Dr. N.B. Khare vs The State Of Delhi

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Petition No. XXXVII of 1950

Decision Date: 26 May 1950

Coram: Hiralal J. Kania, Saiyid Fazal Ali, Mehr Chand Mahajan, B.K. Mukherjea

In the matter titled Dr. N.B. Khare versus The State of Delhi, the Supreme Court of India rendered its judgment on 26 May 1950. The opinion was written by Justice Hiralal J. Kania and the bench was composed of Justice Hiralal J. Kania, Justice Saiyid Fazal Ali, Justice Mehr Chand Mahajan and Justice B.K. Mukherjea. The petitioner was Dr. N.B. Khare and the respondent was the State of Delhi. The judgment bears the citations 1950 AIR 211 and 1950 SCR 519, and it is referenced in numerous later reports, including R 1952 SC 75, D 1952 SC 196, R 1956 SC 559, R 1957 SC 510, RF 1957 SC 896, E 1958 SC 578, R 1959 SC 459, R 1962 SC 1371, RF 1964 SC 1279, R 1968 SC 445, R 1971 SC 1667, RF 1973 SC 1461, R 1974 SC 175, R 1974 SC 1044, R 1975 SC 2299, R 1978 SC 851, RF 1979 SC 25, R 1980 SC 1382, and it concerns the Constitution of India, particularly Article 19(1)(d) and Article 19(5) dealing with the fundamental right of freedom of movement and the scope of any law imposing reasonable restrictions on that freedom. The case also examined the validity and reasonableness of the East Punjab Public Safety Act, 1949, especially Section 4, sub-section (1)(c), sub-section (3) and sub-section (6). Section 4, sub-section (1)(c) of that Act, which was enacted on 29 March 1949 and was to remain in force until 14 August 1951, authorised the Provincial Government or a District Magistrate, upon being satisfied that it was necessary to prevent a person from acting in a manner prejudicial to public safety or public order, to issue a written order directing that person to remove himself from, and not to return to, any area specified in the order. Sub-section (3) provided that an order issued by a District Magistrate could not, unless the Provincial Government issued a special order, continue beyond three months, while sub-section (6) stipulated that the grounds for such an order could be communicated to the affected person and, if the order was to remain in force for more than three months, the person was entitled to make a representation to an Advisory Tribunal constituted under Section 3, sub-section (4). Against this statutory backdrop, the petitioner, against whom an order under sub-section (1)(c) of the Act had been made, applied to the Court under Article 39 of the Constitution for a writ of certiorari, contending that the order was illegal because the provisions of the Act under which it was made infringed the fundamental right to move freely throughout the territory of India guaranteed by Article 19(1)(d) and were therefore void under Article 13(1) of the Constitution.

The petitioners approached the Court under Article 39 of the Constitution, seeking a writ of certiorari on the ground that the order issued against them was illegal. They argued that the provisions of the Act on the basis of which the order was made violated the fundamental right to move freely throughout the territory of India guaranteed by Article 19(1)(d) of the Constitution and, consequently, were void under Article 13(1) of the Constitution. The Court delivered its decision. By a majority of the Chief Justice Kania, Justice Fazl Ali and Justice Patanjali Sastri, with Justices Mahajan and Mukherjee dissenting, the Court held that (i) there was nothing unreasonable in the provision of sub-section (1)(c) of Section 4 which empowers the Provincial Government or the District Magistrate to issue an externment order and makes their satisfaction as to the necessity of such an order final, nor in the provision of sub-section (3) of Section 4 which allows an order of a District Magistrate to remain in force for three months and permits the Provincial Government to issue an order, or to keep an order made by a District Magistrate, for a period exceeding three months without fixing any time limit; (ii) with respect to sub-section (6), the word “may” in the expression “may communicate” must be read in the context as meaning “shall,” making it obligatory for the authority issuing an order to communicate the grounds of the order to the person affected; and (iii) the restrictions imposed by the aforementioned provisions of the Act upon the fundamental right guaranteed by Article 19(1)(d) were therefore not unreasonable within the meaning of Article 19(5), and the provisions of the Act were not void under Article 13(1), so the externment order was not illegal. Justice Mukherjee, concurring with Justice Mahajan, observed that while certain authorities may be vested with the power to make initial orders on their own satisfaction in cases of this nature, and while Section 4(1)(c) of the East Punjab Public Safety Act cannot be declared unreasonable merely because an order may be passed by the Provincial Government or the District Magistrate on personal satisfaction without objective material, the situation changes if such an order is allowed to continue for an indefinite period without giving the aggrieved person an opportunity to be heard. He further noted that sub-section (3) of Section 4 prescribes no limit on the duration for which an externment order made by the Provincial Government may remain in force, and the Provincial Government may also keep an order made by a District Magistrate in force indefinitely; therefore, the provisions of sub-section (3) are manifestly unreasonable. The provisions of sub-section (6) of Section 4 are likewise unreasonable because they make it entirely optional for the authorities to communicate to the affected person the grounds on which the order is based. Consequently, neither sub-section (3) nor sub-section (6) of Section 4 can, therefore, be said to impose reasonable restrictions within the meaning of Article 19(5).

The Court observed that any restriction imposed by a legislative enactment upon the fundamental right guaranteed by article 19 (1) (d) must be reasonable in the interests of the general public within the meaning of article 19 (5). It held that the provisions of the East Punjab Public Safety Act which sought to impose such restrictions were therefore void and inoperative under article 13 (1) of the Constitution, rendering the externment order illegal. The Court further explained, speaking through the Chief Justice and the learned judges, that the assessment of whether a restriction is reasonable depends not only on the substantive content of the law but also on the procedural aspects that accompany it. Consequently, the Court is not confined to an abstract analysis of the duration or territorial extent of the restriction. It may also examine the reasonableness of the procedure prescribed by the law, the circumstances under which the restriction is applied, and the manner in which it is imposed. One of the judges, Justice Patanjali Saslu, was noted as not having expressed any opinion on this particular point.

The matter before the Court arose under original jurisdiction as Petition No. XXXVII of 1950, filed under article 32 of the Constitution seeking a writ of certiorari and prohibition. The petitioner, who had been President of the All India Hindu Mahasabha since December 1949, was represented by counsel. The Union Attorney-General also appeared for the State. The petition was heard on 26 May 1950. The Court recorded that the petitioner had received an externment order dated March 1950, issued by the District Magistrate, Delhi, directing him to leave the Delhi District immediately, to remain outside that district, and to stay out of it for a period of three months. A separate order issued by the Madhya Bharat Government had directed him to reside in Nagpur, but that order had subsequently been revoked. The petitioner challenged the validity of the Delhi externment order on the ground that it was made under the East Punjab Public Safety Act, 1949, which he alleged infringed his fundamental right to freedom of movement under article 19 (1) (d). He further contended that the reasons given for the order were vague, insufficient, and incomplete, and that the true purpose of the order was to suppress political opposition to the Government’s policy concerning Pakistan and the Muslim League. Because the petitioner and his organisation opposed the Government’s policy of appeasement, he argued that the order was mala-fide and illegal, and he sought to have it declared void.

The petitioner’s counsel relied on two recent unreported decisions, one from the Patna High Court in Miscellaneous Judicial Case No. 29 of 1950, Brij-nandan v. State of Bihar, and another from the Bombay High Court in Criminal Application No. 114 of 1950, re Jaisinghbhai Ishwarlal Modi. The Court first needed to determine the exact meaning of article 19 (1) (d) read together with clause (5) of the same article. Undeniably, an order of externment curtails the petitioner’s freedom of movement throughout India. The essential issue, therefore, was whether the limits imposed by clause (5) on permissible legislation were exceeded. Clause (5) states that nothing in sub-clauses (d), (e) and (f) shall affect the operation of any existing law insofar as it imposes, or prevents the State from making any law imposing, reasonable restrictions on the exercise of the rights conferred by those sub-clauses in the interests of the general public or for the protection of the interests of any Scheduled Tribe. From this provision it follows that reasonable restrictions on the right under sub-clause (d) may be imposed in the public interest. The remaining portion of clause (5) was not material to the present dispute, and neither party relied upon it. Two possible constructions of clause (5) were presented. The first construction argued that, purely on grammatical grounds, the only question was whether the impugned legislation imposed reasonable restrictions on the exercise of the right, making the reasonableness of the law itself irrelevant. The second construction held that the Constitution permits a law imposing reasonable restrictions, but the law itself must also be reasonable; thus the Court must examine both the nature of the restrictions on the right and the reasonableness of the conditions under which those restrictions are imposed. The Patna and Bombay High Courts, despite dealing with materially different statutes, adopted the latter approach, interpreting clause (5) to require that the law imposing the restrictions be reasonable. In the Court’s view, clause (5) must be given its full meaning, and the question before it was whether the restrictions placed by the impugned legislation on the exercise of the right were reasonable.

The Court observed that the issue of whether the Act contained adequate safeguards against the misuse of executive power was not the proper question for interpreting clause (5) of article 19. Instead, the Court held that it was entitled, under either possible interpretation, to examine whether the restrictions imposed on the right to travel throughout India – that is, restrictions concerning both the geographical area covered and the period of restriction – were reasonable. The Court explained that a law furnishing reasonable restrictions on the right guaranteed by article 19 may consist of substantive rules as well as procedural rules. While the reasonableness of the restrictions must be assessed with respect to the enjoyment of the right itself, this assessment does not necessarily preclude the Court from also scrutinising the reasonableness of the procedural aspects of the law. The Court gave an illustration: when the law stipulates a period of five or ten years of externment, the question of whether such a duration is reasonable is a substantive issue that must be examined under clause (5). In the same way, when the law defines the procedure by which the exercise of the right may be limited, the Court must also consider whether that procedure results in a reasonable restriction of the right. The Court concluded that this broader interpretation does not unduly expand the meaning of “reasonable” when applied to restrictions on the exercise of the right.

The Court further rejected the narrow construction that would confine the Court’s inquiry solely to the substantive provisions of the law. It noted that this limited approach had been adopted by the minority opinions in two earlier judgments, which the Court found to have missed the proper scope of article 19(5). While the Court did not engage with those judgments’ determinations of invalidity, it said they remained useful only to the extent that they aided the interpretation of article 19(5). Turning to the specific Act under challenge, the Court considered whether it imposed reasonable restrictions on the rights guaranteed by article 19(1)(d) and (e). The petitioner’s counsel argued that section 4 vested the power to order externment in the Provincial Government or the District Magistrate, whose satisfaction was final and not subject to judicial review, thereby creating an unreasonable restriction. The Court held this argument to be unsound. It explained that the provision did not constitute an impermissible delegation of legislative power, because the decision to issue an individual externment order must rest with an officer, and the Act could not lawfully require a legislative body to make such a determination. Consequently, the officer’s satisfaction did not amount to an unreasonable restriction on the citizen’s right. So far as …

The Court observed that the Bombay High Court, under Chief Justice Chagla, had apparently decided against the petitioner’s submission on this issue. The petitioner then contended that, according to section 4(3), an order issued by a District Magistrate could not remain in force for more than three months unless the Provincial Government, by a special order, directed otherwise. It was argued that a fixed period of three months was unreasonable because the person subject to the externment would have no remedy during that time. The petitioner further maintained that when the Provincial Government authorised a renewal of the order, the legislature had not prescribed any temporal limit for the renewed order, thereby allowing the order to operate for an indefinite duration. This, the petitioner claimed, constituted an unreasonable restriction on a citizen’s fundamental right. In support of its position, the Court noted that even in the more severe context of preventive detention, the Constitution itself—under articles 22(4) to 22(7)—permits detention for three months without granting any remedy, indicating that a three-month period is not per se unreasonable. The Court also pointed out that the proviso to section 4(5) expressly prohibits the Provincial Government from ordering the exclusion or removal from the Province of a person ordinarily residing in the Province, and similarly bars the District Magistrate from ordering the exclusion or removal of a person ordinarily resident in his district. This safeguard is a significant feature of the East Punjab Public Safety Act. While the Act does allow the externment order to be extended beyond three months for an indefinite period, the Court reminded that the entire Act was scheduled to cease to be in force after 14 August 1951, a factor that cannot be ignored. Moreover, the petitioner’s argument rested on the assumption that the Provincial Government might fail to perform its duty properly and could abuse the powers conferred by the section. The Court considered it inappropriate to base a determination of the Act’s validity on such an assumption. Although misuse of statutory power may occasionally occur, the Court held that such apprehensions do not invalidate the law itself. Consequently, the Court rejected the petitioner’s contention. The petitioner further argued that the Act lacked a provision requiring the authority to furnish the grounds of externment to the affected person. Section 4(6) provides that, when an externment order is made, its grounds “may” be communicated to the externed individual by the authority issuing the order, and that, if the order is to be enforced for more than three months, the individual shall have a right to make a representation, which must be referred to the advisory tribunal formed under section 3(4). While the term “may” generally implies discretion rather than compulsion, the Court noted that its meaning must be read in conjunction with the latter part of the clause.

In the Court’s view, when an externment order is required to be enforced for a period exceeding three months, the statute creates an absolute entitlement for the externnee to make a representation against the order. The externnee is unable to make such a representation unless the authority first furnishes the grounds on which the order is based. The Act contains no other provision that grants a right to obtain those grounds in the circumstances described, so the Court concluded that this entitlement must be read as belonging to the first part of section 4(6). To give effect to that entitlement, the word “may” in that provision must be interpreted as meaning “shall”. If the word “may” is read as “shall” for orders lasting more than three months, it would be contrary to well-recognised rules of construction to give the same word a different meaning when the order is to be in force for less than three months. The Court held that interpreting “may” as “shall” does not unduly strain the language and therefore the argument seeking a narrower construction must fail.

The next point raised was that the Act does not specify what the advisory board must do upon receiving a representation. The Court observed that a reference to the advisory board necessarily implies that the board is to consider the case presented to it, and the absence of an explicit statement in the impugned Act does not invalidate the legislation. Finally, the petitioner contended that the grounds supplied for the externment order were vague, insufficient, and incomplete. The order set out the grounds as follows: “Your activities generally and particularly since the recent trouble in East and West Bengal have been of a communal nature tending to excite hatred between communities and whereas in the present composition of the population of Delhi and the recent communal disturbances of Delhi feelings are roused between the majority and minority communities, your presence and activities in Delhi are likely to prove prejudicial to the maintenance of law and order, it is considered necessary to order you to leave Delhi.” The Court found that these grounds cannot be described as vague, insufficient, or incomplete. They expressly identify the petitioner, who is the President of the Hindu Mahasabha, as having engaged in communal activities that have incited hatred in the two states, and they explain that, given the similar communal composition of Delhi’s population and recent disturbances there, such activities are likely to threaten peace and public order. The Court considered the grounds specific and, if honestly believed, capable of supporting the order. The submission that the order was intended to suppress opposition to any government policy of appeasement was held to have little relevance, because the District Magistrate of Delhi acted on the basis of the petitioner’s activities and their potential impact on law and order, not on any policy consideration.

In the present case, the Court observed that the order issued by the District Magistrate was premised on the assessment that the petitioner’s activities could be prejudicial to the maintenance of law and order, and that the specific grounds cited by the Magistrate directly supported that conclusion. Consequently, the Court rejected the petitioner’s contention that the order was void for being vague or for aiming to suppress opposition to any governmental policy of appeasement. The Court therefore held that the petition failed and ordered its dismissal.

Justice Fazl Ali agreed with this conclusion, and Justice Patanjali Sastri also affirmed that the application must fail. Both judges indicated that, while they shared the reasoning expressed by the senior judge regarding the reasonableness of the restrictions imposed by the impugned legislation under any construction of article 19(5) of the Constitution, they deemed it unnecessary to express an opinion on the precise scope of judicial review permitted by that article at this stage, reserving such consideration for a later occasion when it might become necessary. Justice Mahajan concurred with the judgment delivered by Justice Mukherjea and, for the reasons articulated by him, allowed the petition and set aside the order of externment. Justice Mukherjea, delivering the judgment, explained that the present application was filed under article 32 of the Constitution, seeking to quash an externment order dated 31 March 1950 issued by the District Magistrate of Delhi against Dr N.B. Khare. The order directed the petitioner to leave the Delhi District immediately and not to return for as long as the order remained in force, which at that time was for a period of three months. The petition also raised a complaint concerning a subsequent order issued by the Government of Madhya Bharat while the petitioner was travelling to Nagpur, which required him to reside within the limits of the Nagpur Municipality and obtain permission from the local District Magistrate before leaving that area. The Madhya Bharat order had later been withdrawn, and the Court clarified that it would not consider that order or the statute under which it was made in the present proceedings. The central issue raised by the petitioner was that the specific provision of the East Punjab Public Safety Act, 1949, used by the Delhi District Magistrate to make the externment order, became void and ceased to be operative after the Constitution came into force, on the ground that the provision conflicted with the fundamental rights guaranteed by article 19(1)(d) read with clause (5) of the same article. The petitioner argued that any order issued under a legislative provision that had become void should itself be void and have no legal effect. To assess the merits of this contention, the Court noted that it would be necessary to examine the material provisions of the East Punjab Public Safety Act that were alleged to have become void, as well as the constitutional articles upon which the petitioner’s reliance was based.

In this case, the counsel for the petitioner argued that the statutory provisions relied upon by the District Magistrate were invalid because they conflicted with a constitutional guarantee of free movement. The East Punjab Public Safety Act was enacted on 29 March 1949, and its preamble states that its purpose is to provide special measures for ensuring public safety and maintaining public order. Section 4(1) of that Act authorises the Provincial Government or a District Magistrate, when satisfied that a particular person is likely to act in a manner detrimental to public safety or order, to issue a written order directing the person to take specified measures, including the power to require the person to remove himself from, and not return to, any area that the order specifies. Sub-section 3 of the same section further provides that an order issued by the District Magistrate under sub-section 1 cannot, unless the Provincial Government issues a special order to the contrary, remain in effect for more than three months from the date of its issuance.

The petitioner contended that the power to remove a person from a designated area and to prohibit his return infringes the fundamental right guaranteed by Article 19(1)(d) of the Constitution, which confers on every citizen the right to move freely throughout the territory of India. While acknowledging that this right is not absolute, the petitioner referred to clause 5 of Article 19, which permits the State to impose reasonable restrictions on the exercise of the right in the interests of the general public or for the protection of the interests of any Scheduled Tribe. Clause 5 states that nothing in sub-clauses (d), (e) and (f) shall affect the operation of any existing law insofar as it imposes, or prevents the State from making, reasonable restrictions on the exercise of the rights conferred.

Accordingly, the central issue before the Court was whether the impugned provisions of the East Punjab Public Safety Act, which appear to be at odds with Article 19(1)(d), are nevertheless saved by the reasonable-restriction clause of Article 19(5). The Court noted that the question of whether a restriction is reasonable is a justiciable matter requiring judicial determination. If the Court were to hold that the restrictions are reasonable, the petitioner would have no remedy. Conversely, if the Court were to find the restrictions unreasonable, Article 13(1) obliges the Court to declare the law invalid to the extent that it conflicts with the fundamental rights protected under Part III of the Constitution. The learned Attorney-General, however, made a relatively weak submission on this point.

In this case, the Court examined the scope of the right of free movement throughout the Indian territory as declared in article 19(1)(d) of the Constitution. The Court observed that the right does not merely refer to the absence of inter-State restrictions that could stop a citizen of the Union from travelling from one State to another. Some submissions had contended that a law which does not erect such inter-State barriers cannot be inconsistent with the fundamental right guaranteed by the provision. The Court rejected that narrow interpretation, stating that it is not supported by the language of the sub-clause. According to the Court, article 19(1)(d) guarantees every citizen the unrestricted liberty to go wherever he or she wishes within the whole of Indian territory. The right includes movement not only between different States but also between any places within the same State, because the Constitution emphasizes that, for citizens, the entire Indian territory constitutes a single unit. The Court then turned to clause (c) of section 4(1) of the East Punjab Public Safety Act, 1949, which empowers the Provincial Government or a District Magistrate to order any person to leave a specified area and to bar that person from re-entering the same area. On its face, the Court noted, this provision interferes with the fundamental right protected by article 19(1)(d). Consequently, the dispute narrowed to the question of whether the impugned legislation can be saved by falling within the permissible limits prescribed by clause (5) of article 19. Regarding clause (5), the learned Attorney-General emphasized at the outset that the word “reasonable” qualifies “restrictions” and not “law”. He argued that, for the purpose of applying clause (5), the Court need only examine whether the restrictions imposed by the law on the exercise of the right are reasonable, and that the Court should not inquire into the reasonableness of the law itself. The Attorney-General further submitted that the reasonableness of the restrictions should be judged from the nature of the restrictions themselves, and not from the manner in which they are imposed or the authorities that impose them. He added that any hardship caused by the operation of the law to individual persons is irrelevant to the enquiry. The Court agreed that clause (5) indeed attaches the adjective “reasonable” to the restrictions imposed by law rather than to the law itself. However, the Court clarified that this agreement does not compel the Court to restrict its analysis to an abstract examination of the restrictions based only on their duration or territorial scope. The Court held that it is not beyond its jurisdiction to consider the circumstances and the mode by which the restrictions are imposed. The Court further observed that it is impossible to devise a single definitive test that would allow it to label any particular restriction as reasonable or unreasonable in isolation.

In this case the Court explained that a restriction cannot be labelled unreasonable automatically; every surrounding circumstance must be examined and the substance of the restriction cannot be separated from the way it is imposed or put into effect. The Court noted that the question of whether a restriction imposed by legislation is reasonable may arise both from the substantive provisions of the law and from its procedural aspects. Accordingly, although the Court agreed with the learned Attorney-General that the term “reasonable” in clause 5 of article 19 qualifies “restrictions” rather than the law itself, it rejected the Attorney-General’s proposed method for determining the reasonableness of those restrictions that a statute might place on the freedom of movement. Turning to the provisions of the statute under challenge, counsel for the petitioner argued that section 4(1)(c) of the East Punjab Public Safety Act, which authorises the Provincial Government or the District Magistrate to issue orders removing a person from a specified area on the basis of their personal satisfaction, cannot be a reasonable piece of legislation. The petitioner's submission was that the only condition for imposing such a restriction is the personal satisfaction of certain officials, and that this satisfaction cannot be judged against any external rule or standard, rendering the power arbitrary and unreasonable because it places an individual’s liberty at the mercy of an executive officer whose action is not subject to judicial review. The Court held that this contention required careful analysis. It observed that, under clause 5 of article 19, the reasonableness of a challenged law must be decided by a Court, which applies an objective standard described as that of an average prudent person. Applying such an external yard-stick does not automatically make the vesting of authority in particular officers, to act swiftly in emergency situations on their own responsibility or personal satisfaction, unreasonable. The Court emphasized that the entire scheme of the legislation and the context in which restrictive orders may be issued must be taken into account. The object of the East Punjab Public Safety Act, the Court observed, is to provide special measures for ensuring public safety and maintaining public order. Section 4(1)(c) empowers the Provincial Government or the District Magistrate to issue an order directing the removal of a named person from a particular area if they are satisfied that such an order is necessary to prevent that person from acting in any manner prejudicial to public safety or the maintenance of public order. The Court further explained that preventive orders, by their very nature, cannot be issued after a judicial enquiry or trial; when urgent steps are required to avert acts that are likely to endanger public interests or safety, the authority must be able to act on its own initiative, and no reasonable objection can be raised if that authority is also entrusted with the responsibility of preserving order and peace in the concerned district or province.

In this case the Court observed that when a public emergency arises it is necessary to vest an authority with the power to take the initial steps on that authority’s own responsibility, and that no reasonable objection can be raised if the same authority is also entrusted with the duty of maintaining order and public peace in the district or province concerned. The Court noted that the preventive provisions of the Criminal Procedure Code are based on the same principle. Accordingly, the Court held that the provision of section 4(1)(c) of the East Punjab Public Safety Act cannot be declared unreasonable merely because the order may be issued by the Provincial Government or the District Magistrate on the basis of their personal satisfaction rather than on objective material satisfying any specific test.

The Court further explained that while certain authorities may be empowered to pass initial orders on personal satisfaction in circumstances of this kind, the situation changes if such an order is permitted to remain in force for an indefinite period without giving the affected person a chance to be heard. The Court referred to subsection (3) of section 4, which deals with the duration of orders made under the various clauses of subsection (1). It pointed out that the subsection provides no limit on the period during which an externment order made by the Provincial Government may remain in effect; the Provincial Government has been given unlimited authority to keep the order in force for as long as it chooses. By contrast, an order made by a District Magistrate is fixed at three months, but even then the Provincial Government may extend the period to any length by means of a special order. The Court observed that the law does not prescribe any maximum period beyond which the order must cease, and that the fact that the Act itself would expire in August 1951 is irrelevant to this consideration. Consequently, the Court concluded that the provision of subsection (3) of section 4 is manifestly unreasonable and cannot be justified on any sound ground. It was remarked that while extraordinary circumstances may justify vesting plenary powers in certain authorities for a short, temporary period, an indefinite continuation of such orders must be accompanied by a fair opportunity for the aggrieved person to make a representation before an impartial tribunal, even if there is no regular court investigation.

In this case, the Court examined sub-section (6) of section 4, which provides that whenever an order is made under any of the clauses of section 4, sub-section (1) or sub-section (2), the authority making the order may communicate to the affected person the grounds on which the order is based, and that if the order is to remain in force for more than three months the person shall have a right to make a representation which shall be referred to the Advisory Tribunal constituted under section 3, sub-section (4). The Court noted that the first part of this sub-section makes it entirely optional for the authority to disclose the grounds of the order; the authority may decide not to communicate those grounds at all. With respect to the right of representation, the latter part of the sub-section appears to create a right for the aggrieved person when the order will last more than three months, and it directs that any representation made shall be considered by the Advisory Tribunal. However, the Court held that this right is merely illusory because the provision does not oblige the authority to disclose the grounds in the first place. Consequently, the person affected by the order would remain unaware of the allegations against him, rendering it impossible for him to prepare an adequate or proper representation. The Court therefore concluded that the provision is unreasonable and that neither sub-section (3) nor sub-section (6) of section 4 imposes restrictions that are reasonable in the public interest. In view of article 13 (1) of the Constitution, the Court declared these provisions of the Act void and inoperative from the commencement of the Constitution, and consequently held that the order made by the District Magistrate in the present proceedings could not stand. Accordingly, the Court allowed the petition, quashed the externment order against the petitioner and dismissed the petition. The petitioner's counsel and the opposite party’s counsel were respectively noted.