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HIGH COURT OF CALCUTTA
R. P. MOOKERJEE,GUHA, JJ.
Janab Tozammal Khundel Sahaji
Versus
Joint Secretary to the Government of West Bengal
Civil Rules Nos. 1348, 1450, 1349 and 1451 of 1950
Decided On : 13-10-1950
WEST BENGAL SECURITY ACT - SECTIONS 21 AND 22 - UNREASONABLE RESTRICTION ON FREEDOM OF MOVEMENT - ULTRA VIRES THE CONSTITUTION - WRIT OF MANDAMUS ISSUED TO QUASH EXTERNMENT ORDER.
Fact of the Case:
Petitioner, a resident of 24-Parganas district, challenged the validity of externment orders issued against him under Sections 21 and 22 of the West Bengal Security Act, 1950, which restricted his movement within the district for varying periods.
Finding of the Court:
The Court held that Sections 21 and 22 of the West Bengal Security Act, 1950, imposed unreasonable restrictions on the fundamental right of a citizen to move freely and reside in any part of the territory of India, as guaranteed under Articles 19(1)(d) and (e) of the Constitution of India. The Court found that the Act lacked safeguards to protect the rights of the person externed, such as the absence of provisions for providing grounds for externment, the right to make representations against the order, and a procedure for reviewing the order.
Issues: 1. Whether Sections 21 and 22 of the West Bengal Security Act, 1950, imposed unreasonable restrictions on the fundamental right to freedom of movement guaranteed under Articles 19(1)(d) and (e) of the Constitution of India. 2. Whether the absence of safeguards in the Act, such as the lack of provisions for providing grounds for externment, the right to make representations, and a procedure for reviewing the order, rendered the Act ultra vires the Constitution.
Ratio Decidendi: 1. The Court relied on the decision of the Supreme Court in Dr. N. B. Khare v. The State of Delhi, which held that restrictions imposed on the fundamental right to move freely must be reasonable in the interests of the general public. 2. The Court found that the West Bengal Security Act, 1950, did not contain any safeguards to protect the rights of the person externed, such as the absence of provisions for providing grounds for externment, the right to make representations against the order, and a procedure for reviewing the order. 3. The Court held that the absence of these safeguards made the Act ultra vires the Constitution, as it failed to provide a reasonable balance between the interests of the general public and the fundamental rights of the individual.
Final Decision: The Court declared Sections 21 and 22 of the West Bengal Security Act, 1950, to be ultra vires the Constitution of India and quashed the externment order issued against the petitioner. The Court also issued a writ of mandamus directing the Joint Secretary to the Government of West Bengal to give effect to the order.
2. On 28-4-1950 a notice was issued by the District Magistrate of 24-Parganas externing the petitioner from the said district for a period of three months. This period was subsequently extended on 7-8-1950 by a further period of another three months. The petitioner moved this Court and on 23-8-1950 obtained a rule (civil Rule 1179 of 1950) asking the opposite party to show cause why the order extending the period of externment should not be cancelled. This rule was made returnable on 5th September following. On 4-9-1950 an order dated 2nd September issued by the Joint Secretary in the Home Department of the Government was served on the petitioner, rescinding the earlier order dated 7-8-1950 against which the High Court had already issued a Rule. A fresh order was also issued by the Joint Secretary, Home Department externing the petitioner from the District of 24-Parganas for an unlimited period. On 5th September civil Rule No. 1179 of 1950 came up for hearing. On the facts stated above being brought to the notice of the Court an order was recorded that the rule had become infructuous but that the question of costs would be considered if the petitioner took any step against the fresh order for externment as issued by the Joint Secretary, Home Department.
3. The petitioner on the next date, 6th September, filed a petition in this Court and obtained a rule (civil Rule 1348 of 1950) questioning the validity of the order dated 2nd September restricting his movement for an unlimited period. This rule was made returnable on 18th September. On 15th September the Joint Secretary Home Department issued another order rescinding the earlier order dated 2nd September which was the subject-matter of the rule pending in this Court. Simultaneously, a fresh order was issued by the Joint Secretary, Home Department, externing the petitioner from the District of 24-Parganas for a period of three months from that date. On 19th September the petitioner filed still another application questioning the validity of the order dated 15-9-1950. Another rule was issued (C. R. 1415/50) thereafter.
4. Civil Rules 1348 and 1450 of 1950 in respect of the two orders issued by the Joint Secretary, Home Department have now been set down for hearing.
5.Mr. Sen appearing for the State points out that C. R. 1348 of 1950 has now become infructuous as the order complained of has already been rescinded by Government. On behalf of the petitioner it is contended that considering the way in which this matter has been dealt with by the opposite party the petitioner ought to be allowed costs of this rule. We shall consider the question of costs after we have dealt; with the merits of the other rule viz. C. R. 1450 of 1950. 6.The order issued by the Joint Secretary to the Government of West Bengal in the Home Department dated 15-9-1950 was in the following terms :
"Government of West Bengal
Home Department
Special Section Order No. 15664 H. S. Dated Calcutta,
15-9-1950.
Whereas Order No. 15251 H. S. dated 2-9-1950 made under the proviso to S. 22 read with el. (a) sub-s. (1) of S. 21, West Bengal Security Act, 1950 (XIX (19) of 1950) against the person known as Janab Atar Ali Sahaji, son of Hakimulla of Narayanpur, p. s. Habra, district 24-Parganas, has been cancelled :
And whereas the Governor is satisfied that the said person is likely to do a subversive act, viz., act likely to endanger communal harmony e.g. instigating local Muslims to boycott the Hindus :
Now, therefore, with a view to preventing the said person from doing such act, the Governor after considering all the circumstances of the case, in exercise Of the power conferred by the proviso to
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