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HIGH COURT OF ORISSA
Ray, C. J. And Narasimham, J.
ISMAIL - Appellant
Versus
STATE OF ORISSA - Respondent
Criminal Misc. 32 Of 1950
Decided On : SEPTEMBER 11, 1950
CONSTITUTIONAL LAW - ARTICLE 19 (1) (D) AND (E), 19 (5), 21, 13 (2) - ORISSA MAINTENANCE OF PUBLIC ORDER ACT, 1950 (ACT X [10] OF 1950) - SECTION 2 (1) (B), 3 - VALIDITY - RESTRICTIONS ON FREEDOM OF MOVEMENT AND RESIDENCE - REASONABLENESS - PROCEDURAL SAFEGUARDS - DUE PROCESS OF LAW - INTERNMENT WITHOUT HEARING OR OPPORTUNITY TO MAKE REPRESENTATION - VIOLATION OF FUNDAMENTAL RIGHTS - VOID.
Fact of the Case:
Petitioners, Ismail and Khan Sahib Adam Hazi Saleh mohammed, were interned within the limits of Nawapara sub-division of Kalahandi district in exercise of powers conferred on the District Magistrate by Clause (c) of Sub-section (1) of Section 2, Orissa Maintenance of Public Order Act, 1948. They challenged the orders of internment under Article 226 of the Constitution, contending that they violated their fundamental rights to move freely throughout the territory of India and to reside and settle in any part of the territory guaranteed under sub-clauses (d) and (e) of Clause (1) of Article 19 of the Constitution.
Finding of the Court:
The Court held that the provisions of Section 2 (1) (b) and Section 3 of the Orissa Act of 1950, which authorized the internment of a person without providing any opportunity for a hearing or making a representation, were void as they violated the fundamental rights guaranteed under Article 19 (1) (d) and (e) of the Constitution. The Court further held that the impugned Act was also inconsistent with Article 21 of the Constitution as it did not provide for the essentials of a legal procedure.
Issues: 1. Whether the provisions of Section 2 (1) (b) and Section 3 of the Orissa Maintenance of Public Order Act, 1950, which authorized the internment of a person without providing any opportunity for a hearing or making a representation, were valid. 2. Whether the impugned Act was inconsistent with Article 21 of the Constitution.
Ratio Decidendi: 1. The Court held that the provisions of Section 2 (1) (b) and Section 3 of the Orissa Act of 1950 were void as they violated the fundamental rights guaranteed under Article 19 (1) (d) and (e) of the Constitution. The Court relied on the judgment of the Supreme Court in Dr. N. B. Khare v. State of Delhi, wherein it was held that restrictions on the liberty of a person imposed by any law must be reasonable and that in considering the reasonableness of such restrictions, the Court is entitled to consider the substantive as well as the procedural provisions of that law. The Court held that the impugned provisions of the Orissa Act were unreasonable as they did not provide any opportunity for a hearing or making a representation, which was a fundamental principle of natural justice. 2. The Court also held that the impugned Act was inconsistent with Article 21 of the Constitution as it did not provide for the essentials of a legal procedure. The Court held that the right to a legal procedure includes the right to be apprised of the cause against a person, the opportunity to be heard in an impartial tribunal, and the right to an appeal.
Final Decision: The Court issued a direction on the State Government prohibiting them and any of their officers from taking any action for enforcement of the orders of internment in question.
NARASIMHAM, J.
( 1 ) THESE four petitions have been filed under Article 226 of the Constitution against certain orders of the District Magistrate of Kalahandi directing the internment of the petitioners within the limits of Nawapara sub-division of that district in exercise of the powers conferred on him by Clause (c) of Sub-section (1) of Section 2, Orissa Maintenance of Public Order Act, 1948.
( 2 ) PETITIONER Ismail is the son of the petitioner Khan Sahib Adam Hazi Saleh mohammed and the family have extensive business with headquarters in nawapara sub-division. They have also extensive agricultural lands in that subdivision. Affidavits were filed on their behalf to the effect that they were nationals of the Indian Union and in the counter affidavit filed by the government this citizenship was not challenged and we would therefore take it as well, established that the two petitioners are citizens of the Indian Union. On 17-7-49 the then District Magistrate of Sambalpur, (within whose jurisdiction nawapara subdivision was then included) issued two orders on the two petitioners under Section (l) (c) of the said Act directing that they should not move out of Nawapara sub-division for a period of six months from the dace of the orders. Against these orders the petitioners applied for a writ of habeas corpus under Section 91, Criminal P. C. , to the High Court (Cr. misc. case Nos. 155 and 158 of 1949 ). The High Court rejected their petitions on 19-12-49 on the ground that the order of internment was not 'detention' as contemplated by section 491, Criminal P. C. Then on 12-1-50 the District Magistrate of Kalahandi (within whose jurisdiction Nawapara subdivision was transferred meanwhile), issued two further orders extending the period of internment of the two petitioners for a further period of three months from the date of expiry of the previous orders. Against these extension orders Cr. Misc. cases Nos. 21 and 22 were filed. In the meantime however for some inexplicable reason the Disitrict magistrate issued two fresh orders on 7-3-1950 canceling his previous orders dated 12-1-50 and directing the internment of the two petitioners within the limit of Nawapara sub-division for a period of six months from the date of his last orders. Criminal Misc Oases nos. 32 and 33 were filed against the last two orders and they alone are very material for the purpose of this judgment. On 31-3-1950, the Orissa Legislature passed a new Act known as the Orissa maintenance of Public Order Act, 1950 (Act x [10] of 1950) omitting all provisions relating to preventive detention and in other respects re-enacting the provisions of the Orissa Maintenance of Public Order Act, 1948. Apparently this new Act was passed in view of the self-contained Preventive Detention Act, 1950, made by Parliament. Under the new Orissa Act, the power to intern any person was conferred by Section 2 (l) (b) and that provision is identical with section (1) (c) of the old Act. The old Act was repealed by Section 29 of the new act. But Sub-section (2) of that section expressly saved all orders issued under the old Act by stating that those orders "shall continue in force and be deemed to be made or done under the corresponding provisions" of the new Act. Therefore though the two internment orders on the petitioners dated 7-3-1950 were actually passed in exercise of the powers conferred by Section (l) (c) of the old Act, they should now be deemed to be orders passed Under Section 2 (l) (b) of the new Act by virtue of the deeming provisions of Section 29 (2) of the new Act. The old Act and the new Act differ in one important particular, namely, in the old Act the duration of an order of internment was only six months in the first instance. If the Government wanted to extend the term they were required to consult an Advisory Council after giving the internee an opportunity of making his representation in writing. The learned Advocate- general has filed an affidavit to the effec
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