EBRAHIM VAZIR MAVAT v. THE STATE OF BOMBAY AND OTHERS.
Citation: [1954] 1 S.C.R. 933; 1954 INSC 14
Court: Supreme Court of India
Bench: MEHR CHAND MAHAJAN , BIJAN KUMAR MUKHERJEA, SUDHI RANJAN DAS, VIVIAN BOSE, GHULAM HASAN
Judgment date:
Case summary
1954 INSC 14. Supreme Court of India judgment dated 1954-02-15. EBRAHIM VAZIR MAVAT v. THE STATE OF BOMBAY AND OTHERS. Read the judgment and case details on...
Judgment text
S. C. R. SUPREME COURT REPORTS 933 EBRAHIM VAZIR MAVAT "· THE STATE OF BOMBAY AND OTHERS. (With Connected Appeals) [MEHR CHAND MAHAJAN c. J. , MUKHERJEA, S. R. DAS, V1v1AN BosE and GHULAM HASAN JJ. ] Constitution of India, arts. 13(1), 19(1) ( 1ir Mavat v. The State of Bombay and Others and Noor Mohammad Ali Mohammad v. The State of Bombay and Oth~rs (Criminal Appeals Nos. 65 and 66 of 1952) in' wh1ch we have just delivered judgment we have held that section 7 of the Act is void as against a citizen of India being an encroachment on his fundamental right under article 19 (1) (e) of the Constitution. Following that decision we hold that the order of removal of the petitioner is liable to be set :1. side. Mr. Umrigar, who appeared for the petitioner, pointed out that the Judicial Commissioner has ;i]ready held that the petitioner is a citizen of India and that it will serve no useful purpose by remanding the case to him for an inquiry into the question.
The Solicitor-General on behalf of the Union of India has read to us the order of the Judicial Commissioner and admits that this is so. It is, therefore, not necessary to adopt the course that we have taken in the afore-said app~als involving the validity of section 7. We accordingly hold that the order passed against the petitioner is void and set it aside. Mr. Umrigar requests that the order should be communicated to the petitioner through the High Commissioner for India in Karachi to whom the petitioner sent · a representation praying that he should be allowed to return to India. This request is granted. Criminal Appeals Nos. 65 and 66 of 1952, No. 5 of 1953 and No. 19 of 1953 and Petitions No. 170 of 1952, No. 19 of 1953 and No. 57 of 1953. DAs J. -I regret I am unable to agree with the judgment just delivered. Four Criminal Appeals namely, Criminal Appeals Nos. 65 and 66 of 1952, No. 5 of 1953 and No. 19 of 1953 and three Criminal Miscellaneous Petitions, namely Petition No.
170 of 1952, No. 19 of 1953 and No. 57 of 1953, were posted for hearing and were heard by us one after another. In each one of those appeals and petitions the appellants or the petitioners, as the case may be, challenged the constitutional validity of the Influx from Pakistan (Control) Act, 1949 (Act XXIIl of 1949). Learned advocate appearing in support of petitions No. 170 of 1952 and No. 19 of 1953 asked for leave to withdraw them with liberty to file fresh petitions in the High Court. Such leave having been given, nothing further need be said about those two petitions. · The facts of each of the remaining appeals and the remaining petition have been set out in. the judgment just delivered and need not be repeated. Suffice it to say that the appellants in Appeals Nos. 65 and 66 of 1952 first came to India from Pakistan on temporary permits issued by the High Commissioner for India in Pakistan but stayed on after the expiry of the period and were convicted under section 5 of the Act.
Later on they returned to -Pakistan on a temporary permit issued by the High Commissioner for Pakistan in India and eventually came back to India on a permanent permit issued by the High Commissioner for India in Pakisμn. That permanent permit was cancelled on the allegation that it had been obtained on the strength of a "no objection" certificate which had been obtained by them by the suppression of material facts, namely, that they had previously come to India on a temporary permit. The appellant in Appeal No. 5 of 1953 came to India from Pakistan on a permanent permit which was subsequently cancelled ori the allegation that it had been obtained by fraud. The appellant in Appeal No. 19 of 1953 came to India from Pakistan without any permit and was prosecuted and convicted under section 5 of the Act and later on arrested and sent back to Pakistan. The petitioner in Petition No. 57 came to India without any permit at all.
On this petitioner as well as on the appellants orders had been made under section 7 of the impugned Act to the effect, that unless they left India within the time specified in the respective orders they would be bodily removed from India. '. fhese orders were made on the ground that they had entered India in violation of section 3 of the Act and/ or the rules and order made thereunder. Each of these persons claimed that they were citizens of India and complained that the orders made against them violated their fundamental rights under Chapter III of the Constitution of India. . It will be recalled that on the 15th August, 1947, there was a partition of India and two Dominions were formed under the Indian Independence Act, 1947. A grave emergency arose on the partition of India resul~ijlg in mass-migration of population from one Dominion to the other accompanied , by riots, arson, murder, rape and loot.
Intense bitterness and hatred were generated in the minds of the people of one Dominion against those of the other Dominion. Even in one Dominion there was suspicion in the 2-97 S. C. India/59 minds of the members of one community against those of the other. In those circumstances the uncontrolled and indiscriminate entry of persons, Hindu or Muslim, from Pakistan into India was naturally regarded as fraught with the possibility of espionage and sabotage the prevention of which was essential for the security of the Dominion of India. Further, an uncontrolled entry of large numbers of people was calculated to place and in fact placed a tremendous strain on the economy of India and on the law and order situation in the country. It was in order to prevent such result that it was necessary to exercise some control over such influx of persons from Pakistan into India.
Accordingly, the Influx from West Pakistan (Control) Ordinance (XVII of 1949) was promulgated on the 19th July, 1948, by the Governor-General in exercise of the powers conferred on him by section 42 of the Government of India Act, 1935. The preamble to that Ordinance recited that an emergency had arisen which made it necessary to control the admission into and regulate the movements in India of persons from Pakistan. Thereafter the Influx from Pakistan (Control) Ordinance (XXXIV of 1948) was issued on the 10th November, 1948, replacing the earlier Ordinance. This Ordinance applied to persons entering into India from both West Pakistan and East Pakistan. It substantially reproduced all the sections of the previous Ordinance. Finally, on the 22nd April, 1949, the Influx from Pakistan (Control) Act (XXIII of 1949) replaced the second Ordinance. Sections 3 and 7 of this Act substantially reproduced the provisions of sections 3 and 7 of the Ordinance.
The Permit Srtem Rules of 1948 were replaced on the 20th May, 1949, by the Permit System Rules of 1949. This Act, however, was repealed on the 15th October, 1952, by Act LXVI of 1952. Section 3 of this repealing Act, howe'""r, expressly preserved the application of section 6 of the General Clauses Act, 1897. Although the In. flux from Pakistan (Control) Act, 1949 has been repealed and the number of persons who, like the appdlants and the petitioners before. us, are affected by th~t Act is small, nevertheless the matter has t) • be scrutinised ciosely, for our decision may con-ceivably affect the passport regulations which have replaced, the permit system. The contention advanced in these appeals and the petition is that sections 3 and 7 of the Act have, since the commencement of the Constitution, become void in that they violate the fundamental rights guaranteed by articles 14 and 19(1) (d) and (e) of the Constimtion.
The provisions of these two sections, which have been sufficiently set out in the judgment just delivered, will at once show that they applied to all persons coming from Pakistan, whether they were citizens or non-citizens and irrespective of the community to which they belonged or the religion which they professed. It will also appear that, as regards citizens they did not touch all citizens but affected only such of them as came from Pakistan, whether they were Hindus, Muslims or Christians. It is, therefore, quite clear that the Act applied to a small well defined class of persons who were grouped together on an obviously reasonable basis of classification as explained in the previous decisions of this court. In this view of the matter no question of unconstitutional discrimination can arise at all and, indeed, the plea based on the equal protection clause of the Constitution has ·not been seriously pressed.
The main contest has centred round the question whether these two sections offend against the provisions of article 19(1)(d) and (e) of the Constitution. The learned Solicitor-General appearing for the respondents contends that those sections are protected by article 19(5) as being reasonable restrictions on the exercise of the rights guaranteed by sub-clauses ( d) and ( e) of clause ( 1) of that article. In State of Madras v. V. G. Row ) Patanjali Sastri C. J. observed:- "It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. (I) [r:52] 3 S. C. R .. 597 at p.
607 The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in autho-nsmg the imposition of the restrictions, considered them to be reasonable.
" The impugned sections have, therefore, to be examin-ed in the light of the above observations. I find nothing unconstitutional about section 3 of the impugned Act. It does not debar the entry of any person absolutely. It only requires that a person entering India from any place in Pakistan must be in possession of a permit or a valid passport or be exempted from such requirements. Passport regulations obtain in every civilised country including even those the constitutions whereof confer similar fundamental rights on their citizens, e. g. , Switzerland (articles 43-45), Wiemer Germany (article III), Czecho-slovakia (article 108), Jugoslavia (article 10), Danzig (article 75) and Albania (section 202). Such regulations serve to check up the persons who enter the territories of the State and are necessary for the safety of the State.
Seeing that such regulations obtain everywhere and have a definite utility for the protection of the general public by securing the safety of the State I have no manner of doubt in my mind that such restrictions as are contemplated by section 3 must be regarded as reasonable restrictions permissible under clause (5) of article 19 of the Constitution. Indeed, the objection of section 3 has not been seriously pressed before us. The main objection urged by learned counsel appearing i11 support of these appeals and petitions was directed to the question of the validity of section 7. In the first place, it is clear that no objection can be taken to section 7 in so far as it affected persons who were not citizens of India, for article 19 guarantees certain fundamental rights to the citizens of India only. In the next place, this section did not affect all citizens but touched only a well defined small class of citizens, namely, those who went to Pakistan and intended to return to India.
The question is whether qua these citizens section 7 can also be regarded as a reasonable restriction within the meaning of clause (5) of article 19. The High Court of Bombay has held, and in my opinion quite correctly, that the provisions of section 7 cannot but be regar. ded as consequential to the provisions of section 3. Suppose at the check-post a person from Pakistan, whether a citizen or not, tried to cross the broder without a permit. Surely, the officer at the check-post would have been well within the law to prevent a violation of section 3 of the Act and with that end in view to prevent that person, who had no permit, from crossing the border and entering India. I have no · doubt that the officer might also have prevented a person from Pakistan from crossing the border if he suspected that the permit produced by the person was forged or otherwise irregular and left him to take up the matter with the higher authorities from Pakistan.
Suppose the man who sought to enter India without a permit or with - a permit which was suspected to be spurious forcibly crossed the border and took a step or two on our side of the line, the Indian officer would certainly have been entitled to throw him back to the other side of the line. Surely, such, a person could ·not be permitted to take advantage of his own wrong and could not be heard to say that, in such circumstances, he. had, by his wrong doing, acquired a better right. than the person who had not the temerity to violate the provisions of section 3. If this is so then, logically, I can see no difference if the man ran into the Indian territory for some distance and the Indian officer ran after him, overtook him and took him back to the. check-post and pushed him out of our side of the line.
It is futile, in such a situation, to expect or to say that the officer should have held a judicial enquiry and come to a judicial decision after hearing an argument as to the validity of the permit or as to the status of the permit holder or the fundamental rights of a citizen of India to move freely in India and to settle anywhere he liked in . India. The truth and substance of the matter are that in acting in the way indicated above the officer simply performed an executive act and prevented a person who held no permit or held a permit which appeared to the officer to be spurious from entering India from Pakistan in violation of section 3 of the Act. To throw out such a person was not ·to inflict any punishment on him or to do him any greater injury than what was imposed on or done to a person who, not having a permit, was stopped at the check-post and not allowed to enter India at all.
The man thus thrown out was placed under no greater disability than the man who had initially been prevented from entering India at the check-post barrier. In both cases such a person might, while staying in . Pakistan, have taken steps to obtain a permanent permit upon proof of his status as an Indian citizen and if such permit was illegally withheld from him he might have through some agent in India taken proceedings in Indian courts for appropriate reliefs. To my mind the position of the person who entered India on a temporary permit but who, in violation of the rules or order made under the Act, stayed on after the period of the permit expired, was, as from that date, logically the same as that of the person who entered India without a permit.
To arrest such a person, after the expiry of the period of the temporary permit, with a view to sending him back to where he came from and to actually send him back there did not involve or constitute a judicial act all but was a rough and ready executive act for enforcing giving effect to the provisions of section 3 of the Act. To arrest and send such a person back to Pakistan was not to inflict a punishment but was only to restore the status quo and to put him back to the position he would have been in but for his illegal act. In my opinion the act authorised by section 7 was, in essence a purely executive act for implementing the provisions of section 3. Without such a provision it would have been impossible for the State to control the admission into India of persons from Pakistan and to prevent the concomitant dangers referred _to above.
The act authorised by the section being an executive act, discretion had perforce to be left to the executive Government which, by reason of the information available to it, was in a much better position than the courts to know and judge the antecedents of such a person and his ultimate purpose. Suppose an Indian citizen, no matter whether he was a Hindu or a Muslim, had entered India from Pakistan without a permit and suppose be was, upon confidential reports which could not be safely disclosed, suspected to be engaged in espionage in the interests of Pakistan, would it have been safe enough in those hectic days to have only nrosecuted him under section 5 and inflicted on him a fine of rupees one thousand or a term of imprisonment not exceeding a year and then to have left him free, after the term of imprisonment was over, to surreptitiously carry on his nefarious activities of espionage and sabotage against our State wh.
ile embarking upon a protracted judicial enquiry to ascertain the truth or otherwise of his claim to Indian citizenship ? It cannot be overlooked that there are long common borders between Pakistan and India both on the west and on the · east. The Kashmir situation had also aggravated the emergency brought above by the partition of India. Having regard to all the circumstances, the tension, bitterness and hatred between the two countries that were generated at the time of the partition and all which must enter into the judicial verdict, the provisions of section 7 appear' to me to have been eminently reasonable restrictions imposed in the interests of the general public upon the exercise by Indian c1t1zen coming from Pakistan without a permit of the rights conferred by article 19(1)(d) and (e) of the Constitution.
The Indian citizen who was thrown out for not having the proper permit or who was suspected to have violated the provisions of the Act was placed in no worse position than an Indian citizen who, not having a permit, had not been permitted to enter into India at ail. They were by no means without remedy. They could from the other side of the border take steps under the rules to obtain valid permanent permits upon proof of their citizenship of India and if such permits were illegally withheld from them they could move the appropriate High Court under article 226 or even this court under article 32 while they were out-side India and might, on proof of their citizenship, have got appropriate writs or orders directing the State or its officers to issue suitable permits and to desist from otherwise preventing them from entering India or interfering with their movement while in India.
It is said that if such a person would have been entitled to a permit on proof of his status as an Indian citizen then why should he have been thrown out at all unless and until he failed to establish his claim to Indian citizenshio ? There occur to mv mind several answers to this 'question. In the first . place, it would have been putting a vremium on wrong doing. In the second place, the person would have been left free to carrv on his secret activities, if any, while judicial proceedings would have been going on for ascertaining his status. In the third place. if the person could not be thrown out before his status had been judicially determined there would have been no incentive on his part to take proceedings in court to establish his status and it would have thrown upon the State the duty of initiating proceedings and of discharging the onus of proving the negative fact of his not being a citizen of India.
In view of all the circumstances prevailing at the time the law was enacted and remained in force and in view of the considerations hereinbefore alluded to I have no doubt in my mind-except what arises out of my respect for the opinions of my Lord and other learned brothers-that the provisions of section 7 were necessary and reasonable and fell within clause (5) of article 19. In my Judgment the four appeals as well as Petition No. 57 of 1952 should be dismissed. Appeals allowed, cases remanded. Agents for· the appellants · and petitioners : S. S. Shukla, R. A. Govind, Sardar Bahadur and P. K. Chatterji. Agents for the respondents: G. H. Rajadhyaksha and C. P. Lal. SARDAR SOMA SINGH AND OTHERS tJ. THE STATE OF PEPSU AND UNION OF INDIA. [MEHR CHAND MAHAJAN C. J. , MuKHERJEA, S. R. DAs.. VIVIAN BoSE and GHULAM HASAN JJ. J Constitution of India, art. 286(3)-The Patiala and East Punjab States Union General Sales Tax Ordinance, 2006 (XXXIII of 2006)-Whether ultra vires the Constitution.
Held, that the Patiala and East Punjab States Union General Sales Tax Ordinance, 2006 (No. XXXIII of 2006) promulgated on 6th November, 1949, is not ultra vires art. 286(3) of the Constitution. Clause (3) of art. 286 conten1plates a post-Constitution law, for it must be a law made by a "Legislature of a State" which must refer to the l~egislature of a State created by the Constitution. ORIGINAL JuRISDICTJON : Petition No. 325 of 1953. Petition to the Supreme Court under article 32 of the Constitution of India for enforcement of fundamental rights. S. P. Sinha (Bakshi Man Singh, with him) ·for the petitioners. C. · K Daphtary, Solicitor-General for India' and ]. N. Kaushal (P. G. Gokhale, with them) for respondent No. 1. C. K. Daphtary, Solicitor-General for India (Porus A. Mehta and P. G. Gokhale,·with him) for respondent No. 2. ·
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