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PETITIONER: DR. N.B. KHARE

       Vs.

RESPONDENT: THE STATE OF DELHI

DATE OF JUDGMENT: 26/05/1950

BENCH: KANIA, HIRALAL J. (CJ) BENCH: KANIA, HIRALAL J. (CJ) FAZAL ALI, SAIYID SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND MUKHERJEA, B.K.

CITATION:  1950 AIR  211            1950 SCR  519  CITATOR INFO :  R          1952 SC  75  (15)  D          1952 SC 196  (15,17,18)  R          1956 SC 559  (8)  R          1957 SC 510  (15)  RF         1957 SC 896  (11,13)  E          1958 SC 578  (169)  R          1959 SC 459  (48)  R          1962 SC1371  (35)  RF         1964 SC1279  (6)  R          1968 SC 445  (14)  R          1971 SC1667  (27)  RF         1973 SC1461  (242,451)  R          1974 SC 175  (14)  R          1974 SC1044  (24)  R          1975 SC2299  (485)  R          1978 SC 851  (24)  RF         1979 SC  25  (31)  R          1980 SC1382  (81)

ACT:     Constitution  of  India, Art. 19, cls. (1) (d)  and  (5) Fundamental  rights--Freedom of movement--Law  imposing  re- strictions-Validity--Reasonableness   trictions--Scope    of enquiry--East  Punjab Public Safety Act, 1949, s. 4  (1)(c), (3),  (6)--Provisions  empowering Provincial  Government  or District Magistrate to extern persons making satisfaction of externing authority final, authorising externment for indef- inite period, and directing that authority "may communicate" grounds of externment--Whether reasonable--Construction  and Validity of Act. 67 520

HEADNOTE:     Section  4,  sub-s. (1) (c), of the East  Punjab  Public Safety Act of 1949 which was passed on the 29th March, 1949, and was to be in force until the 14th August, 1951, provided that "The Provincial Government or the District  Magistrate, if satisfied with respect to any particular person that with

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view to preventing him from acting in any manner prejudicial to  the public safety or the maintenance of public order  it is  necessary  to do so, may, by order in  writing,  give  a direction  that such person shall remove himself  from,  and shall  not return to, any area that may be specified in  the order."   Sub-section  (3) of s. 4 provided that  "an  order under sub-s. (1) made by the District Magistrate shall  not, unless  the Provincial Goverment by special order  otherwise directs, remain in force for more than three months from the making  thereof,"  and sub-s. (6) laid down  that  "when  an order  has been made in respect of any person under  any  of the  clauses  under  s. 4, sub-s. (1) or  sub-s.  (9.),  the grounds  of it may be communicated to him by  the  authority making the order, and in any case when the order is to be in force  for more then three months, he shall have a right  of making  a  representation which shall be  referred   to  the Advisory  Tribunal  constituted  under  s. 3,  sub-s.  (4)." The  petitioner,  against  whom an order under  (1)  (c)  of the  Act was passed applied to the Court under Art.  39,  of the  Constitution for a writ of certiorari  contending  that the  order  was illegal inasmuch as the  provisions  of  the above mentioned Act under which the order was made infringed the fundamental right to move freely throughout the territo- ry  of India which was guaranteed by Art. 19 (1) (d) of  the Constitution and were accordingly void under Art. 13 (1)  of the Constitution:     Held, per KANIA C.J., FAZL ALl and PATANJALI SASTRI, J3. (MAHAJAN and MUKHERJEA, JJ. dissenting)--(i) that there  was nothing  unreasonable in the provision contained  in  sub-s. (1)  (c)  empowering the Provincial Government or  the  Dis- trict  Magistrate  to make an externment order,  and  making their  satisfaction  as to the necessity of making  such  an order final, or in the provisions contained in sub-s. (3) of s.  4 that an order of a District Magistrate may  remain  in force  for three months and that the  Provincial  Government may make an order, or keep alive an order made by a District Magistrate,  for  a period exceeding  three  months  without fixing  any time limit; (ii) with regard to sub-s. (6),  the word "may" in the expression "may communicate" must, in  the context,  be read as meaning "shall" and under the  sub-sec- tion  it is obligatory on the authority making an  order  to communicate the grounds to the externee;.(iii) the  restric- tions  imposed by the above-mentioned provisions of the  Act upon  the fundamental right guaranteed by Art. (19) (1)  (d) were  not, therefore, unreasonable restrictions  within  the meaning  01 Art. 19 (5) and the provisions of the  Act  were not void under Art. 13 (1), and the order of externment  was not illegal.     Per   MUKHERJEA  J.   (MAHAJAN  J.   concurring)--Though certain  authorities   can  be  invested   with   power   to make 521 initial  orders on their own satisfaction in cases  of  this description,  and  s. 4 (1) (c) of the  East  punjab  Public Safety  Act cannot be pronounced to be unreasonable   simply because  an order  I could be passed by the Provincial  Gov- ernment  or the District Magistrate  on their  own  personal satisfaction  and not on  materials, which  satisfy  certain objective tests, yet, the position would be different if the order  thus made is allowed to continue for  any  indefinite period of time without giving the aggrieved person an oppor- tunity to say what he has got to say against the order;  and inasmuch  as sub-s. (3) of s. 4 prescribes no limit  to  the period of time during which an externment order would remain in force if it is made by the Provincial Government, and the

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Provincial  Government is also given power to keep an  order made  by  a District Magistrate in force for  an  indefinite period,  the provisions of sub-s. (3) are manifestly  unrea- sonable.   The  provisions  of sub-s. (6)of s.  4  are  also unreasonable  as  they make it entirely  optional  with  the authorities  to  communicate  to the  person  affected,  the grounds upon which the order is made. Neither sub-s. (3) nor sub-s.  (6) of s. 4 can, therefore, be said to have  imposed restrictions  which are reasonable in the interests  of  the general  public within the meaning of Art. 19 (5) and  these provisions of the Act were consequently void and inoperative under  Art.  13 (1)of the Constitution, and  the  externment order was illegal.     Held also, per KANIA C.J.,  FAZL ALI, MAHAJAN and  MUKH- ERJEA JJ.--Whether the restrictions imposed by a legislative enactment  upon the fundamental right guaranteed by Art.  19 (1) (d) are reasonable within the meaning of Art. 19 (5)  of the  Constitution  would depend as much  on  the  procedural portion  of  the law as the substantive part of it]  and  in considering  whether  such restrictions are  reasonable  the Court is not therefore bound to confine itself to an  exami- nation  of  the reasonableness of the  restrictions  in  the abstract  with reference to their duration  and  territorial extent.   The Court can also consider the reasonableness  of the  procedural part of the law and the circumstances  under which,  and the manner in which, the restrictions have  been imposed.  [PATANJALI SASLUP, I J. did not express any  opin- ion on this point.]

JUDGMENT: ORIGINAL JURISDICTION:  Petition No. XXXVII of 1950. Application  under article 32 of the Constitution  of  India for a writ of certiorari and prohibition.  The facts are set out in the judgment.   B. Banerji for the petitioner.     M.C.  Setalvad, Attorney-General for India (Gyan  Chand, with him) for the opposite party. 522     1950. May 26.  The following judgments were delivered:-- KANIA C.J.--This is an application for a writ of ’certiorari and  prohibition  under article 32 of  the  Constitution  of India.     The  petitioner  who is the President of the  All  India Hindu  Mahasabha  since December, 1949, was served  with  an order  of  externment dated the gist of  March,  1950,  that night.  By that order he is directed by the District  Magis- trate,  Delhi,  not  to remain in the  Delhi  District,  and immediately  to remove himself from the Delhi  District  and not to return to the District.  The order was to continue in force  for  three months.  By another order  of  the  Madhya Bharat Government he was directed to reside in Nagpur.  That order has been recently cancelled.  The petitioner  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.   He further contends that the grounds of the order served on him are  vague, insufficient and incomplete.  According  to  him 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.  It is alleged that because  the  petitioner and the Hindu Mahasabha are against the Government policy of

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appeasement  this order is served on him.  It  is  therefore mala  fide and illegal.  In support of his contention  about the invalidity of the East Punjab Public Safety Act and  its provisions as regards externment, counsel for the petitioner relied on the recent unreported judgments of the Patna  High Court  in Miscellaneous Judicial Case No. 29 of 1950,  Brij- nandan  v.  The  State of Bihar, and of the  High  Court  of Bombay  in  Criminal Application No. 114 of  1950,  re  Jai- singhbhai Ishwarlal Modi.      It is necessary first to ascertain the true meaning  of article 19 (1) (d) read with clause (5) of the same article. There is no doubt that by the order of extern-      523 ment  the  right of the petitioner to  freedom  of  movement throughout  the  territory of India is  abridged.  The  only question  is whether the limits of  permissible  legislation under  clause  (5) are exceeded.  That  clause  provides  as follows:--"19.  (5)  Nothing in subclauses (d), (e) and  (f) of the said clause shall affect the operation of any  exist- ing  law in so far as it imposes, or prevent the State  from making  any  law imposing, reasonable  restrictions  on  the exercise  of  any of the rights conferred by the  said  sub- clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe."  It is  clear that the clause permits imposition  of  reasonable restrictions on the exercise of the right conferred by  sub- clause  (d)in the interests of the general public. The  rest of  the provision of clause (5) is not material and  neither side  relies on it.   Two interpretations of the clause  are put  before  the  Court.  It is  argued  that  grammatically understood the only question before the Court is whether the impugned legislation imposes reasonable restrictions on  the exercise  of the right. To put it in other words,  the  only justiciable issue to be decided by the Court is whether  the restrictions  imposed by the legislation on the exercise  of the  right  are reasonable.  If those  restrictions  on  the exercise  of the right are reasonable, the Court has not  to consider  whether the law imposing the restrictions is  rea- sonable. The other interpretation is that while the  Consti- tution permits a law laying down reasonable restrictions  on the  exercise of the rights mentioned in sub-clause  19  (1) (d),  the  reasonableness has to be of the law also.  It  is submitted that in deciding whether the restrictions, on  the exercise  of  the  right are reasonable, the  Court  has  to decide  not only on the extent and nature of  the   restric- tions on  the exercise  of the right but also as to  whether the  conditions  under  which the right  is  restricted  are reasonable.   The  majority judgments of the Patna  and  the Bombay High Courts, although the impugned Acts of the  State Legislatures  before them were materially different on  cer- tain  important points, have given clause (5) of article  19 the latter meaning. 524     In  my opinion, clause (5) must be given its full  mean- ing.  The question which the Court has to consider is wheth- er  the restrictions put by the impugned legislation on  the exercise  of the right are reasonable or not.  The  question whether  the provisions of the Act provide reasonable  safe- guards against the abuse of the power given to the executive authority tO administer the law is not relevant for the true interpretation of the ’clause.  The Court, on either  inter- pretation,  will be entitled to consider  whether  the   re- strictions on the right to move throughout India, i.e,, both as regards the territory and the duration, are reasonable or not.   The  law  providing reasonable  restrictions  on  the

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exercise  of the right conferred by article 19  may  contain substantive  provisions  as well as  procedural  provisions. While  the  reasonableness  of the restrictions  has  to  be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the  Court the question of reasonableness of the procedural part of the law.   It is obvious that if the law prescribes  five  years externment  or  ten years externment, the  question  whether such period of externment is reasonable, being the  substan- tive part, is necessarily for the consideration of the Court under clause (5).  Similarly, if the law provides the proce- dure under which the exercise of the right may be  restrict- ed, the same is also for the consideration of the Court,  as it  has to determine if the exercise of the right  has  been reasonably restricted. I do not think by this interpretation the  scope and ambit of the word "reasonable" as applied  to restrictions  on  the exercise of the right, is in  any  way unjustifiably  enlarged. it seems that the narrow  construc- tion  sought  to be put on the expression, to  restrict  the Court’s  power to consider only the substantive law  on  the point,  is  not correct.  In my opinion this aspect  of  the construction  of  article 19 (5) has  escaped  the  minority judgment  in the two matters mentioned above. I am not  con- cerned  with  the conclusions of the two  Courts  about  the invalidity of the provisions of the Acts they were asked  to consider.  To the extent they help in the interpretation  of article 19 (5) only they are helpful.     525      The next question is whether the impugned Act  contains reasonable  restrictions on the exercise of the right  given under  article 19 (1)(d)or (e).  It was argued on behalf  of the  petitioner that 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 review by the Court.  On  that ground  it  was  contended that there  was  an  unreasonable restriction  on the exercise of the citizen’s right.  In  my opinion,  this argument is unsound. This is not  legislative delegation.  The desirability of passing an individual order of  externment against a citizen has to be left to an  offi- cer.   In  the  Act such a provision cannot  be  made.   The satisfaction  of the officer thus does not impose an  unrea- sonable restriction on the exercise of the citizen’s  right. So  far  as the Bombay High Court is concerned  Chagla  C.J. appears to have decided this point against the contention of the petitioner.     It  was  next urged that under section 4 (3)  the  order made  by the District Magistrate shall not, unless the  Pro- vincial Government by special order otherwise direct, remain in force for more than three months. It was argued that  the period  of three months itself was unreasonable as  the  ex- ternee  had  no remedy during that time.  It  was  contended that when the Provincial Government directed the renewal  of the order no limit of time was prescribed by the legislature for  the duration of the order.  The order therefore can  be in  operation for an indefinite period.  This was argued  to be  an unreasonable restriction on the exercise of  a  citi- zen’s right.  In this connection it may be pointed out  that in  respect of preventive detention, which is a more  severe restriction  on the right of the citizen,  the  Constitution itself under article 22 (4) to (7) permits preventive deten- tion  for  three months without any remedy.  The  period  of three months therefore prima facie does not appear unreason- able.  Under  the proviso to section 4  (5)  the  Provincial Government  is  not  permitted to direct  the  exclusion  or

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removal from the Province of a person ordinarily residing in the Province, and similarly 526 the District Magistrate is not permitted to order the exclu- sion  or  removal  of a person ordinarily  resident  in  his district  from  that district.  This is  a  great  safeguard provided  under  the  East Punjab Public  Safety  Act.   The further  extension  of  the externment  order  beyond  three months may be for an indefinite period, but in that  connec- tion the fact that the whole Act is to remain in force  only up  to the 14th August, 1951, cannot be  overlooked.   More- over,  this whole argument is based on the  assumption  that the  Provincial  Government when making the order  will  not perform  its duty and may abuse the provisions of  the  sec- tion.   In my opinion, it is improper to start with such  an assumption and decide the legality of an Act on that  basis. Abuse of the power given by a law sometimes occurs; but  the validity  of the law cannot be contested because of such  an apprehension.  In my opinion, therefore, this contention  of the petitioner cannot be accepted.     It.  was next argued that there is no provision  in  the Act  for  furnishing grounds of externment to  the  citizen. Section  4  (6) provides that when an externment  order  has been made its grounds may be communicated to the externee by the  authority  making the order and in any  case  when  the order is to be enforced for more than three months he  shall have  a  right of making a representation  which   shall  be referred to the advisory tribunal constituted under  section 3 (4).  While the word "may"  ordinarily conveys the idea of a  discretion and not compulsion, reading it with  the  last part  of the clause it seems that when an  externment  order has  to be enforced for more than three months  an  absolute right is given to the cxternee to make a representation.  He cannot  make a representation unless he has  been  furnished grounds  for the order. In no other part of the Act a  right to obtain the grouuds for the order in such a case is  given to him.  Therefore, that right has to be read as given under the  first part of section 4 (6).  That can be done only  by reading the word "may" for that purpose as having the  mean- ing  of  "shall"   If the word "may" has to be so  read  for that  purpose, it appears to be against the  well-recognised canons of construction to 527 read  the same "may" as having a different meaning when  the order  is to be in force for less than three months.   I  do not think in putting the meaning of "shall" on "may" in  the clause,  I  am  unduly straining the language  used  in  the clause.  So read this argument must fail.     It was next argued that there is no provision in the Act showing what the advisory board has to do when it receives a representation.   A reference to the advisory  board  neces- sarily  implies a consideration of the case by  such  board. The  absence of an express statement to that effect  in  the impugned Act does not invalidate the Act.     It  was  finally contended on behalf of  the  petitioner that  the grounds for the externment order supplied  to  him are   vague, insufficient and incomplete.   The grounds  are stated as follows :--     "Your  activities generally and particularly  since  the recent  trouble in East and West Bengal have been      of  a communal nature tending to excite hatred between communities and whereas in the present composition of the population  of Delhi and the recent communal disturbances of Delhi feelings are  roused between the majority and  minority  communities, your  presence and activities in Delhi are likely  to  prove

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prejudicial  to  the  maintenance of law and  order,  it  is considered necessary to order you to leave Delhi."    These grounds cannot be described as vague, insufficient or  incomplete.  It is expressly stated that the  activities of  the petitioner, who is the President of the Hindu  Maha- sabha, since the recent disturbances between two communities in  the  East and West Bengal have particularly  been  of  a communal  nature which excites hatred between  the  communi- ties.    It  is  further stated that having  regard  to  the recent  disturbance  in Delhi, the population  of  which  is composed  of  both  these  communities,  the  excitement  of such,hatred  is  likely  to be dangerous to  the  peace  and maintenance  of  law and order.  Apart from being  vague,  I think  that these grounds are specific and if  honestly  be- lieved can support the order.  The argument that the order 528 was served to stifle opposition to the Government policy  of appeasement  has little bearing because the District  Magis- trate  of  Delhi  is not concerned with the  policy  of  the Government  of appeasement or otherwise. The order  is  made because the activities of the petitioner are likely to prove prejudicial  to  the maintenance of law and  order  and  the grounds  specified have a direct bearing on that  conclusion of  the  District Magistrate.  I therefore think  that  this contention of the petitioner must be rejected. The result is that the petition fails and is dismissed. FAZL ALI J.--I agree.     PATANJALI SASTRI J.--I agree that this application  must fail.   As  I share the views expressed by  my  Lord  in.the judgment just delivered by him on the reasonableness of  the restrictions  imposed by the impugned legislation  whichever construction of article 19 (5) of the Constitution is adopt- ed, I consider it unnecessary to express any opinion on  the true  scope  of  the judicial review  permitted  under  that article, and I hold myself free to deal with that point when it becomes necessary to do so. MAHAJAN J.--I concur in the judgment which my brother  Mukh- erjea is delivering and for the reasons given by him I allow the petition and quash the order of externment.     MUKHERJEA J.--This is an application under article 32 of the  Constitution,  praying for quashing  of  an  externment order made by the District Magistrate of Delhi, against  the petitioner Dr. N.B. Khare, on 31st March, 1950, by which the latter  was directed to remove himself immediately from  the Delhi District and not to return to that District so long as the order remained in force.  The order is for three  months at  present.   Complaint was also made in  the  petition  in respect  of  another and a subsequent order  passed  by  the Government  of Madhya Bharat which was served on  the  peti- tioner on his way to Nagpur and which 529 directed  him  to  reside within the limits  of  the  Nagpur Municipality and not to leave that area without the  permis- sion of the District Magistrate of that place. This order of the Government of Madhya Bharat, we are told, has since been withdrawn  and we are not concerned with that order  or  the Act under which it was passed in the present proceeding.     The  substantial  contention  raised on  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 Consti- tution came into force, by reason of these provisions  being inconsistent  with the fundamental rights  guaranteed  under article 19 (1) (d) of the Constitution read with clause  (5)

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of the same article.  The argument is that any order  passed under  such void legislative provisions must necessarily  be void and of no effect in law.     In order to appreciate the merits of this contention, it may  be convenient to advert to the material  provisions  of the East Punjab Public Safety Act which are alleged to  have become void as well as to the articles of the  Constitution, upon  which reliance has been placed by the learned  counsel for the petitioner.     The  East  Punjab Public Safety Act came into  force  on 29th March, 1949, and its object, as stated in the preamble, is  to provide for special measures to ensure public  safety and  maintenance of public order. Section 4 (1) of  the  Act provides:     "The  Provincial Government or the  District Magistrate, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner  prejudi- cial to the public safety or the maintenance of public order it  is  necessary so to do, may, by order in  writing,  give anyone or more of the following directions, namely that such person  ...................................................         (c) shall remove himself from, and shall not     return to, any area that may be specified in the order." , 530 Sub-section  (3)  of the section lays down  that  "An  order under sub-section (1) made by the District Magistrate  shall not,  unless  the  Provincial Government  by  special  order otherwise  directs,  remain  in force for  more  than  three months from the making thereof."     The contention of the petitioner is that the restrictive provisions  mentioned above, under which a person  could  be removed from a particular area or prohibited from  returning to it are inconsistent with the fundamental right guaranteed by  article 19 (1) (d) of the Constitution under  which  all citizens shall have the right "to move freely throughout the territory of India."  This right indeed is not absolute  and the extent to which it could be curtailed by legislation  is laid down in clause.(5)of article 19 which runs as follows:     "Nothing  in  sub-clauses (d), (e) and (f) of  the  said clause shall affect the operation of any existing law in  so far as it imposes, or prevent the State from making any  law imposing,   reasonable restrictions on  the exercise of  any of  the rights conferred by the said sub-clauses  either  in the interests of the general public or for the protection of the interests of any Scheduled Tribe."     Thus  the primary question which requires  consideration is, whether the impugned legislation which apparently  seems to  be in conflict with the fundamental right enunciated  in article 19 (1) (d) of the Consitution is protected by clause (5)  of the article, under which a law would be valid if  it imposes reasonable restrictions on the exercise of the right in the interests of the general public.  It is not  disputed that the question of reasonableness is a justiciable  matter which  has  to be determined by the Court.   If  the  Courts ’hold the restrictions imposed by the law to be  reasonable, the  petitioner would certainly have no remedy.  If, on  the other  hand,  they are held to be unreasonable,  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. 531     It  has  been  urged, though somewhat  faintly,  by  the learned  Attorney-General  that  the  right of free movement

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throughout the Indian territory as enunciated in article  19 (1)  (d) of the Constitution contemplates nothing  else  but absence  of  inter-State restrictions, which  might  prevent citizens  of the Indian Union from moving from one State  to another.  A law which does not impose barriers of this kind, it  is  said, cannot be inconsistent  with  the  fundamental right secured by this clause.  Such a restricted interpreta- tion is, in my opinion, not at all warranted by the language of the sub-clause. What article 19 (1) (d) of the  Constitu- tion  guarantees  is the free right of all  citizens  to  go wherever they like in the Indian territory without any  kind of  restriction whatsoever.  They can move not  merely  from one  State to another but from one place to  another  within the same State and what the Constitution lays stress upon is that  the entire Indian territory is one unit so far as  the citizens are concerned.  Clause (c) of section 4 (1) of  the East Punjab Public Safety Act, 1949, authorises the  Provin- cial  Government  or the District Magistrate to  direct  any person to remove himself from any area and prohibit him from entering the same.  On the face of it such provision  repre- sents  an interference with  the. fundamental right  guaran- teed by article 19 (1) (d) of the Constitution.  The contro- versy, therefore, narrows down to this, whether the impugned legislation  is  saved  by reason of its  being  within  the permissible limits prescribed by clause (5) of article 19.     With  regard to clause (5), the learned  AttorneyGeneral points  out at the outset that the word "reasonable"  occur- ring in the clause qualifies "restrictions" and not  "law’". It  is argued that in applying the clause, all that we  have to see is whether the restrictions that are imposed upon the exercise  of the right by law are reasonable or not  and  we have not to enquire into the reasonableness or otherwise  of the law itself.  The reasonableness of the restrictions  can be judged,’ according to the learned  Attorney-General, from the  nature of the restrictions themselves and not from  the manner in which or the authorities by which they are 532 imposed.   The  question whether the operation  of  the  law produces hardship in individual cases is also a matter which is quite irrelevant to our enquiry.     I do agree that in clause (5) the adjective ’reasonable’ is  predicated of the restrictions that are imposed  by  law and  not of the law itself; but that does not mean  that  in deciding  the  reasonableness or otherwise of  the  restric- tions, we have to confine ourselves to an examination of the restrictions in the abstract with reference merely to  their duration  or territorial extent, and that it is  beyond  our province to look up to the circumstances under which or  the manner  in which the restrictions have been imposed.  It  is not  possible  to formulate an effective  test  which  would enable  us  to pronounce any particular  restriction  to  be reasonable  or unreasonable per se.  All the attendant  cir- cumstances  must be taken into consideration and one  cannot dissociate the actual contents of the restrictions from  the manner of their imposition or the mode of putting them  into practice.   The question of reasonableness of  the  restric- tions  imposed by a law may arise as much from the  substan- tive part of the law as from its procedural portion.   Thus, although I agree with the learned Attorney-General that  the word  "reasonable"  in clause (5) of article  19  goes  with "restrictions"  and  not  with "law," I  cannot  accept  his suggestion  as  regards the proper way  of  determining  the reasonableness of the restrictions which a legislation might impose  upon  the exercise of the right  of  free  movement. Coming now to the provisions of the impugned Act, Mr. Baner-

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jee’s  main contention is that section 4 (1) (c)of the  East Punjab  Public  Safety Act, which provides  for  passing  of orders  removing  a person from a particular  area,  on  the satisfaction  of the Provincial Government or  the  District Magistrate,  cannot  be a reasonable  piece  of  legislation inasmuch  as  the only pre-requisite for imposition  of  the restrictions  is the personal satisfaction of certain  indi- viduals  or authorities, the propriety or reasonableness  of which  cannot be tested by the application of  any  external rule or standard.  It is said that any law which places  the liberty 533 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 powers.  The  contention  requires careful examination.      It is not disputed that under clause (5) of article 19, the  reasonableness  of a challenged legislation has  to  be determined by a Court and the Court decides such matters  by applying  some  objective standard which is said to  be  the standard of an average prudent man.  Judged by such standard which is sometimes described as an external yard-stick,  the vesting  of authority in particular officers to take  prompt action  under emergent circumstances, entirely on their  own responsibility or personal satisfaction, is not  necessarily unreasonable.  One has to take into account the whole scheme of  the  legislation and the circumstances under  which  the restrictive  orders could be made.  The object of  the  East Punjab Public Safety Act is to pro vide for special measures to  ensure  public safety and maintenance of  public  order. Under  section 4 (1) (c) of the Act, the Provincial  Govern- ment or the District Magistrate may make an order  directing the  removal of a certain person from a particular area,  if they  are satisfied that such order is necessary to  prevent such  person  from acting in any way prejudicial  to  public safety or maintenance of public order.  Preventive orders by their very nature cannot be made after any judicial  enquiry or trial.  If emergent steps have got to be taken to prevent apprehended  acts which are likely to jeopardise the  inter- ests  or  safety of the public, somebody must be  given  the power of taking the initial steps on his own responsibility; and no reasonable objection could be taken if the authority, who is given the power, is also entrusted with the responsi- bility of maintaining order and public peace in any particu- lar district or province.  The preventive provisions of  the Criminal  Procedure Code are based on similar principle.  In my opinion, therefore, the provision of section 4 (1) (c) of the East Punjab Public Safety Act cannot be pronounced to be unreasonable,  simply because the order could be  passed  by the Provincial Government 534 or  the District Magistrate on their own personal  satisfac- tion  and not on materials which satisfy  certain  objective tests.     But  though  certain authorities can  be  invested  with powers to make the initial orders on their own  satisfaction in  cases of this description, the position would  certainly be  different if the order thus made is allowed to  continue for  any  indefinite period of time without giving  the  ag- grieved person an opportunity to say what he has got to  say against the order.  I have already set out the provisions of sub-section  (3) of section 4 which deals with  duration  of the  orders  made under the various clauses  of  sub-section (1).   It will be seen from this sub-section that  there  is

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absolutely  no  limit as to the period of time during  which an  externment order would remain in force if the  order  is made by the Provincial Government. The Provincial Government has been given unlimited authority in this respect and  they can keep the order in force as long as they chose to do  so. As regards orders made by a District Magistrate, the  period indeed  has  been fixed at three months, but even  here  the Provincial  Government  is  competent to extend  it  to  any length  of time by means of a special order.  The  law  does not     fix any maximum period beyond which the order cannot continue;  and the fact that the Act itself would expire  in August,  1951, is, in my opinion, not a relevant matter  for consideration in this connection at all.    I have no  hesi- tation in holding that the  provision of sub-section (3)  of section 4 is manifestly unreasonable and cannot be supported on  any just ground.  One could understand that the  exigen- cies  of circumstances might justify the vesting of  plenary powers  on  certain authorities which could pass  orders  on their’ own personal satisfaction temporarily and for a short period of time; but if these orders are to continue  indefi- nitely, it is only fair that an opportunity should be  given to the person against whom such order is made to say what he has  to say in answer to the allegations made  against  him. There may not be an investigation by a regular Court but  it is  necessary  that the aggrieved person should be  given  a fair hearing and that by an 535 impartial tribunal.  The provision of the impugned Act which has bearing on this point is contained in sub-section (6) of section 4 and it runs as follows:     "When  an order has been made in respect of  any  person under  any of the clauses under section 4, sub-section  (1), or sub-section (2) the grounds of it may be communicated  to him by the authority making the order and in any case,  when the  order is to be in force for more than three months,  he shall have a right of making a representation which shall be referred to the Advisory Tribunal, constituted under section 3, sub-section (4)."     It  will be noted that the first part of the  subsection makes it entirely optional with the authorities to  communi- cate  the  grounds,  upon which the order is  made,  to  the person affected by it.  The grounds need not be communicated at  all if the authorities so desire.  As regards the  right of  representation the latter part of the sub-section  seems to imply that when the order is to remain in force for  more than  three  months, the right of representation  should  be given  to the aggrieved person and the representation  shall be  referred  for  consideration to  the  advisory  tribunal constituted  under section 3, sub-section (4), of  the  Act. The right, however, is purely illusory as would appear  from the fact that even in cases where the order is to be  opera- tive  for more than three months, there is no obligation  on the part of the authorities to communicate to the person the grounds upon which the order was made.  The aggrieved person consequently  may not at all be apprised of the  allegations made  against him and it will be impossible for him to  make any adequate or proper representation, if he is not told  on what grounds the order was passed. In my opinion, this is an equally  unreasonable provision and neither sub-section  (3) nor  sub-section (6) of section 4 of the Act can be said  to have imposed restrictions which are reasonable in the inter- ests  of the general public.  My conclusion,  therefore,  is that under article 13 (1) of the Indian Constitution,  these provisions of the Act became void and inoperative after  the Constitution came into

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536 force,  and  consequently  the order made  by  the  District Magistrate in the present case cannot stand.     I would, therefore, allow the application and quash  the externment order that has been passed against the  petition- er. Petition dismissed. Agent for the petitioner: Ganpat Rai. Agent for the opposite party: P.A. Mehta.