TMI Blog1972 (4) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... ents for manufacturing the same, and (2) on September 4, 1970 at 4-0 A. M. he was found in a drunken state in the said Vajsur locality and at that time some intoxicant was also found with him. After the petitioner's explanation in this connection, the petitioner was externed by the impugned order at Annexure 4 where it was mentioned that the petitioner was thrice convicted on June 8, 1967, June 17,1968 and September 13,1968 under Section 67(b) of the Bombay Prohibition Act for which he was sentenced for the first offence to three months Rigorous imprisonment and a fine of ₹ 500/-, for the second offence 15 days' R.I. and a fine of ₹ 50/- and in the third case with a fine of ₹ 50/- only. These offences having taken place within the period of three years and as materials were placed before the authorities to the effect that the petitioner was again involved in a case when he was caught on February 29, 1969 in Vajsur locality of Jasdan at 5-45 P. M. in a drunken condition and also as he was caught on September 4, 1970 at 4-00 A. M. in drunken state, after considering the explanation and the evidence, the authority was satisfied that the petitioner had three c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... convicted. He, therefore supported the order on this basis. 2. Mr. Nanavati raised a preliminary objection that the question of vires of this provision was already settled by the earlier decisions of the Supreme Court, and in any event, as petitioner has not exhausted the alternative remedy of an appeal before the State Government, this petition ought not to be entertained. Mr. Mehta challenges the order of this executive authority imposing so serious a restraint on the cherished right of freedom of movement and freedom of choice of his residence on the ground that the authority did not bear in mind the guideline for the exercise of this wide power imposing so serious a restraint on the citizen's freedom that it could only be exercised on consideration of necessity of invoking this power in the interest of general public. When the order of the executive authority is attacked as an ultra vires order, the order would be a nullity and even if an appeal was filed, the order confirmed in appeal would also be a nullity and in such a case where challenge is on the ground that the order is ultra vires order, the question of exhausting alternative remedy of appeal could hardly arise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ie. In view of the very wide impact of power on the cherished liberty of the citizen, the authority was bound to follow strictly the safeguards created for the exercise of this wide power and, therefore it would be a material question as to what are the guide lines or the perspective within the framework of this very legislation for the exercise of such powers with this wide impact. In Rohtas Industries Ltd. v. S.D. Agarwal [1969]3SCR108 their Lordships first pointed out that under Section 237(b) of the Companies Act which took colour from the entire scheme of other Sections 235 and 236, the power was one of serious inroad on the powers of the company to carry on its trade and business and also on the fundamental rights of the shareholders guaranteed under Article 19(1)(g) and its validity could be upheld only on the ground that there was a reasonable restriction in the interest of the general public. Once the vires was upheld of such wide power on the ground of reasonable restraint, and not being arbitrary power conferred on the Central Government, it had to be exercised in accordance with the restrictions imposed by law. Even though the condition precedent for the exercise of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power depended upon satisfaction, its exercise could not be subjected to judicial review, the Government being the final arbiter of the conditions on the existence of which the power might be exercised. Looking to the wide impact of the power which was conferred, their Lordships held that the recital about satisfaction as to the existence of certain objective facts which were guide-lines for the exercise of the power could be displaced by showing that the conditions did not exist, or that no reasonable body of persons properly versed in law could have reached the said satisfaction, although sufficiency of the grounds on which satisfaction was reached could not be canvassed before the court. If in reaching such a satisfaction the authority misapprehended the nature of the conditions or proceeded upon irrelevant material or ignored relevant materials, the jurisdiction of the court to examine the satisfaction was not excluded. We may of course state as was held in Chandra Bhavan Boarding and Lodging Bangalore, v. State of Mysore (1970)IILLJ403SC at page 2048 that it is not the law that the guidance for the exercise of a power should be gatherable from one of the provisions in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under the Act to impose such wide restraint on the liberty of the subject could always be trusted that they would honestly and impartially use this wide power justly and fairly. In case of abuse of the power the authority could be corrected by judicial review or by the provision of appeal and the appeal right was not, therefore, illusory. In the majority view it was in terms pointed out in in Hart's case that these provisions were not punitive in nature, but were only preventive. A person proceeded against was not prosecuted but was only put out of the harm's way. Externment of an individual like preventive detention is largely precautionary and based on suspicion. The Court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based. The legislature has entrusted the police officer, or the Magistrates of the higher ranks to examine the facts and circumstances of each case brought before them by the Criminal Investigation Department and there were provided various safeguards against the tyrannical or wholly unfounded order being passed by the ranks of the police or the magistracy, so that the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities, his associates also were to be similarly dealt with so that the gang was broken up and the different persons constituting it might be removed to different parts of the State so as to reduce their criminal activities to the minimum. Their Lordships pointed out that unless a person made himself so obnoxious as to render his presence in every part of the Bombay State a menace to public interest including public peace and safety, every authority would not think of acting in the same way in respect of the same person. When it was pointed out to their Lordships that the safeguards were of no avail as the proposed extremes was entitled to have only the general nature of material allegations, their Lordships observed that in the very nature of things it could not have been otherwise. The grounds available to an extremes had necessarily to be very limited in their scope, because if evidence were available which could be adduced in public, such a person could be dealt with under the preventive sections of the Code of Criminal Procedure for example Section 107 or Section 110. But the special provisions of the Act proceeded on the basis that the persons dealt with under any of the Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tivity. It might be added that in State of Bombay v. V. Ramchandra 1961CriLJ450 , at page 312 Their Lordships again pointed out that Section 57 did not create a new offence or made punishable that which was not an offence. It was designed to protect the public from the activities of undesirable persons who had been convicted of offences of a particular kind. The section only enabled the authorities to take note of their convictions and to put them outside the area of their activities so that the public might be protected against a repetition of such activities. Their Lordships further added at page 311 that an externment order in order to satisfy the requirements of Section 57 must be made bona fide taking into account a conviction which was sufficiently proximate in time. Therefore, while the vires is upheld, it is in terms laid down that the relevant scheme as so interpreted conferred a guided discretion on such a high authority and, therefore, the restriction was a permissible restriction saved by Article 19(5) of the Constitution as imposed in public interest. Therefore, the guide-lines as laid down by Their Lordships are to be found in the fact that a judicial discretion is ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itutional Bench of seven Judges in Madhu Limye v. Sub-Divisional Magistrate, Monghyr 1971CriLJ1720 , interpreted the expression in the interest of public order and 'in the interest of general public in the saving clauses in Article 19. At page 755 Their Lordships pointed out that even though in Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia 1960CriLJ1002 , his Lordship Subba Rao J. had interpreted the expression public order as synonymous with public peace, safety and tranquility or as absence of disorders involving breaches of purely local significance so as to bring in such offences within the scope of permissible restrictions under Clause (2) of Article 19, in the second Lohia's case 1966CriLJ608 , (Dr. Ram Manohar Lohia's v. State of Bihar), the concept of three circles had been introduced. All cases of disturbances of public tranquility fell in the largest circle but some of them were outside 'public order' for the purpose of the phrase 'maintenance of public order'. Similarly, every breach of public order was not necessarily a case of an act likely to endanger the security of the State. It was observed that the State was at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the power was to free society from menace of serious disturbances of a grave character. The section was directed against those who attempted to prevent the exercise of legal rights by others or imperil the public safety and health. If that was so, the matter must fall within the restrictions which the Constitution itself visualized as permissible in the interest of public order , or in the interest of the general public. Even in the case of annoyance mentioned in Section 144, their Lordships pointed out that in view of these guide-lines given by the Constitution the annoyance contemplated in the relevant provisions must assume sufficiently grave proportions to bring the matter within interests of public order. At page 763, their Lordships ultimately held that the gist of the entire Chapter was the prevention of crimes and disturbance of public tranquility and breaches of the peace. The action being preventive was not based on overt act but on the potential danger to be averted. These provisions were thus essentially conceived in the interest of public order in the sense defined, and were also in the interest of general public. If the prevention of crimes and breaches of pea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson carrying on immoral traffic in women and girls or of a gambler or of a drunkard. Even if specific acts of violence are not shown, the offending activities of such a person at some stage might constitute a menace to the society by endangering public health or public moral. Therefore, the wider public interest must require these reasonable restrictions and the provision can be invoked against such a person who has become a menace to the society. Therefore, it is obvious that the guide-lines necessarily bring out the consideration of the public order or public interest in this narrower sense of the person becoming a public menace to the health, safety or morals of the community. Unless the even tempo of life of the locality is seriously disturbed in this sense by such activities, this wider power of committing such serious inroads on individual liberty does not arise at all, especially when this measure has to betaken only when preventive action under the Code which would meet all normal cases would not serve the purpose. 6. In order to illustrate these guide-lines we may usefully refer to the decision in Arun Gosh v. State of West Bengal 1970CriLJ1136 . At page 1229 their Lor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said to be causing disturbance of public order and not merely committing individual actions which might be taken note of by the criminal prosecution agencies. It meant therefore that the question whether a man had only committed a breach of law or order or had acted in a manner likely to cause a disturbance of public order was a question of the degree and extent of the reach of the act upon the society. The French distinguished the law and order and public order by designating the latter as order purlieu. Their Lordships referred to the earlier decision of his Lordship Ramswami J. in Pushkar Mukherjee v. State of West Bengal 1970CriLJ852 , where a line was demarcated between serious and aggravated forms of disorder which directly affected the community or injured the public interest and relatively minor breaches of peace of a purely local significance which primarily injured specific individuals, and only in a secondary sense public interest. Therefore a large number of acts directed against individual might total up into breach of public order. Therefore in every case this question of degree of the harm and its effect upon the community is the basis. If it leads to a serious dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act was not only to suppress immoral traffic in women and girls but also to improve public morals by removing prostitutes from busy public places in the vicinity of religious and educational institutions. The differences between these two classes of prostitutes had a rational nexus to the object sought to be achieved by the Act. Section 20 in order to prevent moral decadence, in a busy locality sought to restrict the movements of the second category of prostitutes and to deport such of them as the peculiar methods of their operation in an area might demand. Further proceeding at page 422 their Lordships pointed out that whenever reasonable restriction was imposed on the cherished right of liberty, it would imply intelligent care and deliberation, that is the choice of a course which reason dictated. Their Lordship applied the test laid down by his Lordship Patanjali Sastri C. J. in State of Madras v. V. G. Row 1952CriLJ966 in the following classic words: It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern, of reasonableness can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as necessary in public interest to deport her from that place, there was no reason why the restrictions should be held to be unreasonable. Whether deportation out of the jurisdiction of the Magistrate was necessary or not depended upon the facts of each case and the degree of the demoralising influence a particular prostitute was exercising in a particular locality. If in a particular case, a Magistrate went out of the way and made an order which was clearly disproportionate to the evil influence exercised by a particular prostitute, she had a remedy by way of revision to an appropriate Court. This decision would show how the executive authority which is entrusted with such wide power of so serious inroads on the cherished right of liberty must exercise this power by balancing the requirement of curbing individual liberty, and pass the order when it is outweighed by the requirement of the general public interest. The authority cannot abdicate its functions merely on the ground that the vires of the section had been upheld. The majority view in Hari's case had proceeded on the footing that when such a serious or wide power was conferred on such high authority, the authority shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, in terms held that the words have reference to the alarm, danger or harm to person or property of the public at large and not of one or two individuals among the public. Therefore, the entire scheme of Section 55, 56 and 57 shows that these guide-lines have to be read in the entire scheme because otherwise the restrictions would not be commensurate with the requirements of general public interest and that is the very basis on which these restrictions have been held to be constitutional. 7. Mr. Nanavati, however, vehemently argued that once the question of vires has been concluded by the high authorities, it is not open to this Court to add other conditions precedent. When Their Lordships in terms held that only two conditions precedent were required under Section 57 as to the previous conviction and as to the belief of the authority that the person was likely to commit similar offences to those for which he was convicted, Their Lordships in terms held that this scheme of the sections imposed restrictions which were permissible under Article 19(1)(f) in the interest of general public. Therefore, that guide-line has to be followed by every executive authority while he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act that on two subsequent occasions the petitioner was found in a drunken state. That is why the authority has in terms stated that it was true that in the notice there was no allegation as to the breach of peace or other activity harmful or injurious to the people or the society but in his view that was not the necessary ingredient. Therefore, the authority clearly admits that he has not applied his mind to the proper perspective or guide-lines which we have enunciated where he had to consider the extent of the harmful activity of the petitioner and whether it had reached such a degree or extent that in the interest of general public the petitioner was required to be removed from this locality by putting him out of the harm's way so that the community in the locality could remain in peace and tranquility and safety. Therefore, the order on the authority's own admission is clearly an ultra vires order as the restrictions imposed on the cherished right of liberty are not commensurate with the requirements of the public interest. Mr. Nanavati, however, vehemently relied on the second affidavit of Mr. Ghosh where he refers to the fact that the convictions were also under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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