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PETITIONER: STATE OF MADHYA PRADESH & ANR.

       Vs.

RESPONDENT: THAKUR BHARAT SINGH

DATE OF JUDGMENT: 23/01/1967

BENCH: SHAH, J.C. BENCH: SHAH, J.C. RAO, K. SUBBA (CJ) SHELAT, J.M. BHARGAVA, VISHISHTHA MITTER, G.K.

CITATION:  1967 AIR 1170            1967 SCR  (2) 454  CITATOR INFO :  RF         1967 SC1836  (33)  RF         1971 SC 530  (233)  F          1973 SC 106  (27)  RF         1973 SC1425  (14)  R          1974 SC1232  (10)  R          1976 SC1207  (86,90,177,179,359,443,444)  RF         1977 SC1496  (18)  D          1978 SC 489  (20)  R          1982 SC  33  (27)

ACT: Madhya  Pradesh  Public  Security act, 1959,  s.  3(1)  (b)- Authorising making of an order requiring a person to  reside in   specified   place-No  Provision  for   maintenance   or subsistence-whether   imposed   unreasonable    restriction- Therefore Whether violative of Art. 19. Constitution  of  India-Art.  358--Scope  of-Legislative  or executive  action  infringing rights of citizens  or  others taken during emergency under Art. 352-Action without  lawful authority-whether protected by Art, 358.

HEADNOTE: On April 24, 1963, the State Government made an order  under s.  3  of  the Madhya Pradesh  Public  Security  Act,  1959, directing that the respondent (i) shall not be in any  place in  Raipur District, (ii) shall immediately proceed  to  and reside  in  a named town and (iii) shall report daffy  to  a police station in that town.  The respondent challenged  the order  by a writ petition under Articles 226 and 227 of  the Constitution  on the ground inter alia, that s. 3  infringed the fundamental rights guaranteed under Art. 19(1), (d)  and (e) of the Constitution. A  Single Judge of the High Court declared clauses (ii)  and (iii) of the Order invalid on the view that clauses (b)  and (c) of s. 3(1) on which they were based contravened Art. 19, A  Division  Bench, in appeal, confirmed the  order  of  the Single  Judge holding that s. 3(1)(b) was violative of  Art. 19(1)  (d) and that clauses (ii) and (iii) of the,  impugned order, being inextricably woven, were both invalid.

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In  appeal  to this Court it was contended, inter  alia,  on behalf  of the appellant State (i) that clause  3(1)(b)  did not impose an unreasonable restriction; (ii) that so long as the  state of emergency declared on October 20,1962, by  the President under Art. 352 was in force, the respondent  could not move the High Court by a petition under Art. 226 of  the Constitution  on  the plea that by the  impugned  order  his fundamental  right  guaranteed under Art. 19(1) (d)  of  the Constitution was infringed; and (iii) that even if s. 3  (1) (b)  was held to be void, Art. 358 protects legislative  and executive  action taken after the proclamation of  emergency ’and  therefore any executive action taken by an officer  of the State could not be challenged as infringing Art. 19. HELD  :  The  Order made by the; State in  exercise  of  the authority conferred by s. 3 (1) (b) was invalid; and for the acts  done  to  the prejudice of the  respondent  after  the declaration  of emergency under Art. 352, no  immunity  from the process of the Court could be claimed under Art. 358  of the  Constitution, since the order was not supported by  any valid legislation. [462 C] (i)  The  High  Court was right in holding that  s.  3(1)(b) authorised the imposition of unreasonable restrictions in so far  as it required any person to reside or -remain in  such place or within such area as may be specified in the  order. The  Act  does  not  give  any  opportunity  to  the  person concerned  of  being heard before the place where he  is  to remain                             455 or  reside  is selected.  The place selected may be  one  in which he may have no residential accommodation, and no means of subsistence.  S. 3(1) (b) does not indicate the extent of the  place or the area, its distance from the  residence  of the  person  extermed and whether it may  be  habituated  or inhabitated;  and it makes no provision for  his  residence, maintenance  or means of livelihood in the  place  selected. [458B-E] (ii) The  Act was brought into force before the  declaration of emergency and it was therefore open to the respondent  to invoke  Art.  19.   If the power  conferred  by  s.  3(1)(b) authorised the imposition of unreasonable restrictions, the- clause  must be deemed to -be void when enacted ’and it  was not  revived when the proclamation of emergency was made  by the President. [459 B-C] (iii)     All   executive  action  which  operates  to   the prejudice  of any person must have the authority of  law  to support  it, and the terms of Art. 358 do not  detract  from that  rule.  Article 358 expressly authorises the  State  to take  legislative or executive action provided  such  action was  competent for the ’State to make or take, but  for  the provisions  contained  in  Part  III  of  the  Constitution. Article  358  does  not purport to invest  the-  State  with arbitrary  authority  to  take action to  the  prejudice  of citizens and others: it merely provides that so long as  the proclamation of emergency subsists laws may be enacted,  and executive  action  may  be  taken  in  pursuance  of  lawful -authority,  which  if  the  provisions  of  Art.  19   were operative would have been invalid. [459 F] There  was no force in the contention that by virtue of  the provisions  of Art.. 162, the State or its officers may,  in exercise of executive authority, without any legislation  in support  thereof  infringe  the rights  of  citizens  merely because  the  Legislature  of the State  has  the  power  to legislate  in regard to the subject on which  the  executive order is issued. [462 B] Rat  Sahib Ram Jawaya Kapur v. The State of Punjab [1955]  2

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S.C.R. 225, distinguished.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1066  of 1965. Appeal from the judgment and order dated December 4, 1963 of the Madhya Pradesh High Court in Letters Patent Appeal No.  28 of 1963. B. Sen, and I N. Shroff, for the appellants. The respondent did not appear. The Judgment  of the Court was delivered by Shah,  J.  On April 24, 1963, the’ State of  Madhya  Pradesh made an order in exercise of powers conferred by s. 3 of the Mad  Pradesh Public Security Act,  1959--hereinafter  called ’the actdirecting the respondent Thakur Bharat Singh-               (i)   "that  he shall not be in any  place  in               the Raipur district;               (ii)  "that  he shall reside in the  municipal               limits of Jhabua town, district Jhabua, Madhya               Pradesh, and shall proceed there,  immediately               on the receipt of this order ; and               456               (iii) that  he shall notify his movements  and               report himself personally every day at 8  a.m.               and  8  p.m. to the  Police  Station  Officer,               Jhabua." The respondent moved a petition in the High Court of  Madhya Pradesh   under  Arts.  226  &  227  of   the   Constitution challenging the order on the grounds, inter alia, that ss. 3 &  6  and  other  provisions of  the  Act  which  authorised imposition  of  restrictions  on movements  and  actions  of person   were  ultra  vires  in  that  they  infringed   the fundamental  freedoms guaranteed under Art. 19(1) (d) &  (e) of  the Constitution of India and that the order  was  "dis- criminatory,  illegal  and violated  principles  of  natural justice."  Shivdayal,  J.,  declared cl. (i)  of  the  order valid,  and  declared cls. (ii) and (iii) invalid.   In  the view  of the learned Judge the provisions of s.  3(1)(a)  of the Act were valid and therefore the directions contained in cl.  (i) of the order could lawfully be made by  the  State, but.  cls.  (b)  & (c) of s. 3(1) of the  Act  were  invalid because they contravened the fundamental freedom of movement guaranteed under Art. 19 of the Constitution, and  therefore the  directions contained in cls. (ii) & (iii) of the  order were  invalid.  Against the order passed by  Shivdayal,  J., two appeals were filed under the Letters Patent of the  High Court.   A Division Bench of the High Court held  that  cls. (a)  &  (c) of s. 3(1) of the Act were valid, but  in  their view  cl. (b) of s. 3(1) wits not valid because it  violated the  fundamental  guarantee  under Art.  19(1)  (d)  of  the Constitution.  The High Court however confirmed the order of Shivdayal,  J., since in their view the direction  contained in cl. (iii) of the order was "inextricably woven" with  the directions  in  cl. (ii) and was on  that  account  invalid. Against  the  order of the High Court, the State  of  Madhya Pradesh has appealed to this Court. The  relevant provisions of the Act may be briefly set  out. Section 3 of the Act provides :               (1)   "If  the State Government or a  District               Magistrate  is satisfied with respect  to  any               person  that he is acting or is likely to  act               in a manner prejudicial to the security of the               State  or to the maintenance of public  order,

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             and  that,  in order to prevent  him  from  so               acting it is necessary in the interests of the               general  public  to make an order  under  this               section’ the State Government or the  District               Magistrate,  as the case may be, may  make  an               order-               (a),  directing that, except in so far  as  he               may  be  permitted by the  provisions  of  the               order, or by such authority or persons as  may               be  specified therein, he shall not be in  any               such area or place in Madhya Pradesh as may be               specified in the order                                    457               (b)   requiring  him  to reside or  remain  in               such  place  or  within such  area  in  Madhya               Pradesh  as may be specified in the order  and               if he is not already there to proceed to  that               place  or  area  within such time  as  may  be               specified in the order               (c)   requiring him to notify his movements or               to  report  himself  or  both  to  notify  his               movements  and report himself in such  manner,               at such times and to such authority or person,               as may be specified in the order ;               (d)   imposing  upon him such restrictions  as               may  be specified in the order, in respect  of               his  association  or communication  with  such               persons as may be mentioned in the order ;               (e)   prohibiting    or    restricting     the               possession  or use by him of any such  article               or articles as may be specified in the order:               (2)               (3)               (4)   If  any person is found in any  area  or               place in contravention of a restriction  order               or  fails  to  leave  any  area  or  place  in               accordance  with, the requirements of such  an               order,   then,   without  prejudice   to   the               provisions  of  sub-section  (5),  he  may  be               removed from such area or place by any  police               officer.               (5)   If any person contravenes the provisions               of   any  restriction  order,  he   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  4  authorises the State to revoke  or  modify  "the restriction order", and S. 5 authorises the State to suspend operation of the "restriction order" unconditionally or upon such  conditions as it deems fit and as are accepted by  the person  against whom the order is made.  Section 6  requires the  State  to  disclose the  grounds  of  the  "restriction order".   Section  8  provides that in every  case  where  a "restriction  order"  has been made,  the  State  Government shall  with in thirty days from the date of the order  place before the Advisory Council a copy thereof together with the grounds on which it has been made and such other particulars as  have a bearing on the matter and the representation,  if any,  made by the person affected by such order.  Section  9 provides  for the procedure of the Advisory Council, and  s. 16  requires  the  State to confirm, modify  or  cancel  the "restriction  order" in accordance with the opinion  of  the Advisory Council. 458 By  cl.  (ii) of the order the respondent  was  required  to

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reside  within  the municipal limits of  Jhabua  town  after proceeding to that place on receipt of the order.  Under cl. (b) of s. 3(1) the State is authorised to order a person  to reside  in  the place, where he is ordinarily  residing  and also to require him to go to any other area or place  within the State and stay in that area or place.  If the person  so ordered fails to carry ’out the direction, he may be removed to  the  area or place designated and may also  be  punished with  imprisonment for a term which may extend to one  year, or with fine, or with both.  The Act it may be noticed  does not  give any opportunity to the person concerned  of  being heard before the place where he is to reside or remain in is selected.  The place selected may be one in which the person concerned  may  have no residential accommodation,  and.  no means of subsistence.  It may not be possible for the person concerned to honestly secure the means of subsistence in the place  selected.   Sub-section 3(1)(b) of the Act  does  not indicate the ’extent of the place or the area, its  distance from the residence of the person externed and whether it may be  habitated or inhabitated: the clause also no where  pro- vides  that  the  person directed to  be  removed  shall  be provided with residence, maintenance or means of  livelihood in  the place selected.  In the circumstances we agree  with the  High  Court that cl. (b) authorised the  imposition  of unreasonable restrictions insofar as it required any  person to  reside  or remain in such place or within such  area  in Madhya Pradesh as may be specified in the order. Counsel  for the State did not challenge the view  that  the restrictions  which may be imposed under cl. (b) of s.  3(1) requiring  a person to leave his hearth, home and  place  of business  and  live  and  remain  in  another  place  wholly unfamiliar  to him may operate seriously to  his  prejudice, and  may on that account be unreasonable.  But he  contended that  normally  in  exercise of the power under  cl.  (b)  a person  would  be ordered to remain in the town  or  village where  he resides and there is nothing unreasonable  in  the order of the State restricting the movements of a person  to the  town or place where he is ordinarily residing.   It  is true  that  under  cl. (b) an order requiring  a  person  to reside or remain in a place where he is ordinarily  residing may  be passed.  But in exercise of the power it  also  open to  the State to direct a person to leave the place  of  his ordinary  residence and to go to another place  selected  by the  authorities  and to reside and remain  in  that  place. Since the clause is not severable, it must be struck down in its entirety as unreasonable.  If it is intended to restrict the  movements of a person and to maintain supervision  over him, orders may appropriately be made under cls. (c) and (d) of S. 3(1) of the Act. Counsel for the State urged that in any event so long as the State  of  emergency declared on October 20,  1962,  by  the President                             459 under Art. 352 was not withdrawn or revoked, the  respondent could  not move the High Court by a petition under Art.  226 of  the Constitution on the plea that by the impugned  order his fundamental right guaranteed under Art. 19(1)(d) of  the Constitution  was infringed.  But the Act was  brought  into force  before  the  declaration  of  the  emergency  by  the President.  If the power conferred by s. 3(1)(b)  authorised the imposition of unreasonable restrictions, the clause must be  deemed  to be void, for Art. 13(2) of  the  Constitution prohibits the State from making any law which takes away  or abridges the rights conferred by Part 111, and laws made  in contravention of Art. 13(2) are to the extent of the contra-

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vention  void.   Section  3(1)(b) was  therefore  void  when enacted  and  was  not  revived  when  the  proclamation  of emergency  was  made by the President.   Article  358  which suspends  the  provisions  of Art. 19  during  an  emergency declared  by  the  President  under Art.  352  is  in  terms prospective: after the proclamation of emergency nothing  in Art. 19 restricts the power of the State to make laws or  to take  any  executive  action which the, State  but  for  the provisions  contained in Part III was competent to  make  or take.   Article 358 however does not operate to  validate  a legislative  provision  which  was invalid  because  of  the constitutional   inhibition  before  the   proclamation   of emergency.  Counsel for the State while conceding that if s. 3(1)(b) was, because it Infringed the fundamental freedom of citizens,  void  before the proclamation of  emergency,  and that it was not revived by the proclamation, submitted  that Art.  358  protects action both  legislative  and  executive taken  after  proclamation of emergency  and  therefore  any executive action taken by an officer of the State or by  the State will not be liable to be challenged on the ground that it Infringes the fundamental freedoms under Art. 19.  In our judgment,  this  argument  involves a  grave  fallacy.   All executive  action  which operates to the  prejudice  of  any person must have the authority of law to support it and  the terms  of Art. 358 do not detract from that  rule.   Article 358  expressly authorises the State to take  legislative  or executive action provided such action was competent for  the State  to make or take, but for the provisions contained  in Part III of the Constitution.  Article 358 does not  purport to invest the State with arbitrary authority to take  action to the prejudice of citizens and others: it merely  provides that so long as the proclamation of emergency subsists  laws may  be  enacted,  and executive action  may,  be  taken  in pursuance  of  lawful authority which if the  provisions  of Art.  19  were  operative  would  have  been  invalid.)  Our federal-.’  structure  is  founded  on  certain  fundamental principles : (1) the sovereignty of the people with  limited Government  authority i.e. the Government must be  conducted in  accordance with the will of the majority of the  people. The people govern themselves through their  representatives, whereas  the official agencies’ of the executive  Government possess only such powers as have been confer- 460 red  upon them by the people ; (2) There is distribution  of powers  between the three organs of  the  State-legislative, executive and judicial--each organ having some check  direct or  indirect  on the other ; and (3) the rule  of-law  which includes judicial review of arbitrary executive actions.  As pointed  out by Dicey in his "Introduction to the  study  of the  Law  of  the Constitution", 10th Edn., at  p.  202  the expression  "rule  of law " has three meanings,  or  may  be regarded from three different points of view.  "It means, in the  first place, the absolute supremacy or predominance  of regular law as opposed to the influence of arbitrary  power, and excludes the existence of arbitrariness, of prerogative, or  even of wide discretionary authority on the part of  the government." At p. 188 Dicey points out :               "In  almost  every continental  community  the               executive  exercises far  wider  discretionary               authority   in  the  matter  of   arrest,   of               temporary imprisonment, of expulsion from  its               territory,  and  the  like,  than  is   either               legally  claimed  or in fact  exerted  by  the               government  in  England  :  and  a  study   of               European   politics  now  and  again   reminds

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             English   readers  that  wherever   there   is               discretion  there is room  for  arbitrariness,               and  that in a republic no less than  under  a               monarchy  discretionary authority on the  part               of  the  government must mean  insecurity  for               legal freedom on the part of its subjects." We  have adopted under our Constitution not the  continental system  but the British system under which the rule  of  law prevails.   Every  Act  done by the  Government  or  by  its officers  must, if it is to operate to the prejudice of  any person, be supported by some legislative authority. Counsel  for the State relied upon the terms of Art. 162  of the  Constitution,  and the decision of this  Court  in  Rai Sahib Ram Jawaya Kapur v. The State of Punjab(l) in  support of  the  contention that it is open to the  State  to  issue executive orders even if  there is no legislation in support thereof provided the State could legislate on the subject in respect of which action is taken.  Article 162 provides that subject to the provisions of the Constitution, the executive power of a State shall extend to the matters with respect to which  the Legislature of the State has power to make  laws. But  Art. 162 and Art. 73 are concerned primarily  with  the distribution of executive power between the Union on the one hand  and the States on the other and not with the  validity of  its  exercise.  Counsel for the State  however  strongly relied  upon  the observations of Mukherjea, C. J.,  in  Rai Sahib Ram Jawaya Kapur’s case(l) (1)  [1955] 2 S.C.R. 225.                             461 .lm15 "They  do not mean, that it is only when the  Parliament  or the  State  Legislature  has  legislated  on  certain  items appertaining  to their respective lists, that the  Union  or the  State  executive, as the case may be,  can  proceed  to function  in  respect  to  them.  On  the  other  hand,  the language of article 162 clearly indicates that the powers of the  State  executive do extend to matters  upon  which  the State  Legislature  is competent to legislate  and  are  not confined  to matters over which legislation has been  passed already." These observations must be read in the light of the facts of the  case.   The executive action which was upheld  in  that case  was, it is true, not supported by legislation, but  it did  not  operate to the prejudice of any citizen.   In  the State  of  Punjab  prior  to 1950  the  text-books  used  in recognized  schools were prepared by private publishers  and they  were  submitted for approval of the  -Government.   In 1950  the State Government published text books  in  certain subjects,  and  in  other  subjects  the  State   Government approved text-books submitted by publishers and authors.  In 1952  a notification was issued by the  Government  inviting only "authors and others" to submit text-books for  approval by  the Government.  Under agreements with the  authors  and others the copyright in the text-books vested -absolutely in the State and the authors and others received royalty on the sale  of those text-books.  The petitioners a firm  carrying on  the  business  of preparing,  printing,  publishing  and selling text booksthen moved this Court under Art. 32 of the Constitution  praying  for writs of mandamus  directing  the Punjab Government to withdraw the notifications of 1950  and 1952  on  the ground that they contravened  the  fundamental rights of the petitioners guarantee under the  Constitution. It was held by this Court that the action of the  Government did  not  amount to infraction of the guarantee  under  Art. 19(1)(g) of the Constitution, since no fundamental rights of

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the  petitioners were violated by the notifications and  the acts  of  the executive Government done  in  furtherance  of their policy of nationalisation of text-books for  students. It  is true that the dispute arose before  the  Constitution (seventh  Amendment) Act, 1956, amending, inter  alia,  Art. 298,  was enacted, and there was no legislation  authorising the  State  Government  to enter the field  of  business  of printing,   publishing  and  selling  text-books.   It   was contended  in  support  of the petition  in  Rai  Sahib  Ram Jawaya’s  case(1)  that without  legislative  authority  the Government  of  the State could not enter  the  business  of printing, publishing and selling text-books.  The Court held that  by  the  action of the Government  no  rights  of  the petitioners were infringed, since a mere chance or  prospect of having particular customers cannot be said to a be (1)  [1955] 2 S.C.R. 225. 462 right to property or to any interest or undertaking.  It  is clear  that  the  State  of Punjab had  done  no  act  which infringed  a  right of any citizen: the  State  had  merely. entered   upon   a  trading  venture.   By   entering   into competition  with  the citizens, it did not  infringe  their rights.  Viewed in the light of these facts the observations relied upon do not support the contention that the State  or its officers may in exercise of executive authority infringe the rights of the citizens merely because the Legislature of the  State  has  the power to legislate  in  regard  to  the subject on which the executive order is. issued. We  are  therefore of the view that the order  made  by  the State  in exercise of the authority conferred by s.  3(1)(b) of  the  Madhya Pradesh Public Security Act 25 of  1959  was invalid  and  for  the acts done to  the  prejudice  of  the respondent after the declaration of emergency under Art. 352 no  immunity from the process of the Court could be  claimed under- Art. 358 of the Constitution, since the Order was not supported by any valid legislation. The appeal therefore fails and is dismissed. R.K.P.S.                    Appeal dismissed.. 463