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Kishori Lal Vs. the State - Court Judgment

LegalCrystal Citation
SubjectConstitution;Criminal
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Revn. No. 103 of 1954
Judge
Reported inAIR1957P& H244; 1957CriLJ1173
ActsConstitution of India - Articles 13, 19, 19(1) and 19(5); Contonments Act, 1924 - Sections 238
AppellantKishori Lal
RespondentThe State
Appellant Advocate C.L. Aggarwal, Adv.
Respondent Advocate S.M. Sikri, Adv. General
Cases ReferredRex v. Halliday
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....tek chand, j.1. these are two connected references made to the high court by a magistrate, 1st class, ferozepore, under section 432 (1) of the code of criminal procedure, in criminal revision no. 103 of 1954 kishori lal, petitioner, is a resident of ferozepore cantonment, where he possesses ancestral property. it is admitted that between the 25th of april 1951 and the 3rd of march 1952, kishori lal petitioner was convicted under the gambling act, on five occasions; and these five convictions resulted in imposition of flues varying from rs. 10/- to rs. 50/- section 238 of the cantonments act (ii of 1924) contemplates removal and exclusion from the cantonments of disorderly persons. for facility of reference section 238 of act ii of 1924 is reproduced below:--'238 (1) -a magistrate of the.....
Judgment:

Tek Chand, J.

1. These are two connected references made to the High Court by a Magistrate, 1st Class, Ferozepore, under Section 432 (1) of the Code of Criminal Procedure, In Criminal Revision No. 103 of 1954 Kishori Lal, petitioner, is a resident of Ferozepore Cantonment, where he possesses ancestral property. It is admitted that between the 25th of April 1951 and the 3rd of March 1952, Kishori Lal petitioner was convicted under the Gambling Act, on five occasions; and these five convictions resulted in imposition of flues varying from Rs. 10/- to Rs. 50/- Section 238 of the Cantonments Act (II of 1924) contemplates removal and exclusion from the cantonments of disorderly persons. For facility of reference Section 238 of Act II of 1924 is reproduced below:--

'238 (1) -A Magistrate of the first class, having, jurisdiction in a cantonment, on receiving information that any person residing in or frequenting the cantonment--

(a) is a disorderly person who has been convicted more than once of gaming or who keeps or frequents a common gaming house, a disorderly drinking shop or a disorderly house of any other description, or

(b) has been convicted more than once, either within the cantonment or elsewhere, of an offence punishable under Chapter XVII of the Indian Penal Code, or

(c) has been convicted, either within the cantonment or elsewhere, of any offence punishable under Section 156 of the Army Act, or

(d) has been ordered under Chapter VIII of the Code of Criminal Procedure, 1898, either within the cantonment or elsewhere, to execute a bond for his good behavior.

May record in writing the substance of theinformation received, and may issue a summonsto such person requiring such person to appearand show cause why he should not be requiredto remove from the cantonment and be prohibited from re-entering it.

(2) Every summons issued under Sub-section (1) shall be accompanied by a copy of the record aforesaid, and the copy shall be served along with the summons on the person against whom the summons is issued.

(3) The Magistrate shall, when the person so summoned appears before him, proceed to inquire into the truth of the information received and take such further evidence as he thinks fit, and if, upon such inquiry, it appears to him that such person is a person of any kind described in Sub-section (1) and that it is necessary or the maintenance of good order in the cantonment that such person should be required to remove therefrom and be prohibited from re-entering the cantonment, the Magistrate shall report the matter to the Officer Commanding the station, and, if the Officer Commanding the station, so directs, shall cause to be served on such person an order in writing requiring him to remove from the cantonment within such time as may be specified in the order and prohibiting him from re-entering it without the permission in writing of the Officer Commanding ' the station.'

On receipt of information, that the petitioner Kishori Lal was a disorderly person, having been convicted more than once of gaming, the Magistrate at Ferozepore, instituted an inquiry, and summoned Kishori Lal, to appear and show cause, why he should not be removed from the cantonment and be prohibited from re-entering it. The inquiry did not proceed to its termination, as the petitioner raised an objection, that the provisions of Section 238 of Act II of 1924 were in derogation of the fundamental rights as bestowed upon the petitioner as a citizen of India by Article 19(1) (d) and (e) of the Constitution of India. The petitioner maintains that under Article 19(5), what is saved is the operation of any existing law, in so far as, it imposes a reasonable restriction on the exercise of any of the fundamental rights conferred by Article 19(1), either in the interests of the general public, or, for the protection of the interests of any Scheduled Tribe. He maintains that Section 238 of the Cantonments Act transgresses the limits imposed by Article 19(5), of the Constitution. The Magistrate in his order of reference has expressed the view, that Section 238 of the Cantonments Act, is void, to the extent to which it permits the passing of an internment order on the category of person in which the petitioner falls, and it is in contravention of Article 13(1) of the Constitution.

2. The question which we are called upon to decide is, whether Section 238 of the Cantonments Act of 1924 is yiolative of the constitutional guarantee contained in Article 19(1) (d); and (e) and therefore deserves to be struck down.

3. Before analysing the arguments, and examining the authorities, cited by the learned counsel in this case, in support of their respective contentions, it is proper, first to scrutinise, the provisions of Section 238 of the impugned Act. Before a citizen residing in any cantonment area, can be removed or excluded the following procedure has to be adopted:--

Firstly,' it is necessary that an information is received by a Magistrate of the first class, to the effect, that any person residing in, or frequenting the cantonment, is a disorderly person, who has been convicted more than once of gaming or who keeps or frequents a common gaming house, etc., etc.

Secondly, the Magistrate, then, proceeds to record in writing; the substance of the information he has received to the above effect;

thirdly, it is then for the Magistrate, to decide to issue a summons to such a person, with respect to whom the information has been received, requiring him to appear and show cause why he should not be removed from the cantonment and be prohibited from re-entering it;

fourthly, along with the summons issued to such a person a copy of the record of the information received has also to be served on him;

fifthly, when such a person so summoned appears before the Magistrate, he proceeds to inquire into the truth of the information, and he takes such evidence, as he may think fit;

sixthly, the Magistrate has then to decide if such person falls within the definition of a disorderly person mentioned in Sub-section (1) of Section 238;

Seventhly, and if so he has further to determine,, whether it is necessary for the maintenance of good order in the cantonment, that such a person should be required to remove therefrom and be prohibited from re-entering the cantonment:

eighthly, if on both questions he is of the view that such a person deserves to be removed or excluded from cantonment area, he then submits a report to the Officer Commanding the station making his recommendation;

ninthly, it is then for the Officer Commanding the station to give directions on the report and if he so directs, then;

tenthly, the Magistrate shall cause to be served on such person an order in writing requiring him to remove from the cantonment within such time as may be specified in the order, and further prohibiting him from reentering the cantonment without the permission in writing of the Officer Commanding the station.

4. It is the last-mentioned provision to which Mr. Chiranjiva Lal Aggarwal, learned counsel for the petitioner has a serious 'objection, and it is really on account of this clause that he wants us to find, that the provisions of Section 238 are vitiated on the ground, that they transgress the fundamental right of locomotion and residence guaranteed by Article 19(1) (d) and (e) of the Constitution. He contends that the powers conferred upon the Officer Commanding the station travel far beyond the scope of: clause (5) of Article 19. He argues that Section 238 is violative of the constitutional guarantee for the following reasons:--

(a) Section 238 does not provide for a hearing before the. Officer Commanding the station, when' he decides to give directions as to externment after the perusal of the report of the Magistrate.

(b) There is no provision making the report of the Magistrate available to the person, proceeded against, and further, this Section does not provide any machinery enabling such a person to make his submissions before the Officer Commanding the station.

(c) The, Section does not impose any limitation on the powers of the officer regarding the period during which, such a person is to remain externed; in the abstract, it is conceivable, that he may not be permitted to return to his home for ever.

(d) It is true that it is open to such a person to seek permission in writing of the Commanding Officer, but this right confines itselt to making an application, without an opportunity to be heard, with a view to convince him, either as to the invalidity of the order, or as to its severity in the matter of length of period of externment.

(e) The remedy by way of an appeal to the District Magistrate, provided by Section 274 of the Act read with Schedule V, from Magistrate's notice directing disorderly person's removal is inadequate.

(f) It is lastly argued that the reasonableness is to be judged from the point of view of what is in the interests of the general public and not of any smaller group such as the armed forces or any other class of public living in a cantonment,

5. The last argument is obviously without merit. The expression 'general public' is wide enough to include a Section of the public. It is in the interests of the general public that the armed forces and those connected with them should be protected from the evil influences of disorderly, and other persons, who are liable to be externed under the provisions of Section 238 of the Act. Interests of the general public can not be deemed to be synonymous with interests of the public of the whole of the country. All that this phrase means is, that a legislation! passed in the interests of a limited class of persons, or for a territorially limited area, might well be a legislation in the public interests, despite the fact, that the public in other parts of the country might not be affected by such a legislation. There is no gainsaying the fact, that it is in the interests of the general public, that the armed forces of this country, which are a distinct class, or as a matter of that any other distinct class, should receive special protection against certain unsocial or undesirable impacts and influences. It is too late in the day to contend, that the expression 'general public' means the entire public and not a Section of it. There is a catena of authority to the effect that a legislation meant for the benefit of a well defined class will be deemed to be in the interests of general public regardless of the smallness of the number of persons primarily benefited by the legislation (vide Iswari Prosad v. N. R. Sen, AIR .1952 Cal. 273 (FB) (A), Bhaskar Narayan v. Mohammad Alimullakhan, AIR 1953 Nag 40 (B), Sashibhusan v. Mangala, AIR 1953 Orissa 171 (C), and Ramhari Mandal v. Nilmoni Das, AIR 1952 Cal 184 (D)).

6. At this stage 1 may also examine the argument of Mr. Jagan Nath Seth, who appeared for the petitioner Kanhiya Lal in the connected case. Mr. Seth argued, that the test of reasonableness of a legislation, is furnished by the purpose of the Act, find by the conditions; prevailing in the country at the time of its passing. On this premise Mr. Seth contended that in the earlier Cantonments Act No. 13 of 1889, there was no provision similar to Section 238 of the Cantonments Act of 1924. He wants us to presume that this provision was really intended for the British forces and not for the Indian personnel.

There is no justification whatever for such a presumption. If one were inclined to lend, countenance to this contention, it would lead to absurd and iniquitous results. At the time when this Act was passed, members of the armed forces in India, whether Indians or British, used to live in cantonments without discrimination as to their nationality. The provisions of Section 238 relating to externment of disorderly and other persons did not make any distinction between Indian or British soldiers. If it was desirable in 1924, when the Act was passed, to protect British and Indian soldiers against bad influences, it is equally desirable that Indian soldiers now should also receive the benefit of the legislation. The argument of Mr. Seth borders on the fanciful and does not require further scrutiny to repel it.

7. Mr. S.M. Sikri, the learned Advocate-General, has drawn our attention to the procedural and substantive safeguards provided by Section 238 and Section' 274 read with Schedule V of the Act. He contends that the person to be externed is given an ample opportunity, under the Act to make his submissions, before a Magistrate, in order to convince him, that he is not a 'disorderly person' or, that 'he is not guilty of offences mentioned in the Section, or, that though guilty, his act is not of such gravity, that he should be externed. Even if such a person be of a kind described in Sub-section (1), the Magistrate may still be pursuaded to believe, that it is not really necessary for the maintenance of good order in the Cantonment, to direct his removal from the Cantonment.

If, after having availed himself of the opportunity of putting his case before the Magistrate,, the latter still orders removal and prohibits his re-entry, without obtaining the permission of the Officer Commanding the station, such a person has a right to present an appeal to the District Magistrate under Section 274 read with Schedule V. The order of removal from a Cantonment, and of prohibition from re-entry with out permission, can be questioned in appeal to the District Magistrate.

8. The Advocate-General, then argues, that the order of removal is made conditionally and such a person can always re-enter the Cantonment on obtaining the permission of the Officer Commanding the station. Assuming that the permission to re-enter has been unreasonably withheld, it is open to such a person to invoke the jurisdiction of this Court under Article 226 of the Constitution, but this argument of the learned Advocate-General does not appear to be sound. According to this argument, no act of the Union or of State Legislation can be impugned on the ground of its being violative of the Constitution, simply because a remedy is provided by Article 226 whereby the High Court can afford relief in the exercise of its powers under Article 226 to persons whose fundamental rights have been wrongly interfered with. In advancing his earlier arguments, however, Mr. Sikri is on a firm ground.

9. The real controversy centres round the question whether the power relating to the imposition of an indefinite period of externment under the provisions of this. Act falls within the ambit of 'reasonable restrictions' as contemplated in Article 19(5) of the Constitution,

10. Mr. Charanjiva Lal Aggarwal has drawn- our attention to a number of decided cases, some of which hardly apply to the facts and circumstances of this case. He has first cited decision of the Supreme Court in Dr. N. B. Khare v. State of Delhi, AIR 1950 S. C. 211 (E). The contention in that case was, whether Section 4 of the East Punjab Public Safety Act, 1949, which gave the power to make an order of externment to the District Magistrate, whose satisfaction was final, and not open to review by the Court, contained an unreasonable restriction on the exercise of the citizens' right within the meaning of Article 19(5) of the Constitution, and was therefore invalid. It was held, there, that the desirability of passing an individual order of externment against a citizen, was to be left to an officer, as no such provision could 'be made in the Act itself.

The subjective satisfaction of the officer did not impose an unreasonable restriction on the exercise of the citizens' right. The majority view, in the case, was that the period of three months for which an order of externment might be passed by a District Magistrate was not prima facie unreasonable even though the externee had no remedy during that time. It was also held in that case, that the legality of an Act cannot be decided on the basis of the possibility of the abuse of its provisions. It was observed that the reasonableness of the restrictions had to be considered both from the point of view of the procedural part, as well as, of the substantive part of the 'law. Neither the facts, nor the provisions of the impugned Act, in that case offer any reliable guidance,

The provisions are not in pari materia. 'The facts of that case do not admit of any comparison. No order fixing any period of externment has been fixed in this case, and, therefore, Section 238 o the Cantonments Act, cannot be held void on the ground of there being a possibility on the part of a particular officer, abusing the provision, in the matter of imposing an indefinite or an unduly long period of externment. As has already been noticed, Section 238 and Section 274, afford reasonable opportunity, to a person accused of being a disorderly person, to show cause against his removal. There are sufficient safeguards provided in the Sections and he can persuade the Magistrate, and failing him, the District Magistrate in appeal, against his removal, and also as to length of time, during which, he is forbidden to re-enter a Cantonment.

11. The next authority quoted by the learned counsel for the petitioner is a Full Bench decision of the Bombay High Court in Jeshingbhai Ishwarilal v. Emperor, AIR 1950 Born. 363, (F).

In which it was held per Chagla C.J. and Bavdekar J. (Shah J. contra) that Section 2(1) (b) or the Bombay Public Security Measures Act (VI of 1947) was void under Article 13(1) of the Constitution, to the extent that it empowered the Government to issue an externment order under Section 2(1) (b) of that Act and it imposed unreasonable restrictions on the fundamental rights of the citizens under Article 19(1) (d) (e) ol the Constitution. Shah J. however, was of the view that the provisions were not inconsistent with the provisions of Part III of the Constitution of India.

The chief feature of the Bombay Act, which was fatal to the validity of the restrictions placed by the legislature, according to the majority view, was the fact, that the person against whom, an order of externment was to be made, had no right whatever, to be heard in his defence, before he was asked to leave his home and hearth and to go and reside in some other place. Under, that Act, there was no obligation upon the authority to tell him what he was charged with or what were the grounds against him, which had made it incumbent upon the Government to ask him to leave his home town.

Moreover, there was no obligation upon the authority to hear the person against whom the order was intended to be made in his defence before the order was made The reasons which weighed with the Hon'ble Judges expressing the majority view in the Bombay High Court, are absent, in this case. Section 238 does not suffer from the defects and the lacunae, which were noticed, in the Bombay Public Security Measures Act.. This authority is distinguishable, and therefore, does not help the point of view, which is being canvassed by Shri. Chiranjiva Lal Aggarwal.

12. In Abdul Rahiman Sahmsooddin v. Emperor, AIR 1950 Bom 374 (FB) (G), the same Bench which decided AIR 1950 Bom 363 (P), considered the validity of Section 46(3) of the Bombay District Police Act. 1890, and gave unanjmous decision, that, that provision, did not contravene any fundamental right of the subject under Article 19 to move freely throughout the territory of India and to reside and settle in any part of the territory of India. The under noted observations in the judgment of Chagla C.J. not only bring out the distinction between Jeshinghbhai's case (F) but also support the view, by analogy, which I am taking as to the validity of the Cantonments Act. Chagla C.J. said :--

''We have had to consider a similar question in AIR 1950 Bom 363 (F) and we held that the provision of law under the Bombay Public Security Measures Act for externment was void, inasmuch as there was no provision made for the externee being heard by the authority externing him. Now when we consider the provisions of the Bombay District Police Act, we find that under Section 46A, a person against whom an order is intended to be made has a right to be heard, and what is more, he has also been ,given a right of appeal to the provincial Government under Section 46A, Sub-clause (3). Therefore, the reasons which led me and my learned brother Bavdokar to come to that conclusion in the other case, do not apply to the facts of this case.'

13. In Brajnandan Sharma v. State of Bihar, AIR 1950 Pat 322, (FB) (H) in which S, 2(1) (b) of the Bihar Maintenance of Public Order Act. 1949 (Bihar Act III of 1950) was impugned, an order was passed by the Government of Bihar restricting the petitioner's movements by forbidding him from going to any place in the districts of Singhbhum and Manbhum. The validity of this order was challenged under Article 13(1) of the Constitution read with Articles 19(1) (d) and 19 (5). This Act involved the satisfaction of some unknown individual officials purporting to represent the Government. Moreover, the Act did not provide any opportunity, to the petitioner, to vindicate himself or challenge the order or even to learn the reasons for the order.

It provided no remedy for an unreasonable order, and did not even provide for the service upon him of the grounds for the order, as is usually done in the case of detenus. It was held that the impugned provision did not impose reasonable restrictions. The power restricting the liberty of the subject rested not on any reasonable ground but upon the satisfaction of some individual, who in the, words of Meredith C.J. 'was completely amorphous.' It was also observed' that:-

'the provision is in such terms that it is not open to the Court to examine the reasonableness or otherwise, of orders passed. Upon the terms of the Act, all the Courts can inquire into, is the existence of the satisfaction. ..... ... a law which enables such things to be done is not, in 'my judgment, a reasonable law. There can be no presumption that an executive official will always act reasonably. There may be presumption that he will act bona fide; but that is a different thing. The test is, in my opinion, not what is actually done under the law, but what the law enables to be done. If the law enables orders to be passed which are unreasonable, and yet are consistent with its terms, then that cannot be called a law operating to impose only reasonable restrictions. I use the word 'only' advisedly because it appears to me that if the law enables unreasonable action in any case, then it cannot be saved by Article 19(5). In my opinion, a law to satisfy the criterion imposed by Article 19(5) must be so framed as to leave it open to the Courts to apply the objective test of reasonableness to its operation. This law is not so framed.'

The above observations may very well be applicable to the facts of that case, in view of the provisions of the Bihar Maintenance of Public Order Act III of 1950, but: the lacunae that the learned Judges of the Patna High court noticed in the Bihar Act are not to be found in Section 238 of the Cantonments Act.

14. The next authority cited by Mr. Charanjiva Lal Aggarwal is the case of Gurbachan, Singh v. State of Bombay, AIR 1952 S.C. 221 (I). Prom the judgment of that case, it is not possible for Mr. Charanjiva Lal Aggarwal to borrow any observation or argument which he can use in this case. In that case an externment order directed the petitioner Gurbachan Singh to remove himself out of Greater Bombay and to go to his native place at Amritsar. Under Section 27(1) of the City of Bombay Police Act, two kinds of externment orders were contemplated.

A person could be externed from Greater Bombay to a specified place where the externee is to remove himself and it also must indicate the route by which he is to reach the place of externment. The second kind of externment provided in that Section is, when a person is to be externed from the State of Bombay, and in tha latter case no place of residence can or need be mentioned. The error no doubt was in directing the petitioner to go to his native place at Amritsar, but it was detected and rectified. The petitioner himself sought permission, which was granted by the Commissioner of Police, to stay at Kalyan within the State of Bombay,

It was held that the order in mentioning the place of residence to be Amritsar was not regular, but the irregularity was removed subsequently, and the externment order was construed to be an order of externment from Greater Bombay to Kalyan which was the place of residence chosen by the petitioner himself.

On examination of Section 27 of the Bombay Act it was found to have been made in the interest of the general public, and to protect them against dangerous and bad characters, whose presence in a particular locality, might jeopardize the peace and safety of the citizens.

Such restrictions as the law imposed on tha rights of free movement of citizens were held to be reasonable coming within the purview of Clause (5) of Article 19 of the Constitution. It is true, that the maximum duration of the externment, which can be ordered under Section 27(1) of the Bombay Act, is a period of two years, whereas, there is no maximum period at all so far as externment from the Cantonment precincts under Section 238 of the Cantonments Act, is concerned. But Gurbachan Singh's case(I) is no authority for holding that a provision of law becomes void under Article 13 of the Constitution, if such a period remains unspecified.

15. The next authority to which our attention was drawn, was the case of Inderjit Singh v. State of Delhi, (1952) 54 Pun LR 312: (AIR 1953 Punj 52)(J). In that case a Division Bench of this Court held, that the United Provinces Goondas Act (I of 1932), as modified and extended to the State of Delhi, was ultra vires of the Constitution, in so far, as it provided for an exceptional procedure, whereby a person, who was proceeded with under the Act, could be deprived of being defended by a Pleader. The Division Bench held that such a procedure could not be justified on grounds of reasonableness. The matters arising in that ruling cannot be deemed to throw any light on the matter in dispute before us. Section 238 of the Cantonments Act imposed no such disability upon the person against whom proceedings as to removal or exclusion were being taken,

16. Our attention has next been drawn to decision of the Calcutta High Court in Tozammal v. Joint Secretary to the Government of West Bengal, AIR 1951 Cal. 322 (K), A perusal of this authority, in the light of Its facts, makes it inapplicable to the subject-matter of enquiry in this case. It was held in that casd that Sections 21 and 22 of the West Bengal Security Act, 1950, impose unreasonable restrictions on the exercise of fundamental rights of a citizen of India as mentioned in Article 19(1) (d) and (e) of the Constitution of India. These two sections were held to be ultra vires the Constitution of India. The basis for the above conclusion was, that these sections made provision for an extension of the period of externment without any provision for (1) intimation to the externee of the grounds of such detention, (2) an opportunity to the externee to make a representation against the order of externment or (3) laying down any procedure or (4) appointing any tribunal for considering the representation if any that may be 'made 'for the review of the order of externment so passed. So far as the facts of this case are concerned the right of hearing before condemnation has not been taken away and no rule of natural justice has been violated.

17. In Kaka Ramji Laxman v. State of Kutch AIR 1954 Kutch 15 (L). Section 46 of Bombay District Police Act was held to be unconstitutional as there was no provision in it for giving the applicant a list of grounds on which action was proposed to be taken against him, and of hearing him, before a decision to issue order for his removal out of the limits of State of Kutch was made. Under the impugned section of the Cantonments Act in this case the person who is proposed to be removed has an ample opportunity to show cause against his expulsion.

18. In re. Shantabai Rani Benoor, AIR 1951 Bom. 337 (M), a Division Bench of Bombay High Court held that Section 9(1) of Bombay Prevention of Prostitution Act in so far as it imposed unreasonable restrictions upon the fundamental right of the petitioner under Article 19(1) (d) and (e), was void, because it failed to provide for a reasonable opportunity being given to the person affected to be heard in her defence. In this case the petitioner was directed to remove' herself from Poona City to a place beyond the radius of any miles from Poona City, without giving her any opportunity of being heard In her defence.

19. It will be proper, after having examined the authorities cited at the Bar- to turn to the basic principles that should be borne in mind, when examining the conflicting claims of fundamental rights of locomotion on one side, and the Prate's regulatory powers in imposing reasonable restrictions, on the other. Before condemning the provisions of a statute as violative of the constitutional liberties granted under Part III of the Constitution, the Courts always start with an assumption in favour of the constitutionality of an enactment.

20. The invalidity or unconstitutionality of an Act cannot be assumed, because of the likelihood of a possible abuse of the provisions, on the part of those, who may be called upon to give effect to its provisions. It is no argument that because there is a possibility of someofficials acting in an arbitrary, capricious or;high-handed manner, therefore the provision offlaw should be struck down. The vulnerabilityof a statute cannot depend upon, likelihood ofits abuse if the verba logis are otherwise unexceptionable. The fear, that such reasonablesafeguards as have been provided, may be disregarded, or the power conferred uponthe excutive authority to administerthe law, may be exceeded, is not arelevant consideration in determining the ultravires or intra vires character of the statutoryprovisions. A law, otherwise wise and good, cannot be thrown out as unconstitutional, because of itsharsh and reckless enforcement in a particularcase. It is true, that the officers who are called upon to act under the law, should not, as aresult of any undue or harsh enforcement orbecause of narrow vision, wrongly trespass uponthe fundamental rights of the citizens; but evenif they do, and even if it may be, that the officershave lost, proper sense of relative value of rightsand duties, the vires of the Act, is not, thereby,jeopardised. Such a lapse on the part of theexecutive officers, is not indicative of the infirmity of the law, ' ,

21. It is also appropriate to consider the general principle which have been formulated, as to where the line of demarcation, between the functions of legislature and judiciary, should be drawn, especially in matters pertaining to the preservation of fundamental rights under the Constitution.

22. The American jurists have given a compendious name, of Police Powers, to the exercise of the sovereign rights of Governments to promote order, security, health, morals and general welfare of society, within the constitutional limits. This police power which is of an inherent and imperative nature, at one time, used to be construed narrowly in America. Later on, with the general expansion of governmental activities and control in the field of public welfare, the term Police Power acquired an extended meaning. In the words of Justice Wanamaker;--

'The dimensions of the Government's policepowers are identical with the dimensions of theGovernment's duty to promote and protect public welfare. The measure of police powersmust square with the measure of public necessity. The public need is the pole star of theenactment, interpretation and application of thelaw. If there appears, in the phrasing of thelaw and the practical operation of the law areasonable relation to the public need, its comfort, health, safety and protection, then suchact is constitutional.

'(See Cooley's Constitutional Limitation, 8th Edition, page 1226).'

23. The powers conferred by Article 19 clauses (2) to (6) of our Constitution correspond to American concept of police powers. It is the fundamental duty which the State owes to its citizens to provide for their security and welfare. The retention of the police powers, or the reserve of such powers, is an essential safeguard for all orderly Governments and its position and exercise is founded on the duty of the State to protect its citizens. That being so, it becomes incumbent upon the Courts to enforce and give effect to the legislative enactments without questioning the policy, wisdom or expediency of such legislative measures, as that matter is within the legislative, and not judicial determination.

24. The fundamental rights enumerated in Article 19(1) of the Constitution, though inalienable, are not absolute, and yield to the regulatory powers of the Government. These individual rights of a citizen, howsoever sacred and valuable, may become subject to invasion and encroachment on the part of the State, in the legitimate exercise of its police powers. The indention of our constitution makers was to preserve fundamental rights of the citizens, but while doing so, the paramount interests of society have been permitted to impinge upon the personal rights of the individuals, in those cases, where general interest of the community came into conflict, with the personal interest of the few

25. The acts of the sovereign legislature, even if they appear to be impolitic, harsh or oppressive, cannot be annulled by judicial decrees, so long as, the constitutional guarantees are not contravened by them. Such legislative inhibitions may be either in the nature of anticipatory preventive steps, or, they may be punitive provisions for punishing perpetrated offences. It, therefore, follows that a statute though violative of private rights of person or property, is itself inviolate, if it is passed, in consonance with the regulatory powers of the Government- Merely because the State has enacted a law which restrains, curtails or even prohibits the enjoyment of rights of some individuals, it does not thereby become unconstitutional, so long as the impingement is in the interest of public welfare.

'Any loss which may result to the individuals, in consequence of an Act of the State, in legitimate exercise of its police power, is in the nature of damnum absque injuria, for which there is no remedy. All orderly governments, very often, have to restrict individuals rights With a view to promote the general welfare, public order, public safety, public morals or public health. During national emergency, individual rights may even be suspended altogether; and so long as conditions justifying the enactment last, the statute will not be invalidated.

26. Whatever the nature of restrictions imposed by the statute, it is not within the province of the Courts of law to question the propriety of the measure, or the wisdom of thosewho made the law. Jus dare, is not the function of the Courts, they must confine themselvesto jus dicree. In Chicago, Burlington andQuincy Railroad Co. v. Charles L. M. Me Guira(1910) 55 Law Ed. 328 at p 339 (N) the SupremeCourt of America cited with approval a passagefrom MeLean v. Arkansas, (1908) 53 Law. Ed.315 at pp. 319/320 (O) which ran as follows:--

'The legislature being familiar with localconditions, is, primarily, the judge of the necessity of such enactments. The mere fact that acourt may differ with the legislature; in its viewsof public policy, or, that judges may hold viewsinconsistent with the propriety of the legislation in question, affords no ground for judicialinterference, unless the act in question is unmistakably and palpably in excess of legislativepower. .......

If there existed a condition of affairs concerning which the legislature of the state, exercising its conceded right to enact laws for the protection of the health, safety, or welfare of the people, might pass the law, it must be sustained; if such action was arbitrary interference. ........ and having no just relation 'to the protection of the public within the scope of legislative power, the act must fail.'

27. There are a large number of decisions supporting the principle, that where the legislative action is arbitrary, and has no reasonable relation of the purpose, which it is competent for Government to effect, the legislature transgresses the limits of its power in interfering with the liberty of citizen; but if mere is a reasonable relation to an object within the ambit of Government, authority, the exercise of the legislative discretion is not subject to judicial review. Vide (1910) 55 Law. Ed. 328, at p. 339 (N)., A Court, making a judicial enquiry, may legitimately decide the question of power of the legislature, but the question of policy underlying' the' law, is a matter exclusively within legislative consideration.

'Whether the enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best means to achieve the desired result, whether, in short, the legislative discretion, within its prescribed limits, should be exercised in a particular manner, are matters for the judgment of the legislature, and the earnest conflict of serious opinion does not suffice to bring them within the range of judicial cognizance' (ibid).

28. In Parkes v. Bartlett 210 N.W.R. 492 (P) Macdonald J. of the Supreme Court of Michigan at page 405 stated the American Law, which in this respect is not dissimilar from ours, in the following words;--

'The arguments go to the wisdom and expediency of the legislature. With that we are not concerned. In respect to that matter the Legislature is constitutionally supreme. It is true that the Legislature is not exclusively the judge of what is necessary to protect the health, morals, and welfare of the citizens. But concerning those matters, it inherently must have a very large discretion. If the matter is a proper subject of legislation and the measures adopted are appropriately related to the object and have some obvious tendency to accomplish it, the courts will not interfere. Its wisdom may be open to question, but its enactment cannot be said to be beyond the constitutional authority of the Legislature, and that is the only question which this Court may determine.'

29. While it is an imperative duty, from which no Court will shrink, to declare void, any statute the unconstitutionally of which is made apparent, but due regard to the boundary line, between the legislatures and judicial functions, requires, that this prerogative of the Courts, is exercised with the greatest caution, and only after every reasonable presumption has been, drawn in favour of the validity of the Act.

30. But when an act of the legislature, impairs or destroys, any rights secured by the Constitution, the duty rests upon this Court, when its jurisdiction is properly invoked, to declare unconstitutional and void any such enactment. Except where Constitution so contemplates, it is not open to the Courts to determine the reasonableness of a legislative, enactment even if it deals with fundamental rights. In the words of Kania C. J. in Gopalan v. State of Madras. AIR 1950 S.C. 27, para 26 (Q),

'There is considerable authority for the statement that the Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the constitution but not expressed in words. Where the fundamental law not limited, either in terms or by necessary implication the general powers conferred upon the legislature we cannot declare a limitation under the notion of having discovered something in the spirit of the constitution which is not even mentioned in the instrument. It is difficult upon any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written constitution give that authority. It is also slated, if the words be positive and without ambiguity, there is no authority for a Court to vacate or repeal a statute on that ground alone. But it is only in express constitutional provisions' limiting Legislative power and controlling the temporary will of a majority by a permanent and paramount law settled by the deliberate wisdom of the nation that one can find a safe and solid ground for the. authority of Courts of justice to declare void any legislative enactment. Any assumption of authority beyond this would be to place in the hands of the judiciary powers too great and too indefinite either for its own security or the protection of private rights.'

31. It has to be borne in mind that by Clauses (2) to (6) of Art. 19, the law, curtailing or impairing the fundamental rights, mentioned in clause (1) is required to be reasonable, and the reasonableness of the legislative provisions is a matter expressly placed within the ambit of judicial determination. On the courts is cast, the sentinel duty, of protecting the seven freedoms conferred upon the citizen. In the matter of the fundamental rights, the Supreme Court and the High Courts keep watch over and guard the rights guaranteed by the Constitution, and in the discharge of these duties, they have the power to strike down an Act of Legislature, which they consider to be violative of the freedoms guaranteed by the Constitution, In the words of Patanjali Shastri. C. J.. in the Slate of Madras v. V. G. Rao AIR 1952 S.C. 196 at p. 199 para 13 (R).

'Our Constitution contains express provision for judicial review of legislation as to its conformity with the Constitution, unlike in America where the Supreme Court has assumed extensive powers of reviewing legislative acts under cover of the widely interpreted due process clause in the Fifth and Fourteenth Amendments. If, then, the Courts in this country face Up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader's spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the 'Fundamental Rights', as to which this Court has been assigned the role of a sentinel on the quivive. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of any impugned statute.'

32. In AIR 1950 Bom 363 at p. 366 (FB) (F) Chagla, C. J., observes --

'It is not for the Legislature to determine whether the restrictions are reasonable or not. It is for the Court of law to consider the reasonableness of the restrictions imposed upon the rights. 'Reasonable' is an objective expression and its objectivity is to be determined judicially by the Court to consider the nature of the restrictions. The Court must look upon the restrictions from every point of view. It being the duty of the Court to safeguard Fundamental Rights, the greater is the obligation upon the Court to scrutinise the restrictions placed by the Legislature as carefully' as possible.'

33. Constitutional liberties which clause, (1) of Art. 19 declares consist in the power of locomotion, or removing one's person to whatsoever place one's inclination may direct, and over the right of a citizen to earn his livelihood in any lawful calling, trade or profession, and also include the freedom of speech, expression, and of association and the right of security of property. But these liberties are susceptible of legislative infringement, but within the bounds of reasonableness.

34. In the language of Mahajan, J. in Chintaman Rao v. State of Madhya Pradesh, AIR 1951 S.C. 118 para 7 (S)

'The phrase 'reasonable restriction' connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interests of the public. The word 'reasonable' implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation, which arbitrarily or excessively invades the right, cannot be said 'to contain the quality of reasonableness.....'

35. If a proper balance is struck between the freedom guaranteed and the social control imposed, legislative interference whether regulatory, restrictive or prohibitory will be deemed reasonable, and will not be considered to be within the constitutional inhibitions.

36. The next question, that requires determination, is, whether applying the generally accepted tests of reasonableness, the impugned legislation, transgresses those very bounds, In the first place in considering the reasonableness of a piece of legislation the Court should examine both the procedural as well as the substantive aspects of the law, the constitutionality of which, is being challenged. As already noticed in the earlier part of this judgment Section 238 of the Cantonments Act provides elaborate procedural safeguards, to enable the person whose liberty of locomotion is about to be curtailed, to examine, and then, meet and rebut, the allegations before the magistrate. If he is unsuccessful there, he can then get the validity of the order of externment passed, reviewed in appeal, before the District Magistrate, under Section 274 read with Schedule V given after that, he can apply to the Officer Commanding the station, to grant him permission to return to the Cantonment. Thus from the procedural point of view the law gives to such a person adequate opportunity, not only to present his case before the Magistrate but also to contest the validity of his order in appeal.

37. On the substantive side, it is true, that the period of externment being unspecified, a person may conceivably remain externed, for the remaining portion of his life, and this may impose a serious hardship. But, in so far as, the order of the externment is reviewable by the Officer Commanding the station as often as the person externed, may apply for permission to return to the Cantonment, it cannot be said, that on that score, the impugned Section infringes the bounds of reasonableness.

38. The next test of reasonableness, in such cases is, whether the principles of natural justice in particular the principle of Audi alteram partem (hear the other side) has been violated. The hare reading of the impugned section, negatives! such a contention. Not only the person, who is proceeded against, is to be given notice of the inquiry, but he is also to be furnished with the information and the record. This section is obviously not violative of the principle of natural justice and it does not exclude judicial inquiry. As already mentioned, the mere possibility of an abuse of provision enacted in the interest of the security of the State, or, the interests of the general public, cannot be a ground for holding the provision, void (vide AIR 1950 Bom 363 paras 7 and 21) (F). .

39. In Hari Khemu Gawali v. Deputy Commissioner of Police, Bombay 1956 S.C.R. 506: ((S) AIR 3956 SC 559) (T) the validity of S. 57 of the Bombay Police Act. 1951, was unsuccessfully impugned, on the ground that it contravened Clauses (d) and (e) of article 19(1) of the Constitution as the provisions of the said section imposed unreasonable restrictions on the petitioner's fundamental rights of free movement and residence. Section 57 of the Bombay Police Act reads --

'Removal of persons convicted -of certain offences: If a person has been convicted -- (a) of an offence under Chapter XII, XVI or XVII of the Indian Penal Code, or (b) twice of an offence under Section 9 of the Bombay Beggars Act, 1945, or under the Bombay Prevention of Prostitution Act, 1923. or (c) thrice of an offence within a period of three years under Section 4 or 12-A of the Bombay Prevention of Gambling Act, 1887, or under the Bombay Prohibition Act. 1949.

The Commissioner, The District Magistrate or the Sub-Divisional Magistrate specially empowered by the State Government in this behalf, if he has reason to believe that such person is likely again to engage himself in the commission of an offence similar to that for which ha was convicted, may direct such person to remove, himself outside the area within the local limits of his jurisdiction, by such route and within such time as the said officer may prescribe and not to enter or return to the area from which he was directed to remove himself. 'Explanation -- For the purpose of this section an offence similar to that for which a person was convicted' shall mean --

(i) in the case of a person convicted of an offence mentioned in clause (a), an offence falling under any of the Chapters of the Indian Penal Code mentioned in that clause, and

(ii) in the case of a person convicted of an offence mentioned in Clauses (b) and (c), an offence falling under the provisions of the Acts mentioned respectively in the said Clauses.'

40. The general principles governing the considerations underlying the constitutional liberties under clause (1) of article 19 and their limitations under Clauses (2) to (6) were considered by the Supreme Court and Sinha J. at P. 517 (of SCR): (at p. 565 of AIR) observed.

'The section is plainly meant to prevent a person who has been proved to be a criminal from acting in a way which may be a repetition of his criminal propensities. In doing so the State may have to curb an individual's activities and put fetters on his complete freedom of movement and residence In order that tha greatest good of the greatest number may be conserved. The law is based on the principle that it is desirable in the larger interests of society, that the freedom of movement and residence of a comparatively fewer number of people should be restrained so that the majority of the community may move and live in peace and harmony and carry on their peaceful avocations untrammelled by any fear or threat of violence to their person or property. The Individual's right to reside in and move freely in any part of the territory of India has to yield to the larger interest of the community. That the Act is based on sound principle cannot be gainsaid.'

The argument that was advanced on behalf of the petitioner, and was repelled by the Supreme Court, was, that the person dealt with under Section 57 could be directed to remove himself altogether outside the limits of the State of Bombay because the Act extended to whole of the 'State. It was contended, that a situation might be envisaged, where a person might be called upon to remove himself out of the limits of the entire State of Bombay. Apart from the remote likelihood of such an eventuality, it was considered, that a person who made himself so obnoxious as to render his presence in every part of the State a menace to public interest including peace and safety, such a person, had no reason to complain. An objection was raised that the passing of the order of externment upon the subjective satisfaction of a police officer, was unsatisfactory. This argument was repelled on the ground, that the intention of the framers of the Act was, to provide a machinery whereby commission of offences by persons with previous records of convictions or with criminal propensities might be prevented. aS observed by Patanjali Shastri C. J. in the case of 1952 SCR 597 at p. 609: (AIR 1952 SC 196 at p. 200) (R)

'Externment of individuals, like preventive detention, is largely precautionary and based on suspicion'.

and therefore, in the words of Lord Finlay in Rex v. Halliday, 1917 AC 260 at p 269 (L),

'The Court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based.'

41. The next argument which was advanced on behalf of the petitioner in that case was, that the right of appeal granted under Section 60 of that Act to the State Government was illusory. This contention also did not find favour' with their Lordships of the Supreme Court, for the reason, that it was expected, that the State Government, which has been charged with the duty of examining the material with a view to being satisfied that circumstances existed justifying a preventive order of that nature, would discharge its functions with due care and caution. (Vide, ibid, p. 523)'.

42. The provisions of Section 238 of the Cantonments Act compare favourably with the provisions of Section 57 of the Bombay Police Act. The terms of Section 238, when examined from the point of view of standard of reasonable ness, and in the background of the principles, which have been enunciated in the several decisions referred to above, fall within the permissible limits laid down by the Constitution in clause (5) of article 19.

43. I am, therefore, of the view, that the provisions of Section 238 of the Cantonments Act, are not violative of the constitutional liberties declared under article 19(1) (d) and (e) and the procedural and the substantive provisions of the Act, do not overstep the limits of reasonableness. My view on the point under reference is, that Section 238 of the Cantonments Act is intra vires the Constitution, and that being so, the Magistrate I Class Ferozepore is directed to dispose of the case conformably to this order.

44. There will be no order as to the costs of this reference.'

Bhandari, C.J.

45. I agree.


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