Gurbachan Singh vs The State Of Bombay And Another

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

Court: Supreme Court of India

Case Number: Petition No. 76 of 1952

Decision Date: 7 May 1952

Coram: B.K. Mukherjea, N. Chandrasekhara Aiyar, M. Patanjali Sastri, Mehr Chand Mahajan

In the matter titled Gurbachan Singh versus The State of Bombay and another, the Supreme Court of India delivered its judgment on the seventh day of May, 1952. The opinion was authored by Justice B. K. Mukherjea, who sat on a bench together with Justices N. Chandrasekhara Aiyar, M. Patanjali Sastri, and Mehr Chand Mahajan. The petitioner, Gurabchan Singh, sought a writ of mandamus under article 32 of the Constitution, requesting that the respondents and their subordinate officials refrain from enforcing an externment order that had been served upon him pursuant to section 27(1) of the City of Bombay Police Act, 1902. The case is reported in the 1952 volume of the All India Reporter at page 221 and in the Supreme Court Reports at page 737. Subsequent citations include references in 1956, 1961, 1967, 1973, and 1974 Supreme Court law reports, indicating its continued relevance. The statutory provisions under consideration were section 27(1) of the City of Bombay Police Act, 1902, and articles 19(1)(d) and 19(5) of the Constitution of India, which together address the scope of the fundamental right to freedom of movement and the permissible limitations upon that right.

The Court explained that section 27(1) of the City of Bombay Police Act does not clash with article 19 of the Constitution because it was enacted to protect public interest and to address the specific dangers that an externment order seeks to prevent. The restrictions imposed by the statute on a citizen’s right to move freely were held to be reasonable in accordance with article 19(5). The judgment emphasized that assessing the reasonableness of such legislative restrictions requires examination of both the procedural mechanisms and the substantive effects of the law, with each case needing consideration of the circumstances and manner of enforcement. The Court identified two classifications of externment orders under the provision: the first requires the person to leave Greater Bombay and specifies the destination and the route to be taken; the second permits the individual to reside anywhere outside the State of Bombay without naming a specific place of residence. In the present case, the externment order directed the petitioner, who lived in the City of Bombay, to depart from Greater Bombay and to travel to his native town of Amritsar.

On the basis of his own representation that he did not wish to travel to Amritsar and that he might be permitted to remain at Kalyan, a place situated outside Greater Bombay, the Commissioner of Police allowed him to stay there. The Court held that, because the Commissioner acceded to the externee’s subsequent request, the original externment order could be interpreted as an order directing removal from Greater Bombay to Kalyan, and that such an interpretation rendered the order a valid externment order. The judgment in this matter originated as Petition No. 76 of 1952, filed under Article 32 of the Constitution of India seeking a writ of mandamus. Counsel for the petitioner appeared, while counsel for the respondent was also present. The judgment was delivered by Justice Mukherjee. The petition was filed by Gurubachan Singh, an Indian citizen residing with his father at “Gogri Niwas,” Vincent Road, Dadar, where his father conducted a business in electrical goods. On 23 July 1951 the petitioner received an order purportedly issued by the Commissioner of Police, Bombay, invoking section 27(1) of the City of Bombay Police Act, 1902. The order directed him to remove himself from Greater Bombay and proceed to his native place, Amritsar in East Punjab, and required compliance within two days of its issuance, specifying travel by rail. Two days later, on 25 July 1951, the petitioner applied to the Commissioner for an extension of the period within which he was to leave Greater Bombay. The Commissioner granted an extension, fixing the new deadline as 30 July 1951. On the final day of the extended period, the petitioner wrote a letter to the Commissioner stating that he did not desire to go to Amritsar and requested permission to remain at Kalyan, which lay outside Greater Bombay but within the jurisdiction of Bombay, and also asked for a railway ticket from Dadar to Kalyan. Acting on this request, the police escorted the petitioner to Kalyan on the evening of 30 July 1951 and left him there. Subsequently, the petitioner instituted proceedings before the Bombay High Court, first invoking the original jurisdiction under the Letters Patent and thereafter approaching the Appellate Criminal Bench under Articles 226 and 228 of the Constitution. In those proceedings he challenged the validity of the externment order and sought a writ of certiorari to have the order set aside. Both of those applications were subsequently dismissed, leading the petitioner to approach this Court under Article 32, alleging infringement of his fundamental rights under clauses (d) and (e) of Article 19(1) of the Constitution.

The petitioner's earlier applications were dismissed, and he now comes before this Court under article 32 of the Constitution, alleging that the externment order violates his fundamental rights under clauses (d) and (e) of article 19 (1). Counsel appearing on behalf of the petitioner argued first that the externment order is altogether void because it does not comply with the requirements of section 27 (1) of the City of Bombay Police Act. The second contention raised was that the provisions of section 27 (1) of that Act are in conflict with the fundamental rights spelled out in clauses (d) and (e) of article 19 (1) and, therefore, are void under article 13 (1) of the Constitution. A further, though less forcefully articulated, argument was that the provision of section 27 (1) is discriminatory in nature and offends article 14 of the Constitution. Regarding the first point, the respondents do not dispute that the externment order issued by the Commissioner of Police on 23-7-1951 does not strictly conform to the language of section 27 (1) of the City of Bombay Police Act. The order commanded the petitioner to remove himself from Greater Bombay but simultaneously identified Amritsar as the destination. Section 27 (1) of the City of Bombay Police Act reads as follows: “Whenever it shall appear to the Commissioner of Police, (a) that the movements or acts of any person in the Greater Bombay are causing or calculated to cause alarm, danger or harm to person or property, or that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence, or an offence punishable under Chapters XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence, and when in the opinion of the Commissioner witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property; (b)… The Commissioner of Police may, by an order in writing duly served on him, direct such person … to remove himself outside the State or to such place within the State and by such route and within such time as the Commissioner of Police shall prescribe and not to enter the State or, as the case may be, the Greater Bombay.” From this provision it is clear that two categories of externment orders are contemplated. One category directs the person to leave Greater Bombay, while the other requires the person to leave the State of Bombay altogether. In cases falling within the first category, the order must specify the place within the State to which the externee is required to go, and it must also prescribe the route and the time for compliance.

The Court noted that the statutory provision obliges an externment order to state not only the destination but also the specific route by which the person must travel to that destination. By contrast, when the externment is ordered from the State of Bombay, the person may remain at any location outside the State, and the order need not specify a particular place of residence. In the present case, the order in question initially directed the petitioner to remove himself solely from Greater Bombay. Consequently, the authorities were required to indicate the precise place within the State where the externee should reside. Although the order did mention a place—namely Amritsar—this location lies outside the State of Bombay, and therefore it was clearly beyond the jurisdiction of the Commissioner of Police to designate such a place. The petitioner’s counsel argued, with some merit, that the failure to identify a residence within the State rendered the order defective. Conversely, the order as a whole could be interpreted to show that the Commissioner intended to exile the petitioner from the entire State of Bombay, a conclusion supported by the direction to proceed to Amritsar, which is situated in another State. While it is undisputed that the Commissioner of Police, Bombay, lacked the authority to fix a residence outside the State and that such a direction was therefore ineffective, the inclusion of that direction assists in construing the order, indicating that the true purpose was to require the petitioner to leave not only Greater Bombay but the whole State of Bombay. If that purpose was indeed the case, the order would not need to specify any residence at all. The Court held that it was unnecessary to pursue this line of reasoning further because any irregularity in the original order was cured by the petitioner’s subsequent conduct, which had the Commissioner’s approval. On 30 July 1951, the petitioner wrote to the Commissioner requesting permission to reside at Kalyan, a location within the State of Bombay. The Commissioner consented, and the police escorted the petitioner to Kalyan on the evening of the same day. In light of these events, the Court concluded that the order dated 23 July 1951 could be understood as an externment from Greater Bombay; although the order mistakenly identified an improper destination, the mistake was rectified when the petitioner elected to reside at Kalyan and the police acted on that election. Accordingly, the Court found no substantial merit in the first argument raised by counsel for the petitioner.

The second point raised by counsel concerned whether section 27 (1) of the City of Bombay Police Act imposes a restriction on the fundamental right of a citizen that is guaranteed under article 19 (1) (d) of the Constitution, and whether any such conflict would render the provision void and inoperative under article 18 (1) of the Constitution. It was acknowledged that the provision of section 27 (1) of the Bombay Act was enacted in the interest of the general public and to protect the community from dangerous and undesirable persons whose presence in a particular locality might jeopardise the peace and safety of the citizens. Consequently, the court was required to examine whether the restrictions that this law imposes upon the right of free movement fall within the scope of clause (5) of article 19 of the Constitution, that is, whether the restrictions are reasonable. It is perfectly true that the determination of the reasonableness of the restrictions imposed by a legislative enactment upon the fundamental rights enumerated in article 19 (1) (d) depends both upon the procedural aspects of the law and its substantive content, and that the court must consider, in each case, the circumstances under which the restrictions have been imposed and the manner in which they have been applied. The maximum duration of an externment order made under section 27 (1) of the Bombay Act is two years, and the Commissioner of Police may at any time permit the externed person to re-enter the prohibited area even before the expiry of that period. Having regard to the class of cases to which this subsection applies and the menace that an externment order is intended to avert, it is difficult to conclude that the provision is unreasonable. The Commissioner of Police is empowered, in a proper case, to cancel the externment order at any moment if, in his opinion, the return of the externed person no longer endangers the community. Regarding the procedure to be followed, section 27 (4) of the Act requires that before an order of externment is passed against any person, the Commissioner of Police or an officer authorised by him must inform that person in writing of the general nature of the material allegations against him and give him a reasonable opportunity to explain those allegations. The person may appear through an advocate or an attorney, may file a written statement and may examine witnesses for the purpose of clearing his character. The only point which Mr Umrigar attempts to make in regard to the reasonableness of this procedure is that the suspected person is not allowed to cross-examine the witnesses who deposed against

In this case the Court observed that the argument raised by counsel for the petitioner, namely that the suspect was not permitted to cross-examine the witnesses whose evidence gave rise to the proceedings, did not by itself make the procedure unreasonable when considered in the context of the legislature’s expressed purpose in enacting the statute. The Court explained that the law in question is an extraordinary provision, created solely to address exceptional situations in which witnesses, fearing personal injury or damage to their property, are unwilling to give public testimony against certain individuals whose presence in particular localities poses a danger to public safety. The Court stressed that the very purpose of the legislation would be completely frustrated if a right to confront or cross-examine those witnesses were granted to the suspect. The authority to commence proceedings under the Act has been vested in a senior and responsible officer, who is expected to act with caution and impartiality while performing his duties. Accordingly, the Court held that the contention of counsel for the petitioner must fail.

The Court further rejected the petitioner’s final point, finding it untenable. It acknowledged that the statute provides a procedure that differs from that prescribed by ordinary law for a specific class of persons who may be subject to action under section 27(1) of the City of Bombay Police Act. However, any distinction is based on a reasonable classification that lies within the legislature’s competence to make. Considering the objective of the legislation and the policy underlying it, the Court concluded that a departure from the normal procedural rules is justified as the most effective means of achieving the legislative purpose. Consequently, the Court found no merit in the petition and ordered its dismissal. Petition dismissed. Agent for the petitioner: P.K. Chatterjee. Agent for the respondents: P.A. Mehta.