1956 (5) TMI 34 - SC - Indian Laws

Constitutionality of Bombay Police Act Section 57 and Externment Order Affirmed

Hari Khemu Gawali Versus Deputy Commissioner of Police, Bombay and another

The Court upheld the constitutionality of Section 57 of the Bombay Police Act, 1951, and the legality of the externment order, emphasizing that the ... - Issues Involved:1. Constitutionality of Section 57 of the Bombay Police Act, 1951.2. Alleged unreasonable restrictions on fundamental rights under Article 19(1)(d) and (e) of the Constitution.3. Legality of the externment order based on previous convictions and allegations.Issue-Wise Detailed Analysis:1. Constitutionality of Section 57 of the Bombay Police Act, 1951:The petition challenges the vires of Section 57 of the Bombay Police Act, 1951, which allows for the externment of individuals with previous convictions under certain chapters of the Indian Penal Code. The petitioner contends that Section 57 imposes unreasonable restrictions on the fundamental rights guaranteed under Article 19(1)(d) and (e) of the Constitution, which pertain to the right to move freely and reside in any part of India.The Court observed that Article 19 guarantees several rights to citizens, but also allows the State to impose reasonable restrictions in the interest of the general public, security, public order, decency, or morality. The Court noted that Section 57 is an instance of the State taking preventive measures to maintain public order and safety. The section aims to prevent individuals with a criminal history from engaging in similar offenses, thereby protecting the larger interest of the community.The Court held that the provisions of Section 57 are justified in the larger interest of the community and do not impose unreasonable restrictions on the individual's rights to freedom of movement and residence. The Court emphasized that the law is based on the principle that it is desirable to restrain the freedom of a few individuals to ensure the peace and safety of the majority.2. Alleged Unreasonable Restrictions on Fundamental Rights:The petitioner argued that the police have been vested with unlimited powers under Section 57, allowing them to extern individuals based on vague allegations and inadmissible material, such as previous orders of discharge or acquittal. The petitioner contended that the lack of an Advisory Board to scrutinize the material and the fact that the police act as both prosecutor and judge violate the principles of natural justice.The Court rejected these arguments, stating that the procedural safeguards provided under Section 59 of the Act ensure that individuals are informed of the general nature of the allegations against them and are given a reasonable opportunity to explain their conduct. The Court also noted that the order of externment can only be passed by higher-ranking officers, such as the Commissioner of Police or District Magistrate, ensuring that the decision is not arbitrary.The Court further held that the absence of an Advisory Board does not render the legislation unconstitutional, as the Constitution does not mandate such a provision for laws imposing restrictions under Article 19. The Court emphasized that the safeguards provided under Sections 59 and 61 of the Act are sufficient to ensure that the individual's rights are protected.3. Legality of the Externment Order:The petitioner challenged the legality of the externment order passed against him, arguing that it was based on previous orders of discharge or acquittal and vague allegations. The petitioner contended that these orders were passed due to insufficient evidence, and their consideration in the externment proceedings was unjust.The Court held that it is not for the judiciary to examine afresh the materials considered by the authorities under Section 57. The Court noted that the authorities are entrusted with the duty of assessing the likelihood of the individual engaging in similar offenses based on their previous convictions and other material. The Court emphasized that the externment proceedings are preventive in nature and are based on the subjective satisfaction of the authorities.The Court found that the materials placed on record, including the affidavit sworn by the officer responsible for the externment order, demonstrated that the petitioner had a history of criminal activities and was likely to engage in similar offenses. The Court concluded that the externment order was not arbitrary and was justified based on the available material.Separate Judgment by Jagannadhadas, J.:Jagannadhadas, J., dissented from the majority view, holding that Section 57(a) of the Act is constitutionally invalid. He argued that the provision imposes unreasonable restrictions on personal liberty and does not meet the standards of reasonableness required under Article 19. He emphasized that the power to extern individuals should be limited to serious offenses and situations where witnesses are unwilling to come forward due to fear. He also criticized the reliance on previous convictions without considering the time elapsed or the circumstances of the offenses.Conclusion:The majority of the Court dismissed the petition, upholding the constitutionality of Section 57 of the Bombay Police Act, 1951, and the legality of the externment order. The Court found that the provisions of the Act impose reasonable restrictions in the interest of public safety and order, and the procedural safeguards provided are sufficient to protect the individual's rights.