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PETITIONER:

EBRAHIM VAZIR MAVAT

Vs.

RESPONDENT:

THE STATE OF BOMBAY AND OTHERS.(With Connected Appeals)

DATE OF JUDGMENT:

15/02/1954

BENCH:

HASAN, GHULAM

BENCH:

HASAN, GHULAM

MAHAJAN, MEHAR CHAND (CJ)

MUKHERJEA, B.K.

DAS, SUDHI RANJAN

BOSE, VIVIAN

CITATION:

1954 AIR 229 1954 SCR 933

CITATOR INFO :

R 1956 SC 559 (4)

F 1958 SC 731 (21)

R 1959 SC 725 (11)

F 1959 SC1315 (4,6)

RF 1962 SC1371 (41)

ACT:

Constitution of India, arts. 13(1), 19(1) (e)-Influx from

Pakistan (Control) Act, 1949 (Act XXIII of 1949) s. 7

Whether ultra vires the Constitution.

HEADNOTE:

Held, (Per MEHR CHAND MAHAJAN 0. J., MUKEMRJFA, ViviAN BosE

and GHULAM HASAN JJ. ; S. R. DAs J. dissenting) that s. 7 of

the Influx from Pakistan (Control) Act, 1949 is void under

art. 13(1) in so far as it conflicts with the fundamental

eight of a citizen of India under art.19(1) (a) of the

Constitution and the order of physical removal of the

citizen from in Is therefore liable to beset aside.

Per DAB J.-In view of the circumstances the provisions of s.

7 of the Act were reasonable restrictions within the meaning

of el. 5 of art. 19 of the constitution imposed in the

interests of the general public upon the exercise by Indian

citizen coming from Pakistan without a permit of, the rights

conferred by art. 19(1)(d) and (e) of the Constitution.

JUDGMENT:

CRIMINAL APPELLATE, JURISDICTION: Criminal Appeals Nos. 65

and 66 of 1952, 5 and 19 of 1953 and Petitions Nos. 170 of

1952, 19 and 57 of 1953.

Appeals from Orders, dated the 9th April, 1952, of the High

Court of Judicature at Bombay in Criminal Applications Nos.

707 and 708 of 1951, from the Judgment and Order, dated the

15th December, 1952, of the High Court of Judicature at

Bombay in Criminal Application No. 1310 of 1952; from the

Judgment and Order, dated the 29th November, 1952, of the

Judicial Commissioners Court Vindhya Pradesh, Rewa, in

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Criminal Miscellaneous No. 49 of 1952; and Petitions under

article 32 of the Constitution of India.

J.B. Dadachanji and Z. F. Bootwala for the appellants in

Criminal Appeals Nos. 65 and 66 of 1952 and 5 of 1953.

C.K. Daphtary Solicitor-General for India(G. N. Joshi, with

him) for respondents Nos. I and 2 in

121

934

Criminal Appeals Nos. 65 and 66 of 1952 and respondent No. 1

in Criminal Appeal No. 5 of 1953.

K.B.Asthana, for the appellant in Criminal Appeal No. 19 of

1953.

C.K. Daphtary, Solicitor-General for India, (Porus A. Mehta

and G. N. J08hi, with him) for the respondent in Criminal

Appeal No. 19 of 1953.

S. P. Sinha (Sri Narain Andley, with him) for the

petitioners in petition No. 170 of 1952.

Gopalji Mehrotra for respondent No. I in petition No. 170 of

1952.

C. K. Daphtary, Solicitor-General for India (Porus A. Mehta,

with him) for respondent No. 3 in petition No. 170 of 1952.

S. P. Sinha (S. N. Mukherji, with him) for petitioner in

petition No. 19 of 1953.

Gopalji Mehrotra for respondent No. I in petition No. 19 of

1953.

G. N. Joshi for respondent No. 3 in petition No. 19 of 1953.

H.J. Umrigar, amicus curiae, for the petitioner in petition

No. 57 of 1953.

C. K. Daphtary, Solicitor-General for India (G. N.

J08hi, with him) for the respondents in petition No. 57 of

1953.

1954. February 15. The Judgment of Mahajan C.J.,

Mukherjea, Vivian Bose and Ghulam Hassan JJ. was delivered

by Ghulam Hasan J. Das J delivered a seperate judgment.

Criminal Appeals Nos. 65 and 66 of 1952.

GHULAM HASAN J.-This batch of appeals raises a common

question of the constitutional validity of section 7 of the

Influx from Pakistan (Control) Act (XXIII of 1949). Section

3 of the same Act is also assailed on behalf of some of the

appellants but for the purpose of deciding these appeals it

will not be necessary to deal with the latter question.

Criminal Appeals Nos. 65 and 66 of 1952, which are directed

against the judgment and order of the High Court of

Judicature at, Bombay in two petitions under article 226 of

the Constitution praying for the issue of

935

a writ of mandamus requiring the respondent not to remove

them from India on the ground that the impugned section 7 is

void may be treated as the leading case which will govern

the other appeals.

The facts of each of these appeals are slightly different

but they proceed upon the common assertion that the

appellants are citizens of the Indian Republic. This fact

was assumed in the leading case but it is not, disputed that

the status of the appellants as Indian citizens in all the

cases has not been investigated and determined by any of the

courts below against whose decision the appeals have been

brought. Having heard the learned counsel appearing in

support of the appeals and the learned Solicitor-General we

have reached the conclusion that section 7 is void in so far

as it infringes the right of a citizen of India under

article 19(1) (e) of the Constitution.

The Act in question received the assent of the Governor-

General on April 22, 1949, and was published in the Gazette

of India Extraordinary on April 23. It is a short Act

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containing nine sections. It is intituled an Act to "

control the admission into, and regulate the movements in,

India of persons from Pakistan ". The preamble opens with

the words "Whereas it is expedient to control the admission

into, and regulate the movements in, India of persons from

Pakistan. "

Section 2 (b) defines " officer of Government " as any

officer of the Central Government and 2 (c) defines "permit"

as a "Permit issued or renewed or the period whereof has

been extended in accordance with the rules made under this

Act. " Section 3 says II No person shall enter India from

any place in Pakistan, whether directly or indirectly,

unless

(a) he is in possession of a permit or

(b) being a person not domiciled in India or Pakistan, he

is in possession of a valid passport as required by the

Indian Passport Act, 1920 (XXXIV of 1920), or

(c) he is exempted from the requirement of bein in

possession of a permit by or in accordance with the rules

made under this Act."

936

Section 4 empowers the Central Government, by notification

in the Official Gazette, to make rules:

(a) prescribing the authorities by which and the conditions

subject to which permits may be issued or renewed or the

period thereof extended, the condition to be satisfied by

the applicants for such permits and the forms and classes of

such permits;

(b) regulating the movements in India of any person who is

in possession of a permit;

(c) providing for the exemption, either absolutely or on

conditions, of any person or class of persons from the

requirement of being in possession of a permit or from the

operation of any rule made under the section ; and

(d).............................................................

section 5 is the penal section which says

" (a) Whoever enters India in contravention ' of the

provisions of section 3, or having entered India contravenes

the provisions of any rule made under section 4, or commits

a breach of any of the conditions of his permit, shall be

punishable with imprisonment for a term which may extend to

one year, or with fine which may extend to one thousand

rupees, or with both. "

Section 6 confers power of arrest upon an,officer of

Government. Section 7 is as follows:-

" Without prejudice to the provisions contained in section

5, the Central Government may, by general or special order,

direct the removal from India of any person who has

committed, or against whom a reason-, able SUSPICION exists

that he has committed, an offence under this Act, and

thereupon any officer of Government shall have all

reasonable powers necessary to enforce such direction. "

Section 8 provides for protection to persons acting in good

faith and section 9 repeals the Influx from, Pakistan

(Control) Ordinance, XXXXIV of 1948.

The use of the word 'person' in section 7, read with the

title and preamble of the Act leaves no doubt that. the Act

applies to citizens and non-citizens alike. So

937

far as a non-citizen is concerned, it is not contended

before us3 that the executive Government has no authority to

direct his removal from India and the only contention raised

before us is whether the Central Government has any power to

direct the removal of an Indian citizen on either of the

grounds mentioned in section 7. Section 7, it is contended,

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confers upon the Central Government unfettered power to

direct the removal from India not only of a person who has

committed an offence punishable under section 5 of the Act

but also one against whom a reasonable suspicion exists that

he has committed such an offence. That an Indian citizen

visiting Pakistan for any purpose whatsoever and returning

to India may be required to produce D, permit or passport as

the case may be before he can be allowed to enter the

country, may well be. regarded as a proper restriction upon

entry but to say that if he enters the country without a

permit or on an invalid permit, or commits a breach of any

of the conditions of the permit he may, on conviction for

such offence, be ordered to be removed from the country is

tantamount to taking away his fundamental right guaranteed

under article 19(1) (e), " to reside and settle in any part

of the territory of India. " The order is sought to be

supported by the learned- Solicitor-General on the ground

that it falls within exception (5) of article 19. The

proposition that the order imposes in the interest of the

general public a reasonable restriction on the exercise of

the. right conferred upon an Indian citizen to reside and

settle in any part of the territory of India is hardly

statable. It is possible to conceive of an Indian citizen

being guilty of serious prejudicial Acts such as espionage

and disloyalty to his country in which case he may render

himself liable to the gravest penalty which the Government

may think fit by law to impose upon him but it would be

repugnant to all notions of democracy and opposed to the

fundamental rights guaranteed in Part III of the

Constitution to order his expulsion from the country, for to

hold otherwise would be tantamount to destroying the right

of citizenship conferred by Part II of the, Constitution.

This

938

result is permissible only by recourse to article 11 of the

Constitution. Again it will be noticed that section 7

imposes the penalty of removal not only upon a conviction

under section 5 but goes further and brings about the same

result even where there is a reasonable suspicion

entertained by the Central Government that such an offence

has been committed. The question whether an offence has

been committed is left entirely to the subjective

determination of the Government. The inference of a

reasonable suspicion rests upon the arbitrary and

unrestrained discretion of the Government, and before a

citizen is condemned, all that the Government has to do is

to issue an order that a reasonable suspicion exists in

their mind that an offence under section 5 has been

committed. The section does not provide for the issue of a

notice to the person concerned to show cause against the

order nor is he afforded any opportunity to clear his

conduct of the suspicion entertained against him. This is

nothing short of a travesty of the right of citizenship.

The learned Solicitor-General argued that the provision must

be viewed in the back-ground of the events which took place

at the time of the partition and the unsatisfactory

relations existing between India and Pakistan. up to the

present day. Even so the penalty imposed upon a citizen by

his own Government merely upon a breach of the permit

Regulations, however serious it may be and, more, upon a

reasonable suspicion only by the executive authority of his

having violated the conditions of the permit is utterly

disproportionate th the gravity of the offence and is in our

opinion indefensible. A law which subjects a citizen to the

extreme penalty of a virtual forfeiture of his citizenship

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upon conviction for a mere breach of the permit Regulations

or upon a reasonable suspicion of having committed such a

breach can hardly be justified upon the ground that it

imposes a reasonable restriction upon the fundamental right

to reside and settle in the country in the interest of the

public. The Act purports to control admission into and

regulate the movements in India of persons entering from

Pakistan but section 7 oversteps the limits of control

939

and regulation when it provides for removal of a citizen

from his own country. To use the language of this court in

Chintaman Rao v. The State of Madhya Pradesh and Ram Krishna

v. The State of Madhya Pradesh(1), " The effect of the

provisions of the Act, however, has no reasonable relation

to the subject in view but is so drastic in scope that it

goes much in excess of that object.

It may be said that the sentry on guard at any of the check-

posts on the frontier between the two countries can prevent

not only unauthorised entry of a citizen by force but can

also throw him out if the person has managed to enter

surreptitiously. Exactly what the sentrys' duties are was

not argued before us. They would naturally vary according

to the circumstances and the orders which be receives but

ordinarily we apprehend that the duty of a sentry at the

border would be to prevent as far as lay in his power un-

authorised entry into India. If any person claims to have

the right to enter, the sentry's duty would be to hand him

over to the Commander of the Guard and normally it would be

the duty of that Commander to hand him over to the proper

authority empowered to determine the right which he claims.

In the case of an unauthorised entry, ordinarily the duty of

the sentry is to arrest a man and hand him over to the

proper authority for punishment and in extreme cases he may

have the right to shoot the person who does not halt on his

command and explain his presence at the outpost. In normal

circumstances we doubt if the sentry would have the right to

forcibly expel a man who crosses the border.

The learned Chief Justice (Chagla C. J.) took the view that

section 7 is consequential to section 3 and held that if

section 3 controlling admission by means of a permit is

valid, section 7 must be held to be equally valid. This

argument is fallacious. In the first place, section 7 is by

no means wholly consequential to section 3. The first part

no doubt renders the person concerned liable to removal upon

conviction under section 5 but further empowers. the Central

Government

(1) [1950] S.C.R. 759.

940

to pass the same order independently of these provisions

even where there is no conviction and a reasonable suspicion

exists that an offence has been committed. Assuming,

however, that section 7 is consequential to section 3 it

gives no opportunity to the aggrieved person to show cause

against his removal. There is no forum provided to which

the aggrieved party could have recourse in order to vindi-

cate his character or meet the grounds upon which it is

based. Neither the Act nor the rules framed thereunder.

indicate what procedure is to be followed by Government in

arriving at the conclusion that a breach of section 3 or of

the rules under section 4 has taken place,

In Shabbir Hussain v. The State of Uttar Pradesh and

Another(1) the Allahabad High Court held that a law allowing

the removal from a territory of India of any citizen is in

contravention of article 19 (1) (d) and(e) of the

Constitution and is void in view of article 13(1). The order

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which was challenged before them was one passed under

section 7 and was set aside.

In Criminal Writ No. 147 of 1951 decided on December 11,

1951, a Bench of the Punjab High Court (Weston C. J. and

Harnam Singh J.) while setting aside the order under section

7 against a citizen of India who had entered India without a

permit and was first convicted and then ordered to be

externed observed:

"The powers of removal or banishment given by section 7 of

the Influx from Pakistan (Control) Act, 1949, connot be

invoked against citizens of India. No doubt, she committed

an offence under section 3 of that Act which applied to all

persons, but that cannot justify her removal even though her

entry may have been contrary to the provisions of the Act."

We are not prepared to accede to the contention urged by the

Solicitor-General that a citizen of India who returns to the

country without a permit or without a valid permit commits

such a grave offence as to justify his expulsion from the

country. The object of the Act is, not to deport Indian

nationals

(1) A.I.R. 1952 All. 257.

941

committing a breach of the permit or passport Regulations

but merely to control admission into and regulate movements

in India of persons from Pakistan and therefore there is no

substance in the argument that section 7 was intended to

achieve the objective of expelling Indian citizens, by and

large, if they brought themselves within the mischief of

section 3.

It was faintly contended that the order of physical, removal

from India, in addition to the punishment imposed under

section 5 of the Act, amounted to what may be called "

double jeopardy " and is in conflict with article 20 (2) of

the Constitution. The short answer to this contention is

that there is no second prosecution for the same offence and

therefore no question of double jeopardy arises. See

Maqbool Hussain v. The State of Bombay etc.(1).

As a result of the foregoing discussion we declare section 7

to be void under article 13(1) in so far as it conflicts

with the fundamental right of a citizen of India under

article 19(1) (e) of the Constitution and set it aside. The

order will, however, operate only upon proof of the fact

that the appellants are citizens of India. The case will,

therefore, go back to the High Court for a finding upon this

question. It will be open to the High Court to determine

this question itself or refer it to the court of District

Judge for a finding. Parties will be given full opportunity

to file affidavits or give other evidence which they may

wish to produce.

Criminal Appeal No. 5 of 1953.

GHULAM HASAN J.-The appellant in this case is a resident of

Godhra, District Panchmahals, in the State of Bombay. He

went to Pakistan in Marc 1948, and returned to India on May

30, 1949, after obtaining a permit for permanent return to

India from the-High Commissioner for India. In January,

1950, he was prosecuted under section 5 of Act XXIII of 1949

for having obtained a permit which was not in accordance

with the provisions of the Act. The prosecution was

withdrawn after 21 years. Subsequently on December 5, 1952,

he was served with a notice

(1) [1953] S.C.R. 730.

122

942

ordering him to leave India for Pakistan within 10 days else

he would be bodily removed to the Indo-Pakistan border.

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Thereupon the appellant filed a petition under article 226

contending that section 7 was contrary to his fundamental

rights under articles 14 and 19 of the Constitution and that

the same provided no opportunity to the appellant to put his

case before the Government officers, nor was any such

opportunity afforded to him. He asserted that he was a

citizen of India.The application was summarily dismissed

on December 15, 1952, whereupon leave to appeal to this

court was granted under article 132(1) of the

constitutional. As this appeal also raises the question of

the constitutional validity of section 7, it will be

governed by the decision which we have arrived at in appeals

Nos. 65 and 66 of 1952.

Criminal Appeal No. 19 of 1953.

GHULAM HASAN J.-The appellant, Haji Faqir Ahmad, is a

resident of Rewa in Vindhya Pradesh and alleges that he is a

citizen of India. He was prosecuted under section 5 of Act

XXIII of 1949 on the ground that he entered India from

Pakistan without a permit and convicted and sentenced.

Thereafter he was by an order passed under section 7 bodily

removed out of India. His father applied under article 226

of the Constitution and section 491 of the Code of Criminal

Procedure for setting aside the order. The learned Judicial

Commissioner dismissed the application summarily holding

that section 7 was not ultra Vires the Constitution.

Mr. Asthana, who appeared on behalf of the appellant, raised

a further question that the order was void under article 14

inasmuch as it discriminated against members of a particular

community coming from Pakistan. There is no warrant for

this contention. The Act applies to citizens as well as

non-citizens. It applies to all communities irrespective of

caste or creed. It is contended that the Act must be held

to be discriminatory not only by virtue of its provisions

but because of the discriminatory manner in which those

provisions have been applied. This argument is

943

to be mentioned only to be rejected, for there is no

material whatsoever placed before us to justify the

statement. The case in Yick W o v. Peter Hopkins (1) is

wholly inapplicable to the facts of the present case. We

accordingly reject the contention. This case will also be

governed by the decision in Appeals Nos. 65 and 66 of 1952.

Petition No. 170 of 1952.

AND

Petition No. 19 of 1953.

GHULAM HASAN J.-These petitions under article 32 of the

Constitution raise the constitutional validity of section 7

of the Influx from Pakistan (Control) Act, XXIII of 1949.

Mr. S. P. Sinha, who appears for the petitioners, withdraws

these petitions and undertakes to file two petitions under

article 226 of the Constitution within a fortnight from this

day before the High Court. When these have been filed, they

will automatically be governed by the decision given in Ap-

peals Nos. 65 and 66 of 1652. No other order is called for.

The petitions are allowed to be withdrawn.

Petition No. 57 of 1953.

GHULAM HASAN J.-This a petition under article 32 of the

Constitution by Inamullah Khan alias Qamar Jamali for the

issue of a writ in the nature of habeas corpus directing

that the petitioner, who is illegally arrested and detained

be brought before the court and set at liberty and for the

issue of a writ of certiorari calling for the said order for

arrest and detention and the relevant papers and for setting

them aside as being void and in-operative. It is further

prayed that the State of Bhopal and the Superintendent of

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Central Jail,, Bhopal, where he was being detained be

restrained from putting into effect the said order. The

petition was made on March 11, 1953. It is stated that the

petitioner is a citizen of India having been born in Bhopal

in 1922. He was employed in Bhopal for 5 years immediately

preceding

(1) 118 U.S. 356; 30 Law. Ed. 220.

944

the commencement of the Constitution of India. He also

edited a weekly paper "Tarjuman" from Bhopal. His name

appears as. a voter in the voters" list of the Bhopal

Legislative Assembly (1951-52), as-well as in the electoral

roll of the Municipal Board, Bhopal. The was arrested on

November 24, 1952 by the Sub-Inspector of Police at

lbrahimpura, Bhopal, under section 7 of the Influx from

Pakistan (Control) Act XXIII of Pakistan. At the time of

the arrest the petitioner was being tried under section 448,

Indian Penal Code, in the court of 1st Class Magistrate,

Bhopal, and was on bail. The petitioner alleges that he

never went to Pakistan, nor entered India without a permit

and was never tried and convicted under the Influx from

Pakistan (Control) Act of 1949. He challenges the order

under section 7 as being void under article 19(d) and (e)

and articles 21 and 22.

The fact that the petitioner is a resident of Bhopal and was

employed in the State is not denied on behalf of the State.

The affidavit on behalf of the State mentions that the

petitioner had gone to Pakistan in may, 1952, and returned

in August, 1952, without a permit. He was arrested on

November 24, 1952, without any prior notice but was told at

the time of the arrest that he was to be removed out of

India. The petitioner filed an application through his

uncle before the Judicial Commissioner, Bhopal, under

article 226 on November 25, 1952, challenging. the order.

The Judicial Commissioner granted an interim stay order on

the same day. The petition was dismissed on February 23,

1953, and the interim order was vacated on March 10, 1953.

It is admitted that an oral request was made to the Judicial

Commissioner for leave to appeal to this court and it was

prayed that pending the grant of leave the order of stay

should continue. Leave was refused on the same day and the

stay order was vacated.

There is an affidavit by the Chief Secretary of the State

admitting that the petitioner on, the same day banded an

application to the Superintendent of Jail

945

addressed to this court. The Superintendent of Jail sent it

to the Chief Secretary on March 13, 1953. It was put up

before him on the 14th when he forwarded it to the Law

Department for opinion on March 16. The petition was

returned to him on the 19th with the remark that it should

be forwarded to the Supreme Court. It was sent to this'

court on ;March 22. On the same day a telephonic

communication was sent, by the Registrar of this court

through the States Ministry directing that the petitioner

should be detained if he was still in India, but it appears

that the petitioner had been handed over to the Rajas than

Police at Kotah on March 12, 1953, and a reply was received

by the Inspector-General of Police, Jaipur, that the

petitioner had crossed the border on March 18, 1953. The

Superintendent of Jail has also filed an affidavit

supporting the Chief Secretarpand has admitted that it was

wrong on his part not to have sent the, petition submitted

by the prisoner immediately to this court and that he in

good faith believed that as the order for stay had been

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vacated by the Judicial Commissioner, he should first send

it to the Registrar of that court. It is obvious that the

Superintendent was grossly in error and his action in not

submitting the petition resulted in the unlawful removal of

the petitioner out of the country. He, has made amends by

tendering an unqualified apology and nothing further need be

said about it. In Ebrahim Wazir Mavat v. The State of

Bombay and Others and Noor Mohammad Ali Mohammad v. The

State of Bombay and Others (Criminal Appeals Nos. 65 and 66

of 1952) in which we have just delivered judgment we have

held that section 7 of the Act is void as against a citizen

of India being., an encroachment on his fundamental right

under article 19 (1) (e) of the Constitution. Following

that decision we hold that the order of removal of the

petitioner is liable to be set aside.

Mr. Umrigar, who appeared for the petitioner, pointed out

that the Judicial Commissioner has already held that the

petitioner is a citizen of India and that it will serve no

useful purpose by remanding

946

the case to him for an inquiry into the question. The

Solicitor-General on behalf of the Union of India has read

to us the order of the Judicial Commissioner and admits that

this is so. It is, therefore, not necessary to adopt the

course that we have taken in the aforesaid a peals involving

the validity of section 7. We accordingly hold that the

order passed against the petitioner is void and set it

aside.

Mr. Umrigar requests that the order should be communicated

to the petitioner through the High Commissioner for India in

Karachi to whom the petitioner sent a representation praying

that he should be allowed to return to India. This request

is granted.

Criminal Appeals Nos. 65 and 66 of 1952, No, 5 of 1953 and

No. 19 of 1953 and Petitions No. 170 of 1952, No. 19 of 1953

and No. 57 of 1953.

DAs J.-I regret I am unable to agree with the judgment just

delivered.

Four Criminal Appeals namely, Criminal Appeals Nos. 65 and

66 of 1952, No. 5 of 1953 and No. 19 of 1953 and three

Criminal Miscellaneous Petitions, namely Petition No. 170 of

1952, No. 19 of 1953 and No. 57 of 1953, were posted for

hearing and were heard by us one after another. In each one

of those appeals and petitions the appellants or the

petitioners, as the case may be, challenged the

constitutional validity of the Influx from Pakistan

(Control) Act,1949 (Act XXIII of 1949).

Learned advocate appearing in support of petitions No. 170

of 1952 and No. 19 of 1953 asked for leave to withdraw them

with liberty to file fresh' petitions in the High Court.

Such leave having been given nothing further need be said

about those two petitions.

The facts of each of the remaining appeals and the remaining

petition have been set out in the judgment just delivered,,

and need not be repeated. Suffice it to say that the

appellants in Appeals Nos. 65 and 66 of 1952 first came to

India from Pakistan on temporary permits issued by the High

Commissioner for India in Pakistan but stayed on after the

expiry of the

947

period and were convicted under section 5 of the Act. Later

on they returned' to Pakistan on a temporary permit issued

by the High Commissioner for Pakistan in India and

eventually came back to India on a permanent permit issued

by the High Commissioner for India in Pakistan. That

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permanent permit was cancelled on the. allegation that it

had been obtained on the strength of a "no objection"

certificate which had been obtained by them by the

suppression of material facts, namely, that they had

previously come. to India on a temporary permit. The

appellant in Appeal No. 5 of 1953 came to India from

Pakistan on a permanent permit which was subsequently can-

celled on the allegation that it had been obtained by fraud.

The appellant in Appeal No. 19 of 1953 came to India from

Pakistan without any permit and was prosecuted and convicted

under section 5 of the Act and later on arrested and sent

back to Pakistan. The petitioner in Petition No. 57 came to

India without any permit at all. On this petitioner as well

as on the appellants orders had been made under section 7 of

the impugned Act to the effect that unless they left India

within the time specified in the respective orders they

would be bodily removed from India. These orders were made

on the ground that they had entered India in violation of

section 3 of the Act and/ or the rules and order made

thereunder. Each of these persons claimed that they were

citizens of India and complained that the orders made

against them violated their fundamental rights under Chapter

III of the Constitution of India.

It will be recalled that on the 15th August, 1947, there was

a partition of India and two Dominions were formed under the

Indian, Independence Act, 1947. A grave emergency arose on

the partition of India resulting in mass-migration of

population from one Dominion to the other accompanied by

riots, arson, murder, rape and loot. Intense bitterness and

hatred were generated in the minds of the people of one

Dominion against those of the other Dominion. Even in one

Dominion there was suspicion in the

948

minds of the members of one community against those of the

other. In those circumstances the uncontrolled and

indiscriminate entry of persons, Hindu or Muslim, from

Pakistan into India was naturally regarded as fraught with

the possibility of espionage and sabotage the prevention of

which was essential for the security of the Dominion of

India. Further an uncontrolled entry of large numbers of

people was calculated to place and in fact placed a

tremendous strain on the economy of India and on the law and

order situation in the country. It was in order to prevent

such result that it was necessary to exercise some control

over such influx of persons from Pakistan into India.

Accordingly, the Influx from West Pakistan (Control)

Ordinance (XVII of 1949) was promulgated on the 19th July

1948, by the Governor-General in exercise of the powers

conferred on him by section 42 of the Government of India

Act, 1935. The preamble to that Ordinance recited that an

emergency had arisen which made it necessary to control the

admission into and regulate the movements in India of

persons from Pakistan. Thereafter the Influx from Pakistan

(Control) Ordinance (XXXIV of 1948) was issued on the 10th

November, 1948, replacing the earlier Ordinance. This

Ordinance applied to persons entering into India from both

West Pakistan and East Pakistan. It substantially

reproduced all the sections of the previous Ordinance-.

Finally, on the 22nd April, 1949, the Influx from Pakistan

(Control) Act (XXIII of 1949) replaced the second Ordinance.

Sections 3 and 7 of this Act substantially reproduced the

provisions of sections 3 and 7 of the Ordinance. The Permit

System Rules of 1948 were replaced on the 20th May, 1949, by

the Permit System Rules of 1949. This Act, however, was

repealed on the 15th October, 1952, by Act LXVI of 1952.

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Section 3 of this repealing Act, however, expressly

preserved the application of section 6 of the General

Clauses Act, 1897. Although the Influx from Pakistan

(Control) Act, 1949 has been repealed and the number of

persons who, like the appellants and the petitioners before

us. are affected by that Act is small, nevertheless the

matter has to

949

be scrutinised closely, for our decision may conceivably

affect the passport regulations which have replaced the

permit system.

The contention advanced in these appeals and the petition is

that sections 3 and 7 of the Act have, since the

commencement of the Constitution, become void in that they

violate the fundamental rights guaranteed by articles 14 and

19(1) (d) and (e) of the Constitution. The provisions of

these two sections, which have been sufficiently set out in

the judgment just delivered, will at once show that they

applied to all persons coming from Pakistan,, whether they

were citizens or noncitizens and irrespective of the

community to which they belonged or the religion which they

professed. It will also appear that, as regards citizens,

they did not touch all citizens but affected only such of

them as came from Pakistan, whether they were Hindus,

Muslims or Christians. It is, therefore, quite clear that

the Act applied to a small well defined class of persons who

were grouped together on an obviously reasonable basis of

classification as explained in the previous decisions of

this court. In this view of the matter no question of

unconstitutional discrimination can arise at all and,

indeed, the plea based on the equal protection clause of the

Constitution has not been seriously pressed. The main

contest has centred round the question whether these two

sections offend against the provisions of article 19(1)(d)

and (e) of the Constitution.

The learned Solicitor-General appearing for the respondents

contends that those sections are protected by article 19(5)

as being reasonable restrictions on the exercise of the

rights guaranteed by sub-clauses (d) and (e) of clause (1)

of that article. In State of Madras v. V. G. Row (1)

Patanjali Sastri C.J. observed:-

" It is important in this context to bear in mind that the

test of reasonableness, wherever prescribed, should be

applied to each individual statute impugned, and no abstract

standard, or general pattern of reasonableness can be laid

down as, applicable to all cases.

(1) [1952] 3 S.C.R. 597 at p. 607.

123

950

The nature of the right alleged to have been infringed, the

underlying purpose of the restrictions imposed, the extent

and urgency of the evil sought to be remedied thereby, the

disproportion of the imposition, the prevailing conditions

at the time, should all enter into the,judicial verdict. In

evaluating such elusive factors and forming-their own

conception of what is reasonable, in all the circumstances

of a given case, it is inevitable that the social philosophy

and the scale of values of the judges participating in the

decision should play an important part, and the limit to

their interference with legislative judgment I in such cases

can only be dictated by their sense of responsibility and

self restraint and the sobering reflection that the

Constitution is meant not only for people of their way of

thinking but for all, and that the majority of the elected

representatives, of the people have,' in authorising the

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imposition of the restrictions, considered them to be

reasonable."

The impugned sections have, therefore, to be examined in the

light of the above observations.

I find nothing unconstitutional about section 3 of the

impugned Act It does not debar the entry of any person

absolutely. It only requires that a person entering India

from any place in Pakistan must be in possession of a permit

or a valid passport or be exempted from such requirements.

Passport regulations obtain in every civilized country

including even those the constitutions whereof confer

similar fundamental rights on their citizens, e.g.,

Switzerland (articles 43-45), Wiener Germany (article III),

Czechoslovakia (article 108), Jugoslavia (article 10),

Danzig (article 75) and Albania (section 202). Such regula-

tions serve to check up the persons who enter the

territories of the State and are necessary for the safety of

the State. Seeing that such regulations obtain everywhere

and have a definite utility for the protection of the

general public by securing the safety of the State, I have

no manner of doubt in my mind that such restrictions as are.

contemplated by section 3 must be regarded as reasonable

restrictions permissible under

951

clause (5) of article 19 of the Constitution. Indeed, the

objection of section 3 has not been seriously pressed before

us.

The main objection urged by learned counsel appearing in

support of these appeals and petitions was directed to the

question of the validity of section 7. In the' first place,

it is clear that no objection can be taken to section 7 in

so far as it affected persons who were 'not citizens of

India, for article 19 guarantees certain fundamental rights

to the citizens of India only. In the next place, this

section did not affect all citizens but touched only a well

defined small class of citizens, namely, those who went to

Pakistan and intended to return to India. The question is

whether qua these citizens section 7 can also be regarded as

a reasonable restriction within the meaning of clause (5) of

article 19. The High Court of Bombay has held, and in my

opinion quite correctly, that the provisions of section 7

cannot but be regarded as consequential to the provisions of

section 3. Suppose at the check-post a person from Pakistan,

whether a, citizen or not, tried to cross the border without

a permit. Surely, the officer at the check-post would have

been well within the law to prevent a violation of section 3

of the Act and with that end in view to prevent that person,

who had no permit, from crossing the border and entering

India. I have no doubt that the officer might also have

prevented a person from Pakistan from crossing the border if

he suspected that the permit produced by the person was

forged or otherwise irregular and left him to take up the

matter with the higher authorities from Pakistan. Suppose

the man who sought to enter India without a permit or with a

permit which was suspected to spurious forcibly crossed the

border and took a step or two on our side of the line, the

Indian officer would certainty have been entitled to throw

him back to the other side of the line. Surely, such a

person could not be permitted to take advantage of his own

wrong and could not be heard to say that, in such

circumstances, he had, by his wrong doing, acquired a better

right than the person

952

who had not the temerity to violate the provisions of

section 3. If this is so then, logically, I can see no

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difference if the man ran into the Indian territory for some

distance and the Indian officer ran after him, overtook him

and took him back to the check-post and pushed him out of

our side of the line. It is, futile,, in such a situation,

to expect or to say that the officer should have held a

judicial enquiry and come to a judicial decision after

hearing an argument as to the validity of the permit or as

to the status of the permit holder or the fundamental rights

of a, citizen Of India to move freely in India and to settle

anywhere he liked in India. The truth and substance of the

matter are that in acting in the way indicated above the

officer simply performed an executive act and prevented a

person who held no permit or held a permit which appeared to

the officer to be spurious from entering India from Pakistan

in violation of section 3 of the Act. To throw out such a

person was not. to inflict any punishment on him or to do

him any greater injury than what was imposed on or done to a

person who, not having a permit, was stopped at the check-

post and not allowed to enter India at all. The man thus

thrown out was placed under no greater disability than the

man who had initially been prevented from entering India at

the check-post barrier. In both cases such a person might,

while staying in Pakistan, have taken steps to obtain a

permanent permit upon proof of his status as an Indian

citizen and if such permit was illegally withheld from him

he might have through some agent in India taken proceedings

in Indian courts' for appropriate reliefs. To my mind the

position of the person who,entered India on a temporary

permit but who, in violation of the rules or order made

under the Act stayed on after the period of the permit

expired, was, as from that date, logically the same as that

of the person who entered India without a permit. To

arrest such a person, after the expiry of the period of

the temporary permit, with a view to sending him back back

to where he came from and to actually send him back

there did not involve or

953

constitute a judicial act at all but Was a rough and ready

executive act for enforcing and giving effect to the

provisions of section 3 of the Act. To arrest and send such

a person back to Pakistan was not to inflict a punishment

but was only to restore the status quo and to put him back

to the position he would have been in but for his illegal

act. In my opinion the act, authorized by section 7 was in

essence.a purely executive act for implementing the

provisions of section 3. Without such a provision it would

have been impossible for the State to control the admission

into India of persons from Pakistan and to prevent the

concomitant dangers referred to above. The act authorised

by the section being an executive act, discretion had

perforce to bib left to the executive Government which, by

reason of the information available to it" was in a much

better position than the courts to know and judge the

antecedents of such a person and his ultimate purpose.'

Suppose an Indian, citizen, no matter whether he was a Hindu

or a Muslim, had entered India from Pakistan without a

permit and suppose he was, upon confidential reports which:

could not be safely disclosed, suspected to be engaged in

espionage in the interests of Pakistan, would it have been

safe enough in those hectic days to have only prosecuted him

under section 5 and inflicted on him a fine of rupees one

thousand or a term of imprisonment not exceeding a year and

then to have left him free, after the term of imprisonment

was over, to surreptitiously carry on his nefarious

activities of espionage and sabotage against our State while

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embarking upon a protracted judicial enquiry to ascertain

the truth or* otherwise of his claim to Indian citizenship ?

It cannot ,be overlooked that there are. long common borders

between Pakistan and India both on the west and on the east.

The Kashmir situation had also -aggravated the emergency

brought about by the partition of India. Having regard to

all, the circumstances, the tension, bitterness and hatred

between the two countries that were generated at,the time of

the partition and all which must enter into the judicial

verdict, the provisions of section 7 appear to me to have

been eminently reasonable restrictions imposed in the

interests of the

954

general public upon the exercise by Indian' citizen coming

from Pakistan without a permit of the rights conferred by

article 19(1)(d) and (e) of the Constitution. The Indian

citizen who was thrown out for not having the proper permit

or who was suspected to have violated the provisions of the

Act was placed in no worse position than an Indian citizen

who, not having a permit, had not been permitted to enter

into India at all. They were by no means without remedy.

They could from the other side of the border take steps

under the rules to obtain valid permanent permits upon proof

of their citizenship of India and if such permits were.

illegally withheld from them they could move the appropriate

High Court under article 226 or even this court under

article 32 while they were outside India and might, on proof

of their citizenship, have got appropriate writs or orders

directing the State or its -officers to issue suitable

permits and to desist from otherwise preventing them from

entering India or interfering with their movement while in

India. It is said that if such a person would have been

entitled to a permit on proof of his status as an Indian

citizen then why should he have Been thrown out at all

unless and until he failed to establish his claim to Indian

citizenship ? There occur to my mind several answers to this

question. In the first place, it would have been putting a

premium on wrong doing. In the second place, the person

would have been left free to carry on his secret activities,

if any, while judicial proceedings would have been going on

for ascertaining his status. In the third place, if the

person could not be thrown out before his status had been

judicially determined there would have been no incentive on

his part to take proceedings in court to establish his

status and it would have thrown upon the State the duty of

initiating proceedings and of discharging the onus of

proving the negative fact, of his not being a citizen of

India. In view of all the circumstances prevailing at the

time the law was enacted and remained in force and in view

of the considerations herein before alluded to I have no'

doubt in ray mind --except What

955

arises out of my respect for the opinions of my Lord and

other learned brothers-that the provisions of section 7 were

necessary and reasonable and fell within clause (5) of

article 19. In my judgment the four appeals as well as

Petition No. 57 of 1952 should be dismissed.

Appeals allowed, cases remanded.

Agents for the appellants and petitioners: S. S. Shukla, R.

A. Govind, Sardar Bahadur and P. K. Chatterji.

Agents for the respondents: G. H. Rajadhyaksha and C. P.Lal.