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PETITIONER: EBRAHIM VAZIR MAVAT

       Vs.

RESPONDENT: THE STATE OF BOMBAY AND OTHERS.(With Connected Appeals)

DATE OF JUDGMENT: 15/02/1954

BENCH: HASAN, GHULAM BENCH: HASAN, GHULAM MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA, B.K. DAS, SUDHI RANJAN BOSE, VIVIAN

CITATION:  1954 AIR  229            1954 SCR  933  CITATOR INFO :  R          1956 SC 559  (4)  F          1958 SC 731  (21)  R          1959 SC 725  (11)  F          1959 SC1315  (4,6)  RF         1962 SC1371  (41)

ACT:  Constitution  of India, arts. 13(1), 19(1)  (e)-Influx  from  Pakistan  (Control)  Act,  1949 (Act XXIII  of  1949)  s.  7  Whether ultra vires the Constitution.

HEADNOTE: Held, (Per MEHR CHAND MAHAJAN 0. J., MUKEMRJFA, ViviAN  BosE and GHULAM HASAN JJ. ; S. R. DAs J. dissenting) that s. 7 of the  Influx from Pakistan (Control) Act, 1949 is void  under art.  13(1) in so far as it conflicts with  the  fundamental eight  of  a  citizen of India under art.19(1)  (a)  of  the Constitution  and  the  order of  physical  removal  of  the citizen from in Is therefore liable to beset aside. Per DAB J.-In view of the circumstances the provisions of s. 7 of the Act were reasonable restrictions within the meaning of  el.  5  of art. 19 of the constitution  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 art. 19(1)(d)    and (e) of the Constitution.

JUDGMENT: CRIMINAL  APPELLATE, JURISDICTION: Criminal Appeals Nos.  65 and  66 of 1952, 5 and 19 of 1953 and Petitions Nos. 170  of 1952, 19 and 57 of 1953. Appeals from Orders, dated the 9th April, 1952, of the  High Court of Judicature at Bombay in Criminal Applications  Nos. 707 and 708 of 1951, from the Judgment and Order, dated  the 15th  December,  1952, of the High Court  of  Judicature  at Bombay  in Criminal Application No. 1310 of 1952;  from  the Judgment  and Order, dated the 29th November, 1952,  of  the Judicial  Commissioners  Court  Vindhya  Pradesh,  Rewa,  in

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Criminal  Miscellaneous No. 49 of 1952; and Petitions  under article 32 of the Constitution of India. J.B.  Dadachanji  and Z. F. Bootwala for the  appellants  in Criminal Appeals Nos. 65 and 66 of 1952 and 5 of 1953. C.K. Daphtary Solicitor-General for India(G.  N. Joshi, with him) for respondents Nos.  I and 2 in 121 934 Criminal Appeals Nos. 65 and 66 of 1952 and respondent No. 1 in Criminal Appeal No. 5 of 1953. K.B.Asthana, for the appellant in Criminal Appeal No. 19  of 1953. C.K. Daphtary, Solicitor-General for India, (Porus A.  Mehta and  G. N. J08hi, with him) for the respondent  in  Criminal Appeal No. 19 of 1953. S.   P.  Sinha  (Sri  Narain  Andley,  with  him)  for   the petitioners in petition No. 170 of 1952. Gopalji Mehrotra for respondent No. I in petition No. 170 of 1952. C.   K. Daphtary, Solicitor-General for India (Porus A. Mehta, with him) for respondent No. 3 in petition No. 170 of 1952. S. P. Sinha (S.  N. Mukherji, with    him) for petitioner in petition No. 19 of 1953. Gopalji Mehrotra for respondent No. I in petition No. 19  of 1953. G. N. Joshi for respondent No. 3 in petition No. 19 of 1953. H.J. Umrigar, amicus curiae, for the petitioner in  petition No. 57 of 1953. C.   K. Daphtary, Solicitor-General for India (G.      N. J08hi, with him) for the respondents in petition No.   57 of 1953. 1954.    February  15.   The  Judgment  of   Mahajan   C.J., Mukherjea,  Vivian Bose and Ghulam Hassan JJ. was  delivered by Ghulam Hasan J. Das J delivered a seperate judgment. Criminal Appeals Nos. 65 and 66 of 1952. GHULAM  HASAN  J.-This  batch of  appeals  raises  a  common question of the constitutional validity of section 7 of  the Influx from Pakistan (Control) Act (XXIII of 1949).  Section 3 of the same Act is also assailed on behalf of some of  the appellants but for the purpose of deciding these appeals  it will not be necessary to deal with the latter question. Criminal Appeals Nos. 65 and 66 of 1952, which are  directed against  the  judgment  and  order  of  the  High  Court  of Judicature at, Bombay in two petitions under article 226  of the Constitution praying for the issue of 935 a  writ of mandamus requiring the respondent not  to  remove them from India on the ground that the impugned section 7 is void  may be treated as the leading case which  will  govern the other appeals. 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. 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

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containing  nine  sections.   It is intituled 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 Pakistan.  " Section  2  (b)  defines " officer of Government  "  as  any officer of the Central Government and 2 (c) defines "permit" as  a  "Permit issued or renewed or the period  whereof  has been  extended in accordance with the rules made under  this Act.   " Section 3 says II No person shall enter India  from any  place  in  Pakistan, whether  directly  or  indirectly, unless (a)  he is in possession of a permit or (b)  being  a person not domiciled in India or Pakistan,  he is  in  possession of a valid passport as  required  by  the Indian Passport Act, 1920 (XXXIV of 1920), or (c)  he  is  exempted  from  the  requirement  of  bein   in possession  of a permit by or in accordance with  the  rules made under this Act." 936 Section  4 empowers the Central Government, by  notification in the Official Gazette, to make rules: (a)  prescribing the authorities by which and the conditions subject  to  which permits may be issued or renewed  or  the period  thereof extended, the condition to be  satisfied  by the applicants for such permits and the forms and classes of such permits; (b)  regulating the movements in India of any person who  is in possession of a permit; (c)  providing  for the exemption, either absolutely  or  on conditions,  of  any  person or class of  persons  from  the requirement  of being in possession of a permit or from  the operation of any rule made under the section ; and (d)............................................................. section 5 is the penal section which says "  (a)  Whoever  enters  India in  contravention  ’  of  the provisions of section 3, or having entered India contravenes the provisions of any rule made under section 4, or  commits a  breach of any of the conditions of his permit,  shall  be punishable with imprisonment for a term which may extend  to one  year,  or with fine which may extend  to  one  thousand rupees, or with both.  " Section  6  confers  power  of  arrest  upon  an,officer  of Government.  Section 7 is as follows:- "  Without prejudice to the provisions contained in  section 5, the Central Government may, by general or special  order, direct  the  removal  from  India  of  any  person  who  has committed, or against whom a reason-, able SUSPICION  exists that  he  has  committed, an offence  under  this  Act,  and thereupon   any  officer  of  Government  shall   have   all reasonable powers necessary to enforce such direction.  " Section 8 provides for protection to persons acting in  good faith  and  section  9 repeals  the  Influx  from,  Pakistan (Control) Ordinance, XXXXIV of 1948. 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 937 far  as  a  non-citizen is concerned, it  is  not  contended before us3 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,

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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 D, 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 country  without  a permit  or on an invalid permit, or commits a breach of  any of  the conditions of the permit he may, on  conviction  for such  offence, be ordered to be removed from the country  is tantamount  to taking away his fundamental right  guaranteed under article 19(1) (e), " to reside and settle in any  part of  the  territory of India.  " The order is  sought  to  be supported  by the learned- Solicitor-General on  the  ground that  it  falls  within exception (5) of  article  19.   The proposition  that the order imposes in the interest  of  the general  public a reasonable restriction on the exercise  of the.  right conferred upon an Indian citizen to  reside  and settle  in  any  part of the territory of  India  is  hardly statable.   It is possible to conceive of an Indian  citizen being  guilty of serious prejudicial Acts such as  espionage and  disloyalty to his country in which case he  may  render himself  liable to the gravest penalty which the  Government may  think  fit by law to impose upon him but  it  would  be repugnant  to  all notions of democracy and opposed  to  the fundamental   rights   guaranteed  in  Part   III   of   the Constitution to order his expulsion from the country, for to hold  otherwise would be tantamount to destroying the  right of  citizenship conferred by Part II of  the,  Constitution. This 938 result is permissible only by recourse to article 11 of  the Constitution.   Again  it  will be noticed  that  section  7 imposes  the penalty of removal not only upon  a  conviction under  section 5 but goes further and brings about the  same result   even   where  there  is  a   reasonable   suspicion entertained  by the Central Government that such an  offence has  been  committed.  The question whether an  offence  has been   committed   is  left  entirely  to   the   subjective determination  of  the  Government.   The  inference  of   a reasonable   suspicion   rests  upon   the   arbitrary   and unrestrained  discretion  of the Government,  and  before  a citizen  is condemned, all that the Government has to do  is to  issue  an order that a reasonable  suspicion  exists  in their  mind  that  an  offence  under  section  5  has  been committed.  The section does not provide for the issue of  a notice  to  the person concerned to show cause  against  the order  nor  is  he afforded any  opportunity  to  clear  his conduct  of the suspicion entertained against him.  This  is nothing short of a travesty of the right of citizenship. The learned Solicitor-General argued that the 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 th 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

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upon conviction 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 939 and  regulation  when it provides for removal of  a  citizen from his own country.  To use the language of this court  in Chintaman Rao v. The State of Madhya Pradesh and Ram Krishna v.  The  State  of Madhya Pradesh(1), " The  effect  of  the provisions  of the Act, however, has no reasonable  relation to  the subject  in view but is so drastic in scope that  it goes much in excess of that object. It may be said that the sentry on guard at any of the check- posts on the frontier between the two countries can  prevent not  only unauthorised entry of a citizen by force  but  can also  throw  him  out if the person  has  managed  to  enter surreptitiously.   Exactly what the sentrys’ duties are  was not  argued before us.  They would naturally vary  according to  the circumstances and the orders which be  receives  but ordinarily  we  apprehend that the duty of a sentry  at  the border  would be to prevent as far as lay in his  power  un- authorised  entry into India.  If any person claims to  have the  right to enter, the sentry’s duty would be to hand  him over to the Commander of the Guard and normally it would  be the  duty of that Commander to hand him over to  the  proper authority empowered to determine the right which he  claims. In the case of an unauthorised entry, ordinarily the duty of the  sentry  is  to arrest a man and hand him  over  to  the proper authority for punishment and in extreme cases he  may have the right to shoot the person who does not halt on  his command and explain his presence at the outpost.  In  normal circumstances we doubt if the sentry would have the right to forcibly expel a man who crosses the border. The learned Chief Justice (Chagla C. J.) took the view  that section  7  is consequential to section 3 and held  that  if section  3  controlling admission by means of  a  permit  is valid,  section  7 must be held to be equally  valid.   This argument is fallacious.  In the first place, section 7 is by no  means wholly consequential to section 3. The first  part no doubt renders the person concerned liable to removal upon conviction under section 5 but further empowers. the Central Government (1)  [1950] S.C.R. 759. 940 to  pass  the same order independently of  these  provisions even where there is no conviction and a reasonable suspicion exists  that  an  offence  has  been  committed.   Assuming, however,  that  section 7 is consequential to section  3  it gives  no opportunity to the aggrieved person to show  cause against  his removal.  There is no forum provided  to  which the  aggrieved party could have recourse in order to  vindi- cate  his  character or meet the grounds upon  which  it  is based.   Neither  the Act nor the rules  framed  thereunder. 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, In  Shabbir  Hussain  v.  The State  of  Uttar  Pradesh  and Another(1) 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

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which  was  challenged  before them  was  one  passed  under section 7 and was set aside. 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,  connot  be invoked against citizens of India.  No doubt, she  committed an offence under section 3 of that Act which applied to  all persons, but that cannot justify her removal even though her entry may have been contrary to the provisions of the Act." We are not prepared to accede to the contention urged by the Solicitor-General that a citizen of India who returns to the country  without a permit or without a valid permit  commits such  a grave offence as to justify his expulsion  from  the country.   The  object of the Act is, not to  deport  Indian nationals (1)  A.I.R. 1952 All. 257.  941 committing  a breach of the permit or  passport  Regulations but merely to control admission into and regulate  movements in India of persons from Pakistan and therefore there is  no substance  in  the argument that section 7 was  intended  to achieve  the objective of expelling Indian citizens, by  and large,  if  they brought themselves within the  mischief  of section 3. It was faintly contended that the order of physical, removal from  India,  in addition to the  punishment  imposed  under section  5  of  the Act, amounted to what may  be  called  " double jeopardy " and is in conflict with article 20 (2)  of the  Constitution.  The short answer to this  contention  is that there is no second prosecution for the same offence and therefore  no  question  of  double  jeopardy  arises.   See Maqbool Hussain v. The State of Bombay etc.(1). As a result of the foregoing discussion we declare section 7 to  be  void under article 13(1) in so far as  it  conflicts with  the  fundamental  right of a citizen  of  India  under article 19(1) (e) of the Constitution and set it aside.  The order  will,  however, operate only upon proof of  the  fact that  the appellants are citizens of India.  The case  will, therefore, go back to the High Court for a finding upon this question.   It will be open to the High Court  to  determine this  question itself or refer it to the court  of  District Judge for a finding.  Parties will be given full opportunity to  file  affidavits or give other evidence which  they  may wish to produce. Criminal Appeal No. 5 of 1953. GHULAM HASAN J.-The appellant in this case is a resident  of Godhra,  District Panchmahals, in the State of  Bombay.   He went to Pakistan in Marc 1948, and returned to India on  May 30,  1949, after obtaining a permit for permanent return  to India  from  the-High Commissioner for India.   In  January, 1950, he was prosecuted under section 5 of Act XXIII of 1949 for  having  obtained a permit which was not  in  accordance with  the  provisions  of  the  Act.   The  prosecution  was withdrawn after 21 years.  Subsequently on December 5, 1952, he was served with a notice (1) [1953] S.C.R. 730. 122 942 ordering him to leave India for Pakistan within 10 days else he   would  be bodily removed to the  Indo-Pakistan  border.

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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 constitutional.  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. Criminal Appeal No. 19 of 1953. GHULAM  HASAN  J.-The  appellant, Haji  Faqir  Ahmad,  is  a resident of Rewa in Vindhya Pradesh and alleges that he is a citizen of India.  He was prosecuted under section 5 of  Act XXIII  of  1949 on the ground  that he  entered  India  from Pakistan  without  a  permit and  convicted  and  sentenced. Thereafter he was by an order passed under section 7  bodily removed out of India.  His father applied under article  226 of the Constitution and section 491 of the Code of  Criminal Procedure for setting aside the order.  The learned Judicial Commissioner  dismissed  the application  summarily  holding that section 7 was not ultra Vires the Constitution. Mr. Asthana, who appeared on behalf of the appellant, raised a further question that the order was void under article  14 inasmuch as it discriminated against members of a particular community  coming  from Pakistan.  There is no  warrant  for this  contention.   The Act applies to citizens as  well  as non-citizens.  It applies to all communities irrespective of caste  or creed.  It is contended that the Act must be  held to  be discriminatory not only by virtue of  its  provisions but  because  of the discriminatory manner  in  which  those provisions have been applied.  This argument is 943 to  be  mentioned  only  to be rejected,  for  there  is  no material   whatsoever  placed  before  us  to  justify   the statement.   The  case in Yick W o v. Peter Hopkins  (1)  is wholly  inapplicable to the facts of the present  case.   We accordingly  reject the contention.  This case will also  be governed by the decision in Appeals Nos. 65 and 66 of 1952.                  Petition No. 170 of 1952.                             AND                   Petition No. 19 of 1953. GHULAM  HASAN  J.-These petitions under article  32  of  the Constitution raise the constitutional validity of section  7 of  the Influx from Pakistan (Control) Act, XXIII  of  1949. Mr. S. P. Sinha, who appears for the petitioners,  withdraws these  petitions and undertakes to file two petitions  under article 226 of the Constitution within a fortnight from this day before the High Court.  When these have been filed, they will automatically be governed by the decision given in  Ap- peals Nos. 65 and 66 of 1652.  No other order is called for. The petitions are allowed to be withdrawn.                   Petition No. 57 of 1953. GHULAM  HASAN  J.-This a petition under article  32  of  the Constitution  by Inamullah Khan alias Qamar Jamali  for  the issue  of  a writ in the nature of habeas  corpus  directing that the petitioner, who is illegally arrested and  detained be  brought before the court 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 in-operative.  It  is  further prayed  that the State of Bhopal and the  Superintendent  of

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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 (1)  118 U.S. 356; 30 Law.  Ed. 220. 944 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 Board, Bhopal.  The was  arrested  on November  24,  1952  by  the  Sub-Inspector  of  Police   at lbrahimpura,  Bhopal,  under section 7 of  the  Influx  from Pakistan  (Control) Act XXIII of 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.  The petitioner alleges  that  he never  went to Pakistan, nor entered India without a  permit and  was  never tried and convicted under  the  Influx  from Pakistan  (Control)  Act of 1949.  He challenges  the  order under  section 7 as being void under article 19(d)  and  (e) and articles 21 and 22. The fact that the petitioner is a resident of Bhopal and was employed in the State is not denied on behalf of the  State. The  affidavit  on  behalf of the State  mentions  that  the petitioner  had gone to Pakistan in may, 1952, and  returned in  August,  1952,  without a permit.  He  was  arrested  on November 24, 1952, without any prior notice but was told  at the  time  of the arrest that he was to be  removed  out  of India.   The  petitioner filed an  application  through  his uncle  before  the  Judicial  Commissioner,  Bhopal,   under article  226 on November 25, 1952, challenging.  the  order. The  Judicial Commissioner granted an interim stay order  on the  same day.  The petition was dismissed on  February  23, 1953,  and the interim order was vacated on March 10,  1953. It is admitted that an oral request was made to the Judicial Commissioner  for leave to appeal to this court and  it  was prayed  that   pending the grant of leave the order of  stay should continue.  Leave was refused on the same day and  the stay order was vacated. There  is an affidavit by the Chief Secretary of  the  State admitting  that  the petitioner on, the same day  banded  an application to the  Superintendent of Jail 945 addressed to this court.  The Superintendent of Jail sent it to  the  Chief Secretary on March 13, 1953.  It was  put  up before  him  on  the 14th when he forwarded it  to  the  Law Department  for  opinion  on March  16.   The  petition  was returned  to him on the 19th with the remark that it  should be  forwarded  to the Supreme Court.  It was sent  to  this’ court   on  ;March  22.   On  the  same  day  a   telephonic communication  was  sent,  by the Registrar  of  this  court through  the States Ministry directing that  the  petitioner should be detained if he was still in India, but it  appears that  the petitioner had been handed over to the Rajas  than Police at Kotah on March 12, 1953, and a reply was  received by  the  Inspector-General  of  Police,  Jaipur,  that   the petitioner  had crossed the border on March 18,  1953.   The Superintendent   of  Jail  has  also  filed   an   affidavit supporting  the Chief Secretarpand has admitted that it  was wrong  on his part not to have sent the, petition  submitted by  the  prisoner immediately to this court and that  he  in good  faith  believed that as the order for  stay  had  been

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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  petitioner 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. 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 946 the  case  to  him for an inquiry into  the  question.   The Solicitor-General on behalf of the Union of India has   read to us the order of the Judicial Commissioner and admits that this  is so.  It is, therefore, not necessary to  adopt  the course that we have taken in the aforesaid a peals involving the  validity  of section 7. We accordingly  hold  that  the order  passed  against  the petitioner is void  and  set  it aside. Mr.  Umrigar requests that the order should be  communicated to the petitioner through the High Commissioner for India in Karachi to whom the petitioner sent a representation praying that he should be allowed to return to India.  This  request is granted. Criminal  Appeals Nos. 65 and 66 of 1952, No, 5 of 1953  and No. 19 of 1953 and Petitions No. 170 of 1952, No. 19 of 1953 and No. 57 of 1953. DAs J.-I regret I am unable to agree with the judgment  just delivered. Four  Criminal Appeals namely, Criminal Appeals Nos. 65  and 66  of  1952,  No. 5 of 1953 and No. 19 of  1953  and  three Criminal Miscellaneous Petitions, namely Petition No. 170 of 1952,  No.  19 of 1953 and No. 57 of 1953, were  posted  for hearing and were heard by us one after another.  In each one of  those  appeals  and  petitions  the  appellants  or  the petitioners,   as   the   case  may   be,   challenged   the constitutional   validity  of  the  Influx   from   Pakistan (Control) Act,1949 (Act XXIII of 1949). Learned  advocate appearing in support of petitions No.  170 of 1952 and No. 19 of 1953 asked for leave to withdraw  them with  liberty  to file fresh’ petitions in the  High  Court. Such  leave having been given nothing further need  be  said about those two petitions. The facts of each of the remaining appeals and the remaining petition have been set out in the judgment just  delivered,, and  need  not  be repeated.  Suffice it  to  say  that  the appellants  in Appeals Nos. 65 and 66 of 1952 first came  to India from Pakistan on temporary permits issued by the  High Commissioner  for India in Pakistan but stayed on after  the expiry of the 947 period and were convicted under section 5 of the Act.  Later on  they returned’ to Pakistan on a temporary permit  issued by   the  High  Commissioner  for  Pakistan  in  India   and eventually  came back to India on a permanent permit  issued by  the  High  Commissioner for  India  in  Pakistan.   That

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permanent  permit was cancelled on the. allegation  that  it had  been  obtained  on the strength  of  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  can- celled 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 arrested  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 thereunder.   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. It will be recalled that on the 15th August, 1947, there was a partition of India and two Dominions were formed under the Indian, Independence Act, 1947.  A grave emergency arose  on the  partition  of  India  resulting  in  mass-migration  of population  from  one Dominion to the other  accompanied  by riots, arson, murder, rape and loot.  Intense bitterness and hatred  were  generated in the minds of the  people  of  one Dominion  against those of the other Dominion.  Even in  one Dominion there was suspicion in the 948 minds  of the members of one community against those of  the other.    In  those  circumstances  the   uncontrolled   and indiscriminate  entry  of  persons, Hindu  or  Muslim,  from Pakistan  into India was naturally regarded as fraught  with the possibility of espionage and sabotage the prevention  of which  was  essential for the security of  the  Dominion  of India.   Further an uncontrolled entry of large  numbers  of people  was  calculated  to  place  and  in  fact  placed  a tremendous strain on the economy of India and on the law and order situation in the country.  It was in order to  prevent such  result that it was necessary to exercise some  control over  such  influx  of persons  from  Pakistan  into  India. Accordingly,   the  Influx  from  West  Pakistan   (Control) Ordinance  (XVII of 1949) was promulgated on the  19th  July 1948,  by  the Governor-General in exercise  of  the  powers conferred  on him by section 42 of the Government  of  India Act,  1935.  The preamble to that Ordinance recited that  an emergency had arisen which made it necessary to control  the admission  into  and  regulate the  movements  in  India  of persons from Pakistan.  Thereafter the Influx from  Pakistan (Control) Ordinance (XXXIV of 1948) was  issued on the  10th November,  1948,  replacing  the  earlier  Ordinance.   This Ordinance  applied to persons entering into India from  both West   Pakistan   and  East  Pakistan.    It   substantially reproduced  all  the sections of  the  previous  Ordinance-. Finally,  on the 22nd April, 1949, the Influx from  Pakistan (Control) Act (XXIII of 1949) replaced the second Ordinance. Sections  3 and 7 of this Act substantially  reproduced  the provisions of sections 3 and 7 of the Ordinance.  The Permit System Rules of 1948 were replaced on the 20th May, 1949, by the  Permit  System Rules of 1949.  This Act,  however,  was repealed  on  the 15th October, 1952, by Act LXVI  of  1952.

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Section   3  of  this  repealing  Act,  however,   expressly preserved  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 that Act is  small,  nevertheless  the matter has to 949 be  scrutinised  closely, for our decision  may  conceivably affect  the  passport regulations which  have  replaced  the permit system. 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  noncitizens  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 but affected only  such  of them  as  came  from Pakistan,  whether  they  were  Hindus, Muslims  or Christians.  It is, therefore, quite clear  that the Act applied to a small well defined class of persons who were  grouped together on an obviously reasonable  basis  of classification  as  explained in the previous  decisions  of this  court.   In  this view of the matter  no  question  of unconstitutional  discrimination  can  arise  at  all   and, indeed, the plea based on the equal protection clause of the Constitution  has  not  been seriously  pressed.   The  main contest  has  centred round the question whether  these  two sections  offend against the provisions of article  19(1)(d) and (e) of the Constitution. The learned Solicitor-General appearing for the  respondents contends that those sections are protected by article  19(5) as  being  reasonable restrictions on the  exercise  of  the rights guaranteed by sub-clauses (d)  and (e) of clause  (1) of  that  article.   In State of Madras v.  V.  G.  Row  (1) Patanjali Sastri C.J. observed:- "  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  laid down as, applicable to all cases. (1) [1952] 3 S.C.R. 597 at p. 607. 123                             950 The nature of the right alleged to have been infringed,  the underlying  purpose of the restrictions imposed, the  extent and  urgency of the evil sought to be remedied thereby,  the disproportion of  the imposition, the prevailing  conditions at the time, should all enter into the,judicial verdict.  In evaluating  such  elusive  factors  and  forming-their   own conception  of what is reasonable, in all the  circumstances of a given case, it is inevitable that the social philosophy and  the scale of values of the judges participating in  the decision  should  play an important part, and the  limit  to their interference with legislative judgment I in such cases can  only be dictated by their sense of  responsibility  and self   restraint  and  the  sobering  reflection  that   the Constitution  is meant not only for people of their  way  of thinking  but for all, and that the majority of the  elected representatives,  of  the people have,’ in  authorising  the

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imposition  of  the  restrictions,  considered  them  to  be reasonable." The impugned sections have, therefore, to be examined in the light of the above observations. I  find  nothing  unconstitutional about section  3  of  the impugned  Act  It  does not debar the entry  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     civilized  country including  even  those  the  constitutions  whereof   confer similar   fundamental  rights  on  their   citizens,   e.g., Switzerland (articles 43-45), Wiener Germany (article  III), Czechoslovakia  (article  108),  Jugoslavia  (article   10), Danzig (article 75) and Albania (section 202).  Such regula- tions   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 951 clause  (5) of article 19 of the Constitution.  Indeed,  the objection of section 3 has not been seriously pressed before us. The  main  objection urged by learned counsel  appearing  in support  of these appeals and petitions was directed to  the question of the validity of section 7. In the’ first  place, it  is clear that no objection can be taken to section 7  in so  far  as it affected persons who were  ’not  citizens  of India, for article 19 guarantees certain fundamental  rights to  the  citizens of India only.  In the  next  place,  this section did not affect all citizens but touched only a  well defined  small class of citizens, namely, those who went  to Pakistan  and intended to return to India.  The question  is whether qua these citizens section 7 can also be regarded as a reasonable restriction within the meaning of clause (5) of article  19.  The High Court of Bombay has held, and  in  my opinion  quite correctly, that the provisions of  section  7 cannot but be regarded as consequential to the provisions of section 3. Suppose at the check-post a person from Pakistan, whether a, citizen or not, tried to cross the border without a permit.  Surely, the officer at the check-post would  have been well within the law to prevent a violation of section 3 of the Act and with that end in view to prevent that person, who  had  no permit, from crossing the border  and  entering India.   I  have no doubt that the officer might  also  have prevented a person from Pakistan from crossing the border if he  suspected  that the permit produced by  the  person  was forged  or otherwise irregular and left him to take  up  the matter  with the higher authorities from Pakistan.   Suppose the man who sought to enter India without a permit or with a permit which was suspected to spurious forcibly crossed  the border  and took a step or two on our side of the line,  the Indian  officer would certainty have been entitled to  throw him  back  to the other side of the line.   Surely,  such  a person  could not be permitted to take advantage of his  own wrong  and  could  not  be  heard  to  say  that,  in   such circumstances, he had, by his wrong doing, acquired a better right than the person 952 who  had  not  the temerity to  violate  the  provisions  of section  3.  If  this is so then, logically, I  can  see  no

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difference if the man ran into the Indian territory for some distance and the Indian officer ran after him, overtook  him and  took him back to the check-post and pushed him  out  of our side of the line.  It is, futile,, in such a  situation, to  expect  or to say that the officer should  have  held  a judicial  enquiry  and  come to a  judicial  decision  after hearing  an argument as to the 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  Indian courts’ for appropriate reliefs.  To my mind  the position  of  the person who,entered India  on  a  temporary permit  but  who, in violation of the rules  or  order  made under  the  Act  stayed on after the period  of  the  permit expired, was, as from that date, logically the same as  that of the person who entered India without a permit.      To arrest such a person, after the expiry of the period   of the temporary permit, with a view to sending him back  back to where he came from and to actually send him          back there did not involve or                             953 constitute  a judicial act at all but Was a rough and  ready executive  act  for  enforcing  and  giving  effect  to  the provisions of section 3 of the Act.  To arrest and send such a  person back to Pakistan was not to inflict  a  punishment but  was only to restore the status quo and to put him  back to  the position he would have been in but for  his  illegal act.  In my opinion the act, authorized by section 7 was  in essence.a   purely  executive  act  for   implementing   the provisions  of section 3. Without such a provision it  would have been impossible for the State to control the  admission into  India  of  persons from Pakistan and  to  prevent  the concomitant  dangers referred to above.  The act  authorised by  the  section  being an  executive  act,  discretion  had perforce  to bib left to the executive Government which,  by reason  of  the information available to it" was in  a  much better  position  than  the courts to  know  and  judge  the antecedents  of  such a person and  his  ultimate  purpose.’ Suppose an Indian, citizen, no matter whether he was a Hindu or  a  Muslim,  had entered India from  Pakistan  without  a permit and suppose he was, upon confidential reports  which: could  not be safely disclosed, suspected to be  engaged  in espionage  in the interests of Pakistan, would it have  been safe enough in those hectic days to have only prosecuted him under  section 5 and inflicted on him a fine of  rupees  one thousand or a term of imprisonment not exceeding a year  and then  to have left him free, after the term of  imprisonment was   over,  to  surreptitiously  carry  on  his   nefarious activities of espionage and sabotage against our State while

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embarking  upon a protracted judicial enquiry  to  ascertain the truth or* otherwise of his claim to Indian citizenship ? It cannot ,be overlooked that there are. long common borders between Pakistan and India both on the west and on the east. The  Kashmir  situation had also -aggravated  the  emergency brought  about 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 954 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 Indian  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 appropriate writs or  orders directing  the  State  or its -officers  to  issue  suitable permits  and to desist from otherwise preventing  them  from entering  India or interfering with their movement while  in India.   It  is said that if such a person would  have  been entitled  to  a permit on proof of his status as  an  Indian citizen  then  why  should he have Been thrown  out  at  all unless and until he failed to establish his claim to  Indian citizenship ? There occur to my mind several answers to this question.  In the first place, it would have been putting  a premium  on  wrong doing.  In the second place,  the  person would have been left free to carry on his secret activities, if any, while judicial proceedings would have been going  on for  ascertaining  his status.  In the third place,  if  the person  could not be thrown out before his status  had  been judicially determined there would have been no incentive  on his  part  to  take proceedings in court  to  establish  his status  and it would have thrown upon the State the duty  of initiating  proceedings  and  of  discharging  the  onus  of proving  the  negative fact, of his not being a  citizen  of India.   In view of all the circumstances prevailing at  the time  the law was enacted and remained in force and in  view of  the considerations herein before alluded to I  have  no’ doubt in ray mind --except What 955 arises  out  of my respect for the opinions of my  Lord  and other learned brothers-that the provisions of section 7 were necessary  and  reasonable  and fell within  clause  (5)  of article  19.   In my judgment the four appeals  as  well  as Petition No. 57 of 1952 should be dismissed. Appeals allowed, cases remanded. Agents for the appellants and petitioners: S. S. Shukla,  R. A. Govind, Sardar Bahadur and P.  K. Chatterji. Agents for the respondents: G. H. Rajadhyaksha and C. P.Lal.