An executive action which operates to the prejudice of a person must have the authority of law to back it up.
[Case Brief] STATE OF MADHYA PRADESH AND ANOTHER V/S THAKUR BHARAT SINGH
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 a) shall not be in any place in Raipur District, b) shall immediately proceed to and reside in a named town and c) 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. 3. 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, impugnedorder, being inextricably woven, were both invalid. In appeal to this Court it was contended, inter alia, on behalf of the appellant State that: I. Clause 3(1)(b) did not impose an unreasonable restriction; II. So long as the state of emergency, declared on October 20, 1962, by the President under Art. 352 was in force, the respondent could not move to the High Court by filing 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; and III. Even if Section 3 (1) (b) was held to be void, Art. 358 protects legislative and executive action taken after the proclamation of emergency ’and therefore any executive action taken by an officer of the State could not be challenged as infringing Art. 19.
- The respondent moved a petition in the High Court of Madhya Pradesh under Arts. 226 & 227 of the Constitution challenging the order on the grounds, inter alia, that Sections 3 & 6 and other provisions of the Act which authorised imposition of restrictions on movements and actions of person were ultra vires and that they infringed the fundamental freedoms guaranteed under Art. 19(1) (d) & (e) of the Constitution of India and that the order was “discriminatory, illegal and violated principles of natural justice.”
- 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:
- The relevant provisions of the Act may be briefly set out. Section 3 of the Act provides:
“If the State Government or a District Magistrate is satisfied with respect to any person that he is acting or is likely to act in a manner prejudicial to the security of the State or to the maintenance of public order, and that, in order to prevent him from so acting it is necessary in the interests of the general public to make an order under this section’ the State Government or the District Magistrate, as the case may be, may make an order-
(a)directing that, except in so far as he may be permitted by the provisions of the order, or by such authority or persons as may be specified therein, he shall not be in any such area or place in Madhya Pradesh as may be specified in the order
(b) requiring him to reside or remain in such place or within such area in Madhya Pradesh as may be specified in the order and if he is not already there to proceed to that place or area within such time as may be specified in the order
(c)requiring him to notify his movements or to report himself or both to notify his movements and report himself in such manner, at such times and to such authority or person, as may be specified in the order ;
(d) imposing upon him such restrictions as may be specified in the order, in respect of his association or communication with such persons as may be mentioned in the order ;
2) 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.
3) Counsel for the State contended that normally in exercise of the power under clause (b) a person would be ordered to remain in the town or village where he resides and there is nothing unreasonable in the order of the State restricting the movements of a person to the town or place where he is ordinarily residing. In exercise of the power it also open to the State to direct a person to leave the place of his ordinary residence and to go to another place selected by the authorities and to reside and remain in that place.
4) Since the clause is not severable, it must be struck down in its entirety as unreasonable. If it is intended to restrict the movements of a person and to maintain supervision over him, orders may appropriately be made under clauses (c) and (d) of Section 3(1) of the Act.
5) 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.
6) 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 contravention void.
7) 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.
8) 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.
9) 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 Rai Sahib 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.
10) 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.
LAW LAID DOWN AND DECISION HELD BY COURT:
It was hereby directed and ordered as follows:
1) 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.
2) The High Court was right in holding that s. 3(1)(b) authorised the imposition of unreasonable restrictions in so far as it required any person to reside or -remain in such place or within such area as may be specified in the order. The Act does not give any opportunity to the person concerned of being heard before the place where he is to remain or reside is selected. The place selected may be one in which he may have no residential accommodation, and no means of subsistence. Section 3(1) (b) does not indicate the extent of the place or the area, its distance from the residence of the person extermed and whether it may be habituated or inhabitated; and it makes no provision for his residence, maintenance or means of livelihood in the place selected.
3) The Act was brought into force before the declaration of emergency and it was therefore open to the respondent to invoke Art. 19. If the power conferred by Section 3(1) (b) authorised the imposition of unreasonable restrictions, the clause must be deemed to -be void when enacted ’and it was not revived when the proclamation of emergency was made by the President.
4) 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 does not purport to invest the- State with arbitrary authority to take action to the prejudice of citizens and others: it merely provides that so long as the proclamation of emergency subsists laws may be enacted, and executive action may be taken in pursuance of lawful -authority, which if the provisions of Art. 19 were operative would have been invalid.
5) There was no force in the contention that by virtue of the provisions of Art. 162, the State or its officers may, in exercise of executive authority, without any legislation in support thereof infringe the rights of citizens merely because the Legislature of the State has the power to legislate in regard to the subject on which the executive order is issued. The appeal failed and the case was dismissed.