ABDUL RAHIMAN SHAMSOODDIN Vs. EMPEROR

JUDGEMENT

(1.) By this application an order made by the Additional District Magistrate of Thana dated 26th April 1949, is being challenged. Though the order directs the petitioner to remove himself from the State of Bombay and the order is made under Section 46, Sub-section (3), Bombay District Police Act, 1890, it is contended that this provision of the law is void inasmuch as it contravenes a fundamental right given to the subject by the Constitution, and the fundamental right which is being relied upon is the fundamental right under Article 19 to move freely throughout the territory of India and to reside and settle in any part of the territory of India. We have had to consider a similar question in Jeshingbhai Ishwarlal v. Emperor and we held that the provision of law under the Bombay Public: Security Measures Act, for externment was void, inasmuch as there was no provision made for the externee being heard by the authority externing him. Now when we consider the provisions of the Bombay District Police Act, we find that under Section 46A, a person against whom an order is intended to be made has a right to be heard, and what is more he has also been given a right of appeal to the Provincial Government under Section 46A, Sub-clause (3). Therefore the reasons which led me and my learned brother Bavdekar to come to that particular conclusion in the other case do not apply to the facts of this case.

(2.) It has been argued by Mr. Vora that the Constitution does not entitle a State to extern a citizen outside the limits of the State. According to Mr. Vora the only restrictions that can be imposed upon a person are restrictions within the State area. In other words, according to Mr. Vora, the Legislature of the State can provide that a person should stay in a particular part of the State, but it cannot provide that he should leave the boundaries of the State altogether. For that purpose, attention is drawn to Items 17, 18 and 19 of List I, Schedule 7. These items deal with citizenship, naturalisation and aliens, extradition, and admission into, and emigration and expulsion from, India; and the argument is that if every State were to pass a similar legislation and a similar order were to be passed against the petitioner, then, the petitioner would not be able to reside in any of the States and would therefore compulsorily have to leave the territory of India. In our opinion, we are concerned with the legislation of our State and we are not concerned with the situation that might arise if every State were to pass a similar legislation, and what is more were to pass a similar order against the petitioner. The Bombay District Police Act does not deal with either citizenship or extradition or with the question of admission into, and emigration and expulsion from, India. It deals with the question of public order, which is a subject which is within the competence of the State Legislature under List II of Schedule 7, Item 1.

(3.) Mr. Vora has also argued that the restriction within the meaning of Subclause (5) of Article 19 is a restriction which can only apply to movements within the State and not outside the State. That contention is obviously fallacious, because the fundamental right which is claimed is the right to claim free movement throughout the territory of India and to reside and settle in any part of the territory of India. When the Legislature deprives a person of the right to move about and reside an any part of the Union of India, it is undoubtedly a restriction of his liberty and of his fundamental right.