23 February 1955
Supreme Court


Case number: Writ Petition (Civil) 22 of 1955






DATE OF JUDGMENT: 23/02/1955


CITATION:  1955 AIR  367            1955 SCR  (1)1284

ACT: Constitution of India, Arts. 14,21 and 22-Entry 9 and  entry 10  in  Union  list of  Seventh  Schedule  to  Constitution- Preventive  Detention Act 1950 (Act V of 1950), s.  3(1)(b)- Whether  ultra vires Constitution-Foreigners Act  1946  (Act XXXI of 1946), s. 3(2)(c)--Whether ultra vires Constitution- Extradition  Act 1870 and Foreigners  Act,  1946-Distinction between.

HEADNOTE: The petitioner, a West German subject, was placed under pre- ventive detention by an order of the West Bengal  Government under s. 3(1)(b) of the Preventive Detention Act 1950 on the ground  that  he was a foreigner within the meaning  of  the Foreigners Act 1946 and that it had become necessary to make arrangements  for his expulsion from India and therefore  he was   required  to  be  detained  until  the  issue  of   an appropriate order from the Central Government. The questions for determination in the case were:- (i) whether s. 3(1)(b) of the Preventive Detention Act was ultravires the Constitution inasmuch as it contravenes Arts. 14, 21 and 22 of the Constitution and whether it was  beyond the  legislative  competence of Parliament to enact  such  a law; (ii)whether,  in any event, the detention was invalid as  it was made in bad faith. Held  that the impugned portion of the Preventive  Detention Act  and  s. 3(2)(c) of the Foreigners Act on  which  it  is based are not ultra vires the Constitution inasmuch as; (i)in view of Entry 9 and Entry 10 of the Union list of  the Seventh Schedule to the Constitution, the language of  which must be given the widest meaning, the legislative competence of  Parliament  to  deal with  the  question  of  preventive detention of foreigners 1285 is  clear  and  this  covers not  only  s.  3(1)(b)  of  the Preventive Detention Act but also the Foreigners Act,  1946, in  so far as it deals with the powers of expulsion and  the right of the Central Government to restrict the movements of



foreigners  in  India  and  prescribe  the  place  of  their residence and the ambit of their movements in the land; (ii)the  Preventive  Detention Act was a  comprehensive  Act dealing  with preventive detention and was framed  with  the Limitations of Arts. 21 and 22 in view.  Section 3(1)(b)  of the  Preventive  Detention  Act was  enacted  to  bring  the unrestrained  power given by s. 4(1) of the  Foreigners  Act into line with the provisions of the Constitution; (iii)section  3 (1) (b) of the Preventive Detention  Act  is reasonably  related  to  the  purpose  of  the  Act,  namely preventive  detention,  inasmuch  as the right  to  expel  a foreigner conferred by s. 3(2) of the Foreigners Act on  the Central  Government and the right to make  arrangements  for expulsion  include  the  right  to  make  arrangements   for preventing  any  breach  or evasion of the  order;  and  the Preventive Detention Act confers the power to use the  means of  preventive detention as one of the methods of  achieving this end; (iv)the  State Government is competent to make an  order  of detention  under  the  law in anticipation of  an  order  of expulsion that is about to be made, or which may be made  by the  Central Government on the recommendation of  the  State Government  which,  though  seized with  certain  powers  of Government  is not competent to make an order  of  expulsion itself.   Unless a State Government has authority to act  in anticipation of orders from the Centre it might be too  late to act at all; (v)the impugned section does not offend Art. 14 of the  Con- stitution inasmuch as differentiation between foreigner  and foreigner  as  envisaged in s. 2(a) and s.  3(2)(c)  of  the Foreigners  Act  1946  and  s.  3(1)(b)  of  the  Preventive Detention  Act  is  based  on  a  reasonable  and   rational classification.  There is no individual discrimination,  and reasons   of  State  may  make  it  desirable  to   classify foreigners into different groups - On  the question of good faith, held, that the  circumstance of  the case did not show bad faith on the part of the  West Bengal Government. The Foreigners Act 1946 is not governed by the provisions of the Extradition Act 1870.  The two are distinct and  neither impinges on the other.  Even if there is a requisition and a good case for extradition, Government is not bound to accede to the request.  It is given an unfettered right to  refuse, vide s. 3(1) of the Extradition Act, and has got an absolute discretion  to  choose the less cumbrous  procedure  of  the Foreigners  Act  when  a foreigner  is  concerned.   As  the Government is given the right to choose, no question of want of  good  faith can arise merely because  it  exercises  the right of choice which the law confers. 1286

JUDGMENT: ORIGINAL JURISDICTION: Petition No. 22 of 1955. Under  Article  32  of the Constitution for a  Writ  in  the nature of habeas corpus. Sadhan  Chandra Gupta (The Petitioner also present) for  the petitioner. M.   C. Setalvad, Attorney-General of India (B.  Sen, and I. N. Shroff, for P. K. Bose, with him) for the respondents. 1955.  February 23.  The Judgment of the Court was delivered by BOSE J.-The petitioner, Hans Muller, who is not a citizen of India,  and  who is said to be a West  German  subject,  was



arrested by the Calcutta Police on the 18th September,  1954 and  was placed under preventive detention.  The  order  was made by the West Bengal Government under section 3(1) of the Preventive  Detention  Act of 1950 (Act IV of 1950)  on  the ground that his detention was "with  a view to making arrangements for his explusion  from India". The grounds were served on the 22nd of September, 1954.  The second ground runs- "That  you  are  a  foreigner  within  the  meaning  of  the Foreigners  Act,  1946 (Act XXXI of 1946) and  that  it  has become  necessary  to make arrangements for  your  expulsion from  India  and  for this purpose you are  required  to  be detained under section 3 (1) (b) of the Preventive Detention Act,  1950  until  the  issue of  an  appropriate  order  of expulsion from the Central Government". On  the day after his arrest, namely on the 19th  September, 1954  he  wrote  to the Consul-General of  West  Germany  at Calcutta saying that be had been arrested and- asking for an early interview.  This was granted. On  the 21st of September 1954, the petitioner wrote to  the West Bengal Government asking it "to  be  kind  enough to pass an  order  for  our  immediate repatriation from India"                             1287 and  "to do the necessary arrangement for  our  transmission out of India". On  the 9th of October 1954 the Calcutta Police  handed  the petitioner’s passport over to the West German Consul at  the Consul’s   request.   This  passport  was  issued   to   the petitioner  by  the West German Government at  Nurenburg  in West  Germany  on  the  27th of  November  1953.   When  the passport was handed over to the West German Consul it had on it a number of visas, including an Indian, all of which  had on  them the condition "while the passport is valid".   When the  West  German  Consul  got  the  passport  he  made  the following entry on it:  "Valid  only for the return voyage to the Federal  Republic of Germany until the 8th January 1955". The petitioner complains that this invalidated all the other visas  and as, according to this fresh entry,  the  passport ceased to be valid after the 8th of January 1955, he now has no passport. On  the same day, the 9th of October 1954, the  West  German Government wrote to the West Bengal Government saying that a warrant of arrest was issued against the petitioner in  West Germany in connection with a number of frauds and that legal proceedings  in  connection with those  warrants  are  still pending.   The  Consul  also  said  that  he  had   received information  that similar charges had been made against  the petitioner in Lebanon and in Egypt and be concluded- "The  Government  of the Federal Republic  of  Germany  will apply  for Muller’s extradition through diplomatic  channels whilst at the same time submitting the supporting documents. As this will require a certain amount of time, I am directed to  give  you advance information of this  step  and  hereby request the Government of West Bengal to issue a provisional warrant of arrest which ensures Muller’s detention up to the date of his extradition to Germany. This   Consulate   has   already   arranged   for   Muller’s repatriation  by the German boat ’KANDELFELS’ due to  arrive in Calcutta on the 19th instant.  All 165 1288 expenses  in connection with Muller’s repatriation  will  be



borne by the Government of the Federal Republic of Germany". On receipt of this letter the Secretary to the Government of West Bengal recorded the following note: "I suppose there would be no objection to our keeping Muller in detention till the 19th instant.  We must issue order  of his release as soon as his boat is ready to sail". The  West  Bengal  Government had no  power  to  deport  the petitioner.  Only the Central Government could do that,  and up  till the 20th of October the Central Government had  not passed  any orders.  On that date the petitioner applied  to the  High  Court  of Calcutta for a writ in  the  nature  of habeas  corpus under section 491 of the  Criminal  Procedure Code.   Because  of that, and because this matter  has  been pending  in the courts ever since, no orders have  yet  been issued  for his expulsion from India though we are  told  by the  learned Attorney-General that they have been  made  and signed  but are being held in abeyance pending the  decision of this petition. The petitioner contended that his detention was invalid  for the  following,  among other,  reasons: (1) Because section 3(1)(b) of the Preventive Detention Act, the section under which the order was. made, is ultra  vires the Constitution on three grounds- (a)  that it contravenes articles 21 and 22; (b)  that it contravenes article 14, and (c)  that  it  was  beyond  the  legislative  competence  of Parliament to enact such a law; (2)  Because  section  3(1) (b) is not a law  of  preventive detention within the meaning of article 22(3) and  therefore it contravenes article 22 (1) and (2); and (3) Because, in any event, the order was made in bad faith. The High Court decided against the petitioner on all  points and dismissed the petition on 10-12-1954.  He thereupon made the  present  petition to this Court on  the  same  grounds, presumably  under  article 32 of the Constitution.   It  was filed oil 10-1-1955.                             1289 We will first consider the vires of section 3(1) (b). It  is in these terms: "The   Central   Government   or   the   State    Government may ............... (b)  if  satisfied  with  respect to any  person  who  is  a foreigner  within  the meaning of the Foreigners  Act,  1946 (XXXI of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements  for his expulsion from India, it is necessary so to do, make  an order directing that such person be detained". The detention order is by a State Government and not by  the Centre.   The portion of the section on which the  order  is based  is  the part that gives a State Government  power  to make   an  order  of  detention  against  a  foreigner,   on satisfaction,  "with a view to making arrangements  for  his expulsion from India". The  competence  of the Central Legislature to enact  a  law dealing with this aspect of preventive detention is  derived from  Entry  9  of the Union List read with  Entry  10,  The portion of Entry 9 which concerns us is as follows: "Preventive  detention  for reasons connected  with  Foreign Affairs  The  scope of the expression "Foreign  Affairs"  is indicated in Entry 10: "Foreign  Affairs;  all matters which bring the  Union  into relation with any foreign country". It  is well settled that the language of these Entries  must be  given the widest scope of which their meaning is  fairly



capable  because they set up a machinery of  Government  and are  not  mere  Acts of a  legislature  subordinate  to  the Constitution.   Giving Entry 9 its widest range we  find  it impossible  to  hold that legislation that  deals  with  the right  of  a  State  to  keep  foreigners  under  preventive detention  without  trial  does not  bring  the  Union  into relation  with a foreign country.  Every country claims  the right to the allegiance of its subjects wherever they may be and in return guarantees to them the right of diplomatic 1290 protection when abroad.  It is therefore the privilege,  and the  anxiety,  of every civilised nation  to  keep  vigilant watch  over its subjects abroad and to ensure for  them,  as far  as that is possible through diplomatic  channels,  fair play and justice administered along lines of what is called, broadly  for  want  of a better term,  natural  justice.   A foreign State has a very direct interest in what is done  to its subjects in a foreign land.  Therefore, legislation that confers  jurisdiction  upon Governments in this  country  to deprive  foreigners of their liberty cannot but be a  matter that will bring the Union into relation with foreign States, particularly when there is no public hearing and no trial in the  ordinary  courts of the land.  But in  this  particular case,  the relation is even more direct, for  the  provision here is for detention with a view to making arrangements for a  foreigner’s expulsion from India.  A foreign State has  a very deep interest in knowing where and how its subjects can be  forcibly expelled against their will.   The  legislative competence  of Parliament to deal with this question is,  we think,  clear; and this covers not only section 3(1) (b)  of the  Preventive Detention Act but also the  Foreigners  Act, 1946  (Act  XXXI  of 1946) in so far as it  deals  with  the powers of expulsion and the right of the Central  Government to  restrict  the  movements  of  foreigners  in  India  and prescribe  the  place of their residence and  the  ambit  of their movements in the land. The learned Attorney-General sought to base the  legislative competence  upon  other  Entries as well  and  claimed  that Parliament is not confined to Entry 9 in List I and Entry  3 in  List  III  (the  only Entries  that  touch  directly  on preventive  detention).  He claimed, for example, that  laws for the preventive detention of foreigners can also be based upon Entry 17 in List I which relates to aliens and Entry 19 which  relates  to expulsion from India; and also  upon  the portions of Entries 9 in List I and 3 in List III that  deal with the "security of India" and the "security of the State" and the "maintenance of public order", provided always  that they comply with articles 21 and 22 of the Constitution,  We express no opinion                             1291 about this as we can uphold the portion of the Statute  that is  impugned  here on the narrower ground we  have  set  out above. The next question is whether the limitations imposed on this power by articles 21 and 22 have been observed. Article 21 guarantees the protection of personal liberty  to citizen  and foreigner alike.  No person can be deprived  of his personal liberty  "except according to procedure established by law", and  article  22 prescribes the minimum that  the  procedure established by law must provide.  There can be no arrest  or detention  without  the  person being  produced  before  the nearest  magistrate within twenty four hours, excluding  the time necessary for the journey, etc., nor can he be detained beyond  that period without the authority of  a  magistrate.



The only exceptions are (1) enemy aliens and (2) "any person who  is  arrested or detained under any  law  providing  for preventive detention". There  are  further limitations, but they were  not  invoked except that the learned Attorney-General explained that  the unrestricted  power given by section 4(1) of the  Foreigners Act, 1946 (a pre-constitution measure) to confine and detain foreigners became invalid on the passing of the Constitution because  of  articles 21 and 22.  Therefore, to  bring  this part  of the law into line with the Constitution, section  3 (1) (b) of the Preventive Detention Act was enacted.  It was more   convenient  to  insert  new  provisions   about   the confinement  and detention of foreigners in  the  Preventive Detention  Act rather than amend the Foreigners Act  because the Preventive Detention Act was a comprehensive Act dealing with   preventive   detention  and  was  framed   with   the limitations of articles 21 and 22 in view. It  was  urged  on behalf of  the  petitioner  that  section 3(1)(b)  of the Preventive Detention Act is’-not  reasonably related  to  the  purpose of the  Act,  namely,  "preventive detention".   It  was argued that preventive  detention  can only be for the purpose of prevent- 1292 ing  something and when you seek to make arrangements for  a man’s  expulsion  from the country you  are  not  preventing anything, or trying to, but are facilitating the performance of a positive act by the State, namely the act of expulsion. We do not agree and will first examine the position where an order  of expulsion is made before any steps to  enforce  it are  taken.   The  right to expel is  conferred  by  section 3(2)(c)   of  the  Foreigners  Act,  1946  on  the   Central Government  and the right to enforce an order  of  expulsion and  also to prevent any breach of it, and the right to  use such force as may be reasonably necessary "for the effective exercise of such power" is conferred by section 11(1),  also on the Central Government.  There is, therefore, implicit in the  right of expulsion a number of ancillary rights,  among them,  the right to prevent any breach of the order and  the right  to use force and to take effective measures to  carry out  those  purposes.   Now the  most  effective  method  of preventing  a  breach of the order and ensuring that  it  is duly obeyed is by arresting and detaining the person ordered to  be expelled until proper arrangements for the  expulsion can be made.  Therefore, the right to make arrangements  for an  expulsion  includes the right to make  arrangements  for preventing  any  evasion  or breach of the  order,  and  the Preventive Detention Act confers the power to use the  means of  preventive detention as one of the methods of  achieving this  end.  How far it is necessary to take this step  in  a given  case is a matter that must be left to the  discretion of  the  Government  concerned,  but,  in  any  event,  when criminal charges for offences said to have been committed in this  country and abroad are levelled against a  person,  an apprehension  that  he is likely to disappear and  evade  an order  of  expulsion cannot be called  either  unfounded  or unreasonable.   Detention in such circumstances  is  rightly termed  preventive  and  falls  within  the  ambit  of   the Preventive  Detention Act and is reasonably related  to  the purpose of the Act. The next question is whether any steps can be                             1293 taken  under  the law in anticipation of an  order  that  is about  to  be made, or which may be made, by  the  competent authority on the recommendation of another authority  seized with  certain powers of Government and yet not competent  to



make an order of this kind. The  Foreigners  Act confers the right of expulsion  on  the Central  Government.  Therefore, a State Government  has  no right either to make an order of expulsion or to expel.   It was  argued that if a State Government cannot expel or  make an order of expulsion, then it cannot be permitted to detain "with a view to making arrangements for the expulsion".   It was  contended  that the only authority that can  make  such arrangements,  or  direct that they should be made,  is  the Central Government.  It was also argued that until an  order of  expulsion  is made by the proper authority, no  one  can start  making  arrangements  for  its  due  execution;   the arrangements contemplated by section 3(1)(b) must follow and not  precede the order, especially as they involve  curtail- ment of a man’s personal liberty, for the order may never be made  and  it  would be wrong to  permit  an  authority  not authorised to decide the question to detain a man of its own motion  till somebody else has time and leisure to  consider the matter.  That would be inconsistent with the fundamental right  to liberty guaranteed by the Constitution to  citizen and foreigner alike. Again,  we  do  not agree.   The  Preventive  Detention  Act expressly  confers  the  right to detain ’-with  a  view  to making, arrangements" for the expulsion upon both the  State and  the Central Government and the "satisfaction"  required by  section 3(1)(b) can be of either Government.  The  right to  satisfy  itself that the drastic  method  of  preventive detention  is necessary to enable suitable arrangements  for expulsion to be made is therefore expressly conferred on the State Government and as a State Government cannot expel, the conferral  of  the  right  can  only  mean  that  the  State Government  is  given  the power to decide  and  to  satisfy itself whether expulsion is desirable or neces- 1294 sary,  and if it thinks it is, then to detain  until  proper arrangements for the expulsion are made, one of them, and an essential one, being reference to the Central Government for final  orders.  It is evident that the authorities  must  be vested  with  wide  discretion in the  present  field  where international  complications might easily follow in a  given case.   Unless  a State Government has authority to  act  in anticipation of orders from the Centre, it might be too late to act at all. We now turn to the argument that section 3 (1) (b) is  ultra vires  because  it offends article 14 of  the  Constitution. Actually,  the  attack here is on section 3 (2) (c)  of  the Foreigners Act but as section (3) (1) (b) of the  Preventive Detention Act is consequential on that it is also  involved. Section  3(1)(b) permits detention of a "foreigner" with  in the meaning of the Foreigners Act, 1946.  The definition  of "foreigner"  is given in section 2(a) of that Act and is  as follows: " ‘foreigner’ means a person who- (i)is not a natural-born British subject as defined in  sub- sections  (1)  and  (2)  of  section  (1)  of  the   British Nationality and Status of Aliens Act, 1914, or (ii) has  not been  granted a certificate of naturalization as  a  British subject under any law for the time being in force in India". The rest of the definition is not material.  The argument is that  this differentiates between foreigner  and  foreigner. It takes two classes of British subjects who are now as much foreigners as anyone else not an Indian citizen, out of  the class of foreigners for the purposes of-preventive detention and for the purposes of expulsion under the Foreigners  Act. This,  it was contended, offends article 14  which  provides



that  "The  State  shall not deny to any person  equality  before the  law  or  the equal protection of the  laws  within  the territory of India". This argument is easily answered by the classification  rule which  has  been  repeatedly applied  in  this  Court.   The classification  of  foreigners into those  who  are  British subjects of the kind set out in the definition, and  others, so as to make the former not                             1295 foreigners  for the purposes of the Foreigners Act  and  the Preventive  Detention  Act,  is a  reasonable  and  rational classification  and  so does not, on the  authority  of  our previous   decisions,  offend  article  14.   There  is   no individual  discrimination and it is  easily  understandable that  reasons  of State may make it  desirable  to  classify foreigners into different groups.  We repel this argument. It  was then said that at any rate there is  differentiation in  the  same  group because  the  definition  discriminates between  classes  of  British subjects  inter  se.   It  was pointed  out  that  the British Nationality  and  Status  of Aliens  Act,  1914 was repealed in 1948  and  re-enacted  in another form but as our Act has retained the 1914 definition that  is  the  one we must consider.  We do  not  intend  to examine  this  contention because, even if it be  true  that there  is  the discrimination alleged,  namely  between  one class of British subject and another, that will not give the petitioner a right of challenge on this ground.  He is not a British  subject  and so is not a member of the  only  class that could claim to be aggrieved on this score.  This  Court has  decided in earlier cases that the only persons who  can impugn  any given piece of legislation under article 32  are those who are aggrieved thereby.  As the petitioner is not a person aggrieved, so far as this point is concerned, he  not being  a  British subject, he cannot attack the  section  on this ground. We hold that the impugned portions of section 3(1)(b) of the Preventive   Detention  Act  and  section  3(2)(c)  of   the Foreigners Act, 1946 are intra vires. We now turn to a wider question that brings us to the fringe of  International  law.  It arises in this  way.   The  good faith  of  the  Government of the State of  West  Bengal  in making  the  order  of  detention  was  challenged  on   the following,  among  other, grounds.  It was argued  that  the real object of Government in continuing the detention was to keep  the  petitioner in custody so that it would  be  in  a position to hand him over to the West German authorities  as soon  as  a  suitable  German  boat  arrived.   It  will  be remembered 166 1296 that  the  West German Government wants the  petitioner  for offences  which  he  is alleged to have  committed  in  West Germany and that the West German Consul at Calcutta wrote to the   West  Bengal  Government  on  9-10-1954  asking   that Government to issue a provisional warrant of arrest  against the  petitioner  and to keep him in custody until  the  West German  Government  could initiate  extradition  proceedings against  him,  and added that the West German  Consulate  at Calcutta  had  already arranged for his  repatriation  on  a German boat that was to arrive on the 19th of October  1954. On receipt of this letter, the Secretary of the West  Bengal Government  recorded  a note saying that he  supposed  there would be no objection to the West Bengal Government  keeping the petitioner in detention till the 19th.  It was said that



the  connection between the letter, the expected arrival  of the  boat on the 19th and the Secretary’s proposal  to  keep the petitioner till that date, was obvious. The  attack on the good faith of the West Bengal  Government at  this  point  was  two-fold.  First,  it  was  said  that whatever   the  original  intention  of  the   West   Bengal Government  may  have been, when the  West  German  Consul’s letter  was  received, the object of the  detention  was  no longer  for  the  purpose of  making  arrangements  for  the petitioner’s  expulsion but for keeping him in custody  till the  West  German Government was in a position  to  commence extradition proceedings; that, it was said, was an abuse  of the Preventive Detention Act and was not justified by any of its provisions. The  second ground of attack was that, if that was  not  the object,  then,  very  clearly,  the idea  was  to  hand  the petitioner  over to the German authorities on a German  boat without the formality of extradition proceedings and without giving  the petitioner a chance to defend himself  and  show that  be could not be extradited.  That, it was  said,  made the  matter  worse  than  ever.   It  was  denied  that  the petitioner had committed any offence in West Germany or any- where else.  He claimed to be a communist and said that  the real object of the West German Government                             1297 was to subject him to political persecution the moment  they could  lay  bands on him.  The contention was that  once  an order  of  extradition is asked for, a foreigner  cannot  be handed over to the Government seeking his extradition except under the Extradition Act. The learned Attorney-General contended very Cc strongly that this  question  was academic and should  not  be  considered because  no  order of expulsion had yet been served  on  the petitioner  and no one knows the terms of the order.  We  do not think it is in view of what the learned Attorney-General told us, namely that an order of expulsion has actually been made  and signed but is kept in abeyance pending  our  deci- sion. We  see  no  force in the first  part  of  the  petitioner’s argument.  We are at bottom considering the question of  the West Bengal Government’s good faith.  The order of detention was made before the West German Consul wrote his letter,  so there  was no connection between that letter and the  order. After  that there is no material to indicate that  the  West Bengal Government changed its mind and continued the  deten- tion for another purpose.  The note referred to is the  note of  a  Secretary to Government and embodies  his  suggestion about  what should be done.  It cannot be used either as  an order of Government itself or as an indication of its mind. The second point raises a question of wider import  touching the  status  and  rights of foreigners  in  India,  and  the question we have to determine is whether there is any law in India vesting the executive government with power to expel a foreigner from this land as opposed to extraditing him. Article  19 of the Constitution confers certain  fundamental rights of freedom on the citizens of India, among them,  the right "to move freely throughout the territory of India" and "to reside and settle in any part of India", subject only to laws that impose reasonable restrictions on the exercise  of those  rights in the interests of the general public or  for the protection of the interests of any Scheduled Tribe.   No cor- 1298 responding  rights  are given to foreigners.   All  that  is guaranteed  to  them is protection to life  and  liberty  in



accordance with the laws of the land.  This is conferred  by article 21 which is in the following terms: "No person shall be deprived of his life or personal liberty except according to procedure established by law". Entries  9, 10) 17, 18 and 19 in the Union List confer  wide powers on the Centre to make laws about among other  things, admission  into and expulsion from India, about  extradition and  aliens  and about preventive detention  connected  with foreign  affairs.  Therefore, the right to make  laws  about the extradition of aliens and about their expulsion from the land is expressly conferred; also, it is to be observed that extradition and expulsion are contained in separate, entries indicating that though they may overlap in certain  aspects, they  are different and distinct subjects.  And that  brings us  to the Foreigners Act which deals, among  other  things, with  expulsion,  and the Extradition  Act  which  regulates extradition. The  Foreigners  Act confers the power to  expel  foreigners from  India.  It vests the Central Government with  absolute and  unfettered  discretion and, as there  is  no  provision fettering   this   discretion  in   the   Constitution,   an unrestricted right to expel remains. The  law  of  extradition is quite  different.   Because  of treaty  obligations it confers a right on certain  countries (not  all)  to  ask that persons who  are  alleged  to  have committed  certain specified offences in their  territories, or  who  have already been convicted of  those  offences  by their  courts,  be  handed  over  to  them  in  custody  for prosecution or punishment.  But despite that the  Government of India is not bound to comply with the request and has  an absolute and unfettered discretion to refuse. There  are important differences between the two  Acts.   In the  first place, the Extradition Act applies to  everybody, citizen   and  foreigner  alike,  and  to  every  class   of foreigner,  that is to say, even to foreigners who  are  not nationals of the country asking for 1299 extradition.   But, as has been seen, because of article  19 no  citizen can be expelled (as opposed to  extradition)  in the  absence of a specific law to that effect; and there  is none;  also, the kind of law touching expulsion (as  opposed to extradition) that could be made in the case of a  citizen would have to be restricted in scope.  That is not the  case where  a foreigner is concerned because article 19 does  not apply.   But  a citizen who has committed certain  kinds  of offences  abroad  can  be  extradited  if  the   formalities prescribed by the Extradition Act are observed.  A foreigner has  no  such  right  and he can  be  expelled  without  any formality  beyond  the  making of an order  by  the  Central Government.   But  if  he is  extradited  instead  of  being expelled,  then the formalities of the Extradition Act  must be complied with.  The importance of the distinction will be realised from what follows; and that applies to citizen  and foreigner alike. The Extradition Act is really a special branch of the law of Criminal  Procedure.   It  deals with  criminals  and  those accused  of  certain  crimes.  The  Foreigners  Act  is  not directly  concerned with criminals or crime though the  fact that a foreigner has committed offences, or is suspected  of that, may be a good ground for regarding him as undesirable. Therefore,  under the Extradition Act warrants or a  summons must be issued; there must be a magisterial enquiry and when there is an arrest it is penal in character; and-and this is the most important distinction of all-when the person to  be extradited leaves India he does not leave the country a free



man.  The police in India hand him over to the police of the requisitioning State and he remains in custody throughout. In the case of expulsion, no idea of punishment is involved, at  any rate, in theory, and if a man is prepared  to  leave voluntarily  he  can ordinarily go as and when  he  pleases. But the right is not his.  Under the Indian law, the  matter is left to the unfettered discretion of the Union Government and that Government can prescribe the route and the port  or place of departure and can place him on a particular ship or plane. (See sections 3(2) (b) and 6 of the Foreigners 1300 Act).  Whether the Captain of a foreign ship or plane can be compelled to take a passenger he does not want or to  follow a  particular route is a matter that does not arise  and  we express  no opinion on it.  But assuming that he is  willing to do so, the right of the Government to make the order vis- a-vis the man expelled is absolute. This  may not be the law in all countries.   Oppenheim,  for example,  says  that in England, until  December  1919,  the British Government bad "no power to expel even the most dangerous alien without the recommendation  of a court, or without an Act of  Parliament making  provision for ’such expulsion, except during war  or on  an  occasion  of  imminent  national  danger  or   great emergency".  (Oppenheim’s  International Law,  Vol.  1,  7th edition, page 631). But  that  is  immaterial, for the law in  each  country  is different and we are concerned with the law as it obtains in our  land.   Here the matter of expulsion has to  be  viewed from three points of view: (1) does the Constitution  permit the  making of such a law? (2) does it place any  limits  on such laws? and (3) is there in fact any law on this topic in India  and  if  so, what does it  enact?   We  have  already examined the law making power in this behalf and its  scope, and as to the third question the law on this matter in India is embodied in the Foreigners Act which gives an  unfettered right  to the Union Government to expel.  But there is  this distinction.   If the order is one of expulsion, as  opposed to extradition, then the person expelled leaves India a free man.  It is true he may be apprehended the moment he leaves, by  some  other power and consequently, in some  cases  this would  be  small consolation to him, but in most  cases  the distinction is substantial, for the right of a foreign power to  arrest except in its own territory and on its own  boats is not unlimited.  But however that may be, so far as  India is concerned, there must be an order of release if he is  in preventive  custody  and though he may be conducted  to  the frontier  under  detention he must be permitted to  leave  a free man 1301 and cannot be handed over under arrest. In a case of extradition, he does not leave a free man.   He remains under arrest throughout and is merely handed over by one  set  of  police to the next.  But in  that  event,  the formalities  of the Extradition Act must be  complied  with. There  must be a magisterial enquiry with a regular  hearing and  the person C sought to be extradited must  be  afforded the  right  to  submit a written statement  to  the  Central Government and to ask, if he so chooses, for political  asy- lum;  also be has the right to defend himself and the  right to  consult, and to be defended by, a legal practitioner  of his  choice. (Article 22(1)  Of course, he can also  make  a representation  against  an order of expulsion and  ask  for political  asylum  apart  from any Act  but  those  are  not matters of right as under the Extradition Act.



Our conclusion is that the Foreigners Act is not governed by the provisions of the Extradition Act.  The two are distinct and  neither  impinges  on the other.  Even if  there  is  a requisition  and a good case for extradition, Government  is not  bound  to  accede  to the  request.   It  is  given  an unfettered right to refuse.  Section 3(1) of the Extradition Act says- "the Central Government may, if it thinks fit". Therefore, if it chooses not to comply with the request, the person  against whom the request is made cannot insist  that it  should.   The  right is not his; and  the  fact  that  a request  has  been made does not fetter  the  discretion  of Government  to  choose the less cumbrous  procedure  of  the Foreigners  Act  when  a foreigner  is  concerned,  provided always, that in that event the person concerned leaves India a  free man.  If no choice had been left to the  Government, the position would have been different but as Government  is given the right to choose, no question of want of good faith can  arise merely because it exercises the right  of  choice which  the  law confers.  This line of attack oil  the  good faith of Government falls to the ground. The remaining grounds about want of good faith 1302 that were raised in the petition were not seriously  pressed and  as they are of no substance we need not  discuss  them. The petition fails and is dismissed.                        Petition dismissed.