IN RE DELHI LAWS ACT, AIR 1951 SC 332
STATE OF M.P. V BHARAT SINGH, AIR 1967 SC 1170
FACTS
- On April 24, 1963, the' State of Madhya Pradesh made an order in exercise of powers conferred by 3 of the Madhya Pradesh Public Security Act, 1959 – directing the respondent Thakur Bharat Singh -
(i) “that he shall not be in any place in the Raipur district;
(ii) that he shall reside in the municipal limits of Jhabua town, district Jhabua, Madhya Pradesh, and shall proceed there, immediately on the receipt of this order ; and
(iii) that he shall notify his movements and report himself personally every day at 8am and 8pm to the Police Station Officer, Jhabua.”
- The respondent moved a petition in the High Court of Madhya Pradesh under Arts. 226 & 227 of the Constitution challenged the order on the grounds that Sections 3 & 6 and other provisions of the Act which authorized imposition of restrictions on movements and actions of person were ultra vires because they infringed the fundamental freedoms guaranteed under Art. 19(1) (d) & (e) of the Constitution of India and that the order was "discriminatory, illegal and violated principles of natural justice."
- In a nutshell the State of MP restricted the movement of the respondent and specified the area where the externee was to stay which was challenged by the respondent on the grounds of it being ultra vires and infringing the principle of natural justice.
ISSUE
Whether the order issued by the State of Madhya Pradesh under the Madhya Pradesh Public Security Act, 1959 is valid or not?
PETITIONER’S CONTENTIONS
- It was contended that as the executive power of the State was co-extensive with its legislative power, an executive order restricting the movements of a citizen could be passed without the authority of any law, and the Supreme Court’s decision in Kapur case [Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225] was relied upon to support the contention.
- In any event so long as the State of emergency declared on October 20, 1962, by the President under Art. 352 was not withdrawn or revoked, the respondent could not move the High Court by a petition under Art. 226 of the Constitution on the plea that by the impugned order his fundamental right guaranteed under Art. 19(1)(d) of the Constitution was infringed.
RATIONALE
The Supreme Court found that no hearing was provided for selecting the place where the externee was to reside. In the opinion of the Court, the person might not be able to get means of livelihood in the specified place, and the statute made no provision that the person would be provided with any residence or means of livelihood.
In the circumstances the Court agreed with the High Court that cl. (b) authorised the imposition of unreasonable restrictions insofar as it required any person to reside or remain in such place or within such area in Madhya Pradesh as may be specified in the order.
All executive action which operates to the prejudice of any person must have the authority of law to support it and the terms of Art. 358 does not detract from that rule.
HELD
The Supreme Court invalidated a statutory provision which gave power to an executive authority to specify the area where an externee was to stay, because of the absence of procedural safeguard of hearing.
It was held that the order made by the State in exercise of the authority conferred by s. 3(1)(b) of the Madhya Pradesh Public Security Act 25 of 1959 was invalid and for the acts done to the prejudice of the respondent after the declaration of emergency under Art. 352 no immunity from the process of the Court could be claimed under Art. 358 of the Constitution, since the Order was not supported by any valid legislation. The appeal therefore fails and is dismissed.
COMMENTARY
In Prem Chand v UOI. AIR 1981 SC 613 : (1981) 1 SCC 639. The Court regarded externment of a person as amounting to “economic harakiri and psychic distress”.
The decisions mentioned above make it clear that while a law may authorise the executive to extern a person in its subjective satisfaction, the law to be valid should contain some procedural safeguards. A necessary procedural safeguard is that the person concerned be supplied with the grounds of externment and be given an opportunity to make a representation even if it be before an executive officer.
It will not be incorrect to say that the Supreme Court has permitted the Legislature to concede, on the whole, a large amount of discretion to the executive to extern a person from a local area and, thus, tamper with the individual liberty of movement and residence in India. contain some procedural safeguards.There must be a clear and present danger based upon creditable material which makes the movements and acts of the person in question alarming or dangerous or fraught with violence.