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ismail and anr. Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Misc. Nos. 21, 22, 32 and 33 of 1950
Judge
Reported inAIR1951Ori86; 16(1950)CLT209
ActsOrissa Maintenance of Public Order Act, 1950 - Sections 2(1) and 3; Constitution of India - Articles 13(2), 19(1), 19(5), 21 and 226; Code of Criminal Procedure (CrPC) , 1898 - Sections 491
Appellantismail and anr.
RespondentState of Orissa
Appellant AdvocateS.M. Mohanty and ;R.K. Ghose, Advs.
Respondent AdvocateGovernment Adv.
Cases ReferredJeshingbhai Ishwarlal Modi v. The State of Bombay
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....narasimham, j.1. these four petitions have been filed under article 226 of the constitution against certain orders of the district magistrate of kalahandi directing the internment of the petitioners within the limits of nawapara sub-division of that district in exercise of the powers conferred on him by clause (c) of sub-section (1) of section 2, orissa maintenance of public order act, 1948.2. petitioner ismail is the son of the petitioner khan sahib adam hazi saleh mohammed and the family have extensive business with headquarters in nawapara sub-division. they have also extensive agricultural lands in that sub-division. affidavits were filed on their behalf to the effect that they were nationals of the indian union and in the counter affidavit filed by the government this citizenship was.....
Judgment:

Narasimham, J.

1. These four petitions have been filed under Article 226 of the Constitution against certain orders of the District Magistrate of Kalahandi directing the internment of the petitioners within the limits of Nawapara sub-division of that district in exercise of the powers conferred on him by Clause (c) of Sub-section (1) of Section 2, Orissa Maintenance of Public Order Act, 1948.

2. Petitioner Ismail is the son of the petitioner Khan Sahib Adam Hazi Saleh Mohammed and the family have extensive business with headquarters in Nawapara sub-division. They have also extensive agricultural lands in that sub-division. Affidavits were filed on their behalf to the effect that they were nationals of the Indian Union and in the counter affidavit filed by the Government this citizenship was not challenged and we would therefore take it as well, established that the two petitioners are citizens of the Indian Union. On 17-7-49 the then District Magistrate of Sambalpur, (within whose jurisdiction Nawapara subdivision was then included) issued two orders on the two petitioners under Section (l) (c) of the said Act directing that they should not move out of Nawapara sub-division for a period of six months from the dace of the orders. Against these orders the petitioners applied for a writ of habeas corpus under Section 91, Criminal P. C., to the High Court (Cr. misc. case Nos. 155 and 158 of 1949). The High Court rejected their petitions on 19-12-49 on the ground that the order of internment was not 'detention' as contemplated by Section 491, Criminal P. C. Then on 12-1-50 the District Magistrate of Kalahandi (within whose jurisdiction Nawapara subdivision was transferred meanwhile), issued two further orders extending the period of internment of the two petitioners for a further period of three months from the date of expiry of the previous orders. Against these extension orders Cri. Misc. cases Nos. 21 and 22 were filed. In the meantime however for some inexplicable reason the Disitrict Magistrate issued two fresh orders on 7-3-1950 canceling his previous orders dated 12-1-50 and directing the internment of the two petitioners within the limit of Nawapara sub-division for a period of six months from the date of his last orders. Criminal Misc Oases nos. 32 and 33 were filed against the last two orders and they alone are very material for the purpose of this judgment. On 31-3-1950, the Orissa Legislature passed a new Act known as the Orissa Maintenance of Public Order Act, 1950 (Act x [10] of 1950) omitting all provisions relating to preventive detention and in other respects re-enacting the provisions of the Orissa Maintenance of Public Order Act, 1948. Apparently this new Act was passed in view of the self-contained Preventive Detention Act, 1950, made by Parliament. Under the new Orissa Act, the power to intern any person was conferred by Section 2(l)(b) and that provision is identical with Section (1)(c) of the old Act. The old Act was repealed by Section 29 of the new Act. But Sub-section (2) of that section expressly saved all orders issued under the old Act by stating that those orders 'shall continue in force and be deemed to be made or done under the corresponding provisions' of the new Act. Therefore though the two internment orders on the petitioners dated 7-3-1950 were actually passed in exercise of the powers conferred by Section (l) (c) of the old Act, they should now be deemed to be orders passed Under Section 2 (l) (b) of the new Act by virtue of the deeming provisions of Section 29 (2) of the new Act. The old Act and the new Act differ in one important particular, namely, in the old Act the duration of an order of internment was only six months in the first instance. If the Government wanted to extend the term they were required to consult an Advisory Council after giving the internee an opportunity of making his representation in writing. The learned Advocate-General has filed an affidavit to the effect that in the present two cases the Advisory Council was in fact consulted when the last orders dated 7-3-1950 were passed. But under the new Act an order of internment is to remain in force for a period of one year (see Section 3) and there is no provision either for consulting the Advisory Council or for even giving the petitioner an opportunity of making his representation. We are now concerned mainly with the provisions of the new Act under which the two petitioners are constructively deemed to have been interned.

3. The petitions were originally heard sometime in April 1950. But at the conclusion of the arguments our attention was invited to the petition of Dr. N. B. Khare which was then pending in the Supreme Court in which one of the main points in these petitions was also for consideration. We therefore thought it advisable to postpone the delivery of the judgment till the receipt of the decision of the Supreme Court on the petition of Dr. N. B. Khare. That judgment has since been received and the learned counsel for both sides were given further opportunities for argument in the light of that judgment. Many of the contentions advanced by Mr. Mohanty on behalf of the petitioners in his first argument need not therefore be considered now in view of the judgment of the Supreme Court (Original Jurisdiction Petn. No. 37 of 1950) dated the 26th May, Dr. N. B. Khare v. State of Delhi, (A. I. R. (37) 1950 S. C. 211.)

4. Mr. Mohanty's arguments may be briefly summed up thus: The orders of internment passed by the District Magistrate deprive the petitioners of their fundamental rights to move freely throughout the territory of India and to reside and settle in any part of the territory of India, which rights were guaranteed to them under sub-clauses (d) and (e) of Clause (l) of Article 19 of the Constitution. The provision of Section 2(l) (a) of Orissa Act X [10] of 1950 which authorises the imposition of such restrictions is not saved by Clause (5) of Article 19, inasmuch as restrictions authorised by the said provision are not 'reasonable' restrictions. Therefore, the said provision is void under Article 13(2) of the Constitution, In support of this argument he has not only relied on the Supreme Court judgment mentioned above but also on a Full Bench decision of the Patna High Court reported in Brajnandan Sharma v. State of Bihar, A. I. R. (37) 1950 pat. 322 (F. B.) and an unreported Full Bench decision of the Bombay Court in Jeshingbhai Ishwarlal v. State of Bombay, Cri. Appln. No. 114 of 1950: (A. I. R. (37) 1950 Bom. 363 F.B.).

5. The relevant provisions of the Orissa Act authorising internment of a person are quoted below.

'2. (1) The State Government, if satisfied with respect to any particular person that with a view to preventing 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 order :

(a)...............................................................

(b) requiring him to reside or remain in such place or within such area in the State of Orissa as may be specified In the order and it he is not already there to proceed to that place or area within such time as may be specified in the order.'

It will be noticed that the Act does not make it mandatory on the part of the appropriate authority to furnish the internee with a copy of the grounds on which the decision is taken to intern him nor is he given any opportunity of making, a representation against the order. Moreover, there is absolutely no provision for referring the whole case to an impartial tribunal such as an Advisory Council. In this respect the new Orissa. Act is much more drastic, than the old Act of 1948. As already pointed out, in that Act an order of internment for a period of six months can be passed without consulting an Advisory Council and without giving the internee an. opportunity of making a representation. But if it is desired to extend the period of internment for a further term, consultation with the Advisory Council was made mandatory and the internee was given a statutory right of making a representation. Any discussion as to how far the provisions of the old Act are intra vires of Article 19 of the Constitution seems academic in view of the fact that the new Act came into force on 31-3-1950 and the impugned orders of internment have to be taken as having been passed under the new Act.

6. Article 19(5) of the Constitution has been fully explained in the aforesaid decision of the Supreme Court in which the Chief Justice of India made it clear that in considering the reasonableness of restrictions on the liberty of a person imposed by any law the Court is entitled to consider the substantive as well as the procedural provisions of that law. He further pointed out that the minority view taken in the two Full Bench decisions of the Patna and Bombay High Courts overlooked this aspect of the question. In the judgment of Mukherjee J. however this point has been further elaborated and it was pointed out:

'One could understand that the exigencies of circumstances might justify the vesting of plenary powers on certain authorities which could pass orders on their own personal satisfaction temporarily and for short period of time; but if these orders are to continue indefinitely, it is only fair that an opportunity should be given to the person against whom such order is made to say what he has to say in answer to the allegations made against him. There may not be an investigation by a regular Court but it is necessary that the aggrieved person should be given a fair hearing and that by an impartial tribunal.'

Mahajan J. concurred with this view and the other Judges of the Supreme Court have not dissented from this view. On the other hand my Lord the Chief Justice of India examined the relevant provisions of the East Punjab Public Safety Act under which Dr. N. B. Khare was externed and held that those provisions made the famishing of grounds to the externee mandatory and that there was also a provision for referring the whole case for the consideration of an Advisory Board. Therefore his view regarding the validity of the East Punjab Public Safety Act was not based on his dissenting from the view expressed by Mukherjea and Mahajan JJ. regarding the principles laid down about but solely because he held that in the statute in question those principles have been followed.

7. Therefore the decision of the Supreme Court may be taken as sufficient authority for the view that in considering the reasonable-ness of restrictions contemplated by Article 19(5) of the Constitution, a Court has to consider whether the fundamental principles of natural justice which require that no party ought to be condemned, or to have a decision given against him unless he has been given a reasonable opportunity of putting forward his case before an impartial tribunal, have been contravened. Judged by this standard the provisions of Section 2(i) (b) and Section 3 of the Orissa Act of 1950 cannot be held to authorise the imposition of reasonable restrictions on the fundamental rights guaranteed to a citizen under Article 19(1) (d) and (e) of the Constitution. The District Magistrate as the delegated authority has the power to pass an order of internment which shall remain in force for a period of one year. There is no duty cast on him to furnish the grounds of such internment to the internee so as to enable the latter to make a representation against the order. There is absolutely no provision for referring the whole case to an impartial tribunal such as an Advisory Board which has been constituted to deal with cases under the Preventive Detention Act, 1950 or an Advisory Council as was constituted under the old Orissa Act. Consequently those provisions must be held to be void.

8. There were several other arguments advanced in support of Mr. Mohanty's contention. But these have been fully noticed in the majority judgments of the Patna and Bombay High Courts referred to above and also in the Supreme Court judgment. I, therefore, do not consider it necessary to discuss them in this judgment in view of the principles laid down by the Supreme Court mentioned in the preceding paragraph. The Advocate General, however, urged that as the majority Judges of the Supreme Court held that the impugned provisions of the East Punjab Public Safety Act were valid the minority judgment of Mukherjea J. should not be taken as binding on this Court. I have, however, shown how as regards principles laid down by Mukherjea J. no dissentient view has been expressed by the other Judges of the Supreme Court and consequently those principles bind the sub-ordinate Courts. Even if it be held that those views are not binding on this Court, I would with great respect, adopt the principles laid down by Mukherjea J. which have not been expressly dissented from by the majority of Judges of the Supreme Court.

9. The result is that the petitioners have been interned under the provisions of a law which are void.

10. The next question is what is the nature of relief that can be granted to the petitioners? In their applications they prayed for the issue of a writ of habeas corpus. But strictly speaking such a writ will not apply against an order of internment which is not 'detention' as ordinarily understood. But in their applications they have clearly referred to Article 226 of the Constitution which empowers the High Court to issue necessary directions for the enforcement of any of the rights conferred by Part III of the Constitution even though such directions may not strictly conform to one of the writs specifically mentioned in that Article. This view has been accepted by the Pull Bench decisions of the Patna and Bombay High Courts mentioned above. I would, therefore, issue a direction on the State Government prohibiting them and any of their officers from taking any action for enforcement of the orders in question.

Ray, C.J.

11. I have had the advantage of perusing the judgment of my learned brother I have no hesitation in agreeing with the conclusion reached by him. The point of law involved in the subject-matter before us is sub-stantially concluded by a binding authority, I mean, the judgment of the Supreme Court in Original Jurisdiction Petn. No. 37 of 1950 dated 26-5 1950 Dr. N. B. Khare v. State of Delhi (A. I. R. (87) 1950 S. C. 211).

12. At the time of the aforesaid decision their Lordships of the Supreme Court had before them two decisions of two State High Courts dealing with the same point, namely Braja nandan Sharma v. State of Bihar, A. I. R. (37) 1950 Pat. 322 F. B. and the unreported Full Bench decision of the Bombay High Court in Jeshingbhai Ishwarlal Modi v. The State of Bombay, Cri. Appln. No. 114 of 1950: (A. I. R. (37) 1950 Bom. 363 F. B.). As pointed out by my learned brother in his judgment, the decisions in the two State High Courts consisted of both majority and minority view of the learned Judges of those Courts who decided them. The minority view pivoted on that the word 'reasonable' qualifies the word 'restrictions' in the phrase 'making any law imposing, reasonable restrictions' and it has no reference to the word 'law'. In that background they held that the law imposing such restrictions did not contain any provision enjoining upon the State administrative or executive authorities to furnish the grounds of the restrictions imposed and affording the person restricted to make a representation either to the State Government or to any other tribunal of whatsoever character, either known by the name of Advisory Council, or Board or otherwise, do cot have material bearing on the reasonableness of the restrictions. The difference of views consisted in that, according to the majority view, the absence of the aforesaid provisions in the impugned Act would make the restrictions unreasonable or not reasonable, while, according to the minority, denial of such a procedural right would not make the restrictions, the less reasonable. The minority took the view that it was for the Legislature either to afford opportunities to be heard to the persons restricted or not. According to them denial of such opportunities on account of the lack of such remedial provisions, in the concerned (impugned) Acts may make the law unreasonable, but it is not within the jurisdiction of the Court to throw it out on that ground.

13. In the decision of my Lord the Chief Justice of India, the majority view of the two State High Courts has not been approved of and the minority view not accepted. His Lordship observes:

'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 interpretion the scope and ambit of the word 'reasonable' as applied to restriction 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 my opinion this aspect of the construction of Article 19(5) has escaped the minority judgments in the two matters mentioned above. I am not 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.'

14. Under the circumstances we are bound to hold that the impugned Orissa Act which deprives the person restrained of the remedial right is inconsistent with Article 19 Clause l (d) read with Clause 6 and, to that extent void under the provisions of Article 13(1) of the Constitution of India. Free of authority I would, however, come to the same conclusion by a different process of ratiocination, I would say, if I was so permitted, with great respect, that reasonableness of the restrictions should be determined with reference to the interests of the general public or the protection of the interests of any scheduled trible for the protection whereof restrictions are imposed.'

The constitutional requirement that the law delimiting a citizen's right to move freely throughout the territory of India should impose reasonable restrictions in the interests of the general public etc., can be identified with personal liberty protection by due process of law as a matter of substance in the rule obtaining in the United States of America accruing from due process clauses of the 5th and the 14th amendments. The 5th amendment so far as is material contains, 'No person .... be deprived of life, liberty or property without due process of law;.....'. The 14th amendment so far as is relevant, reads:

'Section I-All persons born or naturalised in the United States and subject to the jurisdiction thereof ace citizens of the United States and of the State wherein they reside. No State.......; nor shall any State deprive any person of life, liberty or property, without due process of Law;......'.

The Supreme Court of the United States started interpreting due process clause protecting personal liberty against delimitation, not only where the agencies of Government had no jurisdiction, but where the law imposing such delimitation did not afford a person the essentials of due process as to legal procedure. About the eighties the Supreme Court brought into existence the constitution guarantee of personal liberty by extending the due process clause to matters of substance :

'Prior to that time there had been no such guarantee. There had been a due process clause, in the 5th amendment, limiting the powers of the Federal Government, and a due process clause in the 14th amendment limiting the powers of the State Governments, but up to the eighties the due process clause had guaranteed only due process as a matter of legal procedure and due process as a matter of jurisdiction.' (Hugh Evender Willis: Constitutional law of the United State.)

In this context the settled position in American law is that personal liberty has protection by due process of Jaw as a matter of substance. Whatever mode the Government may undertake to follow, there is some personal liberty which cannot be limited, Due process of law, as a matter of substance, does not forbid all social control but it protects personal liberty against social control unless such social control is reasonable either because of a constitutional exercise of the police power or otherwise. If any legislation delimiting personal liberty is held to be outside the reasonable exercise of police power, it amounts to taking all personal liberty without due process of law and is unconstitutional, In short, due process of law protects personal liberty against unreasonable social control, but does not protect against all social control I would hold consideration of reasonable restrictions in the interests of the public necessarily gives rise to a question whether the social control delimiting personal liberty as provided in a particular legislation is reasonable. In other words 'reasonable restrictions' is more a matter of substance than of procedure in the background of the Constitution of India. The framers of this Constitution have done their best to run away from the due process of laws as understood in the American Court. I would in this connection quote a passage from Willis Constitutional Law (at p. 709--Remedies) :

'The common law remedies as well as common law antecedent rights are protected by the due process of laws. A person who has an antecedent right has the right to some remedial right: to say that a person has no property right in a remedy does not help. Property rights are subject to the police powers and to the power of taxation, and the power of eminent domain. Consequently, in the same way, a person is entitled to the protection of the common law remedies unless changing them is a proper exercise of the police power. It all remedies were abolished, it would be very difficult to hold such action to be a proper exercise of the police power, but if some one remedy is abolished, it la possible to find a social interest for doing so and therefore, to hold it to be a proper exercise of the police power.'

In the same way remedy may be taken away, a new remedy may be created if there is social reason for it. In our Constitution, however, a right to procedure for remedial measures has, if at all, been provided for in Article 21. An impression has gone out that words personal in Article 21 has reference only to liberty of the person. This, in my view, is a very narrow construction. A procedural guarantee, given by the Article, would apply to all liberties personal to an individual. 'Personal liberty' in its legal connotation may include, or rather should include, the rights enumerated in Article 19(1) and something more. In this connection I would invite attention to a passage from Willis Constitutional Law at p. 710.

'Does the personal liberty protected by the due process of laws as a matter of substance include the rights, powers, privileges and immunities of the bill of rights? The answer apparently is that it includes some of them but not all, but the tendency is towards including more and more of the bill of rights. It includes the rights to protection of the eminent domain clause. It includes the rights to protection of the equality clause, It includes the right to protection of the contract clause. Many other guarantees in the bill of rights are procedural. Some of these are protected by due process as a matter of the procedure and some of them are not, This, in short, envisages the ambit of 'personal liberty.'

Bill of right, as such, is not known to us but the passage is quoted to illustrate the meaning of the word. From this arises the question if the impugned Act that imposes reasonable restrictions, in the interest of the general public or otherwise within the meaning of sub-clause 5 of clause 19, provides for no remedial right, should it foe not inconsistent with Article 21 of the Constitution In my opinion, it would be inconsistent. I am aware of the compelling view that procedure established by law means procedure established by statute law. But where the particular statute does not provide any procedure at all, can it be said that the person, the victim of the law restricting his movements, is deprived of his parsonal liberty according to the procedure established by law? I should say, no. I would understand the Article to mean not total dental of any sort of procedure whatsoever. The article means that the citizen has no right to any specific or particular kind of procedure but he has a right to some sort of procedure which would ensure the observance of the rule of natural justice that nobody should be condemned without being heard. By way of comparison as to how this branch of law is understood in the United State of America, I would quote another passage from Willis Constitutional Law, at p. 663:

'Due process, as a matter of procedure, always applies in the case of a judicial tribunal performing judicial functions, and the usual rule is that it applies to executive and administrative action whether the Governmental power exercised is a tax power, or the power of eminent domain, or the police power.'

The essentials of procedure, in the minimum, are essentials of notice, opportunities to be heard and a tribunal. Essential of notice requires to apprise the victim of the nature of the cause against him in order to afford him sufficient opportunity to prepare and to make his answer. Opportunity to be heard is the second essential of procedure established by law. To condemn without hearing is repugnant to natural justice. Any procedure which does not guard against this requirement is no procedure by law. The essentials of each opportunities do not, however, consist in any particular form or method of hearing. All that is required is a reasonable opportunity to be heard. The opportunity does not guarantee a person a right to an appeal. One hearing is all that is required. Tribunal as the third essential of procedure does not necessarily mean a judicial tribunal. Any impartial tribunal will meet the requirement.

15. To conclude, I find that there is nothing in the impugned Act which would guarantee that the restrictions sanctioned under it are reasonable. We are not concerned with the reasonableness of particular order restricting the movement of a citizen. We must be sure that the restrictions considered in the light of 'the interest of the general public' for the protection of which they are imposed, are reasonable, that is to say, that the restrictions are so scaled as to ensure that the execution of the law will not generally entail greater restrictions than are required for such protection, In this respect the Act should be more or less self contained so that the person restricted may avail of it, granted, that he is also provided with a procedure of being apprised of the cause against him and having an opportunity to be heard in an impartial tribunal in answering the charge against him. The impugned Act does not stand the tests and is, in my opinion, therefore, void. Secondly it is void as inconsistent with Article 21 of the Constitution as it does not provide for the essentials of a legal procedure.

16. This approach to the question of validity of the impugned Act may attract criticism that it is not realistic. But I would say that such a criticism is wholly unfounded. The reasons are: that though personal liberty of a citizen is no doubt subject to social control, one of the forms of the social control is valid exercise of the police power against which personal liberty is not protected. The police power is the legal capacity of sovereignty, or one of its agents to delimit personal liberty for the protection of other more important social interests by means which bear a substantial relation thereto. There are two main requirements for a proper exercise of the police power: (l) There must be a social interest to be protected which is more important than the social interest in personal liberty, and (2) there must be, as a means for the accomplishment of the purpose, something which bears a substantial relation thereto. It may be noted that it is the substantiality of this relation which would determine the reasonableness of the restrictions in relation to the interest of the general public.

17. Certificate -A Certificate under Article 132(1) of the Constitution to the effect that this case involves a substantial question of law as to the interpretation of the Constitution is granted.


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