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Full Case Details
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 Act directing 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
(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 “discriminatory,
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) was 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, 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
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not be in any such area or place in Madhya Pradesh as may be specified in the
order
(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:
x x x
(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 subsection (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.”
By cl. (ii) of the order the respondent was required to 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
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person concerned to honestly secure the means of subsistence in the place selected. Subsection 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 extended and whether it may be habitated or inhabitated; the
clause also nowhere provides 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 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 III, and laws made in contravention of Art. 13(2) are to the extent of
the contravention 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.
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- 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 conferred 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 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, [1955] 2 S.C.R. 225, 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
“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,
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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 books then 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 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 that without legislative authority the
Government of the State could not enter the business of printing, publishing and selling textbooks. 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 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.
