- (1.) This is an application for a writ of habeas corpus under Art. 32; Constitution of India.
(2.) The petitioner who is the President of the All India Hindu Mahasabha since December 1943 was served with an order of externment dated 31st March 1950, that night. By that order he is directed by the District Magistrate, Delhi not to remain in the Delhi District, and immediately to remove himself from the Delhi District and not to return to the District. The order was to continue in force for three months. By another order of the Madhya Pradesh Government he was directed to reside in Nagpur. That order has been recently cancelled. The petitioner dispute the validity of the first order on the ground that the East Punjab Public Safety Act 1949, under which the order was made, is an infringement of his fundamental right given under Art. 19 (1) (d), Constitution of India. He further contends that the grounds of the order served on him are vague, insufficient and incomplete. According to him the object of the externment order passed by the District Magistrate, Delhi, was to suppress political opposition to the policy of the Government in respect of Pakistan and the Muslim League. It is alleged that because the petitioner and the Hindu Mahasabha are against the Government policy of appeasement this order is served on him. It is, therefore, mala fide and illegal. In support of his contention about the invalidity of the East Punjab Public Safety Act and its provisions as regards externment, counsel for the petitioner relied on the recent unreported judgments of the Patna High Court in Miscellaneous Judicial Case No. 19 of 1950, Brejnandan v. The State of Bihar (A. I. R. (37) 1950 Pat. 322 F. B.) and of the High Court of Bombay in Criminal Application No. 114 of 1910, Re Jeshinghbhari Ishwarlal, (A.I.R. (37) 1950 Bom. 363) :
(3.) It is necessary first to ascertain the true meaning of Art. 10 (1) (d) read with cl. (5) of the same Article. There is no doubt that by the order of externment the right of the Petitioner to freedom of movement throughout the territory of India is abridged. The only question is whether the limits of permissible legislation under. Cl. (5) are excellded. That clause provides as follows : "19. (6) Nothing in sub-cls. (d), (e) and (f) of the said clause shall affect the operation of any existing law in as for it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe." It is clear that the clause permits imposition of reasonable restrictions on the exercise of the right conferred by sub-clause (d) in the interests of the general public. The rest of the provision of cl. (5) is not material and neither side relies on it. Two interpretations of the clause are put before the Court. It is argued that grammatically understood the only question before the Court is whether the impugned legislation imposes reasonable restrictions on the exercise of the right. To put it in other words, the only justiciable issue to be decided by the Court is whether the restrictions imposed by the legislation on the exercise of the right are reasonable. If those restrictions on the exercise of the right are reasonable, the Court has not to consider whether the law imposing the restrictions, is reasonable. The other interpretation is that while the Constitution permits a law laying down reasonable restrictions on the exercise of the rights mentioned in sub-cl.19 (1) (d), the reasonableness has to be of the law also. It is submitted that in deciding whether the restrictions, on the exercise of the right are reasonable the Court has to decide not only on the extent and nature of the restrictions on the exercise of the right but also as to whether the conditions under which the right is restricted are reasonable. The majority judgments of the Patna and the Bombay High Courts, although the impugned Acts of the State Legislatures before them were materially different on certain important points, have given cl. (5) of Art. 19 the later meaning.;