# Ebrahim Vazir Mavat v. The State of Bombay and Others

- **Citation:** [1954] 1 S.C.R. 933
- **Court:** Supreme Court of India
- **Decided:** 1952-04-09
- **Case number:** CRIMINAL APPELLATE J URrso1cTION : Criminal Appeals Nos. 65 and 66 of 1952
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ebrahim-vazir-mavat-v-the-state-of-bombay-and-others-285
- **Pages:** 23

## Headnote

;
[
'·
S.C.R.
SUPREME COURT REPORTS
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.]
933
Constitution of India, arts. 13(1), 19(1) (<)-Influx
from
Pakistan
(Control) Act, 1949 (Act XXII/ of 1949) s. 7-Wlwha
ultra vires th~ Constitution.
He/ti,
(Per
MEHR
CHAND
MAHAJAN
C. J.,
MuKHERJEA,
V1vihN
BosE and
GttULA~I HAsAN JJ.; S. R. DAs J. dissenting)
that s. 7 of the Influx from Pakistan (Control) Act, 1949 j, void
under art. 13(1) in ·so far as it conflicts \.Vith the fundamental right
of a citizen of India under art. !9(1)(e) of the Constitution and
the order of physical removal of the citizen from India is there~
fore liable to be set aside.
Per DAs J.-In view of the circumstances the provisions of
~. 7 of the Act were reasonable restrictions within the n1eaning of
cl. 5 of art. 19 of the Constitution imposed in the interests of the
gcner.il public upon the exercise by Indian citizen coming from
Pakistan without a permit of the rights conferred by art. 19(1)
( d) and (e) of_ the Constitution.
CRIMINAL
APPELLATE
J URrso1cTION :
Criminal
Appeals Nos. 65 and 66 of 1952, 5 and 19. of 1953 and
Petitions Nos. 170 of 1952, 19 and 57 of 1953.
Appeals from Orders, dated the 9th April, 1952, of
the High Court of Judicature at Bombay in Crimin:il
Applications
Nos. 707 and
708 of 1951, from the
Judgment and Order, dated
the 15th December, 1952,
of the High Court of Judicature at Bombay in Criminal
Application No. 1310 of 1952; from the Judgment and
Order, dated the 29th November, 1952, of the Judicial
Commissioners
Court
Vindhya Pradesh, Rewa,
m
Criminal Miscellaneous No. 49 of 1952;
and petitions
under article 32 of the Constitution of India.
f. B. Dadachanji and Z. F. Bootwala for the
4ppellants in Criminal Appeals Nos. 65 and 66 of 1952
4nd 5 of 1953C.
K.
Daphtary,
Solicitor-General
for
lndi11
G. N. foshi, with him) for respondents Nos. 1 :ind 2 in
1954
February 15.
1954
Ebrahim Vazir
Mavat
v.
The State of
Bombay
and Others.
934
SUPREME COURT REPORTS
[1954]
Criminal Appeals Nos. 65 and 66 of 1952 and respondent No. 1 in Criminal Appeal No. 5 of 1953.
K.
B.
Asthana, for the
appellant in Criminal
Appeal No. 19 of 1953.
C. K. Daplitary, Solicitor-General for India, (Porus
A. Mehta and G. N. Joshi, with him) for the respondent in Criminal Appeal No. 19 of 1953.
S. P. Sinha (Sri Narain Andley, with him) for the
petitioners in petition No. 170 of 1952.
Gopalji Mehrotra for respondent No. 1 in petition
No. 170 of 1952.
C. K. Daphtary, Solicitor-General for India
(Porus
A. Mehta, with him) for respondent No. 3 in petition
No. 170 of 1952.
S. P. Sinha (S. N. Mukherji, with him) for petitioner in petition No. 19 of 1953.
Gopalji Mehrotra for respondent No.
1 m
petition
No. 19 of 1953.
G. N. foslzi
for respondent No. 3 m
petition
No. 19 of 1953.
H. J. U mri gar, amicus curiae, for the petitioner in
petition No. 57 of 1953.
C.
K.
.Daphtary,
Solicitor-General
for
India
(G. N. foshi, with him) for the respondents in petition
No· 57 of 1953.
1954.
February 15.
The Judgment of Mahajan
C.J., Mukherjea,
Vivian Bose and Ghulam Hasan JJ.
was delivered
by Ghulam Hasan J. Das J.
delivered
a separate judgment.
Criminal Appeals Nos. 65 and 66 of 1952.
CHUI.AM HASAN J.-This batch of appeals raises a
common
question
of
the
constitutional
validity
of
section 7 of the Influx from Pakistan (Control) Act
(XXIII of 1949).
Section 3 of the same Act is also
assailed on behalf of some of the appellants but for truo
purpose of deciding these appeals it will not be necessary to deal with the latter question.
Criminal Appeals Nos. 65 and 66 of 1952, which are
directed against the judgment and order of the High
Court of Judicature at Bombay in two petitions under
article 226 of the Constitution praying for the issue of
•
•
S.C.R.
SUPREME COURT REPORTS
935
a writ of mandamus requiring the respondent not to
remove them from India
on the ground that the
impugned sect

## Text

_Characters 0–39,315 of 49,679. This is a partial read: ask again with offset=39315 for what follows._

;
[
'·
S.C.R.
SUPREME COURT REPORTS
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.]
933
Constitution of India, arts. 13(1), 19(1) (<)-Influx
from
Pakistan
(Control) Act, 1949 (Act XXII/ of 1949) s. 7-Wlwha
ultra vires th~ Constitution.
He/ti,
(Per
MEHR
CHAND
MAHAJAN
C. J.,
MuKHERJEA,
V1vihN
BosE and
GttULA~I HAsAN JJ.; S. R. DAs J. dissenting)
that s. 7 of the Influx from Pakistan (Control) Act, 1949 j, void
under art. 13(1) in ·so far as it conflicts \.Vith the fundamental right
of a citizen of India under art. !9(1)(e) of the Constitution and
the order of physical removal of the citizen from India is there~
fore liable to be set aside.
Per DAs J.-In view of the circumstances the provisions of
~. 7 of the Act were reasonable restrictions within the n1eaning of
cl. 5 of art. 19 of the Constitution imposed in the interests of the
gcner.il public upon the exercise by Indian citizen coming from
Pakistan without a permit of the rights conferred by art. 19(1)
( d) and (e) of_ the Constitution.
CRIMINAL
APPELLATE
J URrso1cTION :
Criminal
Appeals Nos. 65 and 66 of 1952, 5 and 19. of 1953 and
Petitions Nos. 170 of 1952, 19 and 57 of 1953.
Appeals from Orders, dated the 9th April, 1952, of
the High Court of Judicature at Bombay in Crimin:il
Applications
Nos. 707 and
708 of 1951, from the
Judgment and Order, dated
the 15th December, 1952,
of the High Court of Judicature at Bombay in Criminal
Application No. 1310 of 1952; from the Judgment and
Order, dated the 29th November, 1952, of the Judicial
Commissioners
Court
Vindhya Pradesh, Rewa,
m
Criminal Miscellaneous No. 49 of 1952;
and petitions
under article 32 of the Constitution of India.
f. B. Dadachanji and Z. F. Bootwala for the
4ppellants in Criminal Appeals Nos. 65 and 66 of 1952
4nd 5 of 1953C.
K.
Daphtary,
Solicitor-General
for
lndi11
G. N. foshi, with him) for respondents Nos. 1 :ind 2 in
1954
February 15.
1954
Ebrahim Vazir
Mavat
v.
The State of
Bombay
and Others.
934
SUPREME COURT REPORTS
[1954]
Criminal Appeals Nos. 65 and 66 of 1952 and respondent No. 1 in Criminal Appeal No. 5 of 1953.
K.
B.
Asthana, for the
appellant in Criminal
Appeal No. 19 of 1953.
C. K. Daplitary, Solicitor-General for India, (Porus
A. Mehta and G. N. Joshi, with him) for the respondent in Criminal Appeal No. 19 of 1953.
S. P. Sinha (Sri Narain Andley, with him) for the
petitioners in petition No. 170 of 1952.
Gopalji Mehrotra for respondent No. 1 in petition
No. 170 of 1952.
C. K. Daphtary, Solicitor-General for India
(Porus
A. Mehta, with him) for respondent No. 3 in petition
No. 170 of 1952.
S. P. Sinha (S. N. Mukherji, with him) for petitioner in petition No. 19 of 1953.
Gopalji Mehrotra for respondent No.
1 m
petition
No. 19 of 1953.
G. N. foslzi
for respondent No. 3 m
petition
No. 19 of 1953.
H. J. U mri gar, amicus curiae, for the petitioner in
petition No. 57 of 1953.
C.
K.
.Daphtary,
Solicitor-General
for
India
(G. N. foshi, with him) for the respondents in petition
No· 57 of 1953.
1954.
February 15.
The Judgment of Mahajan
C.J., Mukherjea,
Vivian Bose and Ghulam Hasan JJ.
was delivered
by Ghulam Hasan J. Das J.
delivered
a separate judgment.
Criminal Appeals Nos. 65 and 66 of 1952.
CHUI.AM HASAN J.-This batch of appeals raises a
common
question
of
the
constitutional
validity
of
section 7 of the Influx from Pakistan (Control) Act
(XXIII of 1949).
Section 3 of the same Act is also
assailed on behalf of some of the appellants but for truo
purpose of deciding these appeals it will not be necessary to deal with the latter question.
Criminal Appeals Nos. 65 and 66 of 1952, which are
directed against the judgment and order of the High
Court of Judicature at Bombay in two petitions under
article 226 of the Constitution praying for the issue of
•
•
S.C.R.
SUPREME COURT REPORTS
935
a writ of mandamus requiring the respondent not to
remove them from India
on the ground that the
impugned section 7 is
void
may
be treated as the
leading case which will govern the other appeals.
The facts
of each of these appeals are slightly
different but they proceed upon the common assertion
that the appellants are citizens of the Indian Republic.
This fact was assumed in the leading case but it is not
disputed
that the status of the
appellants
as
Indian
citizens in all the cases has not been investigated and
determined by any of the courts below against whose
decision
the appeals
have
been
brought.
Having
heard the learned counsel appearing in support of the
appeals
and the learned Solicitor-General we have
reached the conclusion that section 7 is void in so far
as it infringes the right of a citizen of India under
article 19(1) ( e) of the Constitution.
The Act in question .received the
assent of the
Governor-General
on April
22, 1949, and was published in
the
Gazette
of
India Extraordinary on
April 23.
It is a short Act containing nine sections. It
is intituled an Act to "control the admission
into, and
regulate the movements in, India of
persons from
Pakistan".
'J'lie
prea1nl,Je
oprns
with
words
"Whereas it is expedient to control the admission into,
and regulate the movements in, India of persons from
Pakistan".
Section 2 (b)
defines "officer of Government" as
any officer of the Central Government and 2 (c) defines
"permit" as a "permit issued or renewed or the period
where of has been extended in accordance with the
rules
made
under this Act".
Section 3 says
"No
person shall enter India from any place in Pakistan,
whether directly or indirectly, unless
(a) he is in possession of a permit or
(b) being a person not domiciled in India. or
Pakistan,
he
is in possession
of a valid passport as
required by the Indian Passport Act, 1920 (XXXIV of
1920), or
( c) he is exempted from the requirement of being
in possession of a permit by or in accordance with the
rules made under this Act."
1954
Ebrahim V azir
Mavai
"·
Tfz~ Stat1 of
Bombay
and Otlurs.
Chulam Hasan J.
1954
Ebrahim V azir
Mav•t
v.
Tiu Stole of
Bombay
and Otmrs.
Ghulam Has•n J.
936
SUPREME COURT REPORTS
f 1954]
Section 4 empowers the Central Government, by
notification in the Official Gazette, to make rules:
(a) prescribing the authorities
by which and
the
conditions subject to which permits may be issued or
renewed or the period thereof extended, the condition
to be satisfied by the applicants for
such permits and
the forms and classes of such permits;
(b) regulating
the
movements
m India of any
person who is in possession of a permit;
( c) providing for the exemption, either absolutely
or on conditions, of any person or class of persons from
the requirement of being in possession of a permit or
from
the
operation
of
any rule made under the
section ; and
(d) ............................................. .
section 5 is the penal section which says
"(a)
Whoever enters
India in contravention of
the provisions of section 3,
or having entered
India
contravenes
the
provisions of any rule made under
section 4, or commits a breach of any of the conditions
of his permit, 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 6 confers power of arrest upon an officer of
Government. Section 7 is as follows:-
"Without prejudice
to the
prov1S1ons
contained
in section 5, the Central Government may, by general
or special order, direct the removal from India of any
person who
has committed, or against whom a reasonable suspicion exists that he has committed, an offence
under this Act,
and thereupon
any officer of Government shall have
all
reasonable
power necessary
to
enforce such direction."
Section 8 provides for protection to persons acting in
good faith and section 9, repeals the Influx from
Pakistan (Control)
Ordinance, XXXIV of 1948.
The use of the word 'person' in section 7, read with
the title and preamble of the Act leaves no doubt that
the Act applies to citizens and non-citizens alike.
So
•
S.C.R.
SUPREME COURT REPORTS
937
far as a non-citizen is concerned, it is not contended
before us
that
the executive
Government
has no
authority to direct his
removal
from India and the
on! y contention raised before us is whether the Central
Government has any
power to direct
the removal of
an Indian citizen on either of the grounds mentioned
in section 7.
Section 7, it is contended, confers upon
the Central Government unfettered power to direct the
removal
from India not only of a person who has
committed
an offence
punishable under section 5 of
the Act but also one against whom a reasonable suspicion exists that he has
committed such an offence.
That
an Indian citizen visiting Pakistan for any pur•
pose
whatsoever
and returning
to India may be
required to produce a permit or passport as
the case
may be before he can be allowed to enter the country,
may
well
be regarded
as a proper restriction upon
entry but to say that if he enters the country without
a permit or on an invalid permit or commits a breach
of any of
the conditions of
the permit he may, on
conviction for such offence, be ordered to be removed
from
the
country
is tantamount to taking away his
fundamental right guaranteed under article 19(1) (e),
"to reside
and settle in any part of the territory of
lnclia".· The order is sought to be supported by the
learned
Solicitor-General
on
the ground that it falls
within
exception
(5) of article 19.
The proposition
that the order imposes in the interest of the general
public a reasonable restriction
on
the exercise of the
right conferred
upon
an Indian citizen to reside and
settle
in any part of the territory of India is hardly
statablc.
lt is possible to conceive of an Indian citizen
being guilty
of
serious
prejudicial Acts
such as
espionage and disloyalty to his country in which
case
he may render himself liable to the gravest penalty
which the Government may think fit by law to impose
upon him but it would be repugnant to all notions of
democracy
and
opposed
to
the
fundamental rights
guaranteed in Part III of the Constitution to order his
expulsion from
the country, for
to hold otherwise
would be tantamount to destroying the right of citizen-
~hi11 conferred by Part JI of the Constitution. This
1954
E~r4hi'" Va.cir
Maoat
v.
Tiu State of
Bombay
•Ni Others.
Ghulam Hasan J~.
1954
Ebrahim Va~ir
Afavat
v.
The State of
Bomba)'
and Others.
Ghulam Hasan J.
938
SUPREME COURT REPORTS
[1954]
result / is permissible only by recourse to article 11
of
the Constitution. Again it will be noticed that section 7
imposes the penalty of removal not only upon a conviction under section 5 but goes further
and brings
about the same
result even where there is a reasonable
suspicion entertained by the Central Government that
such an offence has been committed. The question
whether
an offence has been committed is left entirely
to the subjective determination of
the Government.
The inference of a reasonable suspicion rests upon the
arbitrary and unrestrained discretion of the Government, and before a citizen is condemned
all that the
Government
has to do is
to
JSSUe
an order that a
reasonable suspicion
exists
in
their
mind
that an
offence under section 5 has been committed.
The
section
cloes
not provide for
the issue of a notice to
the person concerned to show cause against the order
nor is he afforded any opportunity to clear his conduct
of the suspicion entertained against him.
This is
nothing short of a travesty of the right of citizenship.
The learned
Solicitor-General
argued
that the
provision must be viewed in the back-ground of the
events which took place at the time of the partition
and the unsatisfactory relations existing between India
and Pakistan
up to the present day. Even so the
penalty imposed
upon a citizen
by his own Government merely upon a breach
of the permit Regulations,
however serious it may be and, more, upon a reasonable suspicion only by the executive authority of his
having violated the conditions of the permit
is utterly
disproportiomte to the gravity of the offence and is in
our opinion indefensible.
A law which subjects a citizen
to the extreme penalty of a virtual forfeiture of his
citizenship
upon conviction for a mere breach of
the
permit Regulations or upon a reasonable
suspicion of
having committed such a breach can hardly be justified
upon the ground that it imposes a reasonable
restriction upon the fundamental right to reside and
settle in the country in the interest of the public. The
Act purports to control admission into and regulate
the
movements in India of persons
entering from
Pakistan but section 7 oversteps the limits of .control
•
S.C.R.
SUPREME COURT REPORTS
939
and regulation when it provides for removal
of
a
citizen from his own country.
To use the language of
this court
in
Chintaman Rao v. The State of Madhya
Pradesh and Ram Krishna v.
The State of Madrya
Pradesh('),
"The effect of the provisions of the Act,
however, has no reasonable relation to the subject in
view but
is so drastic in scope that it goes much in
excess of that object".
It may be s.aid that the sentry on guard at any of
the check-posts on
the frontier between
the
two
countries can prevent not only unauthorised entry of
a citizen by force but" can also
throw him out if the
person has managed to enter surreptitiously.
Exactly
what the sentrys' duties are was not argued before us.
They would naturally vary
according to
the circumstances and the orders which he receives but ordinarily
we apprehend that the duty
of a sentry at the border
would be to prevent as far as lay in his power unauthorised entry into India.
If any person claims to
have the right to enter, the sentry's duty would be to
hand him over to the Commander
or the Guard and
normally
it would be the duty of that Commander to
hand him over to the proper authority empowered to
determine the right which he claims. In the case of an
unauthorised
entry,
ordinarily
the duty of the sentry
is to arrest a man and hand him 9ver to the proper
authority for punishment and in extreme cases he may
have the right to shoot the person who does not halt
on his command and explain his presence at the outpost.
In normal circumstances we doubt if the sentry
would have the right to forcibly expel a man who
crosses the border.
The learned Chief Justice ( Chagla C. J.) took the
view that section 7 is consequential
to section 3 and
held . that if section 3 controlling admission by means
of a permit is
valid, section 7 must be held to
be
equally valid.
This argument is fallacious.
In the firs!
place, section 7 is
by no means
wholly consequential
to section 3. The first part no doubt renders the pcrso!l
concerned liable to removal upon conviction under section 5 but further empowers the Central Government
(r) [Ig,;o] S.C.R.759.
1954
Ebrahim V azir
Mavat
v.
Th1, State of
Bombay
arid Othtrs.
Ghulam Hasan J.
1954
Ebrahim V .zir
Miwot
v.
Tl1' State •f
Bombay
an! Others.
Ghulam Hasen J.
940
SUPREME COURT REPORTS
[1954]
to
pass
the
same
order
independently of
these
prov1S1ons
even
where
there is no conviction and a.
reasonable suspicion exists that an offence has been
committed.
Assuming,
however, that section 7 is
consequential to section 3 it gives no opportunity
to
the
aggrieved
person
to
show cause
against
his
removal. There is no forum provided to which the
aggrieved party could have recourse in order to vindicate his character or meet the grounds upon which it
is
based.
!'{either the Act nor the rules framed thereunder indicate what procedure is to be followed by
Government in arriving
at
the conclusion
that a
breach of section 3 or of the rules under section 4 bas
taken place.
In Shabbir Hussain v. The State of Uttar Pradesh
and Anotlzer( 1 ' the Allahabad High Court held that a
law allowing the removal from a territory of India of
any citizen is in contravention of article 19 (1) (d) and
( e) of the Constitution and is void in view of article 13
(1).
The order which challenged before them was
one passed under section 7 and was set aside.
In
Criminal Writ
No. 147 of 1951 decided on
December 11, 1951, a Bench of the Punjab High Court
(Weston C. J. and Harnam Singh J.) while setting aside
the order under section 7 against a citizen of India
who had entered India without a permit and was first
convicted and
then ordered
to be extcrned observed :
"The
powers of removal or banishment given by
section 7 of the Influx from Pakistan (Control) Act,
1949, connot be invoked against citizens of India. No
doubt, she committed an offence under section 3 of
that Act which applied to all persons, but that cannot
justify her removal even though her entry may have
been contrary to the provisions
of the Act."
W c are
not prepared to accede to the contention
urged by
the Solicitor-General that a citizen of India
who returns to the country witl1out a permit or without
a valid
permit commits such a grave offence as
to
justify
his
expulsion from the country. The
object of the Act is not to deport Indian nationals
(I) A.I.R. 1952 All. 257.
S.C.R.
SUPREME COURT REPORTS
941
committing a breach of the permit or passport Regulations but merely to control admission into and regulate
movements
in India of
persons from Pakistan and
therefore there is no substance in the argument that
section 7 was
intended to
achieve
the objective
of
expelling Indian citizens, by and large, if they brought
themselves within the mischief of section 3.
It was faintly contended that the order of physical
removal from
India, in addition to the punishment
imposed under section 5 of the Act, amounted to what
m~y be called "double jeopardy"
and is in conflict
with article 20 (2) of the Constitution.
The
short
answer to this contention is that there is no second
prosecution for the same offence and therefore no question of double jeopardy arises. See Maqbool Hussain v.
The State of Bombay etc.( 1 ) .
As a result of the foregoing discussion we declare
section 7 to be void under article 13(1) in so far as it
conflicts with the fundamental right of a citizen of
India under article 19(1)
(e) of the Constitution and
set it aside.
The order will, however, operate only
upon proof of the fact that the appellants are citizens of
India.
The case will, therefore, go back to the High
Court for a finding upon this question.
It will be open
to the High Court to determine this question
itself or
refer it to the court of District Judge for a finding.
Parties will be given full opportunity to file affidavits
or
give other
evidence which they may wish
to
produce.
Criminal Appeal No. 5 of 1953.
GHULAM HASAN J .-The appellant
in this case is
a resident of Godhra, District Panchmahals, in the
State
of Bombay.
He went to Pakistan in March,
1948,
and returned to India on May 30, 1949, after
obtaining a permit for permanent return to India from
the High Commissioner for India. In January, 1950,.
he was prosecuted under section 5 of Act XXIII of
1949 for having obtained a permit which
was not in
accordance with the provisions of the Act.
The prosecution w:is withdrawn after 2t years. Subsequently on
December 5, 1952,
he
was
served
with
a notice
( ) [1953] S. C.R. 730.
1954
Ebrahim V azir
Mavat
v.
Tht State of
Bombay
and Others.
Ghulam Hasan J.
942
SUPREME COURT REPORTS
[ 1954]
ordering him to leave India for Pakistan within 10 days
else he would be bodily removed to the
Indo-Pakistan
border. Thereupon the appe!lant filed a petition under
article 226 contending
that section 7 was contrary
to
his fundamental rights under articles 14 and 19 of the
Constitutio11
and that· the same provided no opportunity to the appellant to put his case before the Government officers, nor
was any such opportunity afforded
to him.
He asserted that he was a citizen of India.
The application was summarily dismissed on December 15, 1952, whereupon leave to appeal to this court
was granted under article 132 (1)
of the Constitution.
As th.is appeal also raises the question of the constitutional validity of section 7, it will be governed by the
decision which we have arrived at in appeals Nos. 65
and 66 of 1952.
·
Criminal Appeal No. 19 of 1953.
GHuLAM
HASAN.
J.-The appellant,
Haji
Faqir
Ahmad, is a resident of Rewa in Vindhya Pradesh and
alleges that he is a citizen of India. He was prosecuted under section 5 of Act XXIII of 1949 on the ground
that he had entered India from
Pakistan without a
permit
and
convicted
and sente_nced.
Thereafter
he
was by an order passed under section 7 bodily removed
out of India. His father applied under article 226 of
the Constitution and
section 491 of the Code of Criminal Procedure for
setting aside the order.
The
learned Judicial Commissioner dismissed
the application summarily holding that section 7 was
not f!itra
vires the Constitution.
Mr. Asthana, who appeared on behalf of the appellant, raised a further question that the order was void
under article
14 inasmuch as it discriminated against
members
of a particular community
coming
from
Pakistan.
There is no warrant for
this contention.
The Act applies
to citizens as well as non-citizens. It
applies
to
all
commumt1es irrespective of caste or
creed.
It is contended
that the Act must be held to
be discriminatory not only by virtue of its
provisions
but because of the
dis~riminatory manner in
which
those provision have been applied.
This argument is
•
)
•
•
S.C.R.
SUPREME COURT REPORTS
943
to be mentioned only to be rejected, for there is no
material whatsoever placed before us
to justify the
statement.
The case in Yick W o v. Peter Hopkins( 1 )
is wholly inapplicable to the facts of the present case.
We accordingly reject the contention.
This case will
also he governed by the decision in Appeals
Nos. 65
and 66 of 1952.
Petition No. 170 of 1952.
AND
Petition No. 19 of 1953.
GHuLAM HAsAN J.-These petitions under article
32 of the Constitution raise the constitutional validity
of section 7 of the Influx from Pakistan (Control) Act,
XXIII of 1949.
Mr. S. P. Sinha, who appears for the
petitioners, withdraws
these petitions and undertakes
to file two petitions under article 226 of the Constitution
within a fortnight from
this day before the High
Court.
When these have been filed, they will automatically be governed by the decision given in
Appeals Nos. 65 and 66 of 1952.
No other order is called
for. The petitions are allowed to be withdrawn.
Petition No. 57 of 1953.
GHULAM HASAN
J.-This is a petition under article
32 of
the
Constitution
by
Inamullah Khan alias
Qamar Jamali for the issue of a writ in the nature of
habeas 'corpus
directing that the petitioner, who is
illegal! y arrested and detained be brought before the
court and set at liberty and for the issue of a writ of
certiorari calling for the said order for arrest and
detention
and the
relevant papers
and
for
setting
them aside as being void and inoperative. It is further prayed that the State of Bhopal and the Superintendent of Central
Jail, Bhopal, where he was being
detained
be restrained from putting into effect the
said
order.
The petition was
made on March 11,
1953.
It is ·stated that the petitioner is a citizen of
India having been born in Bhopal in 1922,.. He was
employed in Bhopal for 5 years immediately preceding
{I) 118 U.S. 356; 30 Law. Ed. 220.
1954
Ebrahim Vazir
Mavat
v.
The State of
Bombay
and Others .
Ghi:.lam Ha.ran J.
1954
Ebrahim V azir
Mavai
v.
The State of
Bombo,1
and Othtrs.
Ghulam Hasan J.
944
SUPREME COURT REPORTS
I 195i l
the commencement of the Constitution of India. He
also edited a weekly paper "Tarjuman" from Bhopal.
His name appears as a voter in the voters list of the
Bhopal Legislative Assembly
(1951-52), as wdl as in
the electoral roll of the Municipal Board, Bhopal. He
was arrested on November 24, 1952, by the Sub-Inspector of Police at Ibrahimpura, Bhopal, under section
7 of the Influx from Pakistan (Control) Act, XXIII of
1949 and
was
told that he would
be removed
to
Pakistan.
At the
time of the arrest the petitioner
was being tried under section 448, Indian Penal (',ode,
in the court of 1st Class Magistrate, Bhopal, and was
on bail.
The petitioner alleges that he never went to
Pakistan, nor entered India without a permit and was
never
tried
and
convicted
under the
Influx
from
Pakistan (Control) Act of 1949. He challenges the order
under section 7 as being void under article 19(d) and
( e) and articles 21 and 22.
The fact that the petitioner is a resident of Bhopal
and was employed in the State is not denied on behalf
of the State.
The affidavit on behalf of the State
mentions that the petitioner had gone to Pakisun in
May, 1952, and returned in August, 1952, without a
permit.
He was
arrested
on November 24,
1952,
without
any
pnor
notice but was
told at the
time
of
the
arrest
that
he was
to be removed
out
of
India.
The petitioner
filed
an application
through his uncle before the Judicial Commissioner,
Bhopal, under article 226 on November
25,
1952,
challenging
the
order.
The Judicial
Commissioner
granted an interim stay order on the same d:iy. The
petition was dismissed on February 23,
1953, and the
interim order was vacated on March 10, 1953.
It is
admitted that an oral request was made to the J udici:il
Commissioner for leave to appeal to this court and it
was prayed that pending the grant of leave the order
of stay should continue. Leave was refused on the
5:1me day and the stay order was vacated. •
Thete is an affidavit by the Chief Secretary of the
State admitting that the petitioner on the same day
handed an application to the
Superintendent of
Jail
•
•
•
S.C.R.
SUPREME COURT REPORTS
945
addressed to this court.
The Superintendent of Jail
sent it to the Chief Secretary on March 13, 1953. It
was put up before him on the 14th when he forwarded
it to the Law Department for opinion on March 16.
The petition was returned to him on the 19th with the
remark that it should be forwarded to the Supreme
Court. It was sent to this court on March 22. On
the same day a telephonic communication was sent
by the Registrar of this court through the
States
Ministry
directing that
the
petitioner
should
be
detained if he was still in India, but it appears that
the petitioner had been handed over to the Rajasthan
Police at Kotah on March 12, 1953, and a reply was
received
by
the Inspector-General of Police, Jaipur,
that the petitioner had crossed the border on March
·18, 1953.
The Superintendent of Jail has also filed
an affidavit supporting the
Chief Secretary and has
admitted that it was wrong on his part not to have
sent the petition
submitted
by the prisoner
immediately
to
this
court
and that he in good faith
beli-eved that as the order for stay had been
vacated
by the Judicial Commissioner, he should first send
it to the Registrar of that court.
It is obvious that
the 'Superintendent was grossly in error and his action
in not submitting the petition resulted in the unlawful removal of the petitioner out of the country. He
has made amends by tendering an unqualified apology
and nothing further need be said about it. In Ebrahim
Wa>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
1954
Eirahim V azir
Mavai
v.
The State of
Bombay
and Oth;rs.
Ghulam Hasan J.
1954
Ebrahim Vazir
Mavat
v.
The State af
Bombay
and Otkrs.
Ghuh.m Hasan J.
946
SUPREME COURT REPORTS
[1954]
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 aforesaid
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
•
•
•
S.C.R.
SUPREME COURT REPORTS
947
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
1954
Ebrahim V azir
Mavat
v.
The State of
Bombay
and Ot/;ers.
./Jas J.
1954
Ebrahim V az:ir
Maval
v.
The State of
Bombay
and Otf.ers.
Das].
948
SUPREME COURT REPORTS
[1954]
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)
•
S.C.R.
SUPREME COURT REPORTS
949
be scrutinised
ciosely, for our decision may conceivably
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 noncitizens 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
. 1954
Ebf'ahiTir Vazir
Mavat
v.
The State qf
Bombay
and Othtr.r.
Das].
1954
Ebrahim Vatir
Mavat
v.
7 he State of
Bombay
and Otkrs.
Da.s J.
950
SUPREME COURT REPORTS
[1954)
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 authonsmg
the
imposition of the restrictions,
considered
them to be reasonable."
The impugned sections have, therefore, to be examined 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), Czechoslovakia (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
S.C.R.
SUPREME COURT REPORTS
951
clause (5) of article
19 of the
the objection
of
section 3 has
pressed before us.
Constitution. Indeed,
not been
seriously
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.