'; in other words, the Assam Maintenance of Public Order Act, 1947, as amended by Act 21 of 1950, is no longer law dealing with preventive detention, but law imposing restrictions on movement. There is nothing in the Constitution of India which imposes an obligation on a State Government, when enacting a law restricting movement of a citizen, to provide a safeguard similar to the one providing for a reference to an Advisory Board under the Preventive Detention Act, 1950 (Act 4 of 1950), as amended. In the absence of such a constitutional obligation, the question of reasonableness or otherwise of restrictions imposed on a citizen's movement, must be determined without any reference to what are characterised as safeguards. I am unable to accept the contention that unless a provision is made in a law imposing restrictions on movement, providing a safeguard similar to the one provided in the Preventive Detention Act of 1950 (4/50) as amended, namely, reference to an Advisory Board, the law imposing restrictions on a citizen's movement is ultra vires the Legislature, and that the restrictions imposed must be regarded as unreasonable from the point of view of procedural and substantive law.

5. In a law imposing restrictions upon a citizen's movement, the only question for consideration is--whether the restrictions imposed are reasonable from the point of view of territory and duration. This aspect of the case was considered in--'Dr. N.B. Khare v. State of Delhi', AIR 1950 SC 211.

Kania C. J., observed:

'In my opinion, Clause (5) must be given its full meaning. The question which the Court has to consider is whether the restrictions put by the impugned legislation on the exercise of the right are reasonable or not. The question whether the provisions of the Act provide reasonable safeguards against the abuse of the power given to the executive authority to administer the law, is not relevant for the true interpretation of the clause. The Court, on either interpretation, will be entitled to consider whether the restrictions on the right to move throughout India, i.e. both as regards the territory and the duration, are reasonable or not. The law providing reasonable restrictions on the exercise of the right conferred by Article 19 may contain substantive provisions as well as procedural provisions. While the reasonableness of the restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the Court the question of reasonableness of the procedural part of the law. It is obvious that if the law prescribes five years externment or ten years externment, the question whether such period of externment is reasonable, being the substantive part, is necessarily for the consideration of the Court under Clause (5). Similarly, 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 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 substantive law on the point, is not correct. In any opinion, this aspect of the construction of Article 19(5) has escaped the minority judgments in the two matters mentioned above. I am rot concerned with the conclusions of the two Courts about the invalidity of the provisions of the Acts they were asked to consider. To the extent they help in the interpretation of Article 19(5) only they are helpful.'

6. 'It was next urged that under Section 4(3), the order made by the District Magistrate shall not unless the Provincial Government by special order otherwise direct, remain in force for more than three months. It was argued that the period of three months itself was unreasonable as, the externee had no remedy during that time. It was contended that when the Provincial Government directed the renewal of the order, no limit of time was prescribed by the Legislature for the duration of the order. The order, therefore, can be in operation for an indefinite period. This was argued to be an unreasonable restriction on the exercise of a citizen's right. In this connection, it may be pointed out that in respect of preventive detention, which is a more severe restriction on the right of the citizen, the Constitution itself under Article 22(4) to (7) permits preventive detention for three months without any remedy. The period of three months, therefore, 'prima facie' does not appear unreasonable. Under the proviso to Section 4(5), the Provincial Government is not permitted to direct the exclusion or removal from the Province of a person ordinarily residing in the Province, and similarly the District Magistrate is not permitted to order the exclusion or removal of a person ordinarily resident in his District from that district. This is a great safeguard provided under the East Punjab Safety Act. The further extension of the externment order beyond three months may be for an indefinite period, but in that connection the fact that the whole Act is to remain in force only up to 14-8-1951, cannot be overlooked. Moreover, this whole argument is based on the assumption that the Provincial Government when making the order will not perform its duty and may abuse the provisions of the section. In my opinion, it is improper to start with such an assumption and decide the legality of an Act on that basis. Abuse of the power given by a law sometimes occurs; but the validity of the law cannot be contested because of such an apprehension. In my opinion, therefore, this contention of the petitioner cannot be accepted.'

7. As to the reasonableness of the restrictions imposed on the petitioner's movements from the point of view of territory, Mr. Barua contended that the restriction confining the petitioner's movement to Silchar, was unreasonable, because the petitioner was deprived of earning his livelihood in Gauhati. The short answer to that is that Dhubri, where the petitioner is alleged to have been carrying on his undesirable activities, is near Gauhati, and this circumstance alone would justify the petitioner's internment in a place other than Gauhati. Moreover Silchar is the petitioner's home town.

8. As regards the duration, I think the principle involved in the observations of His Lordship the Chief Justice of India, to which I have referred, furnishes the answer. Section 3, Assam Maintenance of Public Order Act, 1947, as amended by Act 21 of 1950, lays down that an order made under Section 2 shall be in force for a period not exceeding one year unless earlier revoked by the authority making the order. It is to be remarked that in this case, although the Governor of Assam was empowered to make an order under Section 2 to be in force for a period not exceeding one year, he has directed that the order shall be in force for a period of six months only. It was argued by Mr. Barua that the proviso to Section 3, Assam maintenance of Public Order Act, 1947, as amended, is of a very sweeping character, as in a given case the Executive might restrict the movements of a citizen for an indefinite period. I do not think I will be justified in regarding the duration of an order prescribed by Section 3 as unreasonable on the very improper assumption that the Executive might abuse its powers.

9. Mr. Barua has referred to two decisions--one of the Calcutta High Court--'Tazammal v. Joint Secy. to Govt. of West Bengal AIR 1951 Cal 322 and the other of the Orissa High Court--'Ismail v. State of Orissa', AIR 1951 Orissa 86. in the case before me, the restrictive provisions are contained in Clauses (a), (b), (c), (d), (e) and (f) of Sub-section (1) of Section 2, Assam Maintenance of Public Order Act, 1947, as amended. No attempt was made by Mr. Barua to argue that the restrictive provisions contained in these clauses are ultra vires the State Legislature or that they are unreasonable. Two of the reasons which led the learned Judges of the Calcutta High Court to hold that Sections 21 and 22 of the West Bengal Security Act were ultra vires the Constitution of India, are stated in paras 26, 27 and 28 of the report. In the case before me, the petitioner was supplied with the grounds of the order made against him, and he was informed that he had a right to make a representation against the order. With all respect, I am unable to share the view that unless in a law imposing restrictions on a citizen's movement provision is made for a procedure or tribunal for consideration of the representation that may be made by the person against whom an order restraining his movement is made, for a review of the order, it is a good ground for holding that the Act offends the Constitution of India. In my opinion, this view is at variance with the view taken by the majority of Their Lordships of the Supreme Court in 'Khare's case', (AIR 1950 SC 211).

10. The Orissa case reported in--'Ismail v. State of Orissa', AIR 1951 Orissa 86 is also of no assistance for the purposes of the case before me. The Orissa Maintenance of Public Order Act, 1950, apparently does not contain a provision for the communication of grounds to a person against whom an order is made, nor does it contain a provision conferring a right upon a person against whom an order to make a representation against an order made under that Act. The Assam Maintenance of Public Order Act, 1947, as amended, contains a specific provision in Section 4 as to the obligation of the authority making the order to communicate to the person affected thereby, the grounds on which the order is made, and also to inform him of his right to make a representation against the order.

11. In my opinion, the restrictions contained in the first para of the order of the Governor of Assam, dated 11-4-51, are reasonable restrictions. Similarly the restrictions contained in para 2 of the same order are also reasonable. So far as the restriction contained in para 3 of the order is concerned, the learned Advocate General has quite frankly conceded that the restriction offends the fundamental right of a citizen secured by the relevant clause of Article 19 of the Constitution of India. The fourth and the fifth restrictions are, in my opinion, quite reasonable restrictions. I can see nothing in the grounds to justify the view that they are vague or indefinite and insufficient to enable the petitioner to make a representation.

12. The result is that the order of the Governor of Assam restricting the petitioner's movements as contained in paras 1, 2, 4 and 5 of the order, is maintained. In regard to the restriction contained in para 3 of the order, the Government of Assam is restrained from giving effect to it. With this modification, the petition is dismissed. The rule is discharged accordingly.


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