TMI Blog1954 (2) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... s the leading case which will govern the other appeals. 3. The facts of each of these appeals are slightly different but they proceed upon the common assertion that the appellants are citizens of the Indian Republic. This fact was assumed in the leading case but it is not disputed that the status of the appellants as Indian citizens in all the cases has not been investigated and determined by any of the courts below against whose decision the appeals have been brought. Having heard the learned counsel appearing in support of the appeals and the learned Solicitor-General we have reached the conclusion that section 7 is void in so far as it infringes the right of a citizen of India under article 19(1)(e) of the Constitution. 4. The Act in question received the assent of the Governor-General on April 22, 1949 and was published in the Gazette of India Extraordinary on April 23. It is a short Act containing nine sections. It is instituted an Act to control the admission into, and regulate the movements in, India of persons from Pakistan . The preamble opens with the words Whereas it is expedient to control the admission into, and regulate the movements in, India of persons from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acting in good faith and section 9 repeals the Influx from Pakistan (Control) Ordinance, XXXIV of 1948. 6. The use of the word 'person' in section 7, read with the title and preamble of the Act leaves no doubt that the Act applies to citizens and non-citizens alike. So far as a non-citizen is concerned, it is not contended before us that the executive Government has no authority to direct his removal from India and the only contention raised before us is whether the Central Government has any power to direct the removal of an Indian citizen on either of the grounds mentioned in section 7. Section 7, it is contended, confers upon the Central Government unfettered power to direct the removal from India not only of a person who has committed an offence punishable under section 5 of the Act but also one against whom a reasonable suspicion exists that he has committed such an offence. That an Indian citizen visiting Pakistan for any purpose whatsoever and returning to India may be required to produce a permit or passport as the case may be before he can be allowed to enter the country, may well be regarded as a proper restriction upon entry but to say that if he enters the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provision must be viewed in the back-ground of the events which took place at the time of the partition and the unsatisfactory relations existing between India and Pakistan up to the present day. Even so the penalty imposed upon a citizen by his own Government merely upon a breach of the permit Regulations, however serious it may be and, more, upon a reasonable suspicion only by the executive authority of his having violated the conditions of the permit is utterly disproportionate to the gravity of the offence and is in our opinion indefensible. A law which subjects a citizen to the extreme penalty of a virtual forfeiture of his citizenship upon condition for a mere breach of the permit Regulations or upon a reasonable suspicion of having committed such a breach can hardly be justified upon the ground that it imposes a reasonable restriction upon the fundamental right to reside and settle in the country in the interest of the public. The Act purports to control admission into and regulate the movements in India of persons entering from Pakistan but section 7 oversteps the limits of control and regulation when it provides for removal of a citizen from his own country. To use t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have recourse in order to vindicate his character or meet the grounds upon which it is based. Neither the Act nor the rules framed there under indicate what procedure is to be followed by Government in arriving at the conclusion that a breach of section 3 or of the rules under section 4 has taken place. 10. In Shabbir Hussain v. The State of Uttar Pradesh and Another A.I.R. 1952 257 the Allahabad High Court held that a law allowing the removal from a territory of India of any citizen is in contravention of article 19(1)(d) and (e) of the Constitution and is void in view of article 13(1). The order which was challenged before them was one passed under section 7 and was set aside. 11. In Criminal Writ No. 147 of 1951 decided on December 11, 1951, a Bench of the Punjab High Court (Weston C.J. and Harnam Singh J.) while setting aside the order under section 7 against a citizen of India who had entered India without a permit and was first convicted and then ordered to be externed observed : The powers of removal or banishment given by section 7 of the Influx from Pakistan (Control) Act, 1949, cannot be invoked against citizens of India. No doubt, she committed an offence und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a permit which was not in accordance with the provisions of the Act. The prosecution was withdrawn after 2 1/2 years. Subsequently on December 5, 1952, he was served with a notice ordering him to leave India for Pakistan within 10 days else he would be bodily removed to the Indo-Pakistan border. Thereupon the appellant filed a petition under article 226 contending that section 7 was contrary to his fundamental rights under articles 14 and 19 of the Constitution and that the same provided no opportunity to the appellant to put his case before the Government officers, nor was any such opportunity afforded to him. He asserted that he was a citizen of India. The application was summarily dismissed on December 15, 1952, whereupon leave to appeal to this court was granted under article 132(1) of the Constitution. As this appeal also raises the question of the constitutional validity of section 7, it will be governed by the decision which we have arrived at in appeals Nos. 65 and 66 of 1952. 17. Criminal Appeal No. 19 of 1953. Ghulam Hasan, J. 18. The appellant, Haji Faqir Ahmad, is a resident of Rewa in Vindhya Pradesh and alleges that he is a citizen of India. He was prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and set at liberty and for the issue of a writ of certiorari calling for the said order for arrest and detention and the relevant papers and for setting them aside as being void and inoperative. It is further prayed that the State of Bhopal and the Superintendent of Central Jail, Bhopal, where he was being detained be restrained from putting into effect the said order. The petition was made on March 11, 1953. It is stated that the petitioner is a citizen of India having been born in Bhopal in 1922. He was employed in Bhopal for 5 years immediately preceding the commencement of the Constitution of India. He also edited a weekly paper Tarjuman from Bhopal. His name appears as a voter in the voters' list of the Bhopal Legislative Assembly (1951-52), as well as in the electoral roll of the Municipal Bhopal. He was arrested on November 24, 1952, by the Sub-Inspector of Police at Ibrahimpura, Bhopal, under section 7 of the Influx from Pakistan (Control) Act, XXIII of 1949 and was told that he would be removed to Pakistan. At the time of the arrest the petitioner was being tried under section 448, Indian Penal Code, in the court of 1st Class Magistrate, Bhopal, and was on bail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition submitted by the prisoner immediately to this court and that he in good faith believed that as the order for stay had been vacated by the Judicial Commissioner, he should first send it to the Registrar of that Court. It is obvious that the Superintendent was grossly in error and his action in not submitting the petition resulted in the unlawful removal of the petition out of the country. He has made amends by tendering an unqualified apology and nothing further need be said about it. In Ebrahim Wazir Mavat v. The State of Bombay and Others and Noor Mohammad Ali Mohammad v. The State of Bombay and Others (Criminal Appeals Nos. 65 and 66 of 1952) in which we have just delivered judgment we have held that section 7 of the Act is void as against a citizen of India being an encroachment on his fundamental right under article 19(1)(e) of the Constitution. Following that decision we hold that the order of removal of the petitioner is liable to be set aside. 27. Mr. Umrigar, who appeared for the petitioner, pointed out that the Judicial Commissioner has already held that the petitioner is a citizen of India and that it will serve no useful purpose by remanding the case to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a no objection certificate which had been obtained by them by the suppression of material facts, namely, that they had previously come to India on a temporary permit. The appellant in Appeal No. 5 of 1953 came to India from Pakistan on a permanent permit which was subsequently canceled on the allegation that it had been obtained by fraud. The appellant in Appeal No. 19 of 1953 came to India from Pakistan without any permit and was prosecuted and convicted under section 5 of the Act and later on arrest and sent back to Pakistan. The petitioner in Petition No. 57 came to India without any permit at all. On this petitioner as well as on the appellants orders had been made under section 7 of the impugned Act to the effect that unless they left India within the time specified in the respective orders they would be bodily removed from India. These orders were made on the ground that they had entered India in violation of section 3 of the Act and or the rules and order made there under Each of these persons claimed that they were citizens of India and complained that the orders made against them violated their fundamental rights under Chapter III of the Constitution of India. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the application of section 6 of the General Clauses Act, 1897. Although the Influx from Pakistan (Control) Act, 1949 has been repealed and the number of persons who, like the appellants and the petitioners before us, are affected by the Act is small, nevertheless the matter has to be scrutinised closely, for our decision may conceivably affect the passport regulations which have replaced the permit system. 35. The contention advanced in these appeals and the petition is that sections 3 and 7 of the Act have, since the commencement of the Constitution, become void in that they violate the fundamental rights guaranteed by articles 14 and 19(1)(d) and (e) of the Constitution. The provisions of these two sections, which have been sufficiently set out in the judgment just delivered, will at once show that they applied to all persons coming from Pakistan, whether they were citizens or non-citizens and irrespective of the community to which they belonged or the religion which they professed. It will also appear that, as regards citizens, they did not touch all citizens by affected only such of them as came from Pakistan, whether they were Hindus, Muslims or Christians. It is, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try of any person absolutely. It only requires that a person entering India from any place in Pakistan must be in possession of a permit or a valid passport or be exempted from such requirements. Passport regulations obtain in every civilised country including even those the constitutions whereof confer similar fundamental rights on their citizens, e.g., Switzerland (article 43-45), Wiemer Germany (article III), Czechoslovakia (article 108), Jugoslavia (article 10), Danzig (article 75), and Albania (section 202). Such regulations serve to check up the persons who enter the territories of the State and are necessary for the safety of the State. Seeing that such regulations obtain everywhere and have a definite utility for the protection of the general public by securing the safety of the State I have no manner of doubt in my mind that such restrictions as are contemplated by section 3 must be regarded as reasonable restrictions permissible under clause (5) of article 19 of the Constitution. Indeed, the objection of section 3 has not been seriously pressed before us. 39. The main objection urged by learned counsel appearing in support of these appeals and petitions was directed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... validity of the permit or as to the status of the permit holder or the fundamental rights of a citizen of India to move freely in India and to settle anywhere he liked in India. The truth and substance of the matter are that in acting in the way indicated above the officer simply performed an executive act and prevented a person who held no permit or held a permit which appeared to the officer to be spurious from entering India from Pakistan in violation of section 3 of the Act. To throw out such a person was not to inflict any punishment on him or to do him any greater injury than what was imposed on or done to a person who, not having a permit, was stopped at the check-post and not allowed to enter India at all. The man thus thrown out was placed under no greater disability than the man who had initially been prevented from entering India at the check-post barrier. In both cases such a person might, while staying in Pakistan, have taken steps to obtain a permanent permit upon proof of his status as an Indian citizen and if such permit was illegally withheld from him he might have through some agent in India taken proceedings in India courts for appropriate reliefs. To my m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut by the partition of India. Having regard to all the circumstances, the tension, bitterness and hatred between the two countries that were generated at the time of the partition and all which must enter into the judicial verdict, the provisions of section 7 appear to me to have been eminently reasonable restrictions imposed in the interests of the general public upon the exercise by Indian citizen coming from Pakistan without a permit of the rights conferred by article 19(1)(d) and (e) of the Constitution. The Indian citizen who was thrown out for not having the proper permit or who was suspected to have violated the provisions of the Act was placed in no worse position than an India citizen who, not having a permit, had not been permitted to enter into India at all. They were by no means without remedy. They could from the other side of the border take steps under the rules to obtain valid permanent permits upon proof of their citizenship of India and if such permits were illegally withheld from them they could move the appropriate High Court under article 226 or even this court under article 32 while they were outside India and might, on proof of their citizenship, have got ..... X X X X Extracts X X X X X X X X Extracts X X X X
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