AJAIB SINGH LEHNA SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE only point for decision in the present case is whether the Abducted Persons (Recovery and Restoration) Act, 1949, is inconsistent with or violative of the Constitution of India.

(2.) IN June 1951 the police entered the house of Ajaib Singh petitioner, arrested Mst. Mukhtiar kaur 'alias' Sardaran under Section 4 of the impugned Act and took her to the Muslim Girls refugee Camp at Jullundur. On the 5th November, 1951, the petitioner, who claims to be mukhtiar Kaur's father, put in a written application for a writ of habeas corpus in which he prayed that Mukhtiar Kaur be discharged from restraint as she was not an 'abducted person' and that she be not taken out of the territory of India. On the 17th November the tribunal constituted by the Central Government under Section 6 of the said Act came to the conclusion that she was an 'abducted person' within the meaning of the expression as defined in the Act of 1949 and recommended that she should be taken out of India and restored to her relations in Pakistan. They added, however, that the execution of the order should be held in abeyance until the petition for habeas corpus which was presented by Ajaib Singh is disposed of by this Court.

(3.) WHEN the petition came up for hearing before my brother Khosla and myself, Mr. H. S. Doabia who appeared for the petitioner claimed on various grounds that the Act of 1949 under which Mukhtiar Kaur was arrested and detained was in violation of the Constitution of India. As the objections to which our attention was invited gave rise to a number of questions of constitutional importance which are common to a number of similar petitions pending in this court and are likely to arise in other cases, we decided to formulate a set of questions and to refer them for the decision of larger Bench. These questions are as follows: "1. Is the Central Act LXV of 1949 'ultra vires' the Constitution because its provisions with regard to the detention in refugee camps of persons living in India violate the rights conferred upon Indian citizens under Article 19 of the Constitution? 2. Js this Act 'ultra vires' the Constitution because in terms it violates the provisions of Article 22 of the Constitution? 3. Is the tribunal constituted under Section 6 of the Act a tribunal subject to the general supervision of the High Court by virtue of Article 227 of the Constitution?" to these may be added three further questions which arose during the course of arguments, namely--"4. Does this Act conflict with the provisions of Article 14 on the ground that the State has denied to abducted persons equality before the law or the equal protection of the laws within the territory of India? 5. Does this Act conflict with the provisions of Article 15 of the ground that the State has discriminated against abducted persons who happen to be citizens of India on the ground of religion alone? 6. Does this Act conflict with Article 21 on the ground that abducted persons are deprived of their personal liberty in a manner which is contrary to principles of natural justice?"