Article 19 (1) (d) guarantees to all citizens of India the right “to move freely throughout the territory of India”. This right is, however, subject to reasonable restrictions mentioned in clause (5) of Article 19. The Supreme Court in the instant case deals with the restriction when it comes to procedure.
N.B. Khare (DR.) V/s. The State of Delhi
Petition No. 37 of 1950
Before the Supreme Court of India
Decided on: 26th May 1950.
Coram: Harilal J. Kania, C.J. and Fazl Ali, Patanjali Sastri, M.C. Mahajan and B.K. Mukherjea, JJ.
Author of the Judgement: Harilal J. Kania, C.J.
Advocate for Petitioner: B. Banerji
Advocate for Respondent: M.C. Setalvad, Attorney-General for India
- The petitioner is the president of the All India Hindu Mahasabha since December 1949. He was served with an order of Externment on the night of 31st March 1950.
- By that order, he was directed by the District Magistrate, Delhi, not to remain in the Delhi District, and immediately to remove himself from the Delhi district and not to return to the district.
- This order was to continue in force for three months.
- By another order of Madhya Bharat Government, he was ordered to reside in Nagpur. That order was cancelled.
- In the facts and circumstances of the case, whether the limits of permissible legislation under clause (5) are exceeded?
Contention of the Petitioner:
- He disputes the validity of the first order on the ground that the East Punjab Public Safety Act, 1949, under which the order was made, is an infringement of his fundamental right given under Article 19(1)(d) of the Constitution of India.
- The grounds of the order served on him are vague, insufficient and incomplete.
- The object of the externment order passed by the district magistrate, Delhi, was to suppress political opposition to the policy of the government in respect of Pakistan and the Muslim League. He contends that because the petitioner and the Hindu Mahasabha are against the government policy of appeasement this order is served on him. It is, therefore, malafide and illegal.
- Under section 4 the power to make the order of externment was given to the provincial government or the district magistrate, whose satisfaction was final. That decision was not open to the discretion of the court. Thus there was an unreasonable restriction on the exercise of the citizens right.
- There was no provision in the Act for furnishing grounds of externment to the citizen. Also, there was no provision in the Act showing what the advisory board has to do when it receives a representation.
- Relied upon the judgements passed by the Patna High Court in Miscellaneous Judicial Case No. 29 of 1950, Brijnandan v. state of Bihar and of the High Court of Bombay in Criminal Application No. 114 of 195, re Jaisinghbhai Ishwarlal modi
Contention of the Respondent:
- The right to free movement throughout the Indian territory as enunciated in Article 19(1)(d) of the constitution contemplates nothing else but the absence of interstate restrictions, which might prevent citizens of the Indian Union from moving from one state to another.
- With regards to clause (5), the attorney-general argues that the word ‘reasonable’ occurring in the clause qualifies ‘restrictions’ and not ‘law’.
- MAJORITY JUDGEMENT
- Chief justice Kania: The application fails and the contentions of the petitioners are rejected.
- Fazl Ali, Justice: Agreed with the Chief justice
- Justice Patanjali Shashtri: Agreed with the chief Justice
- MINORITY JUDGEMENT
- Justice Mahajan: Agreed with justice Mukhreja and allowed the petition and quash the order of externment
- Justice Mukhreja:
- The substantial question raised on the behalf of the petitioner is that the particular provision of the East Punjab Public Safety Act, 1949, under which the District Magistrate of Delhi purported to make the externment order, became void and ceased to be operative after the new constitution came into force, by reason of this provision being inconsistent with the fundamental rights guaranteed under article 19(1)(d) of the constitution read with clause (5) of the said article. Article 13(1) of the Constitution imposes a duty upon the court to pronounce the law to be invalid to the extent that it is inconsistent with the fundamental rights guaranteed under part III of the constitution. Under clause (5) the adjective “reasonable” is predicated of the restriction that is imposed by the law and not of the law itself; but that does not mean that in deciding the reasonableness or otherwise of the restrictions, we have to confine ourselves to an examination of the restriction in the abstract with reference merely to their duration or territorial extent, and that is beyond our province to look up to the circumstances under which or the manner in which the restrictions have been imposed.
- With regards to section 4(1)(c) of the East Punjab Public Safety Act, it is said that any law which places the liberty of a subject at the mercy of an executive officer, however, high placed he might be and whose action cannot be reviewed by a judicial tribunal, is an arbitrary and not a reasonable exercise of legislative power.
- Under article 13(1) of the Indian Constitution, these provisions of the Act become void and inoperative after the constitution came into force, and consequently, the order made by the district magistrate in the present case cannot stand.