An executive action which operates to the prejudice of a person must have the authority of law to back it up
|Case name:||State Of Madhya Pradesh & Anr. V/S Thakur Bharat Singh (AIR 1967 SC 1170)|
|Case number:||Civil Appeal No. 1066 of 1965.|
|Court:||Supreme Court of India|
|Bench:||Chief Justice K. Subba Rao, Justice J.C Shah, Justice J.M Shelat, Justice V. Bhargava, Justice G.K Mitter|
|Decided on:||JANUARY 23, 1967|
|Relevant Act/Sections:||Section 3, Madhya Pradesh Public Security Act, 1959; Article 19, 226, 227, 352 and 358 of Constitution of India|
- BRIEF FACTSAND PROCEDURAL HISTORY:
- On April 24, 1963, the State Government made an order under Section 3 of the Madhya Pradesh Public Security Act, 1959,directing that the respondent
- shall not be in any place in Raipur District,
- shall immediately proceed to and reside in a named town and
- shall report daily to a police station in that town.
- The respondent challenged the order by a writ petition under Articles 226 and 227 of the Constitution on the ground inter alia, that Section 3 infringed the fundamental rights guaranteed under Art. 19(1), (d) and (e) of the Constitution.
- A Single Judge of the High Court declared clauses (ii) and (iii) of the Order invalid on the view that clauses (b) and (c) of Section 3(1) on which they were based contravened Art. 19. A Division Bench, in appeal, confirmed the order of the Single Judge holding that Section 3(1) (b) was violative of Art.19 (1) (d) and that clauses (ii) and (iii) of the, impugned order, being inextricably woven, were both invalid.
- Against the order of the High Court, the State of Madhya Pradesh has appealed to this Court.
ISSUE BEFORE THE COURT:
- Whether the order made by the state in exercise of the authority conferred by Section 3(1) (b) was invalid;
- Whether the power conferred by Section 3 (1) (b) authorized the imposition of unreasonable restrictions;
- Whether Article 358 expressly authorizes the state to take legislative or executive action?
- RATIO OF THE COURT
- Constitution Bench of Hon’ble Supreme Court propounded that imposition of restrictions requiring person to reside in such place without providing residence. Maintenance or means of livelihood would be unreasonable.
- Counsel for the State urged that in any event so long as the State of emergency declared on October 20, 1962, by the President under Art. 352 was not withdrawn or revoked, the respondent could not move the High Court by a petition under Art. 226 of the Constitution on the plea that by the impugned order his fundamental right guaranteed under Art. 19(1)(d) of the Constitution was infringed.
- But the Act was brought into force before the declaration of the emergency by the President. If the power conferred by Section 3(1) (b) authorised the imposition of unreasonable restrictions, the clause must be deemed to be void, for Art. 13(2) of the Constitution prohibits the State from making any law which takes away or abridges the rights conferred by Part 111, and laws made in contravention of Art. 13(2) are to the extent of the contra- vention void.
- Section 3(1)(b) was therefore void when enacted and was not revived when the proclamation of emergency was made by the President. Article 358 which suspends the provisions of Art. 19 during an emergency declared by the President under Art. 352 is in terms prospective: after the proclamation of emergency nothing in Art. 19 restricts the power of the State to make laws or to take any executive action which the, State but for the provisions contained in Part III was competent to make or take. Article 358 however does not operate to validate a legislative provision which was invalid because of the constitutional inhibition before the proclamation of emergency.
- Counsel for the State while conceding that if Section 3(1)(b) was, because it Infringed the fundamental freedom of citizens, void before the proclamation of emergency, and that it was not revived by the proclamation, submitted that Art. 358 protects action both legislative and executive taken after proclamation of emergency and therefore any executive action taken by an officer of the State or by the State will not be liable to be challenged on the ground that it Infringes the fundamental freedoms under Art. 19. In the judgment, this argument involves a grave fallacy.
- The court observed that All executive action which operates to the prejudice of any person must have the authority of law to support it and the terms of Art. 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take, but for the provisions contained in Part III of the Constitution.
- Counsel for the State relied upon the terms of Art. 162 of the Constitution, and strongly relied upon the observations of Mukherjee, C. J., in RaiSahib Ram JawayaKapur 1955] 2 S.C.R. 225.in support of the contention that it is open to the State to issue executive orders even if there is no legislation in support thereof provided the State could legislate on the subject in respect of which action is taken.
- The Court was therefore of the view that the order made by the State in exercise of the authority conferred by Section 3(1)(b) of the Madhya Pradesh Public Security Act 25 of 1959 was invalid and for the acts done to the prejudice of the respondent after the declaration of emergency under Art. 352 no immunity from the process of the Court could be claimed under- Art. 358 of the Constitution, since the Order was not supported by any valid legislation.
- DECISION HELD BY COURT:
- The Order made by the; State in exercise of the authority conferred by Section 3 (1) (b) was invalid; and for the acts done to the prejudice of the respondent after the declaration of emergency under Art. 352, no immunity from the process of the Court could be claimed under Art. 358 of the Constitution, since the order was not supported by any valid legislation.
- The appeal therefore fails and is dismissed.