1. The petitioner has been charge-sheeted in the Court of the learned Chief Presidency Magistrate for having contravened an order passed by the Commissioner of Police under Section 37(3), Bombay Police Act, on 12-11-1955, and he has come before us under Article 228 of the Constitution contending that the case before the learned Chief Presidency Magistrate involves a substantial question as to the interpretation of the Constitution and therefore it should be transferred to this Court and this Court should decide that substantial question of law.
2. Section 37(3), Police Act, empowers the Commissioner of Police by an order in writing to prohibit any assembly or procession whenever and for so long as he considers such prohibition to Be necessary for the preservation of public order. There is a proviso to this sub-section to this effect:
'Provided that no such prohibition shall remain in force for more than fifteen days without the sanction of the State Government'.
Acting under this sub-section the Commissioner of Police issued an order on 28-9-1955 and by that order he prohibited for a period of fifteen days any procession of five or more persons in Greater Bombay. He exempted from this order marriageprocessions, funeral processions and Ganpati processions, and he also directed that the order should be published by affixing copies of the same in conspicuous public places in Greater Bombay and by proclaiming the same with beat of drums in Greater Bombay.
On 12-10-1955 he extended the duration of this order for one month. On 12-11-1955 he extended it for a further period of one month, and the allegation against the petitioner is that it was this order that he contravened on 21-11-1955.
3. What is urged by Mr. Kotwal on behalf of the petitioner is that Section 37(3) of the Police Act is ultra vires of the. Constitution in that it infringes the petitioner's fundamental rights secured to him by Article 19(1)(b) and (d). Article 19(1) provides that all citizens shall have the right among others, to assemble peaceably and without arms and to move freely throughout the territory of India. These rights are not absolute or unqualified rights. Sub-clause (3) of Article 19 provides:
'Nothing in Sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause'.
And Sub-clause (5) provides:
'Nothing In Sub-clauses (d), (e) and (f) of the said clause 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 Interests of the general public or for the protection of the interests of any Scheduled Tribe.
Therefore, it is competent to the Legislature to circumscribe any of these freedoms in the interests of public order or in the interests of the general public, but in circumscribing these freedoms the legislature must not over-step the limit laid down by the Constitution, and the limitation laid down by the Constitution is that the restriction which can be imposed by the Legislature upon the freedom of the citizen guaranteed under Article 19(1) must be a reasonable restriction, and as has been pointed out, it is for the Court to decide whether a particular restriction imposed by the Legislature Is or is not a reasonable restriction.
Article 19 and the sub-clauses of that Article really attempt to provide a mean between the Interests of the State, the interests of law and order, the interests of security, and the rights of the citizens. It is not always easy to reconcile these conflicting claims. A citizen in a free country rightly asserts that he should be permitted to exercise his freedom.
But a free country equally requires law and order and security, and therefore the Constitution while emphasising the rights of citizens has also emphasised the Interests of the State, and therefore in appreciating and understanding Mr. Kotwal's arguments we have to keep in mind these conflicting claims of the citizen and of the State. It is true that we must not forget that we are constituted the custodian of the citizen's freedom and his fundamental rights and we must be vigilant in seeing that the right or freedom is not unduly or unnecessarily circumscribed or limited.
4. It is pointed out in the first place that there is no limitation as to time during which an order made under Section 37(3) can continue. It is pointed out that the Commissioner of Police may make an order the duration of which may be indefinite and all that is necessary Is that theState Government should sanction the continuation of the prohibition beyond a period of fifteen days. If that sanction is obtained, then the order under Section 37(3) can continue indefinitely.
In putting forward this argument what is overlooked is that the very Jurisdiction to make an order the very basis of the order, is the preservation of the public order. An order made under Section 37(3) cannot continue and should not continue for more than even one minute beyond the time that is necessary for its continuation for the purpose of preservation of public order.
The key words of Section 37(3) and the words emphasised by the Legislature are that the order should, be made whenever the authority considers such prohibition to be necessary for the preservation of the public order & only for so long as it considers such prohibition to be necessary for the preservation of the public order.
That, therefore, is the greatest safeguard that the citizen has that although the duration is not fixed and although the duration may be indefinite, the continuation of the order depends upon the authority being satisfied, that it is necessary for the preservation of the public order. It is no argument, when we are, discussing the vires of the Act, to suggest that the Commissioner of Police may, armed with this vast power, continue an order although there may be no necessity for doing so, because the validity of a statute cannot be tested on the basis of those who are called upon to exercise certain powers exercising those powers dishonestly or arbitrarily. The validity of a statute must be judged rather on the assumption that those who are called upon to exercise those wide powers will exercise them honestly and bona fide.
5. It is then urged that this provision of the law is bad because it does not afford any opportunity to a party or a person affected by the order to show cause against it. It is said that the Commissioner of Police can make an order without hearing any party who might be affected by it. Not only that but even after the order has been made the Commissioner of Police is not bound to hear any representation by any party so as to persuade the Commissioner of Police that there Is no further necessity for the continuing of the order.
Now, the order complained of and the order that has got to be made under Section 37 is clearly an administrative order and it would be erroneous to import into the consideration of an administrative order the principles of natural Justice. When the Legislature requires an authority to adopt the judicial process and the judicial approach, then undoubtedly any order passed by such an authority without hearing the party to be affected by it would be clearly bad because it would violate a fundamental principle of natural Justice
But when we are dealing with an administrative order the approach must be different. Mr. Kotwal Is right that when a citizen is deprived or is about to be deprived of his fundamental right, ordinarily he should be heard in his defence before such an order is passed. A fundamental right is so valuable and the Constitution has attached such a great importance to it that the Court will not permit the Legislature to pass a law depriving a citizen of that right In ordinary circumstances without at least giving an opportunity to that citizen to say what he wants to say in the defence of that right.
But It would be equally erroneous to suggest that In every case where a fundamental right is sought to be taken away by the administrative order, the provision of the law would be bad because it did not give the citizen the right tomake a representation with regard to the deprivation of that right. It must depend upon theparticular right which is being taken away, itwould depend upon the circumstances and theconditions under which the authority is empowered to take away the right, and it also dependsupon the safeguards provided by the Legislature.
6. Mr. Kotwal strongly relied on a judgment of this Court in 'Jeshingbhai Ishwarlal v. Emperor's : AIR1950Bom363 . In that case we were dealing with the Bombay Public Security Measures Act and we were dealing with the particular provision in that Act which permitted: an externment order to be passed and that Act permitted the constitutional authority to extern a person without giving that person an opportunity to make a representation in his own defence.
It should be noted that the person could only be externed provided the authority was satisfied he was acting or is acting or is likely to act in a manner prejudicial to public safety, the maintenance of public order or the tranquillity of the province or any part thereof, and it is in this context that the following observations were made by me at p. 368.
'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 upon the authority to hear the person against whom the order is intended to be made in his defence before the order is made'.
Further on in the judgment it is pointed out that it was difficult to understand the discrimination made between an order of detention under that Act and an order of externment under that very Act. In the case of an order for detention the right was given to the party to be detained to make a representation; in the case of an order of externment no such right was given.
It was because of these considerations that the majority of the Judges hearing that case came to the conclusion that this particular provision in the Bombay Act was ultra vires of the Constitution.
7. The facts here are entirely different. There is no allegation against any one in the order made by the Commissioner of Police. Therefore no question arises of any representation being made by any person in his own defence against any charge levelled, against him. It is difficult to understand what is the representation that Mr. Kotwal suggests should be permitted to be made by the persons affected by this Order.
In the first place, the whole city of Bombay is effected by this order because every citizen living fn Greater Bombay is prohibited from forming a procession. Mr. Kotwal undeterred by this difficulty says that the mere fact that something is not practicable or causes inconvenience cannot affect the validity of an argument.
But even assuming that provision should he made for representation to be made by all thecitizens of Greater Bombay, it Is still difficult to understand on what point or issue that representation should be made, because the Legislature has left it to the satisfaction of the Commissioner of Police as to whether there is an emergency which calls for the issuing of such an order for the preservation of the public order.
It is not any one else's satisfaction, it is not any one else's judgment, that has to determine or to decide whether such an order should be issued or not. It is only the opinion and the decision of the Commissioner of Police that is conclusive in the matter. What Mr. Kotwal says is that opportunity should be given to the public of Bombay who are affected by this order to satisfy the Commissioner of Police that there is no need for the continuation of this order or that there is no emergency and no threat to public order which would justify this order continuing.
In our opinion, it would be an impossible state of affairs to bring about if the question as to whether there was an emergency or not and the question whether public order was threatened or not could only be decided by what ultimately must amount to a public debate between the Commissioner of Police on the one hand and the citizens of Bombay on the other.
In an emergency, power must be vested in some authority, power can only be exercised by that authority, and it must be left to his decision and judgment when and how that power should be exercised. That is precisely what the Legislature has done under Section 37(3), and therefore, what Mr. Kotwal suggests as wanting in this section is not the right to meet a charge or to meet allegations, but the right to satisfy the Commissioner of Police that something which he has to decide should be decided differently from the manner in which he decided it.
8. The next contention urged by Mr. Kotwal is that the enjoyment of this fundamental right is made dependent upon the uncontrolled subjective opinion of an executive officer. It is urged that there is no corrective whatsoever, either judicial or otherwise, which could correct the Commissioner of Police in the event of his going wrong in apprising the situation that may exist at a particular time.
When it was pointed out to him that the sanction of the State Government was required if the prohibition under Section 37(3) was to remain in force for more than fifteen days. Mr. Kotwal'S contention was that there was not much to choose between the State Government and the Commissioner of Police both being executive authorities.
Undoubtedly it is a very salutary principle that when discretion is vested in an authority the exercise of which may affect the property or person of a citizen, the discretion should not be an uncontrolled discretion. Either the Legislature should lay down directives for the exercise of that discretion or the discretion should be capable of being corrected by a higher authority.
But that principle applies when you are dealing with day to day administration, when licenses are to be issued at the discretion of an authority or permits are to be given for the carrying on of a particular business. But when you are dealing with an emergency as Section 37(3) clearly deals with, and when power is conferred upon the authority to meet and deal with that emergency then it is futile to suggest that the power to be exercised by that authority should be controlled or corrected by a higher authority.
The safeguard, as we have already pointed out, imposed by the Legislature is that the Com-missioner of Police from time to time should satiety himself that the conditions are present which require the continuation of the order. But he being the person on the spot and being in a position to judge the situation can be the only authority who could decide as to the necessity of the order to be issued under Section 37(3).
It cannot possibly be a matter of judicial determination as to whether there was necessity for the issuing of the order. Therefore to suggest that there should be a judicial corrective or some appellate authority to sit in judgment over the Commissioner of Police would completely stultify the object of the Legislature in conferring upon the Commissioner of Police those wide powers.
9. It is then urged that the restrictions in any view of the case are excessive and it is pointed out that as the section stands any assembly and any procession can be prohibited. No indication is given by the Legislature as to the type of assembly or the type of procession which should be prohibited under this sub-section.
It was impossible for the Legislature to indicate the exact nature of the assembly or the procession which should come within the ambit of Section 37(3). Again, the only test which the Legislature could lay down and which the Legislature has laid down is that only that assembly or that procession should be prohibited where the prohibition was necessary for the preservation of the public order.
It is difficult to see how, apart from laying down this test, the Legislature could have given any more details in indicating the nature of the assembly or the procession. It is also said that there is no restriction as to the area over which the order could have application.
It is said that the Commissioner of Police could issue an order for the whole of Greater Bombay or he could issue it in respect of any part of the city of Bombay, and here again it is urged that the Legislature has imposed no limits upon the power of the Commissioner. The answer to this contention must be the same. The extent of the area over which the order should have application or operation must again depend upon considerations of public order.
If public order demands that the order should apply to the whole city of Bombay then it would be the duty of the Commissioner of Police to apply the order to that large area. If, on the other hand, considerations of public order do not require such wide application of the order then it would be equally the duty of the Commissioner of Police to restrict this application to the particular areas which would require this particular order.
10. It is then urged that Section 37(3) does not provide for the publication of the order and in contrast to this it is pointed out that the order which can be issued under 6. 37(1) requires that it should be by a notification publicly promulgated or addressed to individuals. In the case of Sub-section (3) all that is necessary is that it should be an order in writing.
Therefore, according to Mr. Kotwal a person might be affected by an order in writing issued by the Commissioner of Police under this sub-section without that order being promulpated at all and that according to him is an unreasonable restriction. It is difficult to understand how this particular contention has any bearing on the question of reasonable or unreasonable restriction.
It may have undoubtedly an Important bearing on the merits of the case. It may be open to the petitioner -- we express no opinion on it --but it may be open to the petitioner to urge when the case goes back to the learned Chief Presidency Magistrate that he had no knowledge or notice of this order, that the order was not properly published or promulgated, and therefore he cannot be affected by that order.
If in law the petitioner cannot be held guilty of having infringed the order if the order was not properly promulgated, then he must be acquitted of the offence with which he is charged.
If, on the other hand, in law a party can be affected by an order without due publication of that order and although that order constitutes something which was not an offence into an offence, then the petitioner would be held guilty if in fact he has infringed the order. But whatever may be the true position in law, it certainly does not in any way have any relevancy to the question we are now considering as to whether the restrictions imposed by the Legislature are -reasonable or unreasonable.
11. Mr. Kotwal also, suggested that the impugned sub-section constituted delegated legislation and therefore on that ground also it was void. It seems difficult to appreciate the contention that an order to be issued under Section 37(3) by the authority mentioned in that section in order to preserve public order can constitute legislation.
But even if it does constitute legislation, the Legislature has by no means abdicated itself. It has laid down the policy and indicated the ground on which the order can be issued and has also placed limitations upon the issuing of that order. Therefore in no view of the case can it be urged, that the Legislature has delegated the legislative function to the Commissioner of Police.
12. In our opinion, therefore, Sub-section (3) of Section 37 is a restriction imposed by the Legislature in the interests of public order and in the interests of the general public upon the freedom guaranteed to the citizen under Article 19(1)(b) and (d), and in our opinion that restriction is a reasonable restriction, and therefore this provision of the law cannot be said to contravene the provisions of the Constitution so as to render it void.
13. It is then urged by Mr. Kotwal that even if the impugned legislation was held to be valid, the order itself issued pursuant to Section 37(3) was not a valid order. Two grounds are urged why the order should be held to be bad. The first, which is rather difficult to understand, is that the order does not ban assembly of persons but only procession of persons.
As we have already noticed, Section 37(3) empowers the Commissioner of Police to prohibit both an assembly and a procession. In Issuing the order in question he has chosen not to prohibit an assembly but only a procession. In other words, five or more persons could assemble anywhere in Greater Bombay and not infringe the order, but when that assembly starts moving and moving in a formal or solemn manner and constitutes itself into a procession, it would come within the mischief of the order, and what is urged by Mr. Kotwal is that it is not competent to the Commissioner of Police to ban the movement of an assembly which is a lawful assembly.
The argument of Mr. Kotwal is put this way that if you have an unlawful assembly then you can prevent that unlawful assembly from forming itself into a procession, but if you have-an assembly which is lawful the you cannot prevent that lawful assembly from marching in procession.
One should have thought that the larger power conferred upon the Commissioner of Police would include the lesser power. If the Commissioner of Police could prohibit both an assembly and a procession, it is difficult to understand why he cannot prohibit only a procession.
It is true that as the order stands an assembly would not be an unlawful assembly, but why is the Commissioner of Police prevented from saying that
'In my opinion a mere assembly of persons will not prejudice the preservation of public order but when that assembly starts moving in a procession it is likely to affect the reservation of public order and, therefore, while not banning the assembly I will ban the procession'.
In our opinion, there is not much substance In that contention.
14. It is then urged and with considerable force that the Commissioner of Police has nopower under Section 37(3) to extend an order made Try him, and inasmuch as the order in question is an extension of an earlier order it is not a valid order. As we have already pointed out, the original order was passed on the 28-9-1955 and there were two extensions, one on 12-10-1955 and the secondon 12-11-1955, and we are concerned with the second extension of the original order.It is pointed out that Section 37(3) does not conferupon the Commissioner of Police any power toextend an order already made by him and even the sanction that the State Government has to give is not to the extension of the order but to a continuation of the prohibition for more than fifteen days.
But it is urged that even when the State Government gives the sanction there must be a valid order made by the Commissioner of Police to which the sanction given by the State Government can apply, and it is said that in the order passed on 12-11-1955 all that is recited is the previous sanction of the Government of Bombay and the Commissioner of Police then proceeds to extend the order which he has already made.
It is further said that when the Commissioner of Police made the original order of 28-9-1955 fie applied his mind & came to the conclusion that that' order should continue for a fortnight. Now that could possibly not be the basis of the order of 12-11-1955.
Mr. Kotwal says that it is essential that the Commissioner of Police should apply his mind again and on the materials available to him he must come to the conclusion that there is a case made out for a further prohibition and if he is satisfied he must make a fresh order, and according to Mr. Kotwal having failed to pass such an order the mere extension of the original order is invalid in law. Under Section 21 of the Bombay General Clauses Act.
'Where, by any Bombay Act, a power to issuenotifications, orders, rules or by-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (If any), to acid to, amend, vary or rescind any notifications, orders, rules or by-laws, so issued'.
Therefore, the power to make an order under Section 37(3) must include a power to add to amend, vary or rescind such an order, and the question is whether in effect and in substance the Commissioner of Police has amended the original order passed by him on 28-9-1955.
The duration of the original order was fifteen days and on 12-10-1955 the Police Commissioner by extending its operation for a month in effectamended the order by altering its duration from fifteen days to 12-11-1955, and again when on 12-11-1955 he further extended the period till 12-12-J955 he again amended the duration contained in the original order of 28-9-1955.
It is true that even when the power to amend is exercised the power must be subject to the same conditions and to the like sanction as the power to make the original order and, therefore when the Commissioner of Police passed the two orders on12-10-1955 and 12-11-1955 we must be satisfied that in passing these orders, although we may look upon them as amending the original order, he had the authority and the competency to pass these orders within the ambit of Section 37(3).
Therefore it would be necessary for the Commissioner of Police when he extended the duration both on 12-10-1955 and 12-11-1955 to be satisfied that the preservation of the public order required the extension of the original order. It should also be borne in mind that both on 12-10-1955 and the 12-11-1955 the original order was subsisting and had not come to an end.
If the order had come to an end then the order could not have been amended and a fresh order had to be made, but if before the order of the 23-9-1955 came to an end the Commissioner of Police extended its duration, as we have just said, the effect of that extension was to amend the original order and substitute in place of fifteen days contained in the original order the period 12th of November 1955.
It may also be pointed out that the original order has been amended in another particular and that is that whereas the original order exempted marriage processions, funeral processions and Ganpati processions, the order of 12-11-1955 has omitted Ganpati processions from the exemption.
We put to Mr. Kotwal the view that it would be open to the Commissioner of Police to amend an order passed under Section 37(3) from time to time by altering the territorial application and Mr. Kotwal had difficulty in resisting that view. If that be the true position and If the territorial application of the order could be altered or amended, we see no reason in principle why the temporal effect of the order in the sense of its duration cannot equally be amended by a subsequent order passed by the Commissioner of Police.
15. In our opinion, therefore, the challengemade either to Section 37(3) on the ground of it beingvoid under the Constitution or to the order passedby the Commissioner of Police on the ground thatit was ultra vires the section must fall. The resuit is that the petition fails and the rule is discharged.
16. Petition dismissed.