TMI Blog1967 (1) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act which authorised imposition of restrictions on movements and actions of person were ultra vires in that they infringed the fundamental freedoms guaranteed under Art. 19(1) (d) (e) of the Constitution of India and that the order was dis- criminatory, illegal and violated principles of natural justice. Shivdayal, J., declared cl. (i) of the order valid, and declared cls. (ii) and (iii) invalid. In the view of the learned Judge the provisions of s. 3(1)(a) of the Act were valid and therefore the directions contained in cl. (i) of the order could lawfully be made by the State, but. cls. (b) (c) of s. 3(1) of the Act were invalid because they contravened the fundamental freedom of movement guaranteed under Art. 19 of the Constitution, and therefore the directions contained in cls. (ii) (iii) of the order were invalid. Against the order passed by Shivdayal, J., two appeals were filed under the Letters Patent of the High Court. A Division Bench of the High Court held that cls. (a) (c) of s. 3(1) of the Act were valid, but in their view cl. (b) of s. 3(1) wits not valid because it violated the fundamental guarantee under Art. 19(1) (d) of the Constitution. The High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 4 authorises the State to revoke or modify the restriction order , and S. 5 authorises the State to suspend operation of the restriction order unconditionally or upon such conditions as it deems fit and as are accepted by the person against whom the order is made. Section 6 requires the State to disclose the grounds of the restriction order . Section 8 provides that in every case where a restriction order has been made, the State Government shall with in thirty days from the date of the order place before the Advisory Council a copy thereof together with the grounds on which it has been made and such other particulars as have a bearing on the matter and the representation, if any, made by the person affected by such order. Section 9 provides for the procedure of the Advisory Council, and s. 16 requires the State to confirm, modify or cancel the restriction order in accordance with the opinion of the Advisory Council. By cl. (ii) of the order the respondent was required to reside within the municipal limits of Jhabua town after proceeding to that place on receipt of the order. Under cl. (b) of s. 3(1) the State is authorised to order a person to reside in the pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it must be struck down in its entirety as unreasonable. If it is intended to restrict the movements of a person and to maintain supervision over him, orders may appropriately be made under cls. (c) and (d) of S. 3(1) of the Act. Counsel for the State urged that 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. But the Act was brought into force before the declaration of the emergency by the President. If the power conferred by s. 3(1)(b) authorised the imposition of unreasonable restrictions, the clause must be deemed to be void, for Art. 13(2) of the Constitution prohibits the State from making any law which takes away or abridges the rights conferred by Part 111, and laws made in contravention of Art. 13(2) are to the extent of the contra- vention void. Section 3(1)(b) was therefore void when enacted and was not revived when the proclamation of emergency was made by the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve and judicial--each organ having some check direct or indirect on the other ; and (3) the rule of-law which includes judicial review of arbitrary executive actions. As pointed out by Dicey in his Introduction to the study of the Law of the Constitution , 10th Edn., at p. 202 the expression rule of law has three meanings, or may be regarded from three different points of view. It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. At p. 188 Dicey points out : In almost every continental community the executive exercises far wider discretionary authority in the matter of arrest, of temporary imprisonment, of expulsion from its territory, and the like, than is either legally claimed or in fact exerted by the government in England : and a study of European politics now and again reminds English readers that wherever there is discretion there is room for arbitrariness, and that in a republic no less than under a monarchy discretionary authority on the part of the govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blishers and authors. In 1952 a notification was issued by the Government inviting only authors and others to submit text-books for approval by the Government. Under agreements with the authors and others the copyright in the text-books vested -absolutely in the State and the authors and others received royalty on the sale of those text-books. The petitioners a firm carrying on the business of preparing, printing, publishing and selling text booksthen moved this Court under Art. 32 of the Constitution praying for writs of mandamus directing the Punjab Government to withdraw the notifications of 1950 and 1952 on the ground that they contravened the fundamental rights of the petitioners guarantee under the Constitution. It was held by this Court that the action of the Government did not amount to infraction of the guarantee under Art. 19(1)(g) of the Constitution, since no fundamental rights of the petitioners were violated by the notifications and the acts of the executive Government done in furtherance of their policy of nationalisation of text-books for students. It is true that the dispute arose before the Constitution (seventh Amendment) Act, 1956, amending, inter alia, Art. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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