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B. JAGANNATHA DAS, B. K. MUKHERJEE, N. H. BHAGWATI, S. R. DASS, VIVIAN BOSE
Hans Muller Of Nurenburg – Appellant
Versus
Superintendent. Presidency Jail, Calcutta – Respondent
What is the legislative competence of Parliament to enact laws for the preventive detention of foreigners with a view to their expulsion from India? What are the limitations imposed by Articles 21 and 22 of the Constitution on the power to detain foreigners? What are the distinctions between expulsion and extradition of a foreigner under Indian law?
Key Points: - Section 3(1)(b) of the Preventive Detention Act, 1950, which allows for the detention of foreigners with a view to their expulsion from India, is intra vires the Constitution (!) . - The legislative competence to enact laws for the preventive detention of foreigners for expulsion is derived from Entry 9 of the Union List (Preventive detention for reasons connected with Foreign Affairs) read with Entry 10 (!) (!) (!) . - Article 21 guarantees protection of personal liberty to all persons, and Article 22 prescribes minimum procedures for arrest and detention, which must be observed (!) (!) (!) . - The power to expel foreigners is conferred by Section 3(2)(c) of the Foreigners Act, 1946, and the power to enforce such an order is conferred by Section 11(1) of the same Act (!) . - Detention of a foreigner with a view to making arrangements for their expulsion is considered preventive and falls within the ambit of the Preventive Detention Act (!) . - A State Government can detain a foreigner with a view to making arrangements for expulsion, even though only the Central Government can order expulsion (!) . - The definition of "foreigner" in the Foreigners Act, 1946, which excludes certain classes of British subjects, is a reasonable classification and does not offend Article 14 of the Constitution (!) . - Only those aggrieved by a piece of legislation can challenge it under Article 32 of the Constitution (!) . - The Foreigners Act confers an unfettered discretion on the Union Government to expel foreigners (!) (!) . - Expulsion and extradition are distinct concepts; under extradition, the person remains in custody throughout and formalities of the Extradition Act must be complied with, whereas under expulsion, the person leaves India a free man (!) (!) (!) . - The Government has the discretion to choose between the procedure of the Foreigners Act (expulsion) and the Extradition Act (!) .
Judgment
BOSE, J.: The petitioner, Hans Muller, who is not a citizen of India, and who is said to be a West German subject, was arrested by the Calcutta Police on18-9-1954 and was placed under preventive detention. The order was made by the West Bengal Government under S. 3(1), Preventive Detention Act of 1950 (Act 4 of 1950) on the ground that his detention was
"with a view to making arrangements for his expulsion from India."
2. The grounds were served 22-9-1954. The second ground runs-
"That you are a foreigner within the meaning of the Foreigners Act, 1946 (Act 31 of 1946) and that it has become necessary to make arrangements for your expulsion from India and for this purpose you are required to be detained under S. 3(l)(b), Preventive Detention Act, 1950 until the issue of an appropriate order of expulsion from the Central Government."
3. On the day after his arrest, namely on 19-9-1954 he wrote to the Consul-General of West Germany at Calcutta saying that he had been arrested and asking for an early interview. This was granted.
4. On 21-9-1934, the petitioner wrote to the West Bengal Government asking it
"to be kind enough to pass an order for our immediate repatriation from In
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