JUDGMENT
Das, J.
1. These two applications have been heard together, and this judgment will govern them both. On the 29th of September 1951, the State Government of Bihar passed two externment orders, one against Sri Sadhan Gupta, petitioner in Criminal Miscellaneous No. 465 of 1951, and the other against Bodi Alam, petitioner in Criminal Miscellaneous No. 464 of 1951. The externment orders stated, ‘inter alia’ that in exercise of the powers conferred by Clause (a) of Sub-section (1) of Section 2 of the Bihar Maintenance of Public Order Act, 1949 (Bihar Act III of 1950), the Governor of Bihar was pleased to direct that the petitioners shall not, with effect from the date of service on them of the order, be in any place in the Dhanbad subdivision of the district of Manbhum in the State of Bihar. The grounds of the externment orders were drawn up on the same date, namely, the 29th of September 1951, and were communicated to the petitioners on the 2nd October 1951.
It is, I think, unnecessary to state the grounds in detail. The grounds may be summarised thus: (1) it was stated that on different dates from April 1951 to August 1951, the two petitioners incited colliery labourers at different coal mines to acts of violence against the
management etc.; the collieries mentioned were Murlidih Colliery, Khas Dharmubad Colliery etc; (2) it was alleged that as a result of the incitement to violence several occurrences took place, and criminal cases were instituted; (3)-it was further stated that the petitioners excited the labourers against a rival trade union, namely, I. N. T. U. C. Union; and (4) it was finally alleged that the petitioners disobeyed the orders passed under the preventing sections of the Code of Criminal Procedure, which again resulted in certain criminal cases against them.
2. Both the petitioners, it appears, made representations to the State Government against the orders of externment. They say that they da not know what happened to those representations.
3. On the 22nd November 1951, the petitioners filed applications to this Court under Article 226 of the Constitution of India. On the 28th of November 1951, we issued a Rule, and the Rules have been heard today.
4. Mr. Basanta Chandra Ghose, appearing for the petitioners, has contended that the externment orders are bad, because they constitute a violation of certain fundamental rights of the petitioners, viz., the right to move freely throughout the territory of India, and to reside and settle in any part of the territory of India; vide Clauses (d) and (e) of Article 19(1) of the Constitution of India. Mr. Ghose has also contended that the orders of externment passed against the petitioners are mala fide, because they were meant to prevent one of the petitioners, Sri Sadhan Gupta from standing and working as a candidate in the ensuing election and to stifle his defence in the pending criminal cases.
5. The first contention of Mr. Ghose is that the provisions of the Bihar Maintenance of Public Order Act, 1949 (Bihar Act III of 1950) so far as they relate to an order of an extern-ment, constitute an infringement of the fundamental rights guaranteed to a citizen of India under Article 19 of the Constitution of India, and are accordingly void under Article 13 of the said Constitution. Mr. Ghose contends that Clause (5) of Article 19 of the Constitution of India does not save those provisions. It is necessary to quote Clause (5) in full :
“(5) Nothing in Sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law-imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.”
The question for decision is whether the provisions of the Bihar Maintenance of Public Order Act 1949, so far as they permit the pass-ing of an order of externment, impose reasonable restrictions in the interests of the general public on the exercise of the rights conferred by Clauses (d) and (e) of Article 19(1) of the Constitution. Mr. Ghose has drawn our attention to the decision of the Supreme Court in ‘DR. N. B. KHARE v. STATE OF DELHI’, AIR 1950 S C 211, where the question of the validity of an order of externment passed under the East Punjab Public Safety Act 1949, was under consideration. It was pointed out in that decision that the mere fact that under section 4 of the East Punjab Public Safety Act 1949, the power to make the order of externment
was given to the Provincial Government or the District Magistrate, whose satisfaction was final, did not, by itself, render the Act invalid. His Lordship Kania, C. J. said:
“The desirability of passing an individual order of externment against a citizen has to toe left to an officer, In the Act such a provision cannot be made. The satisfaction of the officer thus does not impose an unreasonable restriction on the exercise of the citizen’s right.”
In the case of ‘BRAJNANDAN SHARMA v. STATE OF BIHAR’, 29 Pat 461 a different view was taken as to the effect of an Act which authorised an order of externment merely on the satisfaction of the State Government or of an officer under it. In view, however, of the decision of the Supreme Court in ‘DR. KHARE’S CASE’, cited above, that argument is no longer available. It was further pointed out in ‘DR. KHARE’S CASE’, that several safeguards were provided by the East Punjab Public Safety Act 1949. It was stated that the law imposing restrictions on the exercise of the right conferred by Article 19 has to be considered both with regard to the substantive provisions as Well as procedural provisions in order to determine the reasonableness of the restrictions.
In the East Punjab Public Safety Act 1949, the safeguards were three in number: first of all, the grounds of the order had to be communicated to the extemee so as to enable the extreme to make a representation; secondly, there were provisions for consideration of the case by an Advisory Board; and thirdly, there was a provision in the Act that the State Government was not permitted to direct the exclusion or removal from the Province of a person ordinarily residing in the Province and similarly the District Magistrate was not permitted to order the exclusion or removal of a person ordinarily resident in a district from that district. It was pointed out that this was a great safeguard provided by the East Punjab Public Safety Act. Mr. Ghose has very strongly contended that by reason of the absence of this last safeguard from the Bihar Maintenance of Public Order Act 1949, in the matter of externment orders, the provisions of the Bihar Act do not impose reasonable restrictions in the interests of the general public. His argument is that a safeguard like the third safeguard in the East Punjab Public Safety Act, 1949, is essential for bringing the law within the saving clause, viz., Clause (5) of Article 19 of the Constitution.
The learned Government Advocate has, on the contrary, urged that the decision of the Supreme Court in ‘DR. KHARE’S CASE’, did not lay down any such proposition that the existence of a safeguard like the third safeguard of the East Punjab Public Safety Act, 1949, must be a ‘sine quo non’ for the application of the saving clause, viz., Clause (5) of Article 19 of the Constitution of India. In my opinion, the learned Government Advocate is right. What we have to consider is whether the law imposes reasonable restrictions in the interests of the general public. The test is a two-fold test: firstly, the restrictions imposed must be reasonable; secondly, they must be in the interests of the general public. The reasonableness of the restrictions has to be considered both with regard to substantive and procedural provisions, In the Bihar Act, there are provisions for communicating the grounds of the order to the extemee. The extemee has a
right to make a representation, and the representation has to be considered by an Advisory Board. These are all safeguards which fulfil the test of reasonableness.
An argument similar to the one advanced by Mr. Ghose was referred to in ‘ATAR ALI v. JOINT SECRETARY TO THE GOVERNMENT OF WEST BENGAL’, 55 Cal W N 94. The following observations made in that decision are pertinent:
“In the first place the provisions in the Bengal Act now under consideration under which the movement of a person can be restricted are applicable to all concerned and the ex-terned person may be a resident of the place or of the district from which he is externed. The petitioner in the present case is a resident of the district of 24-Parganas. Dr. Khare was not a resident of the East Punjab or of the particular State from which he was externed. It is not suggested that provisions for externing a person from the place where he is usually residing will by themselves be unreasonable. There may be good and valid grounds for keeping a person out from his usual place of residence as he may be doing greater mischief at that place than elsewhere. But if such wide powers are given, some procedure should be provided for the protection of the rights of such a person. But there is none so far as the (Bengal) Act is concerned.”
It has been contended before us that Sri Sadhan Gupta and Bodi Alam resided usually in the Dhanbad Subdivision from which subdivision they were externed. It has been further stated by Mr. Ghose that the externment orders incorrectly stated that Bodi Alam was a resident of Noakhali, and Sri Sadhan Gupta of Dumraon. Even assuming that the two petitioners, Sri Sadhan Gupta and Bodi Alam, ordinarily resided in the Dhanbad Subdivision, I am unable to accept the contention that the absence of a provision like the one in the East Punjab Public Safety Act 1949, necessarily takes the Bihar Act out of the saving clause, viz., Clause (5) of Article 19 of the Constitution of India. In other words, I do not accept as correct the argument that the existence of a provision which prevents externment of a per-son from his -usual place of residence is an essential criterion for fulfilling the test of reasonableness. As was pointed out in the Calcutta decision, there may be good and valid grounds for keening a person out from his usual place of residence as he may be doing greater mischief at that place than elsewhere. I must, therefore, overrule the first contention of Mr. Ghose that the Bihar Act imposes unreasonable restrictions on the exercise of the rights conferred by Clauses (d) and (e) of Article 19(1) of the Constitution. (6) The second argument of Mr. Ghose is based on the decision in ‘ROMESH THAPPAR v. THE STATE OF MADRAS’, AIR 1950 SC 124. That was a case in which the fundamental right of freedom of speech and expression guaranteed by sub-Clause (a) of Article 19(1) of the Constitution was under consideration. It was pointed out in that decision that Clauses (2), (3) and (4) of Article 19 of the Constitution (before the amendments made in 1951) made a distinction between ‘security of the State” and “interests of public order”. It was pointed
out that such a distinction was made even in Entry No. 3 of List III of the Seventh Schedule of the Constitution of India. On the basis of this distinction, it was stated that a boundary
was drawn between serious and aggravated forms of public disorder which were calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance which came within the expression “public order”.
In my opinion, that distinction has no bearing on the question before us. The question before us is, as I have already stated, whether the law imposes reasonable restrictions in the interests of the general public. Neither the expression “public order” nor the expression “security of the State” occur in Clause (5) of Article 19, the expression which occurs is “in the interests of the general public”. In my opinion, that expression is wide enough to cover serious and aggravated forms of public disorder which are calculated to endanger the security of the State as also other breaches of the peace of a purely local significance which endanger the public order. I think it is obvious that the interests of the general public demand that public order should be maintained in the State of Bihar or any other State. The orders of externment passed against the petitioners state that the orders have been passed to prevent the petitioners from acting in any manner prejudicial to the maintenance of public order. I do not think that public order is excluded from the purview of Clause (5) of Article 19 of the Constitution of India.
7. The third ground on which Mr. Ghose has challenged the orders of externment is that the orders are ‘mala fide’. In substance, Mr. Ghose has contended that the orders of externment are not really for the maintenance of public order, but for some other ulterior purpose, such as preventing the petitioners from taking part in the ensuing election and stifling the defence in the criminal cases which are pending. Our attention has been drawn to a modification of the order of externment, the modification being made on the 8th of December 1951, after we had issued a Rule on the two applications. The modification stated that the directions contained in the original order of externment would not apply in so far as the appearance of the petitioner Sri Sadhan Gunta was required at Dhanbad for answering charges in the criminal cases pending against him. Mr. Ghose has contended that this modification itself shows that the original externment order was ‘mala fide’.
The learned Government Advocate has stated before us that an application for transfer of the cases from Dhanbad to Purulia has been admitted by this Court, and the application is pending. The learned Government Advocate has further stated that the State Government will have no objection to the transfer of the cases against Sri Sadhan Gupta to a place outside the area from which Sri Sadhan Gupta has been externed. I do not think that from the facts stated above, it would be proper to draw the conclusion that the order of externment was ‘mala fide’ in the sense that it was intended to stifle the defence of tbe petitioner in the criminal cases pending against him. It is obvious that if the petitioner cannot appear in the court where the cases have to be heard, the trial cannot proceed in his absence. The State Government, it appears, is quite agree-
able to the cases being tried at a place where the petitioner will have no difficulty in either arranging for his defence or looking after his
interests.
The second ground that the orders are ‘mala fide’, because they are meant to prevent the petitioners from taking part in the ensuing election does not appear to be convincing. It appears that so far as one of the petitioners is concerned, his nomination paper has already been rejected. It is not necessary for us to consider whether the nomination paper has been rightly or wrongly rejected. Bodi Alam does not appear to be a candidate at the ensuing election. Therefore, it is not at all established that the externment orders were made for a purpose other than the purpose which is mentioned in the order itself.
8. For the reasons given above, I am Unable to hold that the externment orders are bad. I would accordingly dismiss the applications.
Sinha, J.
9. I agree.