WHY TO RESTRICT MY

RIGHT TO MOVE?

SUBMITTED TO: DR.RATTAN SINGH

SUBMITTED BY: GEETANJALI B HATIA
18/15
B.A LLB (Hons)

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 ACKNOWLEDGEMENT
I have put my sincere efforts in this project. However, it would not have been possible
without the kind support and help of many individuals and organizations. I would like to
extend my sincere thanks to all of them.
I am highly indebted to Dr. Rattan Singh for their guidance and constant supervision as well
as for providing necessary information regarding the project & also for their support in
completing.
I would like to express my gratitude towards my parents, seniors and my classmates for
their kind co-operation and encouragement which help me in completion of this project.

My thanks and appreciations also go to my friends in developing the project and people who
have willingly helped me out with their abilities.

Geetanjali Bhatia

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 TABLE OF CONTENTS
 Freedom of Movement
1. Throughout the territory of India
2. Movement
 Restrictions upon the Freedom of movement
1. Reasonableness of Restrictions
2. Grounds of restriction

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 TABLE OF CASES
S.N CASES PAGE NO.
O
1. A.K. Gopalan v. State of Madras 5, 9, 11

2. Ajay Kanu v. Union of India 13

3. Begum v. State 6

4. District registrar and Collector v. Canara 14

Bank
5. Ebrahim Vazir Mavat v. State of Bombay 9,10

6. Govind v. State of M.P 11

7. Gurbachan v. State of Bomabay 10

8. Hari v. D. C. of Police 9

9. Hasanalli v. State of Bombay 9

10. In Re Chockalingam 6

11. Khagendra v. D.M. 7

12. Kharak Singh v. State of M.P 5

13. Khare Singh v. State of Delhi 5

14. Kishori Lal v. State 10

15. Lt. Governor NCT v. Ved Prakash 8

16. Lucy R. D’Souza(Smt.) v. State of Goa 11

17. Malak v. State of Punjab 14

18. Prem Chand (Paniwala) v. Union of India 9, 10

19. R.M. Malkani v. State of Maharashtra 13

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 20. Radha v. State of U.P 14

21. Re Chockalingam 16

22. Satwant v. Asst. Passport Officer 13

23. State of Bihar v. Misra 7

24. State of U.P v. Kaushiliya 11

25. State of M.P v. Bharat Singh 6

26. State of M.P v. Baldeo 7, 8

27. Supreintendent v. Ram Manohar 6

28. Tozammal v. State of W.B 16

FREEDOM OF MOVEMENT
The freedom of movement is the very essence of our free society, like the right of assembly
and the right of association, it often makes all other rights meaningful knowing, studying,
arguing, exploring, conversing, observing and even thinking. Once the right to travel is
curtailed all other rights suffer, just as when curfew or home detention is placed on a person.

This right is for the object of removal of all internal barriers in the country and to make India
as a whole the abode of all the citizens of India. All the citizens would have the same
privileges and the same facilities for moving into any part of the territory; and no restrictions
either inter-state or otherwise would be allowed to be set up in these respects between one
part of India and another.

The freedom of movement of a citizen has three aspects-

a) The right to move from any part of his country to any other part;
b) The right to move out of his country;
c) The right to return to his country from abroad.

‘Throughout the territory of India’

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 1. This expression implies that the right guaranteed by this clause is the freedom of both
inter-state freedom. Hence, subject to Cl.(5), a citizen cannot be removed from one
state to another1 or from one part to another of the same State.
2. The right is also secured by the word ‘intercourse’ in Art, 301, post, -subject
legislation under Arts. 302 and 304(b).
A.K. Gopalan v. State of Madras 2 it was held thus- The word “throughout the territory
of India” that the constitution could not guarantee freedom of movement outside the
territorial limits of India and so has used those words to show that a citizen was
entitled to move from one corner of the country to another freely and without any
obstruction. “Throughout” is an amplifying and not limiting expression.
The purpose of Art.19(1)(d) is to guarantee that there shall be no state barrier. It
gives protection against provincialism.
‘Movement’
1. It has held that ‘movement’ in this clause refers to the right to physical movement
and would not apply to mental restraint.3
2. This right is infringed not only by expelling or removing a person from one part of
India, but also by requiring him not to move out of a particular area.4

The freedom guaranteed by Art. 19(1)(d) has reference to something tangible and physical
rather and not to the imponderable effect on the mind of a person which might guide his
action in the matter of movement or locomotion.

CL. (5): RESTRICTIONS UPON THE FREEDOM OF

MOVEMENT
What constitutes restriction upon the freedom of movement?
 Reasonableness of Restrictions

1. Substantive reasonableness: A restriction will be unreasonable if it is in excess of the

requirement having regard to the object which justifies the legislation.
a) A law providing for the externement of dangerous characters from alocality would
be, unreasonable if it does not precisely define a ‘goonda’ so as to give the
administrative authority sufficient guidance as to the persons whom the law could
be apoplied. If any citizen could be brought under it at the discretion of the

1
Khare v. State of Delhi (1950) SCR 519(531): AIR 1950 SC 211.
2
AIR 1950 SC 27: (1950) SCR 88.
3
Kharak Singh v. State of M.P., AIR 1963 SC 1295
4
State of M.P v. Bharat Singh., AIR 1967 SC 1170(1172)(CB)
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 authority, the law would be unreasonable because of its being in excess of the
requirement.5
b) A law which empowers an administrative authority to require a person “to reside or
remain in such place or within such area within Madhya Pradesh as may be
specified in the order and….. to proceed there” is unreasonable because – 1) it does
not indicate the extent of the place, or the area, its distance fom the residence of the
person externed and whether it may be habituated or inhabitated; 2) the place
selected may be one in which the person concerned may not have any residential
accommodation and no means of subsistence; the law nowhere provides that the
person directed to be removed shall be provided with any residence, maimntenance
or means of livelihood in the place selected.6

A law provides for externment for an indefinite for an indefinite period would, prima facie,
be an unreasonable restriction, but not so, if the Act itself is temporary. Similarly, a provision
for externment for an indefinite period has been held 7 not to be unreasonable where the law
enabled the externee to apply for a review of the order and for permission to return, at any
time and as often as the externee liked.

2. Procedural Reasonableness: A restriction upon the freedom of movement would be

procedurally unreasonable if it offends against the principles of natural justice, e.g., if
the person against whom an order of externment is made has no right to be heard in
this defence,: or to be told the charges or grounds upon which the order is being made
against him, or to show that he is not a person coming within the mischief of the law.

The incidents of this general propositions are-

1. Right to be informed of the grounds. 1. A law which impose a restriction upon the
freedom of movement shall be void if there is no provision for communicating the
grounds to the person against whom the order is to be made.8
The law authorising preventive detention must provide that the order of detention shall
be accompanied by written grounds justifying the order, so that the detenu might
exercise his right to make a representation to the detaining authority against the order.
2. The grounds communicated should not be ‘vague, insufficient or incomplete.’9A man
served with an order of externment should be told enough so that he could make some,

5
In Re Chockalingam, Air 1960 Mad 548(546)
6
Superintendent v. Ram Manohar, AIR 1960 SC 633
7
Begum v. State, AIR 1963 Bom17(20)
8
7. Khagendra v. D.M.,(1950)55 C.W.N. 53(56)
9
Khare v. State of Delhi,(1950)SCR 519(528)
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 “representation” and that, accordingly, merely to state that he was committing a
subversive act without mentioning, the particulars thereof was not sufficient.

3. The right to be heard:

1. A law of externment of internment would be void if it does not offer a right of
representation or an opportunity to be heard to the person against whom the order is
made.10
2. He must have an opportunity not only of controverting the grounds communicated to
him or the allegations made against him, but also of showing that he is not a person
coming within the mischief of the law sought to be applied against him.11
3. The hearing need not, however be of the judicial type. But the eternee is entitled “only”
to know the material allegations against him and the general nature of those allegations.
In Lt. Governor NCT v. Ved Prakash12 held that 1. In a proceeding under the act
(Bombay police act, Delhi police act) all statutory and constitutional requirements
must be fulfilled. 2. An externment proceeding having regard to the purport and object
thereof, cannot be equated with a preventive detention matter.3. Before an order of
externment is passed, the proceedee is entitled to an opportunity of hearing. (4) The
list of procedural safeguards contained in the act must be scrupulously compiled with.
(5) The satisfaction of the authority must be based on objective criteria.(6) A
proceeding under section 47 of Delhi police act stands on a different footing than the
ordinary proceeding in the sense that whereas in the latter the details of evidence are
required to be disclosed, thus, giving an opportunity to the proceedee to deal with
them, in the former, general allegations would serve the purpose.

4. Whether it is reasonable to vest power in the Executive to be exercised on its

subjective satisfaction
1. In a law of an extraordinary nature, viz., the removal of persons who have become a
menace to the safety of the public residing in a locality and against whom witnesses
may not be willing to depose publicly, the very objects of the law would be defeated
if the suspect were allowed to cross-examine the witnesses deposing against him.
Having regard to the extraordinary nature of such legislation therefore, it cannot be
struck down as imposing an ‘unreasonable’ restriction upon the freedom of, movement
guaranteed by Art. 19(1)(d), merely because it denies to the suspect the right to cross-
examine the witnesses examined against him, or because it enables the Executive
officer to extern a person whenever he is subjectively satisfied that witnesses are not
willing to come forward to give evidence against the suspect; or that a previously

10
State of Bihar v. Misra, AIR1971 SC 1667
11
Stae of M.P v. Baldeo, AIR 1961 SC 293(296)
12
(2006) 5 SCC 228.
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 convicted person is likely to engage himself again in the commission of an offence
similar to that for which he had previously been convicted.
While exercising the discretion, i.e., the subjective satisfaction, there must be a clear
and present danger based upon credible material which makes the movement and acts
of the person in question alarming or dangerous or fraught with violence. Likewise,
there must be sufficient reason to believe that the person proceeded against is so
desperate and dangerous that his presence in the town or locality or any part thereof is
hazardous to the community and its safety. In such cases, natural justice must be fairly
complied with and vague allegations and secret hearings are gross violations of Arts.
14, 19 and 21 of the Constitution.13
2. In Khare’s case it had been laid down that a law of externment is not
unconstitutional merely because it leaves the necessity of making the order of
externment to the subjective satisfaction of a particular officer. In the impugned Act
in that case this authority was conferred upon some specified officers of superior
rank.
In a case , the court has observed that where there is a likelihood of the law being put
in motion by an officer of inferior rank, the law will be held to constitute an
unreasonable restriction if it does not lay down the conditions precedent to the
subjective satisfaction specifically and clearly so as to safeguard against a casual or
capricious exercise of the power against innocent citizens.14
3. Some procedural safeguards have been laid down as necessary in order to reconcile
the freedom of the individual and the collective interests. It cannot, of course, be laid
down as a universal rule that unless there is a provision for an Advisory board to
scrutinise the materials on which action is taken, the legislation providing for
externment must necsseraily be condemned as unreasonable.15

Though judicial review is not an essential condition for reasonableness in every case, a
provision barring judicial review on a purely legal ground e. g., that the impugned order is
ultra vires the very statute under which it has been made, has been held to be an unreasonable
restriction.16

 Grounds of Restriction

The freedom of movement or of residence is subject to the restrictions which the State may
reasonably impose on either of two grounds

13
Prem Chand (Paniwala) v. Union of India, AIR 1981 SC 613
14
State of M.P v. Baldeo, AIR 1961 SC 293(296)
15
Hari v. D. C. of Police, (1956) SCR 506
16
Hasanalli v. State of Bombay, AIR 1951 Bom 432
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 1. Interests of the general public
2. Interests of any Scheduled tribe, and not of any other ground
 Interests of the general public:
In Cl.(5) of Art. 19, ‘public interest’ means whenever a matter is such as to affect
people at large, so that they may be legitimately interested in, or concerned at, what is
going on, or what may happen to them or others, then it is a matter of public interest
on which everyone is entitled to make their comments’.
Instead of particularising the grounds of restriction, the omnibus expression ‘in the
interests of the general public’ has been used. This expression embraces not only
public security, public order morality but also authorises the State to impose
restrictions on grounds of social and economic policy or on the ground of the common
good, e. g., securing the objects mentioned in the Directive Principles of the State
policy.
In Prem Chand v. Union of India17, it was held that the movement of a person cannot
be restrained by mere police apprehension and there must be clear and present danger
based upon credible material which makes the movements and acts of the person in
question alarming or dangerous or fraught with violence and the authorities must also
be satisfied that the very presence of the person is dangerous to the locality or
hazardous to the community. Principles of natural justice must also be complied with.

Section 7 of the influx from Pakistan (Control) Act, 1949 was declared
unconstitutional and violative of Art. 19(1)(d) and (e) since it enabled deportation on
the ground that a person had returned to India without permit. It was held that such an
extreme penalty could not be imposed for breach of regulation.18

1. Public Health :- For the prevention of the spread of contagious diseases like
plague19 regulations for removal and segregation may be made. And for similar
reasons, the movement of infected persons by public conveyances, such as
railways, may be restricted.
Restrictions on movement and isolations of AIDS patient :- A person suffering
from infectious disease, e.g., AIDS, may be prevented from moving out and
spreading the disease and regulations for his isolation and segregation may be
introduced.20
2. Public security and safety :- In the interests of the safety of the State,
restrictions may be imposed upon access to ‘protected places’ such as forts,
arsenals and other strategic areas21, or actual or potential war zones.

17
AIR 1981 SC 613
18
Ebrahim Vazir Mavat v. State of Bombay, AIR 1954 SC 229
19
Gopalan v. state of Madras, (1950) SCR 88 (259, 309)
20
Lucy R. D’Souza(Smt.) v. State of Goa, AIR 1990 Bom 355 (358)
21
Gopalan v. state of Madras, (1950) SCR 88 (259, 309)
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 On the same ground, the protection of the armed forces residing in a
Cantonment from the evil influences of disorderly persons may require zonal
restrictions upon the freedom of movement of ordinary persons.22

3. Public Order :- Where the presence of persons of a dangerous character is

likely to jeopardise the peace and safety of the citizens residing in a particular
area, such persons may be removed from that area. 23 Similarly, restrictions may
be imposed upon the movement of habitual offenders, or persons endangering
harmony between different classes or sections of the community and generally,
for preventing any criminal act.
Precautionary measures to meet threats to public safety and tranquillity are
covered by the expression ‘in the interest of’. Thus, in order to protect public
property and avoid interference with the lawful pursuits of citizens, Government
may intercept the movement of a turbulent Party from entering into a particular
area, provided the restraints are minimal, in their nature and duration, and not
excessive and discriminatory.

4. Public Morals:- In State of U.P v. Kaushiliya24 held that such order for
removal of prostitutes can also be passed in the interest of general public and
also on grounds of public morals.

 Protections of the interest of the schedule tribe:

The Schedule Tribes are a backward and unsophisticated class of people who are liable
to be imposed upon by shrewd and designing persons. In their own interests and for
their benefit, laws may be made restricting the ordinary right of citizens to go to or
settle in particular areas or acquire property in them.
“Tribal areas have their own problems. Tribals are historically weaker sections of the
society. They need the protection of the laws as they are gullible and fall prey to the
tactics of unscrupulous people, and are susceptible to exploitation on account of their
innocence, poverty and backwardness extending over centuries. The constitution of
India and laws made thereunder treat tribals and tribal areas separately wherever
needed.
The Orissa Merged states (lands) act , 1950 and Orissa Scheduled Areas Transfer of
Immovable Property Regulation of 1950 is to see that a member of an aboriginal tribe
indefeatably continues to own the property which he acquires and every process
known to law by which title in immovable property is extinguished in one person in
relation to tribals and that the immovable property of one tribal may come to vest in
22
Kishori Lal v. State, AIR 1957 Punj. 244
23
Gurbachan v. State of Bomabay, (1952) SCR 737
24
1964(4) SCR 1002
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 another tribal, but the title in immovable property vesting in any tribal must not come
to vest in a non- tribal. This is to see and ensure that non tibals do not succeed in
making inroads amongst tribals by acquiring property and developing roots in habitat
of tribals.

 Wearing Helmets: A rule was made under the Motor Vehicles Act requiring
compulsory wearing of helmet by a person driving a scooter or a motor cycle. The rule
was challenged as infringing the free movement of the driver of a two wheeler
guaranteed under Art. 19(1)(d), but the Court refused to accept the argument. The
court maintained that the rule has been framed for the benefit and welfare of, and safe
journey by, person driving a two wheeler vehicle. The rule is made to prevent
accidents not to curtail freedom of movement. Even if it be assumed that the rule does
put some restrictions on the freedom of movement, it is justifiable under Art. 19(5) as
a reasonable restriction in the interest of the general public.25

 Prostitutes: right to live with dignity :- It is the settled law that a woman of easy
virtue is entitled to constitutional protection under Art. 21. The prostitutes are entitled
to live a life with dignity and the people in general and the police in particular must
show sympathetic approach towards them and must not harass them. In Radha v.
State of U.P26, the court directed the police authority not to evict the prostitutes from
their residence and not to harass them. The court further directed the government to
frame appropriate scheme of providing them some technical training so that they can
earn a decent living.

 Preventive detention – validity :- In A.K Gopalan v. State of Madras27, the

petitioner was detained under the Preventive detention Act, 1950 and he moved the
court for his release on the ground that his right to move freely throughout the territory
of India was infringed by the order of detention. The court answered the issue in the
negative and held that the purpose of Art. 19(1)(d) is to protect not the general right of
free movement which originate from the freedom of a person but only specific and
limited aspect of it to guarantee the right of free citizens to move freely throughout the
territory of India viz from one State to another and within the state. The court had
drawn the distinction between the general right of locomotion which is available to a
25
Ajay Kanu v. Union of India, AIR 1988 SC 2027
26
AIR 2004 NOC 19(All)
27
1950 SCR 88
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 free man and the special right which Art. 19 (1)(d) seeks to protect. The court
concluded that the order of detention passed under the prevention detention Act 1950
does not offend art. 19(1)(d) of the Constitution.

 Police surveillance :- Since the pre-independence days, there have been in operation
in some of the States, some police regulations providing for police surveillance of
activities of persons suspected of criminal habits or tendencies. This includes secret
picketing of the house, domiciliary visits at nights, and shadowing the movements of
the suspect. The purpose of police surveillance is prevention of commission of crimes
by such persons.
Since this sub-clause guarantees only the right of physical movement, a watch by the
police over the movements of a suspect, would not be a violation of the right
guaranteed by Art. 19(1)(d); but domiciliary visits at causing night, disturbance to his
sleep, may constitute an infringement of his personal liberty under Art. 21. 28 It would
not however be an unreasonable in the case restriction of habitual criminal.29
It was held in that case that domiciliary visits and picketing by the police should be
reduced to the clearest cases of danger to community security and not routine follow
up at the end of a conviction or release from prison or at the whim of a police officer.
If any action is taken beyond the above boundaries, the citizen will be entitled to attack
such action as unconstitutional and void. It was observed that depending on the
character and the antecedents of the person subjected to surveillance as also the objects
and the limitation under which surveillance is made, it cannot be said surveillance by
domiciliary visits would be “always” be unreasonable restriction upon the right to
privacy. Right to privacy, though a fundamental right is subject to reasonable
restriction under Art. 19(1)(d). It was declared therein that the right to privacy can be
denied only when an “important counter veiling interest is shown to be superior” or
“compelling state interest was shown”. In District registrar and Collector v. Canara
Bank,30it was held that the right is not absolute and that any State intrusion can be a
reasonable restriction “only if it has a reasonable basis or reasonable material” to
support it.
 Surveillance is needed for the legitimate purpose of prevention of crime and its
process must necessarily be confidential. Hence, it is not permissible to give a hearing
to a person before his name is entered in the surveillance register or to supply him the
grounds therefore.31But the court may interfere –
A) Where it is sought to be used for a purpose other than the detection of crime.28
B) Where the surveillance is so excessive as to squeeze out the fundamental freedom
of all citizens or to defend the dignity of the individual.28

28
Kharak Singh v. State of M.P., (1964) 1 SCR 352 (359-360)
29
Govind v. State of M.P., AIR 1975 SC 1378
30
AIR 2005 SC 186
31
Malak v. State of Punjab, AIR 1981 SC 760
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 Hence, when an entry in the register is challenged as malafide, it would be the duty of
the police to satisfy the court that there are reasonable grounds for the relief that the
person in question is habitual offender or the like.

From Malak’s case, it is now settled that the court will interfere 1) “where the
intrusion is so “excessive” as to seriously encroach upon the freedom of movement of
dignity of the individual concerned, in the guise of surveillance. 2) When a person
challenges the entry of his name in the ‘Surveillance Register’, the court may call upon
the Police to satisfy itself that there are grounds to entertain a reasonable belief that a
person was a habitual offender or receiver of stolen property. 3) The court might also
interfere if the police tap the conversation of innocent citizens, by coercion or unlawful
methods32.

 Restriction on right to travel abroad :- In Satwant’s case33, held that the right to
travel abroad was included in the ‘guarantee of personal liberty’ in Art. 21, and that
unless there is any valid legislation barring such right, a passport could not be refused
for leaving the country, on any ground.
The decision in Satwant’s case led to the enactment of the Passport act, 1967, which
has laid down the grounds on which a passport may be refused for visiting any foreign
country, e.g.,-
(a)that the applicant is not a citizen of India;
(b) that the applicant may, or is likely to, engage outside India in activities prejudicial
to the sovereignty and integrity of India;
(c) that the departure of the applicant from India may, or is likely to, be detrimental to
the security of India;
(d) that the presence of the applicant outside India may, or is likely to, prejudice the
friendly relations of India with any foreign country;
(e) that the applicant has, at any time during the period of five years immediately
preceding the date of his application, been convicted by a court in India for any
offence involving moral turpitude and sentenced in respect thereof to imprisonment for
not less than two years;
(f) that proceedings in respect of an offence alleged to have been committed by the
applicant are pending before a criminal court in India;
(g) that a warrant or summons for the appearance, or a warrant for the arrest, of the
applicant has been issued by a court under any law for the time being in force or that
an order prohibiting the departure from India of the applicant has been made by any
such court;

32
R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157
33
Satwant v. Asst. Passport Officer, AIR 1967 SC 1836
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 (h) that the applicant has been repatriated and has not reimbursed the expenditure
incurred in connection with such repatriation;
(i) that in the opinion of the Central Government the issue of a passport or travel
document to the applicant will not be in the public interest.

In Maneka Gandhi v. Union of India,34 it was declared that the right to go abroad cannot be
regarded or treated as part of the right to carry on trade or business, profession, calling
guaranteed under Art. 19(1)(g) nor it is included in the freedom of speech and expression
under Art. 19(1)(a) … The right to go abroad is not a right guaranteed under any of the
clauses under 19(1) and the right of passport authority to impound the passport under Section
10(3)(c) of Passport Act is not violative of Arts. 19 (1)(a) or (g) as its direct and inevitable
impact is on the right to go abroad and not on the right of free speech and expression or the
right to carry on any trade, business, profession or calling. The right to impound the passport
can only be “in the interests of the general public” which expression is not vague nor its give
the authority unguided or indiscriminate power for impounding. But, before impounding the
passport, the affected person should be given an opportunity to explain his case.

 Order of Externment – Articles 19(1)(d) and 19(1)(e) have been invoked frequently
to challenge the validity of an externment order served by the executive on a citizen
requiring him to leave a State or a district. Such an order prima facie curtails the
freedoms guaranteed by these Articles, and, therefore the courts are entitled to test
whether the order, and the law under which it has been made, are reasonable within
Art. 19(5).

The order of externment passed by the Magistrate under the East Punjab Public Safety
Act, 1949 was challenged by the petitioner in N.B Khare v. Staet of Delhi35 on the
ground that the order of externement for three months infringed the right of the
petitioner under Art. 19(1)(d) of the constitution, and further that there was no
provision under the Act for furnishing the ground of externment to the person affected.
The court upheld the validity of the act and held that the detention invalid and
unreasonable. The act provided that in case of further detention beyond the period of
three months, the petitioner has the right to make representation before the tribunal.
The court further held that because the satisfaction of the provincial government or the
district magistrate was final does not make the act invalid. The petitioner has the right
to make representation which implies that the ground of externment would be
furnished to the petitioner by the authority passing the order.
The law imposing restriction on the freedom of movement must provide that the order
passed by the authority must be accompanied on the ground for such order of
34
AIR 1978 SC 597
35
1950 SCR 519
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 externment must be communicated to the person affected and the person against whom
exterment order is passed must be given the oppourtunity of being heard. Wgere the
act does not provide for communicating the grounds for which an externment is passed
and the affected person is not provided with the opportunity of making representation
and the right to be heard, such externment order would be violative of Art. 19(1)(d) for
imposing unreasonable restriction on the freedom of movement. 36 When the authority
to pass the an order of externment is vested in a very high and responsible officer, the
procedure cannot be held to be unreasonable.
The Supreme court in Abdul Rahim v. State of Bombay37 held S. 7 of the Influx from
Pakistan (Control) ACT, 1949 invalid as it imposes unreasonable restriction in
authorising the Central Government to direct any person being removed out of India
under certain circumstances.

The externment orders are challenged on the ground that the Act does not provide
adequate procedural safeguard while imposing unreasonable restriction in the freedom
of movement of aq citizen. The act authorising externment of a person must provide
adequate substantive and procedural safeguard without which the provision cannot be
termed as reasonable to get protection under Art. 19(5) of the Constitution.
The ground on which such orders are passed should not be vague, indefinite and
incomplete and they should have a direct bearing on the purposes for which an
externment order can be passed and the externee should be communicated the grounds
and also should be provided with the opportunity to make a representation or of being
heard against the order of externment. The Supreme Court in Prem Chand v. Union
of India,38 held the externment order invalid. The externment order in this case was
passed under the Delhi Police Act, 1978 and the court held that the externment order
passed without complying with the principle of natural justice and on vague
allegations is violative of Arts. 14,19 and 21 of the Constitution. The court reasoned
that there must be a clear and present based upon credible material which makes the
movements and acts of the person (externee) alarming or dangerous or fraught with
violence. There must be sufficient reason to believe that the person proceeded against
is so desperate and dangerous that this mere presence in the locality is hazardous to the
community. The externee must be given the opportunity to represent and he must be
heard . The Supreme Court in Madhya Pradesh v. Bharat Singh,39 went a step
further and held that when a person is given to reside in a place but the authority
concerned while selecting the place for him makes no provision for his residence or
means of livelihood, the order cannot be supported as reasonable. In this case the
District Magistrate was authorised under the Act to require a person to live or not to

36
Tozammal v. State of W.B., AIR 1951Cal 322.
37
1960 (1) SCR 285
38
1981 (1) SCC 639
39
AIR 1967 SC 1170
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 live, at a particular place, or to notify his movements, in the interest of the security of
the State or public order. The Act provided adequate procedural safeguard but the Act
does not provide an opportunity for hearing before selecting a place for the externee.
The court held the provision invalid as it imposes unreasonable restriction.
Where the person aggrieved was not given the opportunity to show cause or to explain
the circumstances appearing against him while passing the order of removal, it was
held in Ebrahim Vazir v. state of Bombay,40 that the restriction imposed cannot be
considered be reasonable to take away the fundamental right of a citizen under Art.
19(1)(d) and 19(1)(e) of the Constitution. The court further reasoned that breach of
permit regulation cannot be adequate ground to deprive a citizen of his fundamental
right.

40
1954 SCR 933
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 BIBLIOGRAPHY
 Jain, M.P, ‘Indian Constitutional Law, sixth edition, Lexisnexis Buttersworths
Wadhwa Nagpur, Haryana, India.
 DE, D.J., ‘The Constitution of India’ volume 1, 3rd Edition, Asian Law house,
Hyderabad.
 Basu, Durga Das , ‘Commentary on the Constitution of India’,volume 2,8th Edition
2007, Wadhwa, Nagpur.
 Kumar, Narendar, ‘ Constitutional Law of India’, Allahabad Law Agency, Faridabad
Haryana.

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