1. This is a Rule on the Opposite Party to show cause why a writ in the nature of a mandamus should not be served on the latter to refrain from giving effect to the order of externment issued on the 6th September externing the petnr. from the town of Calcutta & the districts of Hooghly, Howrah & 24 Parganas.
2. The petnr.'s case is that he has been domiciled in Bengal since 1919. He has got immovable properties in Bengal & carries on business & he is also employed as the Head Clerk in the Anglo Indian Jute Mill at Jagatdal in the district of 24 Parganas. He is actively associated with different trade union Bodies. As a resident within the Bhatapara Municipality he had been a commissioner of the said Municipality & had also been for some time the elected Vice Chairman & Chairman for a certain period. He also claims to be associated with different public committees & associations for assisting the refugees from East Bengal.
3. On 9-5-1950 an order for externment was served upon him under Section 21 (1), West Bengal Security Act, 1950, externing him from the districts of Hooghly, Howrah 24 Parganas & the town of Calcutta. In obedience to the order of externment he kept himself away from the places mentioned in the notice for the required period of three months & returned to his home. A fresh notice was served upon him immediately on 9-9-1950 requiring him to keep himself out of the town of Calcutta & the three dists. previously mentioned. In this notice it is said :
'That the Governor is satisfied that the said under mentioned person is likely to do subversive act namely an act likely to endanger communal harmony that is harmony in Jagatdal-area between Bengalee Hindus on the one hand and non-Bengalees both Hindus & Moslems on the other.'
4. On behalf of the petnr. Section 21, West Bengal Security Act, 1950, has been contended to be ultra vires Article 19, Const. Ind., & that further the act alleged in the notice in question does not come within the definition of a subversive act as in Section 2 (9) of the said Act.
5. We have already dealt with the question of the ultra vires or otherwise of Sections 21 & 22, West Bengal Security Act in connection with Civil Rules 1348 to 1351 of 1950 & the reasons need not be restated again. The order of externment issued against the petnr. must be deemed to be void & illegal.
6. One special point which arises for consideration in the present case is whether the particular subversive act complained of or referred to in the notice of externment comes within the purview of Section 2 (9), West Bengal Security Act, 1950.
7. 'Subversive act' means 'any act which is intended or is likely to endanger communal harmony ......'
8. The particular act referred to in the notice is endangering harmony in Jagatdal area between Bengali Hindus on the one hand & non-Bengalis, both Hindus & Moslems on the other. It is contended that even if the allegation referred to in the order be correct, the charge against the externee is that he has been fomenting inter provincial jealousy or animosity between Bengalees & non-Bengalees. That does not bring the case within the definition of a 'subversive act.'
9. The question for decision is as to the implication of the expression 'communal harmony' as used in Section 2 (9) (a) (i), West Bengal Security Act, 1950. The word 'communal' is used in common parlance & in all authoritative & responsible quarters in this country as being referable to sections of the people divided on the ground of different religions. No doubt the word communal is derived from the word 'commune' which bad a political significance & implication during the French Revolution as will be referred to later on. When the word is used as a part of the expression 'commune concilium' it means the king's council.
10. In Blackstone 'commune' stands for a self-governing town or village. It is also noted by Blackstone & in Coke's Institute, 540 that in old English Law 'commune' stood for the commonalty or common people. Reference may in this connection be made to the Charter in the 20th year of the reign of Edward I providing that the Great Charter of Liberty of Englishmen granted to all commonalty of the realm shall be observed, kept & maintained in every point. In Bernards v. Alien, 39 A 716 it is observed referring to the Charter above mentioned :
''here commune is taken for people, so as tout le commune is taken here for all the people & this is proved by the sense of the word for Magna Carta was not granted to the commonest of the realm but generally to all the subjects of the realm, to those of the Clergy & those of the Nobility & to the commons also & that commune in this place signifieth people.... so 'a la commune' here signifieth not to the commons of the realm but to the people of the whole realms.'
11. In old French Law the term 'commune' signified any municipal corporation. That was also the name given to the community of the people in the French Revolution of 1793 & in the next revolutionary rising in 1871 it signified an attempt to establish absolute self-Government in Paris or the mass of those concerned in the attempt.
12. The word 'commune' or 'communal' has been used therefore in different ways in different countries at different stages. The meaning that might have been given to the term communal in other countries will not govern or control the meaning of that word in India or in West Bengal. For interpreting the word communal as in the West Bengal Security Act, 1950, we have to bear in mind the sense in which the word is used not only in common parlance but in responsible quarters & in the Legislatures in India. There is no doubt that the word 'communal' is used for a very limited significance dependant upon the views expressed in favour of or against a particular community. If the people following one particular religion is set against another of a different religion or if the harmony between the two different religious communities is endangered by any act of a person such act only will be included within the technical term 'subversive act' appearing in Sub-clause (i) of Clause (9) of Section 2, West Bengal Security Act.
13. From the use of the word 'communal' in Bengal & in India in general it cannot be predicated that if a person preaches in favour of the inhabitants of a particular district or province-that will be endangering communal harmony. If the expression 'communal' is given the widest possible meaning then the formation of associations for protecting the interest of a particular district or of a particular province could all be declared to be endangering communal harmony. That will be an unreasonable interpretation. There is no doubt the Legislature did not intend such a very wide meaning being given to the word 'communal.' If such an interpretation were given it would have to be considered whether the Fundamental Rights secured under Article 19(1)(e), Const. Ind. were not violated. That aspect of the question need not be considered here as we hold that the word 'communal' has not the very wide meaning attempted to he given on behalf of the State.
14. A person therefore who speaks in favour of the interest of the inhabitants of one particular province or State as against the interest of the inhabitants of another province or State, cannot be regarded as endangering 'communal harmony' irrespective of the question whether such an act is proper or desirable.
15. We are concerned here with the strict implication of the term 'communal harmony' for determining whether the act complained of comes within the ambit of the definition given of 'subversive act.'
16. The ground given in the order of externment in the present case lays emphasis upon the difference which was attempted to be engendered between Bengalees & Non-Bengalees. Such an act will not bring the party concerned within the purview of Section 2 (9) (a) (i). West Bengal Security Act.
17. This Rule is made absolute. The order of externment issued against the petnr. is declared to be void & illegal & a writ will issue accordingly. The petnr. will be entitled to the costs of the hearing of this Rule assessed at two gold mohurs.
18. This decision will also govern C. R. 1464 of 50 & C. R. 1465 of 50 in which the facts are similar. Those Rules are also made absolute & it is declared that the orders of externment complained of are void & illegal & writs will issue accordingly. In each case the petnr. will be entitled to the costs of this Ct. Hearing fee is assessed at 2 gold mohurs in each case.
19. Certificates under. Article 132(1), Const. Ind. are given as the cases involve a substantial question of law as to the interpretation of the Constitution of India.