Back
IN THE HIGH COURT OF ALLAHABAD
Raghubar Dayal and Agarwala, JJ.
BIMLA DEVI - Appellant
Versus
CHATURVEDI - Respondents
Criminal Misc. Case 2733 Of 1951
Decided On : 03/12/1953
ABDUCTED PERSONS (RECOVERY AND RESTORATION) ACT, 1949 - CONSTITUTIONALITY - ARTICLE 19 (1) (D), (E) AND (G) - ARTICLE 22 - ARTICLE 141 - VALIDITY OF THE ACT - INTERPRETATION OF THE ACT - SCOPE AND PURPOSE OF THE ACT - POWER OF THE EXECUTIVE GOVERNMENT TO DEPORT INDIAN CITIZENS - MEANING OF "CONVEYANCE OUT OF INDIA" - APPLICABILITY OF SHABBIR HUSAIN'S CASE - CERTIFICATION OF SUBSTANTIAL QUESTION OF LAW UNDER ARTICLE 132.
Fact of the Case:
The petitioner, an Indian citizen and a former Muslim woman who had converted to Hinduism and married an Indian man, was detained in her house by the police under the Abducted Persons (Recovery and Restoration) Act, 1949, on the claim of her former Muslim husband from Pakistan. The petitioner challenged the validity of the Act and her detention, arguing that the Act was ultra vires and contravened Articles 19 (1) (d), (e), and (g) of the Constitution.
Finding of the Court:
The Court upheld the validity of the Abducted Persons (Recovery and Restoration) Act, 1949, and dismissed the petitioner's application for a writ of habeas corpus. The Court held that the Act was enacted under Entry 3 of List I of Schedule 7 of the Government of India Act, 1935, which empowered the Dominion Legislature to make laws with respect to "implementing of treaties and agreements with other countries." The Court interpreted the phrase "implementing of treaties and agreements with other countries" broadly to include not only the mode of implementation but also the power to make laws on the subject-matters of the treaties and agreements. The Court further held that the Act did not contravene Articles 19 (1) (d), (e), or (g) of the Constitution, as the deprivation of personal liberty under the Act was justified by the procedure laid down by law and the consequential curtailment of freedoms was covered by the principle established in A. K. Gopalan v. State of Madras (AIR 1950 S.C. 27). The Court also held that the Act did not authorize the Executive Government to deport Indian citizens against their wishes, as the purpose of the Act was to restore abducted persons to their relatives and the conveyance out of India was not tantamount to deportation.
Issues: 1. Whether the Abducted Persons (Recovery and Restoration) Act, 1949, was ultra vires the Dominion Legislature and void for contravening Articles 19 (1) (d), (e), and (g) of the Constitution? 2. Whether the Act authorized the Executive Government to deport Indian citizens against their wishes?
Ratio Decidendi: 1. The Abducted Persons (Recovery and Restoration) Act, 1949, was enacted under Entry 3 of List I of Schedule 7 of the Government of India Act, 1935, which empowered the Dominion Legislature to make laws with respect to "implementing of treaties and agreements with other countries." The phrase "implementing of treaties and agreements with other countries" was interpreted broadly to include not only the mode of implementation but also the power to make laws on the subject-matters of the treaties and agreements. Therefore, the Act was within the legislative competence of the Dominion Legislature. 2. The Act did not contravene Articles 19 (1) (d), (e), or (g) of the Constitution, as the deprivation of personal liberty under the Act was justified by the procedure laid down by law and the consequential curtailment of freedoms was covered by the principle established in A. K. Gopalan v. State of Madras (AIR 1950 S.C. 27). 3. The Act did not authorize the Executive Government to deport Indian citizens against their wishes, as the purpose of the Act was to restore abducted persons to their relatives and the conveyance out of India was not tantamount to deportation.
Final Decision: The Court dismissed the petitioner's application for a writ of habeas corpus and upheld the validity of the Abducted Persons (Recovery and Restoration) Act, 1949.
( 1 ) SHRIMATI Simla Devi, aged 27 years, wife of Bagh Shah, caste Khatri, resident of Deoband town, District Saharanpur applies under Article 226 of the Constitution of India and prays that a writ in the nature of Habeas Corpus be issued directing the police authorities, arrayed as respondents 1 to 3 to remove the police guard from the petitioners house and not to interfere with her liberty and to prevent them from arresting or removing the petitioner to any camp or in any way interfere in her liberty of movement.
( 2 ) THE facts of the case are few. The petitioner is a citizen of India. She was formerly a mohammedan and Known as Razia Khatoon: She was married to one Bidayatullah Butt, assistant Station Master Nagal, District Saharanpur, who migrated to Pakistan in the disturbances of 1947. The applicant was left behind in India. According to her even before her husband left for Pakistan, he had divorced her and married another lady and in those circumstances, she had sought the protection of one Bagh Shah Khatri, a cane contractor at nagal station and after embracing the Arya Samajist faith had married him on 15-7-1947 and has since then been living with him. The case for the opposite parties is that the applicant was abducted from Miss Brows Medical College at Ludhiana in June 1947. The applicant had two issues by her former husband -- a daughter aged 4 years and a son aged 10 months. The son died on December 1947. Some time later Hidayatulla Butt put forward a claim for her recovery but by compromise gave up his claim against the applicant on condition that the daughter was restored to him. Accordingly the daughter was restored to him sometime in December 1950. This was all done through private negotiations. Then, though Hidayat Ullah was satisfied with the position, the applicants other relatives pressed for her restoration to them.
( 3 ) A year later in December 1951, Sri Chaturvedi Sub-Inspector D. I. S. (Opp. party no. 1)arrested the applicant at her house and wanted to remove her to a detention camp, but as she was in a highly advanced state of pregnancy she was allowed to remain at her house but a police guard was posted at her house und she was not allowed to move out. The District Magistrate (opp. party 2) refused her application for bail. She then moved the present application under article 226 of the Constitution for the reliefs already stated.
( 4 ) THE applicants detention in her house and the restraint upon her liberty are sought to be justified on behalf of the opposite parties under the provisions of the Abducted Persons (Recovery and Restoration) Act, 1949. The applicants case is that the Act is ultra vires and has become void.
( 5 ) IN the year 1947 when the British Government decided to transfer power to Indian hands and to create two Dominions to be named as Pakistan and India, there were in the area which was to form the Dominion of Pakistan and in East Punjab and certain districts of Uttar Pradesh wide spread communal riots in which arson and murders were committed, property was looted and females and children belonging to one community were abducted by the members of the other community. After the two Dominions were set up an agreement was arrived at between them for the restoration, of abducted persons to their former guardians. To give effect to this agreement between Pakistan and India the Abducted Persons (Recovery and Restoration) Act was enacted. This would be clear from the Preamble which recites:
"whereas an agreement has been reached between the Government of India and the Government of Pakistan for the recovery and restoration of abducted persons: and whereas it is expedient to provide, in pursuance of the said agreement, for the recovery of abducted persons and for their temporary detention in camps pending restoration to their relatives. "
The object of the Act was, therefore, to recover and restore abducted persons to their relatives and to provide for their temporary detention
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
