1. This is a rule issued by the Court calling upon the District Magistrate of West Dinajpur to show cause why a writ in the nature of mandamus or prohibition should not issue with respect to an order of externment made by the said District Magistrate.
2. The matter first came before Sinha J. who referred the hearing of the petition to a Bench in view of the importance of the questions raised. The petition has accordingly been heard by this Bench.
3. On 11-6-1950, Sri R. Banerji, District Magistrate of West Dinajpur made the following order:
'Whereas I am satisfied that the person known as Sri Khagendra Nath De alias Battu, son of late Surendra Nath De of Rangpur (Pak.) and of Balurghat it doing a subversive act:
Now, therefore, with a view to preventing the said person from doing such Act, in exercise of the power conferred by clause (a) of Sub-section (1) of Section 21, West Bengal Security Act 1950 (West Bengal Act XIX  of 1950), which I have been empowered to exercise under; Government order No. 3501--H. S., dated 24-4-1948, read with Section 40 of the said Act, I hereby direct
(1) that the said person shall not, at any time after 24 hours of service of this order, be in any place in this district of West Dinajpur.'
4. On 22-6-1940 the District Magistrate modified this order and permitted Khagendra Nath De to remain in the district for 72 hours before being compelled to leave.
5. The petitioner moved this Court claiming that this order was on the face of it an order not in accordance with the Act. Further the petitioner claimed that the Act under which the order was made was ultra vires the Constitution and therefore the order was invalid. We were asked to make an order compelling the District Magistrate to refrain from enforcing the order which he had made.
6. The petitioner Khagendra Nath De was a refugee from East Bengal who had come to the district of West Dinajpur. It is said in the petition that he was a recognised relief and social worker in the district. How long he had been in West Dinajpur is not stated. It will be seen that the order externing him merely states that the petitioner was doing a subversive act, but there is no-elaboration and there is nothing on the face of the order to suggest what that subversive act was. On receipt of the order as modified, the petitioner was compelled to leave the district though the order on the face of it gave him no clue as to why it had been made.
7. The order was made under Section 21, West Bengal Security Act, 1950, which provides that the State Government if satisfied with respect to any particular person that he is doing or is about to do or is likely to do any subversive act, may, with a view to preventing him from doing such act, make an externment order. The term 'subversive act' is defined in Section 2 (9) of the Act and the term covers a very large number of activities. For example, a person endangering communal harmony or illegally acquiring corrosive substances or liquids or furthering the activities of goondas, or prejudicing the recruiting of persons in the Police force or the fire brigade is guilty of a subversive act. The phrase covers, as I have said, a multitude of activities. Therefore merely stating in an order that the person served with the order was doing a subversive act would convey little or nothing at all to the person so served.
8. It is argued on behalf of the petitioner that the order made is not an order under the Act at all. The argument is that the Act contemplates that the order should recite the satisfaction of the Government that the person served with the order was doing or about to do or likely to do one or more of the acts mentioned in Section 2 (9) of the Act. Unless the nature of the Act is stated in the order it is urged that the order cannot be regarded as a proper order made under the Act.
9. On the other hand, it is contended on be-half of the State that Section 21 does not require the person making the order to particularise and that an order merely reciting that the Government is satisfied that a person is doing or about to do or likely to do a subversive act would be a good order within the section.
10. It appears to me that if Section 21 permits an order of the kind made by the District Magistrate then it is procedurally so unreasonable that I should be bound to hold the section to be ultra vires the Constitution.
11. An externment order is an interference with the right of a person to move freely throughout the territorry of India or to live and settle anywhere within, the territory of India, Restrictions upon those rights are permissible under Article 19(5) of the Constitution. The meaning of that clause has recently been considered by the Supreme Court in the case of Dr. N.B. Khare v. State of Delhi, : 1SCR519 . At p. 86 Kania C. J. Who delivered the judgment of the majority of the Court observed as follows:
'The other interpretation is that while the Constitution permits a law laying down reasonable restrictions on the exercise of the rights mentioned in Article 19(1)(d), the reasonableness has to be of the law also. It is submitted that in deciding whether the restrictions on the exercise of the right are reasonable, the Court has to decide not only on the extent and nature of the restrictions on the exercise of the right but also as to whether the conditions under which the right is restricted are reasonable. The majority judgments of the Patna and the Bombay High Courts although the impugned iota of the State Legislatures before them were materially different on certain important points have given Clause (5) of Article 19, the latter meaning.
In my opinion, Clause (5) must be given its full meaning. The question which the Court baa to consider is whether the restrictions put by the impugned legislation on the exercise of the right are reasonable or not. The question whether the provisions of the Act provide reasonable safeguards against the abuse of the power given to the executive authority to administer the law is not relevant for the true, interpretation of the clause. The Court, on either interpretation, will be entitled to consider whether the restrictions on the right to move throughout India, i. e., both as regards the territory and the duration, are reasonable or not. The law providing reasonable restrictions on the exercise of the right conferred by Article 19, may contain, substantive provisions as well as procedural provisions. While the reasonableness of the restrictions ban to be considered with regard to the exercise of the right, it. does not necessarily exclude from the consideration of the Court the question of the reasonableness of the procedural part of the law.'
12. If as contended on behalf of the State, Section 21 of the Act entitles a District Magistrate to make the order in the form of this order then it would appear to me that the whole procedural part of this law is wholly unreasonable. To accede to the State's contention the Court would have to hold that the District Magistrate was entitled to serve an externment order on a person in the district in such a form as would give that person no indication of any kind as to why the order had been made. Merely stating that the person served was committing a subversive act would, as I have stated, mean next to nothing, and it would give no real indication of why the order was made. It seems to me that if Section 21 of the Act is to be construed as giving the Government or an officer deputed by Government power to make such orders then the section gives powers which are wholly unreasonable.
13. Surely a man served with au externment order should be told enough so that he could make some representation. This Act does note contemplate an externee making any representation and it does not oblige Government to give the externee any grounds for the order. Surely, however, common justice demands that the person proposed to be externed should at least be told why, so that he could take steps, if he thought fit, to challenge the order in any way open to him. A person in receipt of an order such as that issued by the District Magistrate of West Dinajpur would not have the slightest idea as to why the order had been made.
14. As I have said, any section of an Act which would entitle such an order to be made would in my view create a procedure for restricting the right, of a citizen which would be unreasonable and therefore ultra vires the Constitution.
15. I am not satisfied, however, that Section 21 of the Act, authorises an order such as the one made in this case. It appears to me that the section clearly contemplated that in the order it should be stated what the subversive act was, because, as I have pointed out in Section 2 (9) of the Act, a very comprehensive definition of the term 'subversive act' is given.
16. In my view, it is essential that the order should correctly state upon what matter the person making the order is satisfied. It must be remembered that these orders are a very serious interference with the right of movement and contravention of an order is punishable under Section 21 (4) of the Act, with imprisonment which may extend to three years or with fine or with both. Making these orders is a serious matter and surely a person who is served with the order should at least know why the order has been made against him. How can a person served with an order such as the order in this case take effective steps to challenge it except on the ground that the order is not in accordance with the Act? If it were held that the order was in accordance with the Act the person served with the order could not possibly challenge it for example as being mala fide as he would have no idea why the order was made against him.
17. The State Government, however, are on the horns of a dilemma. If they contend that Section 21 authorises this very vague form of order, which would give the person served no indication whatsoever as to why he was externed, then I would be bound to hold' that Section 21 is procedurally unreasonable as pointed out by the learned Chief Justice of the Supreme Court in Khare's case : : 1SCR519 . On the other hand, if the State Government take the view that the order should set out the nature of the subversive act then the order made by the learned District Magistrate in this case is on the face of it a bad order and cannot be regarded as an order made under the Act. In my view, Section 21 contemplates that the order should contain a statement as to what the subversive act is and as the present order does not contain such a statement I hold that it is not an order made under the Act and therefore is not binding on the petitioner.
18. It was next suggested by learned Advocate for the petitioner that we should hold that the Security Act was ultra vires the Constitution on the ground that there was nothing in the Act requiring the State Government to state the grounds upon which they made the order, and nothing requiring the State Government to forward to the persons externed the statement of the grounds upon which the order was made. That matter was considered by the Supreme Court in the case of Dr. N. B. Khare V. State of Delhi, : 1SCR519 . In that case the Act applicable to Delhi did not require the Government to state the grounds upon which the order was made, where the order was made only for a period of three months. If the period of externment was ex-tended and it could be extended indefinitely, the majority of the Supreme Court were of opinion that the Act required that the grounds for continuing the order should be served on the person externed. There is no definite decision of the Supreme Court upon this matter. But I do not think that the Act could be held to be ultra vires merely on the ground that there is nothing in the Act requiring the grounds for making the order to be stated. The West Bengal Act only empowers Government to extern for a period of three months, though that period can be extended by appropriate orders. Each order for extension must be limited to three months but successive orders of extension can be made. In any event I do not think it is necessary finally to decide this question.
19. It was then argued that there was nothing in the Act which permitted the person externed to make a representation and that being so the Act should be held to be ultra vires as creating restrictions not reasonable in the interest of the public. It is true that there is nothing in the Act entitling a person externed to make representations to the Government, but there is nothing in the Act to prevent him from doing so and of course he may move this Court under, for example, Article 226 of the Constitution. I do not think that the Act can be held ultra vires merely because there is no section expressly allowing representations to be made.
20. It was next argued that the Act gave the State of West Bengal or persons to whom powers of externment had been delegated, power to extern persons from the districts in which they were ordinarily resident. It was pointed out in Dr. Khare's case, : 1SCR519 that the Act then under consideration gave no such power. However, it may be very necessary to extern a man from his home district if he is creating mischief in his home district and it is more probable that a man would create mischief in his own district than outside it, unless he is of the more modern type who is accustomed to move about the country freely. That being so I do not think that the Act can be held to be ultra vires on that ground.
21. It was then contended that two sections of the Act are clearly ultra, vires in that they entitle the State Government to make orders in a manner wholly unreasonable. As I have pointed out earlier, the Supreme Court have held in Dr. Khare's case, : 1SCR519 that not only must a Court have regard to the nature of the restrictions imposed, but they must also have regard to the procedure by which these restrictions are imposed. If I may again quote an observation of Kania C. J. in Khare's case, : 1SCR519 :
'While the reasonableness of the restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the Court the question of reasonableness of the procedure part of the law.'
What is contended is that Sections 35 and 38 afford a procedure for making those orders which is wholly unreasonable.
22. Section 38 is in these terms:
'The State Government may, by notified order, direct that any power or duty which is conferred or imposed by any provision of this Act upon the State Government shall, in such circumstances and under such conditions, if any, as may be specified in the direction, be exercised or discharged also by any officer or authority subordinate to the State Government,'
23. One of the powers conferred by the Act is the power of making an externment order and clearly by Section 38 of the Security Act, Government can delegate that power to any officer or authority subordinate to the State Government. Officers or authorities subordinate to the State Government may be officers or authorities of a high standing or they may be officers or authorities of a comparatively lowly kind. The order before us was made by a District Magistrate who of course is the senior executive officer in a district. He is clearly an officer of Government, but so would be a Sub-Deputy Collector and this section clearly entitles Government to authorise a Sub-Deputy Collector to make an order of externment or indeed to make any of the other orders which the Government are empowered to make under this Act. A Commissioner of Police in the city of Calcutta or a Superintendent of Police in the moffussil is I think clearly an officer or authority subordinate to the State Government and so is a Sub-Inspector. It appears to me that Section 38 is framed wide enough to allow the Government to authorise a Sub-Inspector to make these orders. A Havildar is a lowly and humble officer of Government. He certainly is a servant of Government and I do not think that the term 'officer' has any precise meaning. Servants of Government are frequently classified as gazetted or non-gazetted officers or ministerial or non-ministerial officers. All are, however, officers no matter what the qualifying adjective may be.
24. In any event it seems to me that Section 38 is framed in such a manner as would permit Government to delegate their powers to officers who, I think, would be wholly unfitted to be entrusted with the power of making such orders. Mr. Chandra Sekhar Sen on behalf of the State has recognised this bat he has referred to another observation of Kania C. J. in Dr. Khare's case, : 1SCR519 . At page 88 the learned Chief Justice observed:
'Moreover, this whole argument is based on the assumption that Provincial Government when making the order will not perform its duty and may abuse the provisions, of the section. In my opinion, it is improper to start with such an assumption and decide the legality of an Act on that basis. Abuse of the power given by a law sometimes occurs; but the validity of the law cannot be contested because of such an apprehension.'
What Mr. Sen has contended is that we must not assume that Government would delegate their powers to some humble officer or authority who or which could not be regarded as fitted to exercise such powers. However this Court is not presuming that the Government would abuse its powers by appointing someone not fitted to make the order. If the Government by a notification had delegated its powers to the humblest class of officers subordinate to the Government it would not be abusing the authority. It would be exercising a right which the Act actually gave it. It would not be doing something to circumvent the Act. On the contrary it would be doing something which it was entitled to do under the Act.
25. In the Preventive Detention Act, 1950 the Central Legislature recognised the necessity of placing restrictions on the right of Government to delegate its powers. By that enactment, delegation of the power to make an order of detention can be validly made out only to senior and responsible officers namely a District Magistrate, a Sub-Divisional Officer and a Commissioner of Police in what were known as the Presidency towns. There is no such restriction on the power to delegate in Section 38 of the Act now under consideration. The power under that section is only limited to this extent that the power authorised to make orders must be an officer of Government whatever his rank, status, knowledge or experience may be.
26. It appears to me that Section 4 which entitles Government to delegate its powers, to any officer subordinate to it irrespective of whether that officer is fit to make such orders is to my mind a procedure which is wholly unreasonable and that being so, this Court must hold that Section 38 is ultra vires as being beyond the powers given to the State by Clause (5) of Article 19 of the Constitution.
27. Section 35 is in these terms:
'(1) Any authority, officer, or person who is empowered by or in pursuance of the provisions of this Act to make any order or to exercise any other power may, in addition to any other action prescribed by or under this Act, take or cause to be taken, such stops as may In the opinion of such authority, officer or person, be reasonably necessary for securing compliance with, or foe preventing or rectifying any contravention of, such order, or for the effective exercise of such power.
(2) Where In respect of any of the provisions of this Act there is no authority, officer or person empowered to take action under Sub-section (1), the State Government may take, or cause to be taken, such steps as may in the opinion of the State Government be reasonably necessary for securing compliance with, or preventing or rectifying any breach of, such provisions.
(3) For the avoidance of doubt it is hereby declared that the power to take steps under Sub-section (1) or under Sub-section (2) includes the power to enter upon any land or other property whatsoever.'
28. It may well be that if Section 38 of the Act is ultra vires then sub-sections (1) and (3) of Section 35 would also have to he held to be ultra vires, But the question does not arise in this case and therefore need not be considered any further.
29. However, if Section 38 is held to be ultra vires then the State Government had no right to delegate its powers to the District Magistrate and therefore the order by the District Magistrate externing the petitioner would be an order which could not be made.
30. Even if we hold that Section 38 is ultra vires the Constitution, it is I think clearly severable from the other portions of the Act and the other portions might well be effective though this section is held to be ultra vires. However, once it la held that Section 38 is ultra vires, then there is no longer any power in the Act to delegate and externment orders unless made by the State Government itself would be invalid. On this ground also the order in question cannot be maintained.
31. A point taken by Mr. Chandra Sekhar Sen was that the petitioner was not a citizen of India and therefore was not entitled to the protection given by Article 19 of the Constitution. In the petition it is stated that the petitioner was a refugee, but refugees may well be citizens of India, though on the other hand they may not have acquired rights of citizenship. The determining factor is the date of their arrival in India An affidavit has been filed on behalf of the District Magistrate and it is to be observed that it is not stated in that affidavit that the petitioner is not a citizen of India. The petition proceeds on the basis that the petitioner is allowed the protection given to a citizen and as it is not stated in the affidavit that the petitioner is not a citizen of India and therefore not entitled to the fundamental rights of a citizen of India, we cannot hold that the petitioner is not entitled to the rights given in Article. 19 of the Constitution.
32. In conclusion I must refer to one argument of Mr. Chandra Sekhar Sen. He admitted that the order as issued gave the externee no indication whatsoever as to why he was externed. Mr. Sen however, contended that the reasons are now set out in the affidavit and we should read those reasons into the order It appears to me, however, that if Government justifies the restriction of the freedom of movement of the petitioner as being imposed by a valid order, then the order should, in my view, be valid on the face of it which it is not. No subsequent explanation in affidavits can in my view render this order a valid order. If there are valid grounds for externing the petitioner then it appears to me that a fresh order should be made setting out the nature of subversive act which it is said the petitioner is doing or is about to do or is likely to do. An explanation given months afterwards in an affidavit would not, in my view, validate the order.
33. In our view the order in this case is not a valid order and therefore the petitioner is entitled to an order in the nature of a mandamus calling upon the District Magistrate of West Dinajpur to refrain from giving effect to such order.
34. The petitioner is entitled to the costs of these proceedings, the hearing fee being assessed at five gold mohurs.
35. For the guidance of parties in future we desire to say that when petitions of this kind are filed the petitioner should state precisely the nature of the relief which he asks for. In this case, for example, the relief claimed should have been an order in the nature of a mandamus upon the District Magistrate of West Dinajpur calling upon him to refrain from giving effect to the order alleged to be invalidly made,
36. I agree.