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Constitution of India, Art 19, cls. (1) (d) and (5)—Fundamental rights—Freedom of movement—Law imposing restrictions— Validity —Reasonableness of restrictions—Scope of enquiry——East Punjab Public Safety Act, 1949, s. 4(1) (c), (3), (6)—Provisions empowering Provincial Government or District Magistrate to extern persons’ making satisfaction of externing authority final, authorising externment for indefinite period, and directing that authority “may communicate’ grounds of externment—Whether reasonable—Construction and Validity of Act.Section 4, sub-s. (1) (c), of the East Punjab Public Safety Act of 1949 which was passed on the 29th March, 1949, and was to be in force until the 14th August, 1951, provided that “The Provincial Government or the District Magistrate, 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 or the maintenance of public order it is necessary to do so, may, by order in writing, give a direction that such person shall remove himself from, and shall not return to, any area that may ne specified in the order.” Sub-section (3) of s. 4 provided that “an order under sub-s, (1) made by the District Magistrate shall not, unless the Provincial Government by special order otherwise directs, remain in force for more than three months from the making thereof,” and sub-s. (6) laid down that “when an order has been made in respect of any person under any of the clauses under s. 4, sub-s. (1) or sub-s. (2), the grounds of it may be communicated to him by the authority making the order, and in any case when the order is to be in force tor more than three months, he shall have a right of making a representation which shall be referred to the Advisory Tribunal constituted under s. 3, sub-s. (4).” ‘The petitioner, against whom an order under s. 4 (1) (c) of the Act was passed applied to the Court under Art. 32 of the Constitution for a writ of certiorari contending that the order was illegal inasmuch as the provisions of the above- mentioned Act under which the order was made infringed the fundamental right to move freely throughout the territory of India which was guaranteed by Art. 19 (1) (d) of the Constitution and were accordingly void under Art. 13 (1) of the Constitution : Held, per Kaniya C. J., FAZL ALI and PATANJALI SASTRI JJ. (Mahajan and Mukherjea, JJ. dissenting)—(i) that there was nothing unreasonable in the provision contained in subs. (1) (c) of s, 4 empowering the Provincial Government or the District Magistrate to make an externment order, and making their satisfaction as to the necessity of making such an order final, or in the provisions contained in sub-s. (3) of s. 4 that an order of a District Magistrate may remain in force for three months and that the Provincial Government may make an order, or keep alive an order made by a District Magistrate, for a period exceeding three months without fixing any time limit; (ii) with regard to subs. (6), the word “may” in the expression “may communicate” must, in the context, be read as meaning “shall” and under the sub-section it is obligatory on the authority making an order to communicate the grounds to the externee; (iii) the restrictions imposed by the above-mentioned. provisions of the Act upon the fundamental right guaranteed by Art. (19) (1) (d) were not, therefore, unreasonable restrictions within the meaning of Art. 19 (5) and the provisions of the Act were not void under Art. 13 (1), and the order of externment was not illegal. Per Mukherjea J. Mahajan J concurring)—Though certain authorities can be ‘invested with power to make initial orders on their own satisfaction in cases of this description, and s. 4(1) (c) of the East Punjab Public Safety Act cannot be pronounced to be unreasonable simply because an order could be passed by the Provincial Government or the District Magistrate on their own personal satisfaction and not on materials, which satisfy certain objective tests, yet, the position would be different if the order thus made is allowed to continue for any indefinite period of time without giving the aggrieved person an opportunity to say what he has got to say against the order; and inasmuch as sub-s. (3) of s. 4 prescribes no limit to the period of time during which an externment order would remain in force if it is made by the Provincial Government, and the Provincial Government is also given power to keep an order made by a District Magistrate in force for an indefinite period, the provisions of sub-s. (3) are manifestly unreasonable. The provisions of sub-s. (6) of s. 4 are also unreasonable as they - make it entirely optional with the authorities to communicate to the person affected, the grounds upon which the order is made. Neither sub-s. (3) nor sub-s. (6) of s. 4 can, therefore, be said to have imposed restrictions which are reasonable in the interests of the general public within the meaning of Art. 19(5) and these provisions of the Act were consequently void and inoperative under Art. 13 (1) of the Constitution, and the externment order was illegal. . Held also, per Kaniya C. J.,FAZL ALI Mukherjea and Mahajan JJ.—-Whether the restrictions imposed by legislative enactment upon the fundamental right guaranteed by Art.19 (1) (d) are reasonable within the meaning of Art. 19 (5) of the Constitution would depend as much on the procedural portion of the law as the substantive part of it, and in considering whether such restrictions are reasonable the Court is not there- fore bound to confine itself ta an examination of the reasonableness of the restrictions in the abstract with reference to their duration and territorial extent. The Court can also consider the reasonableness of the procedural part of the law and the circumstances under which, and the manner in which, the restrictions have been imposed. [Patangali Sastri J. did not express any opinion on this point. |
