Skip to content


Thakur Bharatsingh Vs. State of Madhya Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMadhya Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 25 of 1963
Judge
Reported inAIR1964MP175; 1964CriLJ160
ActsMadhya Pradesh Public Security Act, 1959 - Sections 3(1); Constitution of India - Articles 19(1), 19(5) and 358
AppellantThakur Bharatsingh
RespondentState of Madhya Pradesh and anr.
Appellant AdvocateY.S. Dharmadhikari, Adv.
Respondent AdvocateR.J. Bhave, Govt. Adv.
DispositionAppeals dismissed
Cases ReferredRam Jawaya v. State of Punjab
Excerpt:
- - 3. (1) if the state government or a district magistrate is satisfied with respect to any person that he is acting or is likely to act in a manner prejudicial to the security of the state or to the maintenance of public order, and that, in order to prevent him from so acting it is necessary in the interests of the general public to make an order under this section, the state government or the district magistrate as the case may be, may make an order--(a) directing that, except in so far as he may be permitted by the provisions of the order, or by such authority or persons as may be specified therein, he shall not be in any such area or place in madhya pradesh as may be specified in the order; if it is confirmed, then that order as well as the order passed by the state government.....dixit, c.j. 1. this order will also govern the disposal of letters patent appeal no. 28 of 1963.2. the appellant bharatsingh filed a petition under article 226 of the constitution challenging the validity of an order passed by the state government on 24th april 1963 under section 3 of the madhya pradesh public security act, 1959 (hereinafter referred to as the act) prohibiting him from remaining in any place in raipur district, directing him to reside within the municipal limits of jhabua town, district jhabua, madhya pradesh, and to proceed there immediately, and asking him to notify his movements and report himself personally every day at 8 a.m. and 8 p.m. to the police station officer, jhabua.in that petition, bharatsingh made a prayer for the issue of a writ of certiorari for quashing.....
Judgment:

Dixit, C.J.

1. This order will also govern the disposal of Letters Patent Appeal No. 28 of 1963.

2. The appellant Bharatsingh filed a petition under Article 226 of the Constitution challenging the validity of an order passed by the State Government on 24th April 1963 under Section 3 of the Madhya Pradesh Public Security Act, 1959 (hereinafter referred to as the Act) prohibiting him from remaining in any place in Raipur district, directing him to reside within the municipal limits of Jhabua town, district Jhabua, Madhya Pradesh, and to proceed there immediately, and asking him to notify his movements and report himself personally every day at 8 a.m. and 8 p.m. to the Police Station Officer, Jhabua.

In that petition, Bharatsingh made a prayer for the issue of a writ of certiorari for quashing the aforesaid order. The petition was heard and disposed of during the last summer vacation by Shiv Dayal 1. He held that Section 3(1) (a) of the Act was validbut Clauses (b) and (c) of that section were repugnant to Article 19(1)(d) of the Constitution and were, therefore, void. Accordingly, the order made by the State Government on 24th April 1963 in so far as it directed the appellant Bharatsingh to reside in Jhabua and to proceed there immediately and to notify his movements and to report himself personally there at the Police Station was quashed by the learned Single Judge. The order was upheld in so far as it prohibited the appellant from remaining in Raipur district.

It is against this decision of the learned Single Judge that Bharatsingh has filed Letters Patent Appeal (No. 25 of 1963) contending that Clause (a) of Section 3(1) of the Act is also repugnant to, Article 19(1)(d) of the Constitution and consequently the order made by the State Government asking him not to be in Raipur district is illegal. The State of Madhya Pradesh has also filed Letters Patent Appeal (No. 28 of 1963) contending that the decision of the learned Single Judge that Clauses (b) and (c) were void is erroneous and that the said clauses be declared to be valid and the entire order passed by the State Government be held to be legal.

3. Before dealing with the contentions advanced on behalf of the parties, it is necessary to refer to the material provisions of the Act, Section 3(1) of' the Act, so far as it is material here, is as follows;

'3. (1) If the State Government or a District Magistrate is satisfied with respect to any person that he is acting or is likely to act in a manner prejudicial to the security of the State or to the maintenance of public order, and that, in order to prevent him from so acting it is necessary in the interests of the general public to make an order under this section, the State Government or the District Magistrate as the case may be, may make an order--

(a) directing that, except in so far as he may be permitted by the provisions of the order, or by such authority or persons as may be specified therein, he shall not be in any such area or place in Madhya Pradesh as may be specified in the order;

(b) requiring him to reside or remain in such place or within such area in Madhya Pradesh as may be specified in the order and if he is not already there to proceed to that place or area within such time as may be specified in the order:

(c) requiring him to notify his movements or to report himself or both to notify his movements and report himself in such manner, at such times and to such authority or person as may be specified in the order;

(d) *****

(e)***** '

The other sub-sections of Section 3 prohibit the externment from the State of any person ordinarily resident in the State and also prohibit the District Magistrate from directing exclusion or removal from the district of any person ordinarily resident in that district. Where a restriction order is made by a District Magistrate, he is required to send a copy of the order to the State Government together with the grounds on which it has been made within four days of the making of the order, and the State Government can confirm, modify or rescind the order of the District Magistrate.

An order made by the District Magistrate remains in force for a period of fifteen days unless it is modified or rescinded by the State Government. If it is confirmed, then that order as well as the order passed by the State Government itself under Section 3(1) remains in force for a period of one year from the date of the order. Sections 4 and 5 of the Act give to the State Government the power of revoking or modifying or suspending the operation of a restriction order. Section 6 enjoins thatas soon as a restriction order is made, but not later than a week after its making, the authority making that order shall communicate to the person against whom it has been made the grounds on which the order has been made and such other particulars as are in its opinion sufficient to enable him to make a representation to the State Government against that order and inform him of his right to make such representation and afford him an earliest opportunity of doing so. Under Section 7 the State Government is required to constitute an Advisory Council. Section 8 lays down that where a restriction order has been made the State Government shall within thirty days from the date of the order place before the Advisory Council a copy thereof together with the grounds on which it has been made and the representation, if any, made by the person affected by such order. Section 10 requires that the State Government shall in accordance with the opinion of the Advisory Council confirm, modify or cancel the restriction order.

4. The learned Single Judge held that the enactment in question, and Section 3(1) thereof, no doubt abridge the right of freedom of movement, that the limitation imposed by Clause (a) of Section 3(1) was a reasonable restriction imposed in the interests of the general public on the exercise of the right conferred by Article 19(1)(d) but that the restrictions imposed by Clauses (b) and (c) were not so, and that therefore, those provisions were invalid. He arrived at this conclusion after applying the principles laid down by the Supreme Court for determining the reasonableness of a restriction for the purposes of Article 19 of the Constitution, and after examining the relevant substantive and procedural provisions of the Act. In arriving at the conclusion that he did, the learned single Judge placed reliance, inter alia, on Dr. N.B. Khare v. State of Delhi, 1950 SCR 519: (AIR 1950 SC 211); State of Madras v. V.G. Row, 1952 SCR 597: (AIR 1952 SC 196); Gurbachan Singh v. State of Bombay, 1952 SCR 737: (AIR 1952 SC 221); Hari v. Dy. Commr. of Police, (S) AIR 1956 SC 559 and Bhagubai v. Dist. Magistrate, AIR 1956 SC 585.

5. There can be no doubt that the provisions of Section 3(1) of the Act have been made in the interests of the general public and to protect them against persons whose presence in a particular locality may jeopardise the peace and safety of the citizens, or the security of the State. The directions that can be made under Section 3(1) are precautionary. Any legislation having as its purpose the prevention of any person from acting in a manner prejudicial to the security of the State or to the maintenance of public order cannot but be regarded as one in the interests of the general public. In 1952 SCR 737: (AIR 1952 SC 221), the Supreme Court said that Section 27 (i) of the City of Bombay Police Act, 1902, which permitted an order of externment being made against a person, was a provision made in the interests of the general public and for protecting them from dangerous and bad characters whose presence in a particular locality may become a menace to the peace and safety of the citizens.

Shri Dharmadhikari, learned counsel appearing for the appellant Bharatsingh, did not suggest before us that the restriction imposed by Clause (a) of Section 3(1) was not in the interests of the general public. He, however, urged that a restriction taking the form of directing a person not to remain in any area or place in the State was unreasonable because such a restriction had no connection what-ever with the maintenance of public order or the security of the State and because the restriction order under Section 3(1) could be made without any noticeor without giving a hearing to the person affected by the order.

6. We are unable to accede to this contention. There is no gainsaying the fact that if because of his associations, contacts, influence and the facilities available in an area a person is in a position to act in a manner prejudicial to the security of the State or to the maintenance of public order, and if he is so acting or is likely to act in such manner, then clearly in order to prevent him from so acting it becomes necessary to prohibit him from remaining in that area. Such a prohibition, if imposed, is clearly in the interests of the general public and for the maintenance of public order. A person acting as a spy may be able to work effectively only in a particular area. If he so acts or is likely to so act, then his activities would be clearly prejudicial to tile security of the State. If he is ordered not to remain in that area, then the prohibitory restriction imposed on him is clearly one in the interests of the general public and for the security of the State.

So also, dangerous and bad characters find it very easy to indulge in activities jeopardising or threatening the peace and safety of the citizens in certain areas. In other areas, they do not find scope for nefarious activities. The activities of such persons endangering public peace, safety and tranquillity are clearly prejudicial to the maintenance of public order, taking the connotation of the words 'public order' given by the Supreme Court in Supdt. Central Prison, Fatehgarh v. Dr. Ram Manohar Lohia, AIR 1960 SC 633. If it becomes necessary to prohibit such persons from remaining in the area of their activities, then the restriction imposed on them is clearly one imposed in the interests of the general public and the maintenance of public order. 'In the interests of the general public' is a very wide expression and embraces public security, public order, and public morality. It is not something different from security of the State, public order or public morality. There is, therefore, no force in the argument that the restriction which the order made under Clause (a) of Section 3(1) has only far-fetched; hypothetical or problematical and not proximate connection with the security of the State or the maintenance of public order.

7. The question whether the restriction imposed by Section 3(1) (a) is a reasonable restriction must be determined on the nature of the right claimed, the object to be achieved, the means employed and the limitations imposed, and for this purpose both the substantive and procedural aspects of the impugned restrictive provision must fee examined. This is now firmly settled by several decisions of the Supreme Court. We need only refer to the observations of Patanjali Sastri C. J. in 1952 SCR 597: (AIR 1952 SC 196) that:

'This Court had occasion in Dr. Khare's case, 1950 SCR 519: (AIR 1950 SC 211) to define the scope of the judicial review under Clause (5) of Article 19 where the phrase 'imposing reasonable restrictions on the exercise of the right' also occurs, and four out of the five Judges participating in the decision expressed the view (the other Judge leaving the question open) that both the substantive and the procedural aspects of the impugned restrictive law should be examined from the point of view of reasonableness; that is to say, the Court should consider rot only factors such as the duration and the extent of the restrictions, but also the circumstances under which and the manner in which their imposition has been authorised. It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstractstandard, or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable.'

Judged by these principles, there can be no doubt that Section 3(1)(a) falls within the limits of authorised restrictions on the right conferred by Article 19(1)(d) of the Constitution. As is plain from the language of Section 3(1), an order under any of the clauses of that provision can be made in order to prevent a person from acting in a manner prejudicial to the security of the State or to the maintenance of public order. It has already been pointed out that the restriction imposed under Clause (a) has reasonable relation to public interest and to the object of the provision. It cannot, therefore, be said that the restriction imposed by Section 3(1)(a) is unreasonable from the substantive standpoint.

So far as the procedural aspect of the matter is concerned, the Act contains provisions which show that the restriction imposed by the making of an order under Clause (a) is not unreasonable. Under Section 3 a person cannot be externed from the State. By an order under Section 3(1)(a) a District Magistrate cannot ask a person to remove himself from the district of which he is ordinarily resident. An order of the District Magistrate remains in force only for fifteen days unless it is modified or rescinded by the State Government. A restriction order made by the State Government or a District Magistrate and confirmed by the State remains in force for a period of only one year. The State has the power to revoke or cancel the order. What is important is that the person affected by the order is informed of the grounds of restriction order and he has a right to make a representation to the State against that order. A restriction order made under Section 3(1) has to be placed before the Advisory Council, which has the power to confirm, modify or cancel the order, and the opinion of the Advisory Council is binding on the Government. In view of these provisions, it is difficult to maintain that Section 3p)(a) offends against Article 19(1)(d) of the Constitution and oversteps the limits of reasonableness.

8. The only ground on which Shri Dharmadhikari, learned counsel for the appellant-Bharatsingh, based the unreasonableness of the procedure for making of a restriction order under Section 3(1) was that the restriction could be imposed without notice or without hearing the person affected by the order. Relying on 1952 SCR 737: (AIR 1952 SC 221): (S) AIR 1956 SC 559; Ebrahim Vazir v. State of Bombay, AIR 1954 SC 229 and State of M. P. v. Baldeo Prasad, AIR 1961 SC 293 learned counsel urged that the giving of a notice or a hearing to a person against whom a restriction order was intended to be made before the making of that order wassine qua non of the constitutionality of a legislation, such as the one before us. We do not agree. It is no doubt true that according to rules of natural justice a person whose right is sought to be affected by an action or order should be heard before any action is taken or order passed against him. But the doctrine of natural justice is attracted only where the function is quasi judicial. When the State Government or a District Magistrate makes an order under Section 3(1) of the Act, it or he does not exercise any quasi judicial function. That apart, there is an exception to this rule, and that is that the hearing requirement may be excluded in emergency or under extraordinary exceptional circumstances. Action under Section 3(1) is of a preventive nature. It is taken in order to prevent a person, who is acting or is likely to act in a manner prejudicial to the security of the State or to the maintenance of public order, from so acting. There is an element of emergency in regard to an action under Section 3(1), and the object of making an order under that provision would be altogether defeated if the order is not made promptly but deferred until after the person intended to be affected by the order is heard. In 1952 SCR 597: (AIR 1952 SC 196) Patanjali Sastri C. J., while distinguishing the case of Dr. Khare's case, 1950 SCR 519: (AIR 1950 SC 211) (supra) observed:

'For one thing, externment of individuals, like preventive detention, is largely precautionary and based on suspicion. In fact, Section 4(1) of the East Punjab Public Safety Act, which was the subject of consideration in Dr. Khare's case, 1950 SCR 519: (AIR 1950 SC 211) authorised both preventive detention and externment for the same purpose and on the same ground namely, 'with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it is necessary, etc.' Besides, both involve an element of emergency requiring prompt steps to be taken to prevent apprehended danger to public tranquillity, and authority has to be vested in the Government and its officers to take appropriate action on their own responsibility.'

So also in Dr. Khare's case, 1950 SCR 519: (AIR 1950 SC 211) (supra), Mukherjea J. (as he then was) said:

'Preventive orders by their very nature cannotbe made after any judicial enquiry or trial. Ifemergent steps have got to be taken to prevent apprehended acts which are likely to jeopardise theinterests or safety of the public, somebody must begiven the power of taking the initial steps on hisown responsibility: and no reasonable objection couldbe taken if the authority, who' is given the power,is also entrusted with the responsibility of maintaining order and public peace in any particular districtor province.' ;

These observations make it abundantly clear that preventive action for maintenance of public order or security of the State is an action of emergent nature involving prompt steps. Such being the nature of preventive orders contemplated under Section 3(1), it does not stand to reason to say that the provision imposes unreasonable restriction as an order thereunder can be made on the satisfaction of the State Government or of a District Magistrate without giving a hearing to the person affected by the order.

9. The cases referred to by the learned counsel for the appellant Bharatsingh do not lend support to the contention that for the validity of a law dealing with externment it is essential that it must contain a provision casting an obligation upon the authority competent to make the order of externmentto hear the person against whom the order is intended to be made before the order is made. In the City of Bombay Police Act, 1902, and the Bombay Police Act, 1951, which were under consideration before the Supreme Court in the cases of 1952 SCR 737: (AIR 1952 SC 221), (S) AIR 1956 SC 559 and AIR 1956 SC 585, there was no doubt a provision for hearing to the person concerned before the taking of action under certain provisions of those Acts. But in none of those cases any observation suggesting that the provision for hearing before the making of a restriction order was an essential feature of the constitutionality of the relevant provisions of those Acts is to be found. The provision with regard to hearing was no doubt referred to by the Supreme Court, along with other procedural provisions, while upholding the two Bombay Acts. But such a reference cannot be read as a statement of the law of general application that for the constitutionality of a law dealing with externment it is essential that it must contain a provision for hearing to the person against whom an order is intended to be made before its making.

It is noteworthy that in (S) AIR 1956 SC 559 (supra), one of the arguments that were advanced was that there was no provision in the Bombay Police Act, 1951, for an Advisory Board which could scrutinise the material on which the officers or authorities contemplated by Section 57 thereof had taken action against a person, and that, therefore, Section 57 was unconstitutional. While negativing this contention, the Supreme Court observed that

'It cannot be, and has not been laid down as a universal rule that unless there is a provision for such an Advisory Board such a legislation would necessarily be condemned as unconstitutional.'

A reference was also made to the decision in the case of Dr. Khare, 1950 SCR 519: (AIR 1950 SC 211) (supra) and it was pointed out by the Supreme Court that in that case the constitutionality of the East Punjab Public Safety Act, 1949, was upheld even though the Punjab Act contained a provision for an Advisory Board whose opinion had no binding force on the Government. If the Supreme Court intended to lay down that a provision with regard to the hearing before the making of an order under Section 57 of the Bombay Police Act, 1951, was all that mattered for its validity, it would have said so and would have also further said that in the face of a provision for such hearing the absence of a provision for Advisory Board was of no consequence.

On the other hand, the observations of Mukherjea, J. (as he then was) in Dr. Khare's case, 1950 SCR 519: (AIR 1950 SC 211) (supra) with regard to the nature of an externment order and the emergency situation in which it is made and the ground on which that case was distinguished in the case of 1952 SCR 597 : (AIR 1952 SC 196), indicate that the existence of a provision for hearing before the making of an order of externment is not a sine qua non for the constitutionality of a provision under which the order is made. It must be noted that the case of Dr. Khare, 1950 SCR 519: (AIR 1950 SC 211) (supra) is nearest to the present one. Section 4 (1) of the East Punjab Public Safety Act, 1949, also provided for the making of a restriction order against any particularperson, such as the one permissible under Clause (a) of Section 3 (1) of the M.P. Act if the Government or the District Magistrate was satisfied with respect to that person that with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it was necessary so to do. The Punjab Act did not contain any provision for giving a hearing to the person concerned before the making of any order against him. As stated earlier, the provision in that Act with regard to an Advisory Board did not even make the Board's opinion binding on the Government. The Supreme Court did not strike out the Punjab Act because of these 'omissions'. Its validity was upheld by the majority judgment in Dr. Khare's case 1950 SCR 519: AIR 1950 SC 211 (supra).

10. The other two cases, namely, AIR 1954 SC 229 and AIR 1961 SC 293 are of no assistance to the appellant. Ebrahim Vazir's Case, AIR 1954 SC 229 (supra) dealt with the validity of Section 7 of the Influx from Pakistan (Control) Act, 1949, which empowered the Government to expel a citizen 'upon a reasonable suspicion' that he had committed a breach of permit regulations. The majority of the Supreme Court Bench held that a law which subjects a citizen to the extreme penalty of a virtual forfeiture of his citizenship upon conviction for a mere breach of the permit Regulations or upon a reasonable suspicion of having committed such a breach could not be justified upon the ground that it imposed a reasonable restriction upon the fundamental right to reside and settle in the country in the interest of the public.

While dealing with the provisions of Section 7 of the said Act, the Supreme Court pointed out that it did not provide for the issue of a notice to the person concerned to show cause against the order nor was the person afforded any opportunity to clear his conduct of the suspicion entertained against him. According to Das J. (as he then was), who dissented from the majority judgment, there may be a situation of such grave emergency to the national security that even such a measure could be upheld as reasonable. The majority judgment, however, proceeded on the assumption that there was no such emergency. The material distinction between this case and the case of Ebrahim Vazir, AIR 1954 SC 229 (supra) lies in the fact that there is no resemblance between the provisions of Section 3(1) of the Act and Section 7 of the Influx from Pakistan (Control) Act, 1949, which was a drastic provision enabling the Government to take action involving the extreme penalty of 'a virtual forfeiture' of a person's citizenship. It is well settled that arguments by analogy are misleading and it is not legitimate to determine the validity of the provisions of one Act with reference to the decisions dealing with other Acts which are in pari materia.

11. In AIR 1961 SC 293, the Supreme Court declared as invalid C.P. and Berar Goondas Act, 1946, Sections 4 and 4-A of which empowered the District Magistrate to make orders against Goonda directing him to reside or remain in any place or to remove himself outside a district. The ground on which that Act was struck down was that the primary condition precedent for taking action under Section 4 or 4-A was that the person against whom action was proposed to be taken was a Goonda and those sections did not provide that the District Magistrate must first come to a decision that the person against whom he proposed to take action was a Goonda. This is clear from the following observations of the Supreme Court:

'The section does not provide that the DistrictMagistrate must first come to a decision that the person against whom he proposes to take action is a Goonda, and gives him no guidance or assistance in the said matter. It is true that under Section 4 a goonda is 4 entitled to have an opportunity to be heard after he is given a copy of the grounds on which the order is proposed to be made against him; but there is no doubt that all that the goonda is entitled to show in response to the notice is to challenge the correctness of the grounds alleged against him. The enquiry does not contemplate an investigation into the question as to whether a person is a goonda or not. The position, therefore, is that the District Magistrate can proceed against a person without being required to come to a formal decision as to whether the said person is a goonda or not; and in any event no opportunity is intended to be given to the person to show that he is not a goonda. The failure of the section to make a provision in that behalf undoubtedly constitutes a serious infirmity in its scheme.'

From these observations, it is difficult to hold that the ratio decidendi of the case of Baldeo Prasad, AIR 1961 SC 293 (supra) is that before any restriction order of the type contemplated by Sections 4 and 4A of the C.P. and Berar Goondas Act, 1946, can be made the person against whom it is intended to be made must be heard before the making of such an order. In that case the point which the Supreme Court regarded as crucial was that the condition precedent for taking action under Section 4 or 4A was that the person against whom action was intended to be taken must be a Goonda. Those provisions did not require that the District Magistrate must first decide whether the person against whom he intended to proceed was or was not a Goonda. Baldeo Prasad's case, AIR 1961 SC 293 (supra) is therefore, not in point here.

12. It was finally contended on behalf of the appellant Bharatsingh that the grounds for his externment from Raipur district supplied to him were vague, insufficient and incomplete. There is no substance in this contention. The grounds stated for the restriction order were that Bharatsingh had openly threatened one Tikamsingh within the Court premises at Mahasamund on 21st August 1962 and tried to create strained relations between Hindus and Muslims; that he was a veritable 'bully'; that he had attempted to assault a Forest Ranger when he seized timber illicitly felled by the appellant under his directions; that on receiving payment from persons he used to beat their enemies; that he had threatened and beaten several persons on some pretext or the other; and that he along with some other persons had created a reign of terror in Bagbahara and Mahasamund tracts. An order under Section 3(1) of the Act is based on the satisfaction of the State Government or the District Magistrate with regard to the prejudicial activities of a person. That being so, we cannot enter into the truth or adequacy of the grounds communicated to the appellant if they have a rational probative value and are not extraneous to the scope of Section 3(1). It cannot seriously be argued that the alleged activities of Bharatsingh covered by the grounds communicated to him are extraneous to the scope of Section 3(1). Those activities are without doubt prejudicial to the maintenance of public order.

Learned counsel said that under Section 3(1) past activities of a person could not form relevant ground for a restriction order against him. We do not agree. As held by the Supreme Court, in regard to an order of detention under the Preventive Detention Act. 1950, in Bhimsen v. State of Punjab, AIR 1951 SC 481 and Ujagar Singh v. State of Punjab, AIR 1952 SC 350 the past conduct orantecedent history of a person can be taken into account when making a detention order and as a matter of fact it is largely from prior events showing a tendency or inclination of the man that an inference can be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order. The past activities of the appellant were therefore, relevant in giving rise to the subjective mental satisfaction of the State that the appellant was likely to indulge in objectionable activities. It was suggested by the learned counsel that the alleged acts of the appellant Bharatsingh referred to in the various grounds constituted offences under the Penal Code and that he should have been proceeded against under the criminal law of the country. This contention must also be rejected. The Act is no doubt preventive and not punitive. But from this nature of the Act, it is erroneous to infer that the penal acts of a person cannot be taken into account in determining his likely course of action in the future. Moreover, when the activities of a person are such as to cause alarm and intimidation to persons from giving evidence against him, the normal process of investigation and trial according to the Code of Criminal Procedure would be ineffective and inadequate to meet the real situation of lawlesseness. The question whether in such a situation the movements of a person should or should not be restricted by an order under Section 3(1) of the Act in order to prevent him from acting in a manner prejudicial to the maintenance of public order is one which cannot be enquired into by a Court of law. The learned Single Judge was, therefore, correct in upholding the validity of Clause (a) of Section 3(1) of the Act and of the order made against Bharatsingh under that Clause.

13. Turning now to the appeal filed on behalf of the State, the learned Single Judge held that Clauses (b) and (c) of Section 3(1) of the Act were invalid as they imposed unreasonable restrictions. His reasoning was that the restrictions under those clauses had only far-fetched, hypothetical and problematical connection with the object of Section 3(1) and directing a person to remain in a particular place far from promoting the maintenance of public order only encouraged the person so directed to indulge in undesirable activities in an area where he had nothing to do.

He also added that the clauses did not lay down any principle for the guidance regarding the exercise of discretion vested in the authorities under those clauses and that Clause (c) was inextricably woven with Clause (b) so that if Clause (b) was invalid, Clause (c) must also fall.

14. We are in agreement with the view of the learned Single Judge so far as the invalidity of Clause (b) is concerned. That clause empowers the State Government or the District Magistrate to require a person to reside at a particular place or within such an area in Madhya Pradesh as the authority may think fit and to direct him to proceed there within a fixed time. The content of the power as provided by Clause (b) cannot be held to be in the nature of 'reasonable restriction' of fundamental right for the reason that the restriction has no reasonable relation to the subject in view but is so drastic in scope that it goes much in excess of the object stated in Section 3(1). It is a very serious matter to ask a person to leave his home and hearth and go and reside in some other place in the State where he is an utter stranger, where the climatemay be uncongenial to him, and where he has to experience difficulties in the matter of accommodation and maintaining himself. It is difficult to see how the object stated in Section 3(1) is advanced by immobilising a person in a certain place. If the activities of a person in a certain area fall within the mischief of Section 3(1) and it is desirable that he should be asked to remove himself as far away as possible from that area, then the obvious course to adopt is to extend the area within which he cannot remain by making an appropriate order under Clause (a). By asking a person to remain in a particular place, his freedom of movement in other parts of the State and the whole country is unreasonably restricted. The matter seems to us to be plain enough and does not require any further elaboration.

15. So far as Clause (c) is concerned, it is quite independent of the other clauses. An order under that clause can be made even when no order is made under any other clause. That clause permits the State Government or a District Magistrate to make an order requiring a person to notify his movements or to report himself at such time and to such authority or person as may be specified in the order. This type of restriction in no way restricts the freedom of movements of any person. When the authorities require a person to notify his movements or to report himself at certain place and to certain authority it is only for the purpose of finding out whether the person is acting or is likely to act in a manner prejudicial to the security of the State or to the maintenance of public order. In our judgment, Clause (c) of Section 3(1) falls within the permissible limit of restrictions on the fundamental right under Article 19(1)(d) of the Constitution, and cannot, therefore, be held to be unconstitutional.

16. It remains to notice the argument of the learned Government Advocate that in view of the declaration of emergency by the President under Article 352 of the Constitution, executive action of the type taken against Bharat Singh could be taken even though it interfered with his fundamental right of movement under Article 19(1)(d). Article 358 runs thus:

'While a Proclamation of Emergency is in operation, nothing in Article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.'

Learned Government Advocate did not contend before us that the Act, which was made long before the declaration of emergency, was immune from any attack founded on Article 19 in view of the provisions of Article 358. What he urged was that though the law was not so immune, executive action taken after the declaration of emergency was immune. This argument is fallacious and cannot be accepted. The scope and extent of Article 154 of the Constitution dealing with the executive power of a State must be determined in the light of what the Supreme Court has said in Ram Jawaya v. State of Punjab (S) AIR 1955 SC 549 in regard to the extent of the executive power of the Union Government and of the States under Articles 73 and 162 of the Constitution. That decision makes it very clear that the executive power of a State is not confined to matters over which legislation has already been enacted, that it extends to matters upon which the State Legislature is competent to legislate, and that the executive authority can never be exercised contrary to the provisions of the Constitution or of any law. Here, the executive action, in the form of a restriction order under Section 3(1)(b) of the Act, was taken and purported to be taken in the exercise of the powers under Section 3(1). If that clause, that is Clause (b), offends against Article 19(1)(d) of the Constitution and for that reason is held to be invalid, then the executive action of the type envisaged by that clause would be contrary to the Act. The executive action made immune under Article 358 does not plainly cover executive action in a matter over which a legislation has been already passed before the declaration of emergency. When Article 358 is not attracted to a law made before the declaration of emergency, it would be altogether anomalous to hold that executive action of the type permissible under that law or contrary to it is immune from any attack.

17. For the foregoing reasons, our conclusion is that Clauses (a) and (c) of Section 3(1) of the Act are valid, but Clause (b) being violative of Article 19(1)(d) of the Constitution is invalid. As Clause (b) is invalid, the direction made against the appellant Bharatsingh under that clause asking him to reside in Jhabua was clearly illegal and was rightly quashed by the learned Single Judge. On quashing that direction, the further direction that Bharatsingh should notify his movements by reporting himself daily to the Police Station Officer, Jhabua, cannot survive. The learned Single Judge, therefore, rightly quashed the order made against Bharatsingh directing him to notify his movements and report himself daily, to the Police Station Officer, Jhabua, though he did so on the erroneous view that Clause (c) of Section 3(1) was inextricably woven with Clause (b) thereof and was invalid. The result is that both these appeals are dismissed. In the circumstances of the case, we leave the parties to bear their own costs of the two appeals.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //