PETITIONER: SMT.SHASHI AGARWAL Vs. RESPONDENT: STATE OF UP & ORS. DATE OF JUDGMENT12/01/1988 BENCH: SHETTY, <NAME>: SHETTY, <NAME>, <NAME> (J) CITATION: 1988 AIR 596 1988 SCC (1) 436 JT 1988 (1) 83 1988 SCALE (1)40 CITATOR INFO : R 1988 SC 934 (14,15) E&F 1989 SC2027 (20) D 1989 SC2265 (20) R 1989 SC2274 (10) F 1990 SC 516 (9) RF 1990 SC1196 (15) E 1990 SC1202 (8,12) RF 1990 SC1763 (5) RF 1991 SC1640 (12) ACT: National Security Act , 1980: Sections 3 and 12- Detention-Detenu involved in Criminal Case-In jail-Whether order of detention can be made in respect of such detenu- Mere apprehension that, if enlarged on bail, likelihood of acting prejudicially to interest of public order-Whether sufficient to justity the detention order. C HEADNOTE: % detention order was passed and served on the detenu on Augus t 3, 1987, while he was in jail for five non-bailable offences alleged to have been committed by him on May 19,1987. The detention order alleged that as the detenu who was in jail was trying to come out on bail, and there was enough possibility of his being bailed out, it was necessary to detain him in order to prevent him from doing acts against maintenance of public order. The detention was approved by the <ORG> under s. 12 (1) of the National Security Act , 1980, after the receipt of <ORG> opinion. The validity of the detention was challenged in the writ petition before this Court. On the question: whether the detention could be justiaed solely on the ground that the detenu was trying to come out on bail and there was enough possibility of his being bailed out and he would then act pre judicially to the interest of the public order. This Court quashed the detention order on December 18, 1987. Giving the reasons for its decision, ^ HELD: Section 3 of the National Security Act does not preclude the authority from making an order of detention against a person while he is in custody or in jail, but the relevant facts in connection with the making of the order would make all the difference in every case. The validity of the order of detention has to be judged in every individual case on its own facts. [597C-D] 594 Every citizen in this country has the right to have recourse to law. He has the right to move the court for bail when he is arrested under the ordinary law of the land. If the <ORG> thinks that he does not deserve bail, the <ORG> could oppose the grant of bail. He cannot, however, be interdicted from moving the court for bail by clamping an order of detention. The possibility of the court granting bail may not be suffi cient. Nor a bald statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reasons apparent on the record that the detenu, if enlarged on bail, would act prejudicially to the interest of public order. [598B-C] In the instant case, there was no material made apparent on record that the detenu, if released on bail, was likely to commit ac tivities prejudicial to the maintenance of public order. The detention order cannot be justified merely on the ground that the detenu was trying to come out on bail and there was enough possibility of his being bailed out. [598F- <CITATION> ,  4 SCC 48 relied on. <CITATION> , Dhanbad,  3 SCR 930; <CITATION> .,  4 SCC at p. 234 and <CITATION> ,  4 SCC 416 at 421, explained JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition (Criminal) No. 735 of 1987.

(Under Article 32 of the Constitution of India). <NAME>, <NAME> and Mrs. <NAME> for the Petitioner.

<NAME> and <NAME> for the Respondent.

The following order of the <ORG> was delivered JAGANNATHA SHETTY, J. The arguments of this case conc luded at the close of the court hours on December 18, 1987. We then nlade the following order:

"We will give the reasons later. But we make the operative order here and now.

The detention order is quashed. The detenu will be set at liberty forthwith."

Here are the reasons:

In this writ petition, the validity of the detention of <NAME> has been challenged. He has been detained by the District Magistrate, Meerut by an order dated August 3, 1987 made under sec. 3(2) of the National Security Act , 1980. The <ORG>, after the receipt of opinion of <ORG>, has approved the detention as required under sec. 12(1) of that Act. The impugned order reads as under:

"office of the District Magistrate, Meerut ORDER As I am satisfied as District Magistrate, Meerut that issue of order to prevent <NAME>, son of <NAME>, resident of 234, 'L' Block, Shastri Nagar, <ORG>, Meerut from doing act against the maintenance of public order is necessary.

Therefore, in exercise of power given in sub- section 3 of sec. 3 of National Security Act , 1980 (Act No. 65/ 1980), I hereby give order that the above said <NAME>, son of <NAME>, resident of <ORG>, Shastri Nagar Police Station Medical, Meerut be detained in general category in District Meerut Jail in the custody of the Supdt. Of the said jail under sub- section 2 of Sec. 3 of the above said Act.

Passed today dated 3.8.1987 under my signature and seal "

There are as many as five grounds of detention set out in the order. All relate to the offence said to have been committed by <NAME> on May 19, 1987. Two of the offences are said to have been committed at 9.OO A.M. On that day, the other two offences at 9.30 A.M. and the fifth one was alleged to have been committed between 9.30 A.M. to 1.00 P.M. On the same day. In each of the grounds there is a mention to the following effect:

"Due to your above ill acts there broke out com munal riots causing heavy loss to properties and lives of the people and your this ill act has spread fear and terror in the general public of Meerut City. In this manner, you have corrlmitted such an act which is against public law and order. "

All the cases referred to in the grounds are non- bailable offences. In relation of those offences, <NAME> was arrested as an accused on August 2, 1987. The detention order was passed and served on August 3, 1987. The order particularly stated: "At present you are detained in District Jail, Meerut and you are trying to come out on bail and there is enough possibility of your being bailed out." Before we consider the main ground raised in the petition, we may make one point clear. The order of detention repeatedly states that the detenu committing the alleged five offences set out in the detention order was the cause for breaking out communal riot in Meerut City. But in the counter-affidavit filed on behalf of the respondents, it has been stated "that the communal riots broke out in Meerut on April 14, 1987 on the occasion of Shab-e-Earat. That was controlled by the <ORG>. However, in the night intervening between 13/19 May, 1987, again a communal riot broke out." But all the offences said to have been committed by the detenu were after 9.00 A.M. on May 19, 1987. It was not in the intervening night between May 18/19. It was, therefore, inaccurate to state that the communal riot broke out due to the incidents attributed to the detenu on May 19, 1987.

The primary question however, is whether the detention of <NAME> could be justified solely on the ground that he was trying to come out on bail and there was enough possibility of his being bailed out and he would then act prejudicially to the interest of the public order. Mr. <NAME>, learned counsel for the <ORG>, sought to justify the detention order relying upon the decision of this Court in <CITATION> , [ 1983] 3 SCR 930. The counsel also said that the subsequent two decisions of this court to which we will make reference later, are not in tune with the ratio of the decision in <NAME> case.

We will first consider what the case about in <NAME> case. The detention order considered in that case contained statement that the District Magistrate was satisfied that the detenu was likely to be released on bail and if he was allowed to remain at large, he would be indulging in activities prejudicial to the maintenance of public order. This court refused to interfere with that detention order on the ground that the detaining authority was justified in forming that opinion. The conclusion of this <ORG> was evidently on the basis of material placed before the detaining authority in that case.

The principles applicable in these types of preventive detention cases have been explained in several decisions of this Court. All those cases have been considered in a recent decision in <CITATION> ,  4 SCC 48. The principles may be summarised as follows.

Section 3 of the National Security Act does not preclude the authority from making an order of detention against a person while he is in custody or in jail, but the relevant facts in connection with the making of the order would make all the difference in every case. The validity of the order of detention has to be judged in every individual case on its own facts. There must be material apparently disclosed to the detaining authority in each case that the person against whom an order of preventive detention is being made is already under custody and yet for compelling reasons, his preventive detention is necessary.

We will now refer to the two decisions which according to Mr. <NAME> are not in tune with the ratio of the decision in <NAME> case (supra). <CITATION> ., 4 SCC 232 at p. 234, this Court observed:

"On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raisec;. Merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed."

What was stressed in the above case is that an apprehension of the detaining authority that the accused if enlarged on bail would again carry on his criminal activities is by itself not sufficient to detain a person under the National Security Act .

Every citizen in this country has the right to have recourse to law. He has the right to move the court for bail when he is arrested under the ordinary law of the land. If the <ORG> thinks that he does not deserve bail the <ORG> could oppose the grant of bail. He cannot, however, be interdicted from moving the court for bail by clamping an order of detention. The possibility of the <ORG> granting bail may not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reasons apparent on the record that the detenu, if enlarged on bail, would act prejudicially to the interest of public order. That has been made clear in <CITATION> ,  4 SCC 416 at 421, where it was observed:

"A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent. Etemal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens. "

There is, to our mind, nothing in these two decisions which runs counter to the decision in <NAME> case (supra).

In the instant case, there was no material made apparent on record that the detenu, if released on bail, is likely to commit activities prejudicial to the maintenance of public order. The detention order appears to have been made merely on the ground that the detenu is trying to come but on bail and there is enough possibility of his being bailed out. We do not think that the order of detention could be justified only on that basis.

These were the reasons upon which we quashed the order of detention.

N.P.V.


JUDGMENT <NAME>, C.J.

1. This is a petition under article 32 of the Constitution, preferred by six persons, who purport to carry on the business of preparing, printing publishing and selling text books for different classes in the schools of Punjab, particularly for the primary and middle classes, under the name and style "<NAME> & Sons." It is alleged that <ORG> of <ORG> has in pursuance of their so-called policy of nationalisation of text books, issued a series of notifications since 1950 regarding the printing, publication and sale of these books which have not only placed unwarrantable restrictions upon the rights of the petitioners to carry on their business but have practically ousted them and other fellow-traders from the business altogether. It is said that no restrictions could be imposed upon the petitioners' right to carry on the trade which is guaranteed under article 19(1)(g) of the Constitution by mere executive orders without proper legislation and that the legislation, if any, must conform to the requirements of clause (6) of article 19 of the Constitution. Accordingly, the petitioners pray for writs in the nature of mandamus directing <ORG> to withdraw the notifications which have affected their rights.

2. To appreciate the contentions that have been raised by the learned counsel who appeared for the parties before us, it will be necessary to narrate certain relevant facts. In the State of Punjab, all recognised schools have got to follow the course of studies approved by <ORG> and the use, by the pupils, of the text books prescribed or authorised by the <ORG> is a condition precedent to the granting of recognition to a school. For a long period of time prior to 1950, the method adopted by the <ORG> for selection and approval of text books for recognised schools was commonly known as the alternative method and the procedure followed was shortly this : Books on relevant subjects, in accordance with the principles laid down by the Education <ORG>, were prepared by the publishers with their own money and under their own arrangements and they were submitted for approval of the <ORG>. The Education <ORG> after proper scrutiny selected books numbering between 3 and 10 or even more on each subject as alternative text books, leaving it to the discretion of the Head Masters of the different schools, to select any one of the alternative books on particular subject out of the approved list. The <ORG> fixed the prices as well as the size and contents of the books and when these things were done it was left to the publishers to print, publish and sell the books to the pupils of different schools according to the choice made by their respective Head Masters. Authors, who were not publishers, could also submit books for approval and if any of their books were approved, they had to make arrangements for publishing the same and usually they used to select some one of the publishers already on the line to do the work.

3. This procedure, which was in vogue since 1905, was altered in material particulars on and from May 1950. By certain resolutions of the <ORG> passed on or about that time, the whole of the territory of Punjab, as it remained in <ORG> after partition, was divided into three Zones. The text books on certain subjects like agriculture, history, social studies, etc., for all the zones were prepared and published by the <ORG> without inviting them from the publishers. With respect to the remaining subjects, offers were still invited from "publishers and authors" but the alternative system was given up and only one text book on each subject for each class in a particular zone was selected. Another changes introduced at this time was that the <ORG> charged, as royalty, 5% on the sale price of all the approved text books. The result therefore was that the <ORG> at this time practically took upon themselves the monopoly of publishing the text books on some of the subjects and with regard to the rest also, they reserved for themselves a certain royalty upon the sale proceeds.

4. Changes of a far more drastic character however were introduced in the year 1952 by a notification of <ORG> issued on the 9th of August, 1952 and it is against this notification that the complaints of the petitioners are mainly directed. This notification omitted the word "publishers" altogether and invited only the "authors and others" to submit books for approval by the <ORG>. These "authors and others, " whose books were selected, had to enter into agreements in the form prescribed by the <ORG> and the principal terms of the agreement were that the copyright in these books would vest absolutely in the <ORG> and the "authors and others" would only get a royalty at the rate of 5% on the sale of the text books at the price or prices specified in the list. Thus the publishing, printing and selling of the books were taken by the <ORG> exclusively in their own hands and the private publishers were altogether ousted from this business. The 5% royalty, in substance, represents the price for the sale of the copyright and it is paid to an author or any other person who, not being the author, is the owner of the copyright and is hence competent in law to transfer the same of the <ORG>. It is against these notifications of 1950 and 1952 that the present petition under article 32 of the Constitution is directed and the petitioners pray for withdrawal of these notifications on the ground that they contravene the fundamental rights of the petitioners guaranteed under the Constitution.

5. The contentions raised by Mr. <NAME>, who appeared in support of the petitioners, are of a three-fold character. It is contended in the first place that the executive <ORG> of a <ORG> is wholly incompetent, without any legislative sanction, to engage in any trade or business activity and that the acts of the <ORG> in carrying out their policy of establishing monopoly in the business of printing and publishing text books for school students is wholly without jurisdiction and illegal. His second contention is, that assuming that the <ORG> could create a monopoly in its favour in respect of a particular trade or business, that could be done not by any executive act but by means of a proper legislation which should conform to the requirements of article 19(6) of the Constitution. Lastly, it is argued that it was not open to the <ORG> to deprive the petitioners of their interest in any business or undertaking which amounts to property without authority of law and without payment of compensation as is required under article 31 of the Constitution.

6. The first point raised by Mr. <NAME>, in substance, amounts to this, that the Government has no power in law to carry on the business of printing or selling text books for the use of school students in competition with private agencies without the sanction of the legislature. It is not argued that the functions of a modern State like the police States of old are confined to mere collection of taxes or maintenance of laws and protection of the realm from external or internal enemies. A modern State is certainly expected to engage in all activities necessary for the promotion of the social and economic welfare of the community. What Mr. <NAME> says, however, is, that as our Constitution clearly recognises a division of governmental functions into three categories, viz., the legislative, the judicial and the executive, the function of the executive cannot but be to execute the laws passed by the legislature or to supervise the enforcement of the same. The legislature must first enact a measure which the executive can then carry out. The learned counsel has, in support of this contention, placed considerable reliance upon articles 73 and 162 of our Constitution and also upon certain decided authorities of <ORG> to which we shall presently refer.

7. Article 73 of the Constitution relates to the executive powers of the <ORG>, while the corresponding provision in regard to the executive powers of a <ORG> is contained in article 162. The provisions of these articles are analogous to those of section 8 and 49 respectively of the Government of India Act, 1935 and lay down the rule of distribution of executive powers between the <ORG> and the <ORG>s, following the same analogy as is provided in regard to the distribution of legislative powers between them. Article 162 , with which we are directly concerned in this case, lays down :

"Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which <ORG> has power to make laws :

Provided that in any matter with respect to which the <ORG> of a <ORG> and <ORG> have power to make laws, the executive power of the <ORG> shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by <ORG> upon the <ORG> or authorities thereof."

8. Thus under this article the executive authority of the <ORG> is executive in respect to matters enumerated in List II of Seventh Schedule. The authority also extends to the Concurrent List except as provided in the Constitution itself or in any law passed by the <ORG>. Similarly, article 73 provides that the executive powers of the <ORG> shall extend to matters with respect to which the <ORG> has power to made laws and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or any agreement. The proviso engrafted on clause (1) further lays down that although with regard to the matters in the Concurrent List the executive authority shall be ordinarily left to be <ORG> it would be open to the <ORG> to provide that in exceptional cases the executive power of the <ORG> shall extend to these matters also. Neither of these articles contain any definition as to what the executive function is and what activities would legitimately come within its scope. They are concerned primarily with the distribution of the executive power between the <ORG> on the one hand and the <ORG>s on the other. They do not mean, as Mr. <NAME> seems to suggest, that it is only when the <ORG> or the <ORG> Legislature has legislated on certain items appertaining to their respective lists, that the <ORG> or the <ORG> 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 <ORG> executive do extend to matters upon which <ORG> is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlies article 73 of the Constitution. These provisions of the Constitution therefore do not lend any support to Mr. <NAME>'s contention.

9. The Australian cases upon which reliance has been placed by the learned counsel do not, in our opinion, appear to be of much help either. In the first (The <ORG> and <ORG> v. <ORG>, 31 C.L.R. 421) of these cases, the executive <ORG> of the <ORG>, during the continuance of the war, entered into a number of agreements with a company which was engaged in the manufacture and sale of wool-tops. The agreements were of different types. By one class of agreements, the <ORG> <ORG> gave consent to the sale of wool-tops by the company in return for a share of the profits of the transactions (called by the parties "a licence fee"). Another class provided that the business of manufacturing wool-tops should be carried on by the company as agents for the <ORG> in consideration of the company receiving an annual sum from the <ORG>. The rest of the agreements were a combination of these two varieties. It was held by <ORG> of <ORG> that apart from any authority conferred by an Act of <ORG> or by regulations thereunder, the executive <ORG> of the <ORG> had no power to make or rectify any of these agreement. The decision, it may be noticed, was based substantially upon the provision of section 61 of the Australian Constitution which is worded as follows :

"The executive power of the <ORG> is vested in the Queen and is exercised by the Governor-General as the Queen's representative and extends to the execution and maintenance of the Constitution and of the laws of the <ORG>."

10. In addition to this, the King could assign other functions and powers to the Governor-General under section 2 but in this particular case no assignment of any additional powers was alleged or proved. The court held that the agreements were not directly authorised by the <ORG> or under the provisions of any statute and as they were not for the execution and maintenance of the Constitution they must be held to be void. <NAME>, J., in his judgment, dealt elaborately with the two types of agreements and held that the agreements, so far as they purported to bind the company to pay to the <ORG> money, as the price of consents, amounted to the imposition of a tax and were void without the authority of <ORG>. The other kind of agreements which purported to bind the <ORG> to pay to the company a remuneration for manufacturing wool-tops was held to be an appropriation of public revenue and being without legislative authority was also void.

11. It will be apparent that none of the principles indicated above could have any application to the circumstances of the present case. There is no provision in our Constitution corresponding to section 61 of the Australian Act. The <ORG> has not imposed anything like taxation or licence fee in the present case nor have we been told that the appropriation of public revenue involved in the so-called business in text books carried on by the <ORG> has not been sanctioned by the legislature by proper Appropriation Act s.

12. The other case (Vide Attorney-General for Victoria v. The <ORG>, 52 C.L.R. 533) is of an altogether different character and arose in the following way. The <ORG> Government had established a clothing factory in Melbourne for the purpose of making naval and military uniforms for the defence forces and postal employees. In times of peace the operations of the factory included the supply of uniforms for other departments of the <ORG> and for employees in various public utility services. The Governor-General deemed such peace-time operations of the factory necessary for the efficient defence of the <ORG> inasmuch as the maintenance intact of the trained complement of the factory would assist in meeting wartime demands. A question arose as to whether operations of the factory for such purposes in peace-time were authorised by the Defence Act . The majority of the <ORG> answered the question in the affirmative, <NAME>, J. delivered dissenting opinion upon which Mr. <NAME> mainly relied. The learned Judge laid stress on section 61 of the Constitution Act according to which the executive power of the <ORG> extended to the maintenance of the Constitution and of the laws of the <ORG> and held that there was nothing in the Constitution or any law of the <ORG> which enabled the <ORG> to establish and maintain clothing factories for other than <ORG> purposes. The opinion, whether right or wrong, turns upon the particular facts of the case and upon the provision of section 61 of the Australian Act and it cannot and does not throw any light on the question that requires decision in the present case.

13. A question very similar to that in the present case did arise for consideration before a Full Bench of <ORG> in <CITATION> . The point canvassed there was whether <ORG> has power under the Constitution to carry on the trade or business of running a bus service in the absence of a legislative enactment authorising <ORG> to do so. Different views were expressed by different Judges on this question. Chief Justice <NAME> was of opinion that in a written Constitution like ours the executive power may be such as is given to the executive or is implied, ancillary or inherent. It must include all powers that may be needed to carry into effect the aims and objects of the Constitution. It must mean more than merely executing the laws. According to the chief Justice the <ORG> has a right to hold and manage its own property and carry on such trade or business as a citizen has the right to carry on, so long as such activity does not encroach upon the rights of others or is not contrary to law. The running of a transport business therefore was not per se outside the ambit of the executive authority of the <ORG>. <NAME>, J., held that the power to run a <ORG> bus service was incidental to the power of acquiring property which was expressly conferred by article 298 of the Constitution. <NAME> and <NAME>, <ORG>., who delivered a common judgment, were also of the opinion that there was no need for a specific legislative enactment to enable a <ORG> <ORG> to run a bus service. In the opinion of these learned Judges an act would be within the executive power of the <ORG> if it is not an act which has been assigned by the Constitution of India to other authorities or bodies and is not contrary to the provisions of any law and does not encroach upon the legal rights of any member of the public. <NAME>, J., dissented from the majority view and held that <ORG> had no power to run a bus service in the absence of an Act of the legislature authorising the <ORG> to do so. The opinion of <NAME>, J., undoubtedly supports the contention of Mr. <NAME> but it appears to us to be too narrow and unsupportable.

14. It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the <ORG> have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the <ORG>, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited way. The executive <ORG>, however, can never go against the provisions of the Constitution or of any law. This is clear from the provisions of article 154 of the Constitution but, as we have already stated, it does not follow from this that in order to enable the executive to function there must be a law already in existence and that the powers of executive are limited merely to the carrying out of these laws.

15. The limits within which the executive Government can function under the Indian Constitution can be ascertained without much difficulty by reference to the form of the executive which our Constitution has set up. Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the <ORG>. The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the <ORG>.

16. In India, as in England, the executive has to act subject to the control of the legislature; but in what way is this control exercised by the legislature ? Under article 53(1) of our Constitution, the executive power of the Union is vested in the President but under article 75 there is to be <ORG> with the Prime Minister at the head to aid advise the President in the exercise of his functions. The president has thus been made a formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the <ORG>. The same provisions obtain in regard to <ORG>; the Governor or the Rajpramukh, as the case may be, occupies the position of the head of the executive in the <ORG> but it is virtually the council of Ministers in each <ORG> that carries on the executive Government. In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the council of Ministers consisting, as it does, of the members of the legislature is, like the British <ORG>, "a hyphen which joins, a buckle which fastens the legislative part of the <ORG> to the executive part." The <ORG> enjoying, as it does, a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the <ORG> are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them.

17. Suppose now that the <ORG> or the executive <ORG> of a <ORG> formulates a particular policy in furtherance of which they want to start trade or business. Is it necessary that there must be a specific legislation legalising such trade activities before they could be embarked upon ? We cannot say that such legislation is always necessary. If the trade or business involves expenditure of funds, it is certainly required that <ORG> should authorise such expenditure either directly or under the provisions of a statute. What is generally done in such cases is, that the sums required for carrying on the business are entered in the annual financial statement which the <ORG> has to lay before the <ORG> or <ORG>s of Legislature in respect of every financial year under article 202 of the Constitution. So much of the estimates as relate to expenditure other than those charged on the consolidated fund are submitted in the form of demands for grants to the legislature and the legislature has the power to assent or refuse to assent to any such demand or assent to a demand subject to reduction of the amount ( article 203 ). After the grant is sanctioned, an Appropriation Bill is introduced to provide for the appropriation out of the consolidated fund of the <ORG> of all moneys required to meet the grants thus made by the <ORG> ( article 204 ). As soon as the Appropriation Act is passed, the expenditure made under the heads covered by it would be deemed to be properly authorised by law under article 266(3) of the Constitution.

18. It may be, as Mr. <NAME> contends, that the Appropriation Act s are no substitute for specific legislation and that they validate only the expenses out of the consolidated funds for the particular years for which they are passed; but nothing more than that may be necessary for carrying on of the trade or business. Under article 266(3) of the Constitution no moneys out of the consolidated funds of India or the consolidated fund of a <ORG> shall be appropriated except in accordance with law and for the purposes and in the manner provided in this Constitution. The expression "law" here obviously includes the Appropriation Act s. It is true that the Appropriation Act s cannot be said to give a direct legislative sanction to the trade activities themselves. But so long as the trade activities are carried on in pursuance of the policy which the executive Government has formulated with the tacit support of the majority in the legislature, no objection on the score of their not being sanctioned by specific legislative provision can possibly be raised. Objections could be raised only in regard to the expenditure of public funds for carrying on of the trade or business and to these the Appropriation Act s would afford complete answer.

19. Specific legislation may indeed be necessary if the <ORG> require certain powers in addition to what they possess under ordinary law in order to carry on the particular trade or business. Thus when it is necessary to encroach upon private rights in order to enable the <ORG> to carry on their business, a specific legislation sanctioning such course would have to be passed.

20. In the present case it is not disputed that the entire expenses necessary for carrying on the business of printing and publishing the text books for recognised schools in Punjab were estimated and shown in the annual financial statement and that the demands for grants, which were made under different heads, were sanctioned by <ORG> and due Appropriation Act s were passed. For the purpose of carrying on the business the <ORG> do not require any additional powers and whatever is necessary for their purpose, they can have by entering into contracts with authors and other people. This power of contract is expressly vested in the <ORG> under article 298 of the Constitution. In these circumstances, we are unable to agree with Mr. <NAME> that the carrying on of the business of printing and publishing text books was beyond the competence of the executive <ORG> without a specific legislation sanctioning such course.

21. These discussions however are to some extent academic and are not sufficient by themselves to dispose of the petitioners' case. As we have said already, the executive Government are bound to conform not only to the law of the land but also to the provisions of the Constitution. The Indian Constitution is a written Constitution and even the legislature cannot override the fundamental rights guaranteed by it to the citizens. Consequently, even if the acts of the executive are deemed to be sanctioned by the legislature, yet they can be declared to be void and inoperative if they infringe any of the fundamental rights of the petitioners guaranteed under Part III of the Constitution. On the other hand, even if the acts of the executive are illegal in the sense that they are not warranted by law, but no fundamental rights of the petitioners have been infringed thereby, the latter would obviously have no right to complain under article 32 of the Constitution though they may have remedies elsewhere if other heads of rights are infringed. The material question for consideration therefore is : What fundamental rights of the petitioners, if any, have been violated by the notifications and acts of the executive <ORG> undertaken by them in furtherance of their policy of nationalisation of the text books for the school students ?

22. The petitioners claim fundamental right under article 19(1)(g) of the Constitution which guarantees, inter alia, to all persons the right to carry on any trade or business. The business which the petitioners have been carrying on is that of printing and publishing books for sale including text books used in the primary and middle classes of the schools in Punjab. Ordinarily it is for the school authorities to prescribe the text books that are to be used by the students and if these text books are available in the market the pupils can purchase them from any book-seller they like. There is no fundamental right in the publishers that any of the books printed and published by them should be prescribed as text books by the school authorities or if they are once accepted as text books they cannot be stopped or discontinued in future. With regard to the schools which are recognised by the <ORG> the position of the publishers is still worse. The recognised schools receive aids of various kinds from the <ORG> including grants for the maintenance of the institutions, for equipments, furniture, scholarships and other things and the pupils of the recognised schools are admitted to the school final examinations at lower rates of fees than those demanded from the students of non-recognised schools. Under the school code, one of the main conditions upon which recognition is granted by <ORG> is that the school authorities must use as text books only those which are prescribed or authorised by the <ORG>. So far therefore as the recognised schools are concerned and we are concerned only with these schools in the present case the choice of text books rests entirely with the <ORG> and it is for the <ORG> to decide in which way the selection of these text books is to be made. The procedure hitherto followed was that the <ORG> used to invite publishers and authors to submit their books for examination and approval by <ORG> and after selection was made by the <ORG>, the size, contents as well as the prices of the books were fixed and it was left to the publishers or authors to print and publish them and offer them for sale to the pupils. So long as this system was in vogue the only right which publishers, like the petitioners had, was to offer their books for inspection and approval by the <ORG>. They had no right to insist on any of their books being accepted as text books. So the utmost that could be said is that there was merely a chance or prospect of any or some of their books being approved as text books by the <ORG>. Such chances are incidental to all trades and business and there is no fundamental right guaranteeing them. A trader might be lucky in the securing a particular market for his goods but if he looses that field because the particular customers for some reason or other do not choose to buy goods from him, it is not open to him to say that it was his fundamental right to have his old customers for ever. On the one hand, therefore, there was nothing but a chance or prospect which the publishers had of having their books approved by the <ORG>, on the other hand the <ORG> had the undisputed right to adopt any method of selection they liked and if they ultimately decided that after approving the text books they would purchase the copyright in them from the authors and others provided the latter were willing to transfer the same to the <ORG> on certain terms, we fail to see what right of the publishers to carry on their trade or business is affected by it. Nobody is taking away the publishers' right to print and publish any books they like and to offer them for sale but if they have no right that their books should be approved as text books by the <ORG> it is immaterial so far as they are concerned whether the <ORG> approves of text books submitted by other persons who are willing to sell their copyrights in the books to them, or choose to engage authors for the purpose of preparing the text books which they take up on themselves to print and publish. We are unable to appreciate the argument of Mr. <NAME> that the <ORG> while exercising their undoubted right of approval cannot attach to it a condition which has no bearing on the purpose for which the approval is made. We fail to see how the petitioners' position is in any way improved thereby. The action of the <ORG> may be good or bad. It may be criticised and condemned in the Houses of the <ORG> or outside but this does not amount to an infraction of the fundamental right guaranteed by article 19(1)(g) of the Constitution.

23. As in our view the petitioners have no fundamental right in the present case which can be said to have been infringed by the action of the <ORG>, the petition is bound to fail on that ground. This being the position, the other two points raised by Mr. <NAME> do not require consideration at all. As the petitioners have no fundamental right under article 19(1)(g) of the Constitution, the question whether the <ORG> could establish a monopoly without any legislation under article 19(6) of the Constitution is altogether immaterial. Again a mere chance or prospect of having particular customers cannot be said to be a right to property or to any interest in an undertaking within the meaning of article 31(2) of the Constitution and no question of payment of compensation can arise because the petitioners have been deprived of the same. The result is that the petition is dismissed with costs.

PETITIONS NOS. 71 TO 77 AND 85 OF 1955.

Mukherjea, <NAME>

24. These 8 petitions under article 32 of the Constitution raise identically the same points for consideration as are involved in Petition No. 652 of 1954 just disposed of. The petitioners in these cases also purport to be printers, publishers and sellers of text-books for various classes in the schools of Punjab and they complain of infraction of their fundamental rights under article 19(1)(g) of the Constitution by reason of the various notifications issued by the State of Punjab in pursuance of their policy of nationalisation of text books. The learned counsel appearing in these cases have adopted in their entirely the arguments that have been advanced by Mr. <NAME> in Petition No. 652 of 1954 and no fresh or additional argument has been put forward by any one of them. This being the position the decision in Petition No. 652 of 1954 will govern these petitions also and they will stand dismissed but we would make no order as to costs.


JUDGMENT <NAME>, J.

1. The <ORG> has referred the following questions for the opinion of this <ORG>.

2. So far as IT Ref. No. 161 of 1984 is concerned, the following two questions are referred for the opinion of this Court :

"1. Whether, on the facts and in the circumstances of the case, the assessee was entitled to claim exemption under s. 11 of the IT Act, 1961 in respect of the contribution of Rs. 2,12,970 made to <ORG> ?

2. Whether, on the facts and in the circumstances of the case, the <ORG> was right in holding that the interest received by the assessee on fixed deposits made with Shahibag Entrepreneurs was covered under s. 13(2)(a) of the Act, and, therefore, the assessee's claim for exemption under s. 11 of the IT Act, 1961 was not affected."

3. So far as IT Ref. No. 56 of 1985 is concerned, the following questions are referred to this Court for opinion :

"1. Whether, on the facts and in the circumstances of the case, the assessee was entitled to claim exemption under s. 11 of the IT Act, 1961 in respect of the contribution of Rs. 2,73,102 made to <ORG> ?

2. Whether, on the facts and in the circumstances of the case, the <ORG> was right in holding that the interest received by the assessee on fixed deposits made with <ORG> was covered under s. 13(2)(a) and, therefore, the assessee's claim for exemption under s. 11 of the IT Act, 1961 was not affected ?"

4. The assessee is a charitable trust and the relevant year for the assessment is 1978-79. The previous year ended on 31st March, 1978. <ORG> is also a charitable entity to which out of the amounts paid Rs. 2,12,970 were claimed under s. 11 of the IT Act, 1961 (hereinafter referred to as "the Act"). It appears that on 1st April, 1977 in the books of account of the assessee, there was an outstanding debit balance of Rs. 5,29,678.08 and on 31st March, 1978 there was a debit balance to the tune of Rs. 7,36,359.78. During the year Rs. 4,85,008.25 have been paid to <ORG> by the assessee. On 31st March, 1978, the assessee passed a resolution resolving that out of the total amount of Rs. 9,87,743.50 advanced to <ORG> the amount of Rs. 2,12,969.54 be treated as contribution from the foundation to <ORG> and the same be earmarked for meeting the excess expenditure, in the income and expenditure account of the <ORG> as on 1st April, 1977. The amount be adjusted against the deposit balance in the income and expenditure account of the <ORG> as on 1st April, 1977. Thus, it appears that during the year the assessee has paid in all Rs. 4,58,008.25. The CIT(A) upheld the <ORG>'s action in disallowing deduction of Rs. 2,12,970 under s. 11 of the Act. Against which, on appeal, the <ORG> held "once the assessee had shown that it had earned income of Rs. 2,16,304 in the previous year relevant to the assessment year under appeal, we are not prepared to accede to the stand taken on behalf of the <ORG> that the assessee would not be entitled to claim exemption under s. 11 of the Act in respect of contribution of Rs. 2,12,970 made to <ORG> merely because the assessee had not paid in cash the said amount to the said <ORG> but it had passed necessary resolutions as well as entries in its books of accounts. For all these reasons, we have no hesitation in upholding the assessee's claim for exemption under s. 11 of the Act in respect of contribution of Rs. 2,12,970 made to <ORG>. The <ORG> is, therefore, directed to modify the assessment accordingly."

Thus, on record there is a finding that the assessee earned income of Rs. 2,16,304 in the previous year relevant to the assessment year under appeal and a sum of Rs. 4,85,008.25 has been paid during the year to <ORG> which includes the income earned by the assessee. The copy of account produced on the record clearly indicates that by different cheques or pay orders, the amount has been paid to <ORG> and a decision was taken that out of the total amount, only Rs. 2,12,967.54 be treated by way of contribution from the foundation to <ORG>. In our view, it would attract the provisions contained in s. 11 of the Act and in the facts and circumstances of case, the <ORG> is justified in taking the view and therefore, with regard to that question, we answer in favour of the assessee and against the <ORG>.

5. So far as the question No. 2 referred to this Court is concerned, the same is covered by the decision of this Court in the case of <CITATION> . 2) reported in (1988) 172 ITR 698 (Guj). Considering various aspects, the Court has held as under :

"The CBDT Circular No. 45 dt. 2nd Sept., 1970, clearly indicates that s. 13(2)(h) will cover only those cases in which investments are made by the assessee-trust in the capital of the concerns to which s. 13(2) applies. The circular further indicates that in case of lendings by the trust, the provisions of clause (a) of sub-s. (2) of s. 13 will apply and not s. 13(2)(h) and any contrary interpretation would not be a harmonious interpretation of cls. (a) and (h) of sub-s. (2) of s. 13 . It is, therefore, obvious that if at all, clause (a) of sub-s. (2) of s. 13 will apply and not clause (h) thereof, if it is shown that lending was without adequate security or adequate interest or both. Under these circumstances, if deposits are made by a trust in such concerns, such deposits will not be covered by s. 13(2)(h) and if at all, it is only s. 13(2)(a) which would apply to such deposits."

6. In the instant case, the CIT(A) held that the interest received by the assessee on fixed deposits made with <ORG> was covered under s. 13(2)(a) of the Act and the <ORG> has confirmed the decision rendered by the CIT(A) and in view of the aforesaid decision, this question is required to be answered in favour of the assessee and against the <ORG>.

7. Thus, questions referred in IT Ref. No. 161 of 1984 are answered accordingly with no order as to costs.

8. In view of what we have stated in IT Ref. No. 161 of 1984, the questions referred in IT Ref No. 56 of 1985 are required to be answered in favour of the assessee and against the <ORG> and accordingly the same are answered with no order as to costs.


PETITIONER: DR. <NAME> Vs. RESPONDENT: THE STATE OF DELHI DATE OF JUDGMENT: 26/05/1950 BENCH: <NAME>, HIRALAL J. (CJ) BENCH: <NAME>, HIRALAL J. (CJ) FAZAL ALI, SAIYID SASTRI, M. PATANJALI <NAME>, MEHR CHAND <NAME>, B.K. CITATION: 1950 AIR 211 1950 SCR 519 CITATOR INFO : R 1952 SC 75 (15) D 1952 SC 196 (15,17,18) R 1956 SC 559 (8) R 1957 SC 510 (15) RF 1957 SC 896 (11,13) E 1958 SC 578 (169) R 1959 SC 459 (48) R 1962 SC1371 (35) RF 1964 SC1279 (6) R 1968 SC 445 (14) R 1971 SC1667 (27) RF 1973 SC1461 (242,451) R 1974 SC 175 (14) R 1974 SC1044 (24) R 1975 SC2299 (485) R 1978 SC 851 (24) RF 1979 SC 25 (31) R 1980 SC1382 (81) ACT: Constitution of India, Art. 19 , cls. (1) (d) and (5) Fundamental rights--Freedom of movement--Law imposing re- strictions-Validity--Reasonableness trictions--Scope of enquiry--East Punjab Public Safety Act, 1949, s. 4 (1)(c), (3), (6)--Provisions empowering Provincial Government or District Magistrate to extern persons making satisfaction of externing authority final, authorising externment for indef- inite period, and directing that authority "may communicate" grounds of externment--Whether reasonable--Construction and Validity of Act. 67 520 HEADNOTE: Section 4, sub-s. (1) (c), of the East Punjab Public Safety Act of 1949 which was passed on the 29th March, 1949, and was to be in force until the 14th August, 1951, provided that "The Provincial Government or the District Magistrate, if satisfied with respect to any particular person that with view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it is necessary to do so, may, by order in writing, give a direction that such person shall remove himself from, and shall not return to, any area that may be specified in the order." Sub-section (3) of s. 4 provided that "an order under sub-s. (1) made by the District Magistrate shall not, unless the Provincial Goverment by special order otherwise directs, remain in force for more than three months from the making thereof," and sub-s. (6) laid down that "when an order has been made in respect of any person under any of the clauses under s. 4, sub-s. (1) or sub-s. (9.), the grounds of it may be communicated to him by the authority making the order, and in any case when the order is to be in force for more then three months, he shall have a right of making a representation which shall be referred to <ORG> constituted under s. 3, sub-s. (4)." The petitioner, against whom an order under (1) (c) of the Act was passed applied to the <ORG> under Art. 39 , of the Constitution for a writ of certiorari contending that the order was illegal inasmuch as the provisions of the above mentioned Act under which the order was made infringed the fundamental right to move freely throughout the territo- ry of India which was guaranteed by Art. 19 (1) (d) of the Constitution and were accordingly void under Art. 13 (1) of the Constitution: Held, per <NAME> C.J., <NAME> and <NAME>, <NAME>. (<NAME> and <NAME>, <NAME>. dissenting)--(i) that there was nothing unreasonable in the provision contained in sub-s. (1) (c) empowering <ORG> or the Dis- trict Magistrate to make an externment order, and making their satisfaction as to the necessity of making such an order final, or in the provisions contained in sub-s. (3) of s. 4 that an order of a District Magistrate may remain in force for three months and that <ORG> may make an order, or keep alive an order made by a District Magistrate, for a period exceeding three months without fixing any time limit; (ii) with regard to sub-s. (6), the word "may" in the expression "may communicate" must, in the context, be read as meaning "shall" and under the sub-sec- tion it is obligatory on the authority making an order to communicate the grounds to the externee;.(iii) the restric- tions imposed by the above-mentioned provisions of the Act upon the fundamental right guaranteed by Art. (19) (1) (d) were not, therefore, unreasonable restrictions within the meaning 01 Art. 19 (5) and the provisions of the Act were not void under Art. 13 (1 ), and the order of externment was not illegal. Per <NAME> J. (<NAME> J. concurring)--Though certain authorities can be invested with power to make 521 initial orders on their own satisfaction in cases of this description, and s. 4 (1) (c) of the East punjab Public Safety Act cannot be pronounced to be unreasonable simply because an order I could be passed by the Provincial Gov- ernment or the District Magistrate on their own personal satisfaction and not on materials, which satisfy certain objective tests, yet, the position would be different if the order thus made is allowed to continue for any indefinite period of time without giving the aggrieved person an oppor- tunity to say what he has got to say against the order; and inasmuch as sub-s. (3) of s. 4 prescribes no limit to the period of time during which an externment order would remain in force if it is made by <ORG>, and <ORG> is also given power to keep an order made by a District Magistrate in force for an indefinite period, the provisions of sub-s. (3) are manifestly unrea- sonable. The provisions of sub-s. (6)of s. 4 are also unreasonable as they make it entirely optional with the authorities to communicate to the person affected, the grounds upon which the order is made. Neither sub-s. (3) nor sub-s. (6) of s. 4 can, therefore, be said to have imposed restrictions which are reasonable in the interests of the general public within the meaning of Art. 19 (5) and these provisions of the Act were consequently void and inoperative under Art. 13 (1) of the Constitution, and the externment order was illegal. Held also, per <NAME> C.J., <NAME>, <NAME> and MUKH- ERJEA <NAME>.--Whether the restrictions imposed by a legislative enactment upon the fundamental right guaranteed by Art. 19 (1) (d) are reasonable within the meaning of Art. 19 (5) of the Constitution would depend as much on the procedural portion of the law as the substantive part of it] and in considering whether such restrictions are reasonable the <ORG> is not therefore bound to confine itself to an exami- nation of the reasonableness of the restrictions in the abstract with reference to their duration and territorial extent. The <ORG> can also consider the reasonableness of the procedural part of the law and the circumstances under which, and the manner in which, the restrictions have been imposed. [<NAME>, I J. did not express any opin- ion on this point.] JUDGMENT:

ORIGINAL JURISDICTION: Petition No. XXXVII of 1950. Application under article 32 of the Constitution of India for a writ of certiorari and prohibition. The facts are set out in the judgment.

<NAME> for the petitioner.

<NAME>, Attorney-General for India (<NAME>, with him) for the opposite party.

1950. May 26. The following judgments were delivered:-- KANIA C.J.--This is an application for a writ of 'certiorari and prohibition under article 32 of the Constitution of India.

The petitioner who is the President of <ORG> since December, 1949, was served with an order of externment dated the gist of March, 1950, that night. By that order he is directed by the District Magis- trate, Delhi, not to remain in the Delhi District, and immediately to remove himself from the Delhi District and not to return to the District. The order was to continue in force for three months. By another order of <ORG> he was directed to reside in Nagpur. That order has been recently cancelled. The petitioner disputes the validity of the first order on the ground that the East Punjab Public Safety Act, 1949, under which the order was made, is an infringement of his fundamental right given under article 19 (1) (d) of the Constitution of India. He further contends that the grounds of the order served on him are vague, insufficient and incomplete. According to him the object of the externment order passed by the District Magistrate, Delhi, was to suppress political opposition to the policy of the Government in respect of Pakistan and <ORG>. It is alleged that because the petitioner and the Hindu Mahasabha are against the Government policy of appeasement this order is served on him. It is therefore mala fide and illegal. In support of his contention about the invalidity of the East Punjab Public Safety Act and its provisions as regards externment, counsel for the petitioner relied on the recent unreported judgments of <ORG> in Miscellaneous Judicial Case No. 29 of 1950, Brij- nandan v. The State of Bihar, and of <ORG> in Criminal Application No. 114 of 1950, re <NAME>.

It is necessary first to ascertain the true meaning of article 19 (1) (d) read with clause (5) of the same article. There is no doubt that by the order of extern-

ment the right of the petitioner to freedom of movement throughout the territory of India is abridged. The only question is whether the limits of permissible legislation under clause (5) are exceeded. That clause provides as follows:--"19. (5) Nothing in subclauses (d), (e) and (f) of the said clause shall affect the operation of any exist- ing law in so far as it imposes, or prevent the <ORG> from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub- clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe." It is clear that the clause permits imposition of reasonable restrictions on the exercise of the right conferred by sub- clause (d)in the interests of the general public. The rest of the provision of clause (5) is not material and neither side relies on it. Two interpretations of the clause are put before the <ORG>. It is argued that grammatically understood the only question before the <ORG> is whether the impugned legislation imposes reasonable restrictions on the exercise of the right. To put it in other words, the only justiciable issue to be decided by the <ORG> is whether the restrictions imposed by the legislation on the exercise of the right are reasonable. If those restrictions on the exercise of the right are reasonable, the <ORG> has not to consider whether the law imposing the restrictions is rea- sonable. The other interpretation is that while the Consti- tution permits a law laying down reasonable restrictions on the exercise of the rights mentioned in sub-clause 19 (1)

(d), the reasonableness has to be of the law also. It is submitted that in deciding whether the restrictions, on the exercise of the right are reasonable, the Court has to decide not only on the extent and nature of the restric- tions on the exercise of the right but also as to whether the conditions under which the right is restricted are reasonable. The majority judgments of the <ORG> and <ORG>, although the impugned Acts of the State Legislatures before them were materially different on cer- tain important points, have given clause (5) of article 19 the latter meaning.

In my opinion, clause (5) must be given its full mean- ing. The question which the <ORG> has to consider is wheth- er the restrictions put by the impugned legislation on the exercise of the right are reasonable or not. The question whether the provisions of the Act provide reasonable safe- guards against the abuse of the power given to the executive authority tO administer the law is not relevant for the true interpretation of the 'clause. The <ORG>, on either inter- pretation, will be entitled to consider whether the re- strictions on the right to move throughout India, i.e,, both as regards the territory and the duration, are reasonable or not. The law providing reasonable restrictions on the exercise of the right conferred by article 19 may contain substantive provisions as well as procedural provisions. While the reasonableness of the restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the <ORG> the question of reasonableness of the procedural part of the law. It is obvious that if the law prescribes five years externment or ten years externment, the question whether such period of externment is reasonable, being the substan- tive part, is necessarily for the consideration of the <ORG> under clause (5). Similarly, if the law provides the proce- dure under which the exercise of the right may be restrict- ed, the same is also for the consideration of the <ORG>, as it has to determine if the exercise of the right has been reasonably restricted. I do not think by this interpretation the scope and ambit of the word "reasonable" as applied to restrictions on the exercise of the right, is in any way unjustifiably enlarged. it seems that the narrow construc- tion sought to be put on the expression, to restrict the <ORG>'s power to consider only the substantive law on the point, is not correct. In my opinion this aspect of the construction of article 19 (5) has escaped the minority judgment in the two matters mentioned above. I am not con- cerned with the conclusions of the two <ORG>s about the invalidity of the provisions of the Acts they were asked to consider. To the extent they help in the interpretation of article 19 (5) only they are helpful.

The next question is whether the impugned Act contains reasonable restrictions on the exercise of the right given under article 19 (1)(d) or (e). It was argued on behalf of the petitioner that under section 4 the power to make the order of externment was given to <ORG> or the District Magistrate, whose satisfaction was final. That decision was not open to review by the <ORG>. On that ground it was contended that there was an unreasonable restriction on the exercise of the citizen's right. In my opinion, this argument is unsound. This is not legislative delegation. The desirability of passing an individual order of externment against a citizen has to be left to an offi- cer. In the Act such a provision cannot be made. The satisfaction of the officer thus does not impose an unrea- sonable restriction on the exercise of the citizen's right. So far as the Bombay High <ORG> is concerned <ORG> appears to have decided this point against the contention of the petitioner.

It was next urged that under section 4 (3) the order made by the District Magistrate shall not, unless <ORG> by special order otherwise direct, remain in force for more than three months. It was argued that the period of three months itself was unreasonable as the ex- ternee had no remedy during that time. It was contended that when <ORG> directed the renewal of the order no limit of time was prescribed by the legislature for the duration of the order. The order therefore can be in operation for an indefinite period. This was argued to be an unreasonable restriction on the exercise of a citi- zen's right. In this connection it may be pointed out that in respect of preventive detention, which is a more severe restriction on the right of the citizen, the Constitution itself under article 22 (4) to (7) permits preventive deten- tion for three months without any remedy. The period of three months therefore prima facie does not appear unreason- able. Under the proviso to section 4 (5) <ORG> is not permitted to direct the exclusion or removal from the Province of a person ordinarily residing in the Province, and similarly the District Magistrate is not permitted to order the exclu- sion or removal of a person ordinarily resident in his district from that district. This is a great safeguard provided under the East Punjab Public Safety Act. The further extension of the externment order beyond three months may be for an indefinite period, but in that connec- tion the fact that the whole Act is to remain in force only up to the 14th August, 1951, cannot be overlooked. More- over, this whole argument is based on the assumption that <ORG> when making the order will not perform its duty and may abuse the provisions of the sec- tion. In my opinion, it is improper to start with such an assumption and decide the legality of an Act on that basis. Abuse of the power given by a law sometimes occurs; but the validity of the law cannot be contested because of such an apprehension. In my opinion, therefore, this contention of the petitioner cannot be accepted.

It. was next argued that there is no provision in the Act for furnishing grounds of externment to the citizen. Section 4 (6) provides that when an externment order has been made its grounds may be communicated to the externee by the authority making the order and in any case when the order is to be enforced for more than three months he shall have a right of making a representation which shall be referred to the advisory tribunal constituted under section 3 (4). While the word "may" ordinarily conveys the idea of a discretion and not compulsion, reading it with the last part of the clause it seems that when an externment order has to be enforced for more than three months an absolute right is given to the cxternee to make a representation. He cannot make a representation unless he has been furnished grounds for the order. In no other part of the Act a right to obtain the grouuds for the order in such a case is given to him. Therefore, that right has to be read as given under the first part of section 4 (6). That can be done only by reading the word "may" for that purpose as having the mean- ing of "shall" If the word "may" has to be so read for that purpose, it appears to be against the well-recognised canons of construction to read the same "may" as having a different meaning when the order is to be in force for less than three months. I do not think in putting the meaning of "shall" on "may" in the clause, I am unduly straining the language used in the clause. So read this argument must fail.

It was next argued that there is no provision in the Act showing what the advisory board has to do when it receives a representation. A reference to the advisory board neces- sarily implies a consideration of the case by such board. The absence of an express statement to that effect in the impugned Act does not invalidate the Act.

It was finally contended on behalf of the petitioner that the grounds for the externment order supplied to him are vague, insufficient and incomplete. The grounds are stated as follows :--

"Your activities generally and particularly since the recent trouble in East and West Bengal have been of a communal nature tending to excite hatred between communities and whereas in the present composition of the population of Delhi and the recent communal disturbances of Delhi feelings are roused between the majority and minority communities, your presence and activities in Delhi are likely to prove prejudicial to the maintenance of law and order, it is considered necessary to order you to leave Delhi." These grounds cannot be described as vague, insufficient or incomplete. It is expressly stated that the activities of the petitioner, who is the President of <ORG>, since the recent disturbances between two communities in the East and West Bengal have particularly been of a communal nature which excites hatred between the communi- ties. It is further stated that having regard to the recent disturbance in Delhi, the population of which is composed of both these communities, the excitement of such,hatred is likely to be dangerous to the peace and maintenance of law and order. Apart from being vague, I think that these grounds are specific and if honestly be- lieved can support the order. The argument that the order was served to stifle opposition to the <ORG> policy of appeasement has little bearing because the District Magis- trate of Delhi is not concerned with the policy of the <ORG> of appeasement or otherwise. The order is made because the activities of the petitioner are likely to prove prejudicial to the maintenance of law and order and the grounds specified have a direct bearing on that conclusion of the District Magistrate. I therefore think that this contention of the petitioner must be rejected. The result is that the petition fails and is dismissed. <NAME> agree.

<NAME> agree that this application must fail. As I share the views expressed by my Lord in.the judgment just delivered by him on the reasonableness of the restrictions imposed by the impugned legislation whichever construction of article 19 (5) of the Constitution is adopt- ed, I consider it unnecessary to express any opinion on the true scope of the judicial review permitted under that article, and I hold myself free to deal with that point when it becomes necessary to do so.

<NAME> concur in the judgment which my brother <NAME> is delivering and for the reasons given by him I allow the petition and quash the order of externment. <NAME> an application under article 32 of the Constitution, praying for quashing of an externment order made by the District Magistrate of Delhi, against the petitioner Dr. <NAME>, on 31st March, 1950, by which the latter was directed to remove himself immediately from the Delhi District and not to return to that District so long as the order remained in force. The order is for three months at present. Complaint was also made in the petition in respect of another and a subsequent order passed by <ORG> which was served on the peti- tioner on his way to Nagpur and which directed him to reside within the limits of the Nagpur Municipality and not to leave that area without the permis- sion of the District Magistrate of that place. This order of <ORG>, we are told, has since been withdrawn and we are not concerned with that order or the Act under which it was passed in the present proceeding. The substantial contention raised on behalf of the petitioner is that the particular provision of the East Punjab Public Safety Act, 1949, under which the District Magistrate of Delhi purported to make the externment order, became void and ceased to be operative after the new Consti- tution came into force, by reason of these provisions being inconsistent with the fundamental rights guaranteed under article 19 (1) (d) of the Constitution read with clause (5) of the same article. The argument is that any order passed under such void legislative provisions must necessarily be void and of no effect in law.

In order to appreciate the merits of this contention, it may be convenient to advert to the material provisions of the East Punjab Public Safety Act which are alleged to have become void as well as to the articles of the Constitution, upon which reliance has been placed by the learned counsel for the petitioner.

The East Punjab Public Safety Act came into force on 29th March, 1949, and its object, as stated in the preamble, is to provide for special measures to ensure public safety and maintenance of public order. Section 4 (1) of the Act provides:

"The Provincial Government or the District Magistrate, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudi- cial to the public safety or the maintenance of public order it is necessary so to do, may, by order in writing, give anyone or more of the following directions, namely that such person ...................................................

(c) shall remove himself from, and shall not return to, any area that may be specified in the order." , Sub-section (3) of the section lays down that "An order under sub-section (1) made by the District Magistrate shall not, unless the Provincial Government by special order otherwise directs, remain in force for more than three months from the making thereof."

The contention of the petitioner is that the restrictive provisions mentioned above, under which a person could be removed from a particular area or prohibited from returning to it are inconsistent with the fundamental right guaranteed by article 19 (1) (d) of the Constitution under which all citizens shall have the right "to move freely throughout the territory of India." This right indeed is not absolute and the extent to which it could be curtailed by legislation is laid down in clause.(5)of article 19 which runs as follows:

"Nothing in sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe."

Thus the primary question which requires consideration is, whether the impugned legislation which apparently seems to be in conflict with the fundamental right enunciated in article 19 (1) (d) of the Consitution is protected by clause (5) of the article, under which a law would be valid if it imposes reasonable restrictions on the exercise of the right in the interests of the general public. It is not disputed that the question of reasonableness is a justiciable matter which has to be determined by the <ORG>. If the <ORG>s 'hold the restrictions imposed by the law to be reasonable, the petitioner would certainly have no remedy. If, on the other hand, they are held to be unreasonable, article 13 (1) of the Constitution imposes a duty upon the <ORG> to pronounce the law to be invalid to the extent that it is inconsistent with the fundamental rights guaranteed under Part III of the Constitution.

It has been urged, though somewhat faintly, by the learned Attorney-General that the right of free movement throughout the Indian territory as enunciated in article 19 (1) (d) of the Constitution contemplates nothing else but absence of inter-State restrictions, which might prevent citizens of the Indian Union from moving from one State to another. A law which does not impose barriers of this kind, it is said, cannot be inconsistent with the fundamental right secured by this clause. Such a restricted interpreta- tion is, in my opinion, not at all warranted by the language of the sub-clause. What article 19 (1) (d) of the Constitu- tion guarantees is the free right of all citizens to go wherever they like in the Indian territory without any kind of restriction whatsoever. They can move not merely from one State to another but from one place to another within the same State and what the Constitution lays stress upon is that the entire Indian territory is one unit so far as the citizens are concerned. Clause (c) of section 4 (1) of the East Punjab Public Safety Act, 1949, authorises <ORG> or the District Magistrate to direct any person to remove himself from any area and prohibit him from entering the same. On the face of it such provision repre- sents an interference with the. fundamental right guaran- teed by article 19 (1) (d) of the Constitution. The contro- versy, therefore, narrows down to this, whether the impugned legislation is saved by reason of its being within the permissible limits prescribed by clause (5) of article 19. With regard to clause (5), the learned AttorneyGeneral points out at the outset that the word "reasonable" occur- ring in the clause qualifies "restrictions" and not "law'". It is argued that in applying the clause, all that we have to see is whether the restrictions that are imposed upon the exercise of the right by law are reasonable or not and we have not to enquire into the reasonableness or otherwise of the law itself. The reasonableness of the restrictions can be judged,' according to the learned Attorney-General, from the nature of the restrictions themselves and not from the manner in which or the authorities by which they are imposed. The question whether the operation of the law produces hardship in individual cases is also a matter which is quite irrelevant to our enquiry.

I do agree that in clause (5) the adjective 'reasonable' is predicated of the restrictions that are imposed by law and not of the law itself; but that does not mean that in deciding the reasonableness or otherwise of the restric- tions, we have to confine ourselves to an examination of the restrictions in the abstract with reference merely to their duration or territorial extent, and that it is beyond our province to look up to the circumstances under which or the manner in which the restrictions have been imposed. It is not possible to formulate an effective test which would enable us to pronounce any particular restriction to be reasonable or unreasonable per se. All the attendant cir- cumstances must be taken into consideration and one cannot dissociate the actual contents of the restrictions from the manner of their imposition or the mode of putting them into practice. The question of reasonableness of the restric- tions imposed by a law may arise as much from the substan- tive part of the law as from its procedural portion. Thus, although I agree with the learned Attorney-General that the word "reasonable" in clause (5) of article 19 goes with "restrictions" and not with "law," I cannot accept his suggestion as regards the proper way of determining the reasonableness of the restrictions which a legislation might impose upon the exercise of the right of free movement. Coming now to the provisions of the impugned Act, Mr. <NAME> main contention is that section 4 (1) (c)of the East Punjab Public Safety Act, which provides for passing of orders removing a person from a particular area, on the satisfaction of <ORG> or the District Magistrate, cannot be a reasonable piece of legislation inasmuch as the only pre-requisite for imposition of the restrictions is the personal satisfaction of certain indi- viduals or authorities, the propriety or reasonableness of which cannot be tested by the application of any external rule or standard. It is said that any law which places the liberty of a subject at the mercy of an executive officer, however high placed he might be and whose action cannot be reviewed by a judicial tribunal, is an arbitrary and not a reasonable exercise of legislative powers. The contention requires careful examination.

It is not disputed that under clause (5) of article 19 , the reasonableness of a challenged legislation has to be determined by a <ORG> and the <ORG> decides such matters by applying some objective standard which is said to be the standard of an average prudent man. Judged by such standard which is sometimes described as an external yard-stick, the vesting of authority in particular officers to take prompt action under emergent circumstances, entirely on their own responsibility or personal satisfaction, is not necessarily unreasonable. One has to take into account the whole scheme of the legislation and the circumstances under which the restrictive orders could be made. The object of the East Punjab Public Safety Act is to pro vide for special measures to ensure public safety and maintenance of public order. Under section 4 (1) (c) of the Act, the Provincial Govern- ment or the District Magistrate may make an order directing the removal of a certain person from a particular area, if they are satisfied that such order is necessary to prevent such person from acting in any way prejudicial to public safety or maintenance of public order. Preventive orders by their very nature cannot be made after any judicial enquiry or trial. If emergent steps have got to be taken to prevent apprehended acts which are likely to jeopardise the inter- ests or safety of the public, somebody must be given the power of taking the initial steps on his own responsibility; and no reasonable objection could be taken if the authority, who is given the power, is also entrusted with the responsi- bility of maintaining order and public peace in any particu- lar district or province. The preventive provisions of the Criminal Procedure Code are based on similar principle. In my opinion, therefore, the provision of section 4 (1) (c) of the East Punjab Public Safety Act cannot be pronounced to be unreasonable, simply because the order could be passed by the Provincial Government or the District Magistrate on their own personal satisfac- tion and not on materials which satisfy certain objective tests.

But though certain authorities can be invested with powers to make the initial orders on their own satisfaction in cases of this description, the position would certainly be different if the order thus made is allowed to continue for any indefinite period of time without giving the ag- grieved person an opportunity to say what he has got to say against the order. I have already set out the provisions of sub-section (3) of section 4 which deals with duration of the orders made under the various clauses of sub-section (1). It will be seen from this sub-section that there is absolutely no limit as to the period of time during which an externment order would remain in force if the order is made by <ORG>. <ORG> has been given unlimited authority in this respect and they can keep the order in force as long as they chose to do so. As regards orders made by a District Magistrate, the period indeed has been fixed at three months, but even here <ORG> is competent to extend it to any length of time by means of a special order. The law does not fix any maximum period beyond which the order cannot continue; and the fact that the Act itself would expire in August, 1951, is, in my opinion, not a relevant matter for consideration in this connection at all. I have no hesi- tation in holding that the provision of sub-section (3) of section 4 is manifestly unreasonable and cannot be supported on any just ground. One could understand that the exigen- cies of circumstances might justify the vesting of plenary powers on certain authorities which could pass orders on their' own personal satisfaction temporarily and for a short period of time; but if these orders are to continue indefi- nitely, it is only fair that an opportunity should be given to the person against whom such order is made to say what he has to say in answer to the allegations made against him. There may not be an investigation by a regular Court but it is necessary that the aggrieved person should be given a fair hearing and that by an impartial tribunal. The provision of the impugned Act which has bearing on this point is contained in sub-section (6) of section 4 and it runs as follows:

"When an order has been made in respect of any person under any of the clauses under section 4 , sub-section (1), or sub-section (2) the grounds of it may be communicated to him by the authority making the order and in any case, when the order is to be in force for more than three months, he shall have a right of making a representation which shall be referred to <ORG>, constituted under section 3 , sub-section (4)."

It will be noted that the first part of the subsection makes it entirely optional with the authorities to communi- cate the grounds, upon which the order is made, to the person affected by it. The grounds need not be communicated at all if the authorities so desire. As regards the right of representation the latter part of the sub-section seems to imply that when the order is to remain in force for more than three months, the right of representation should be given to the aggrieved person and the representation shall be referred for consideration to the advisory tribunal constituted under section 3 , sub-section (4), of the Act. The right, however, is purely illusory as would appear from the fact that even in cases where the order is to be opera- tive for more than three months, there is no obligation on the part of the authorities to communicate to the person the grounds upon which the order was made. The aggrieved person consequently may not at all be apprised of the allegations made against him and it will be impossible for him to make any adequate or proper representation, if he is not told on what grounds the order was passed. In my opinion, this is an equally unreasonable provision and neither sub-section (3) nor sub-section (6) of section 4 of the Act can be said to have imposed restrictions which are reasonable in the inter- ests of the general public. My conclusion, therefore, is that under article 13 (1) of the Indian Constitution, these provisions of the Act became void and inoperative after the Constitution came into force, and consequently the order made by the District Magistrate in the present case cannot stand. I would, therefore, allow the application and quash the externment order that has been passed against the petition- er.

Petition dismissed.

Agent for the petitioner: <NAME>.

Agent for the opposite party: <NAME>.