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1967 SCC OnLine SC 95 : (1967) 2 SCR 454 : AIR 1967 SC 1170

In the Supreme Court of India

(BEFORE K. SUBBA RAO, C.J. AND J.C. SHAH, J.M. SHELAT, V. BHARGAVA AND
G.K. MITTER, JJ.)

STATE OF MADHYA PRADESH AND ANOTHER …

Appellants;
Versus
THAKUR BHARAT SINGH … Respondent.
Civil Appeal No. 1066 of 1965*, decided on January 23, 1967
Advocates who appeared in this case:
B. Sen, Senior Advocate (I.N. Shroff, Advocate, with him), for the
Appellants.
The Judgment of the Court was delivered by
J.C. SHAH, J.— On April 24, 1963, the State of Madhya Pradesh
made an order in exercise of powers conferred by Section 3 of the
Madhya Pradesh Public Security Act, 1959 — hereinafter called “the
Act” — directing the respondent Thakur Bharat Singh—
“(i) that he shall not be in any place in the Raipur district;
(ii) that he shall reside in the municipal limits of Jhabua town,
district Jhabua, Madhya Pradesh, and shall proceed there
immediately on the receipt of this order; and
(iii) that he shall notify his movements and report himself
personally every day at 8 a.m. and 8 p.m. to the Police Station
Officer, Jhabua.”
The respondent moved a petition in the High Court of Madhya Pradesh
under Articles 226 and 227 of the Constitution challenging the order on
the grounds, inter alia, that Sections 3 and 6 and other provisions of
the Act which authorised imposition of restrictions on movements and
actions of persons were ultra vires in that they infringed the
fundamental freedoms guaranteed under Article 19(1)(d) and (e) of the
Constitution of India and that the order was “discriminatory, illegal and
violated principles of natural justice”. Shiv dayal, J., declared clause (i)
of the order valid, and declared clauses (ii) and (iii) invalid. In the view
of the learned Judge the provisions of Section 3(1)(a) of the Act were
valid and therefore the directions contained in clause (i) of the order
could lawfully be made by the State, but clauses (b) and (c) of Section
3(1) of the Act were invalid because they contravened the fundamental
freedom of movement guaranteed under Article 19 of the Constitution
and therefore the directions contained in clauses (ii) and (iii) of the
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order were invalid. Against the order passed by Shivdayal, J., two
appeals were filed under the Letters Patent of the High Court. A Division
Bench of the High Court held that clauses (a) and (c) of Section 3(1) of
the Act were valid, but in their view clause (b) of Section 3(1) was not
valid because it violated the fundamental guarantee under Article 19(1)
(d) of the Constitution. The High Court however confirmed the order of
Shivdayal, J., since in their view the direction contained in clause (iii) of
the order was “inextricably woven” with the directions in clause (ii) and
was on that account invalid. Against the order of the High Court, the
State of Madhya Pradesh has appealed to this Court.
2. The relevant provisions of the Act may be briefly set out. Section
3 of the Act provides:
“(1) 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 insofar 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 maybe specified in the order and
if he is not already there to proceed to the 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 specified in
the order, in respect of his association of communication with
such persons as may be mentioned in the order;
(e) prohibiting or restricting the possession or use by him of
any such article or articles as may be specified in the order.
(2)-(3) * * *
(4) If any person is found in any area or place in contravention of
a restriction order or fails to leave any area or place in accordance
with the requirements of such an order, then without prejudice to
the provisions of sub-section (5), he may be removed from such area
or place by any police officer.
(5) If any person contravenes the provisions of any restriction
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order, he shall be punishable with imprisonment for a term which

may extend to one year, or with fine which may extend to one
thousand rupees, or with both.”
Section 4 authorises the State to revoke or modify “the restriction
order”, and Section 5 authorises the State to suspend operation of the
“restriction order” unconditionally or upon such conditions as it deems
fit and as are accepted by the person against whom the order is made.
Section 16 requires the State to disclose the grounds of the “restriction
order”. Section 8 provides that in every case where a “restriction order”
has been made, the State Government shall within thirty days from the
date of the order place before the Advisory Council a copy thereof
together with the grounds on which it has been made and such other
particulars as have a bearing on the matter and the representation, if
any, made by the person affected by such order. Section 9 provides for
the procedure of the Advisory Council; and Section 10 requires the
State to confirm, modify or cancel the “restriction order” in accordance
with the opinion of the Advisory Council.
3. By clause (ii) of the order the respondent was required to reside
within the municipal limits of Jhabua town after proceeding to that
place on receipt of the order. Under clause (b) of Section 3(1) the State
is authorised to order a person to reside in the place where he is
ordinarily residing and also to require him to go to any other area or
place within the State and stay in that area or place. If the person so
ordered fails to carry out the direction, he may be removed to the area
or place designated and may also be punished with imprisonment for a
term which may extend to one year, or with fine, or with both. The Act
it may be noticed does not give any opportunity to the person
concerned of being heard before the place where he is to reside or
remain in is selected. The place selected may be one in which the
person concerned may have no residential accommodation, and no
means of subsistence. It may not be possible for the person concerned
to honestly secure the means of subsistence in the place selected. Sub-
section 3(1)(b) of the Act does not indicate the extent of the place or
the area, its distance from the residence of the person externed and
whether it may be habitated or inhabitated the clause also nowhere
provides that the person directed to be removed shall be provided with
any residence, maintenance or means of livelihood in the place
selected. In the circumstances we agree with the High Court that
clause (b) authorised the imposition of unreasonable restrictions insofar
as it required any person to reside or remain in such place or within
such area in Madhya Pradesh as may be specified in the order.
4. Counsel for the State did not challenge the view that the
restrictions which may be imposed under clause (b) of Section 3(1)
requiring a person to leave his hearth, home and place of business and
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live and remain in another place wholly unfamiliar to him may operate
seriously to his prejudice, and may on that account be unreasonable.
But he 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. It is true that under clause (b) an order requiring a
person to reside or remain in a place where he is on ordinarily residing
may be passed. But in exercise of the power it is 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. 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
Article 352 was not withdrawn or revoked, the respondent could not
move the High Court by a petition under Article 226 of the Constitution
on the plea that by the impugned order his fundamental right
guaranteed under Article 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 Article 13(2) of the Constitution prohibits the
State from making any law which takes away or abridges the rights
conferred by Part III, and laws made in contravention of Article 13(2)
are to the extent of the contravention 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 Article 19 during an emergency
declared by the President under Article 352 is in terms prospective :
after the proclamation of emergency nothing in Article 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 Article 358 protects action both legislative and executive taken
after proclamation of emergency and therefore any executive action
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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 Article 19. In our judgment, this argument involves a grave
fallacy. All executive action which operates to the prejudice of any
person must have the authority of law to support it, and the terms of
Article 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. 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
exclusive action may be taken in pursuance of lawful authority, which if
the provisions of Article 19 were operative would have been invalid. Our
federal structure is founded on certain fundamental principles : (1) the
sovereignty of the people with limited Government authority i.e. the
Government must be conducted in accordance with the will of the
majority of the people. The people govern themselves through their
representatives, whereas the official agencies of the executive
Government possess only such powers as have been conferred upon
them by the people; (2) There is a distribution of powers between the
three organs of the State — legislative, executive and judicial — each
organ having some check direct or indirect on the other; and (3) the
rule of law which includes judicial review of arbitrary executive action.
As pointed out by Dicey in his Introduction to the study of the Law of
the Constitution, 10th Edn., at p. 202, the expression “rule of law” has
three meanings, or may be regarded from three different points of view.
“It means, in the first place, the absolute supremacy or predominance
of regular law as opposed to the influence of arbitrary power, and
excludes the existence of arbitrariness, of prerogative, or even of wide
discretionary authority on the part of the Government”. At p. 188 Dicey
points out:
“In almost every continental community the executive exercises
far wider discretionary authority in the matter of arrest, of temporary
imprisonment, of expulsion from its territory, and the like, than is
either legally claimed or in fact exerted by the Government in
England : and a study of European politics now and again reminds
English readers that wherever there is discretion there is room for
arbitrariness, and that in a republic no less than under a monarchy
discretionary authority on the part of the Government must mean
insecurity for legal freedom on the part of its subjects.”
We have adopted under our Constitution not the continental system but
the British system under which the rule of law prevails. Every Act done
by the Government or by its officers must, if it is to operate to the
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prejudice of any person must, be supported by some legislative

authority.
6. Counsel for the State relied upon the terms of Article 162 of the
Constitution, and the decision of this Court in Rai Sahib Ram Jawaya
Kapur v. State of Punjab1 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 Article 162 provides that subject to the
provisions of the Constitution, the executive power of a State shall
extend to the matters with respect to which the Legislature of the State
has power to make laws. But Article 162 and Article 73 are concerned
primarily with the distribution of executive power between the Union on
the one hand and the States on the other, and not with the validity of
its exercise. Counsel for the State however strongly relied upon the
observations of Mukherjea, C.J., in Rai Sahib Ram Jawaya Kapur's
1
case :
“They do not mean, … that it is only when the Parliament or the
State Legislature has legislated on certain items appertaining to their
respective lists, that the Union or the State executive, as the case
may be, can proceed to function in respect to them. On the other
hand, the language of Article 162 clearly indicates that the powers of
the State executive do extend to matters upon which the State
Legislature is competent to legislate and are not confined to matters
over which legislation has been passed already.”
These observations must be read in the light of the facts of the case.
The executive action which was upheld in that case was, it is true, not
supported by legislation, but it did not operate to the prejudice of any
citizen. In the State of Punjab prior to 1950 the text books used in
recognized schools were prepared by private publishers and they were
submitted for approval of the Government. In 1950 the State
Government published text books in certain subjects, and in other
subjects the State Government approved textbooks submitted by
publishers and authors. In 1952 a notification was issued by the
Government inviting only “authors and others” to submit textbooks for
approval by the Government. Under agreements with the authors and
others the copyright in the text books vested absolutely in the State
and the authors and others received royalty on the sale of those text
books. The petitioners — a firm carrying on the business of preparing,
printing, publishing and selling text books — then moved this Court
under Article 32 of the Constitution praying for writs of mandamus
directing the Punjab Government to withdraw the notifications of 1950
and 1952 on the ground that they contravened the fundamental rights
of the petitioners guaranteed under the Constitution. It was held by
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this Court that the action of Government did not amount to infraction of
the guarantee under Article 19(1)(g) of the Constitution, since no
fundamental rights of the petitioners were violated by the notifications
and the acts of the executive Government done in furtherance of their
policy of nationalisation of text books for students. It is true that the
dispute arose before the Constitution (Seventh Amendment) Act, 1956,
amending inter alia, Article 298 was enacted, and there was no
legislation authorising the State Government to enter the field of
business of printing, publishing and selling text books. It was
1
contended in support of the petition in Rai Sahib Ram Jawaya case
that without legislative authority the Government of the State could not
enter the business of printing, publishing and selling text books. The
Court held that by the action of the Government no rights of the
petitioners were infringed, since a mere chance or prospect of having
particular customers cannot be said to be a right to property or to any
interest or undertaking. It is clear that the State of Punjab had done no
act which infringed a right of any citizen : the State had merely entered
upon a trading venture. By entering into competition with the citizens,
it did not infringe their rights. Viewed in the light of these facts the
observations relied upon do not support the contention that the State
or its officers may in exercise of executive authority infringe the rights
of the 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.
7. We are 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 Article 352 no immunity from the process of the
Court could be claimed under Article 358, of the Constitution, since the
order was not supported by any valid legislation.
8. The appeal therefore fails and is dismissed.
———
*
Appeal from the Judgment and the Order dated 4th December, 1963 of Madhya Pradesh
High Court in Letters Patent Appeal No. 28 of 1963

1
(1955) 2 SCR 225

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