# Shyabuddinsab Mohidin.Jab Akki v. The Gadag-Betgeri Municipal Borough and others

- **Citation:** [1955] 1 S.C.R. 1284
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shyabuddinsab-mohidin-jab-akki-v-the-gadag-betgeri-municipal-borough-and-others-333
- **Pages:** 19

## Headnote

1955
Shyabuddinsab
Mohidin.Jab Akki
v.
The Gadag-Betgeri
Municipal Borough
and others
Sinha J.
1955
February 23
1284
SUPREME COURT REPORTS
[1955]
meeting of the ~rd August 1954 had. been validly held
and that there is no illegality in the election. of the
2nd and 3rd respondents as president and vice-president respectively. We accordingly affirm the orders
of the High Court, though not for the same reasons.
The appeal fails ·and is dismissed with costs.
Appeal dismissed.
HANS MULLER OF NURENBURG .
tJ.
SUPERINTENDENT, PRESIDENCY JAIL,
CALCUTTA AND OTHERS.
[MuKHERJEA C.J., S. R. DAs, VIVIAN
BosE,
.
BHAGWATI and }AGANNADHADAS JJ.)
Constitution of India, Arts. 14, 21 and 22-Entry 9 and entry
10 in Union list of Seventh Schedule to Constitution-Preventive Detention Act 1950 (Act V of 1950), s. 3(1)(b)-Whether ultra vires
Constitution-Foreigners Act 1946 (Act XXXI of 1946), s. 3(2)(c)-
Whether ultra vires ,Constitution-Extradition Act 1870 and Foreigners Act, 1946--Distinction between.
The petitioner, a West German subject, was placed un<;Ier preventive detention by an order of the West Bengal Government under
'· 3( 1) (b) of the Preventive Detention Act 1950 on the ground that
he was a foreigner within the meaning of the Foreigners Act 1946
and that it had becoine necessary to make arrangements for his expulsion from India ahd tht;refore he was required to be detained until
the issue of an appropriate order from the Central Government.
The questions for determination in the case· were :-
(i) whether s. 3(1)(b) of the Preventive Detention Act was
ultra vires the Constitution inasmuch as it contravenes Arts. 14, 21
and 22 of the Constitution and whether it w:is beyond the ·legislative
competence ·of Parliament to enact such a law;
'
(ii) whether, in any event, the detention was invalid as .it
was made in bad faith.
Held that the Impugned portion of the Preventive Detention
Act and i. 3(2)(c) of the Foreigners Act on which it is based are not
ultra vires the Constitution· inasmuch a:~;
( i) in view of Entry 9 and Entry 10· 0£ the Union list of the
Seventh Schedule to the Constitution, the language of which must
be given the widest meaning, the legislative competence of Parliament to deal with the question of preventive detCntion of foreigners ·
) ..
S.C.R.
SUPREME COURT REPORTS
1285
is clear and this covers not only s. 3(l)(b) of the Preventive Deten·
tion Act but also the Foreigners Act, 1946, in so far as it deals with
the powers of expulsion and the right of the Central Government to
restrict the movements of foreigners in India and prescribe the place
of their residence and the ambit of their movements in the land;
(ii) the Preventive Detention Act was a comprehensive Act
dealing with preventive detention and was framed with the limitations of Arts. 21 and 22 in view. Section 3(1)(b) of the Preventive
Detention Act was enacted to bring the unrestrained power given by
s. 4(1) of the Foreigners Act into line with the provisions of the
Constitution;
(iii) section 3(1)(b) of the Preventive Detention Act is reasonably related to the purpose of the Act, namely preventive detention,
inasmuch as the· right to expel a foreigner conferred by s. 3(2) of the
Foreigners Act on the Central Government and the right to make
arrangements for expulsion include the right to make arrangements
for preventing any breach or evasion of the order; and the Preventive Detention Act confers the power to use the means of preventive
detention as one of the methods of achieving this end;
(iv) the State Government is competent to make an order of
detention under the law in anticipation of an order of expulsion that
is about to be made, or which may be made by the Central Government on the recommendation of the State Government which, though
seized with certain powers of Government is not competent to make
an order of expulsion itself. Unless ·a State Government has authority to act in anticipation of orders from the Centre it might be too
late to act at all;
( v

## Text

_Characters 0–39,997 of 43,565. This is a partial read: ask again with offset=39997 for what follows._

1955
Shyabuddinsab
Mohidin.Jab Akki
v.
The Gadag-Betgeri
Municipal Borough
and others
Sinha J.
1955
February 23
1284
SUPREME COURT REPORTS
[1955]
meeting of the ~rd August 1954 had. been validly held
and that there is no illegality in the election. of the
2nd and 3rd respondents as president and vice-president respectively. We accordingly affirm the orders
of the High Court, though not for the same reasons.
The appeal fails ·and is dismissed with costs.
Appeal dismissed.
HANS MULLER OF NURENBURG .
tJ.
SUPERINTENDENT, PRESIDENCY JAIL,
CALCUTTA AND OTHERS.
[MuKHERJEA C.J., S. R. DAs, VIVIAN
BosE,
.
BHAGWATI and }AGANNADHADAS JJ.)
Constitution of India, Arts. 14, 21 and 22-Entry 9 and entry
10 in Union list of Seventh Schedule to Constitution-Preventive Detention Act 1950 (Act V of 1950), s. 3(1)(b)-Whether ultra vires
Constitution-Foreigners Act 1946 (Act XXXI of 1946), s. 3(2)(c)-
Whether ultra vires ,Constitution-Extradition Act 1870 and Foreigners Act, 1946--Distinction between.
The petitioner, a West German subject, was placed un<;Ier preventive detention by an order of the West Bengal Government under
'· 3( 1) (b) of the Preventive Detention Act 1950 on the ground that
he was a foreigner within the meaning of the Foreigners Act 1946
and that it had becoine necessary to make arrangements for his expulsion from India ahd tht;refore he was required to be detained until
the issue of an appropriate order from the Central Government.
The questions for determination in the case· were :-
(i) whether s. 3(1)(b) of the Preventive Detention Act was
ultra vires the Constitution inasmuch as it contravenes Arts. 14, 21
and 22 of the Constitution and whether it w:is beyond the ·legislative
competence ·of Parliament to enact such a law;
'
(ii) whether, in any event, the detention was invalid as .it
was made in bad faith.
Held that the Impugned portion of the Preventive Detention
Act and i. 3(2)(c) of the Foreigners Act on which it is based are not
ultra vires the Constitution· inasmuch a:~;
( i) in view of Entry 9 and Entry 10· 0£ the Union list of the
Seventh Schedule to the Constitution, the language of which must
be given the widest meaning, the legislative competence of Parliament to deal with the question of preventive detCntion of foreigners ·
) ..
S.C.R.
SUPREME COURT REPORTS
1285
is clear and this covers not only s. 3(l)(b) of the Preventive Deten·
tion Act but also the Foreigners Act, 1946, in so far as it deals with
the powers of expulsion and the right of the Central Government to
restrict the movements of foreigners in India and prescribe the place
of their residence and the ambit of their movements in the land;
(ii) the Preventive Detention Act was a comprehensive Act
dealing with preventive detention and was framed with the limitations of Arts. 21 and 22 in view. Section 3(1)(b) of the Preventive
Detention Act was enacted to bring the unrestrained power given by
s. 4(1) of the Foreigners Act into line with the provisions of the
Constitution;
(iii) section 3(1)(b) of the Preventive Detention Act is reasonably related to the purpose of the Act, namely preventive detention,
inasmuch as the· right to expel a foreigner conferred by s. 3(2) of the
Foreigners Act on the Central Government and the right to make
arrangements for expulsion include the right to make arrangements
for preventing any breach or evasion of the order; and the Preventive Detention Act confers the power to use the means of preventive
detention as one of the methods of achieving this end;
(iv) the State Government is competent to make an order of
detention under the law in anticipation of an order of expulsion that
is about to be made, or which may be made by the Central Government on the recommendation of the State Government which, though
seized with certain powers of Government is not competent to make
an order of expulsion itself. Unless ·a State Government has authority to act in anticipation of orders from the Centre it might be too
late to act at all;
( v) the impugned section does not offend Art. 14 of the Constitution inasmuch as differentiation between foreigner and foreigner
as envisaged ins. 2(a) ands. 3(2)(c) of the Foreigners Act 1946 and
s. 3(1)(b) of the Preventive Detention Act is based on a reasonable
and ration~! classification.
There is no individual discrimination,
and reasons of State may make it desirable to classify foreigners into
different groups.
On the question of good faith, held, that the circumstance of
the· case . did not show bad faith on the part of .the . West Bengal
Government.
The Foreigners Act 1946 is not governed by the provisions of the
Extradition Act 1870.
The two are distinct and neither impinges
on the other. Even if there is a requisition and a good case for
extradition, Government is not bound to accede to the request.
I~ is
given an unfettered right to refuse, vide s. 3(1) of the Extradition
Act, and has got an absolute discretion to choose the less' icumbrous
procedure of. the F:oreigners Act when a foreigner is concerned. As
the Government is-given the right to choose, no question· of want of
good faith can arise merely because: it exercises the" tight of choice
which the law confers.
·
1955
Hans Muller of
Nurenburg
v:
Superintendent,
Presidency Jail,
Calcutta and others
1955
·Hans Muller:of
Nurenburg
v.
S~perinUndent,
Presidency Jail,
.C1lcutta and others
1286
SUPREME COURT REPORTS
[1955]
·ORIGINAL :JurusmcrrnN : Petition No. 22 -of 1955.
Under Article 32 -of the 'Constitution .for a Writ
.in the nature of habeas corpus.
S~dhan Chandra Gupta
(The Petitioner also . present)· for ·the. petitioner.
M. C. Setalvad, Attorney-General .of India (B. Sen,
and /. N. Shroff, fot P. X. Bose, with him) for the
respondents.
1955. February 23. The Judgment of the , Court
was delivered by
-BosE J.-The .petitioner, Hans .Muller, who is not
a citizen of India, and who is said to be a West German
subject, was arreste.d by the 'Calcutta Police oh the ·
18th September, · 1954 and was placed under preventive
detention. The order was made by the West Bengal
Government under section 3 ( 1) of the Preventive Detention Act of -1950 (Act IV of 1950) on the ground
that. his detention was
·
"w,ith a . view to making arrangements for his 'explusion from India".
·
' .
The grounds were served on the 22nd of September,
~--\
1954. The second ground runs-
"That you are a foreigner within the meaning of
·the Foreigners Act, 1946 (Act XXXI of 1946)
and
that . it has become _ necessary _to ·make <l!"rangements
·for your expulsion from India and for this purpose
,you are required to be detained under -section 3(1) (b}
of the Preventive Detention Act, 1950 until the issue
·of an appropriate order of · expulsion from the Central
).
·Government".
On the day after his arrest, namely on -the 19th
.September, 1954 he wrote ·to .the Consul"General of
West Germany at •.Calcutta ·saying that he ·had been
·arreste_d ·and asking· for .·-an early interview. This Was
,granted..
·
·
On the 21st of September 1954; .the petitioner wrote
•to the West Bengal' Goverrunelif asking· it
"to b~-kind enough. to pass .• an.ord~-for our !ID-_
",{ -
mediate repatriation from India"
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S.C.R.
·sUPREME ·COURT .REPORTS
1287
and "to do the necessary arrangement :for our :transmission out of India".
On the 9th of October 1954 the Calcutta Police
handed .the petitioner's . passport over to the West
German Consul at the Consul's request. . This passport was issued to the petitioner by the West German
Government at Nurenburg. in West Germany on the
27th of November
1953. When the
passport was
handed over to the West German Consul it had on it
a number of visas, including an Ind~an, all of which
had on them the col;ldition "while the. passport is
valid''.
When the West German . Consul
got the
passport he made ·the following entry on it :
"Valid only for the return' voyage to the Federal
Republic of Germany·until the 8th January 1955".
The pet:itiorier complains that this invalidated all the
other visas and as, according to . this fresh entry, the
passport ceased to be valid after ·the 8th of January
1955, he now has no passport.
. .
.
.
.
On the same day, the .9th of October 1954, the West
German Government wrote to . the West Bengal Government saying · that a warrant of arrest was issued
against· the petitioner in West Germany in connection
with a. number of frauds and that legal proceedings . in
connection with those warrants. are still ,pending. . The
Consul also said that he had received information that
similar charges had been made against . the petitioner
in Lebanon· and in Egypt and he concluded-
"The Government 'of the Federal Republic of
Germany . will . apply for Muller's extradition through
diplomatic channels whilst at the same · time submitting the 'supporting documents. As i:his- will Tetjuite
a certain amount of time, I am directed to give you
advance 'information of '.this step and . hereby <.request
the Government of West Bengal to issue a provisional
warrant··of arrest which ensures Muller's . .detention up
to the date ·of his extradition to Germany. '
. I .Th~i;; COnsulate I Ws ; already . afrariged . ' for., .Muller's
'repatriation oy:,·· ;'tl).e"_:,' Gerfrian
boat . :'KANDELFELS'
due to arrive' 'in 'Cakutta'~ dn" the 19tlf'' ifilrtiiiL :An
1955
.Hans Muller nf
Nurenburg
.y.
Superintendent,
Presidency Jail,
Calcutta and otherS;
Bose J.
IQ55
Hans Muller of
Nurttoburg
v.
_ Superintendent,
Presidnicy Jail,
Calcutta arul others
Bose J.
1288
:SUPREME COURT REPORTS
[1955]
expenses in connection with Muller's repatriation will
be borne by the Government of , the Federal Republic
of Germany".
,
.
· On receipt of this letter the Secretary to the Gov-
, ernment of West Bengal recorded the following note : ,
"I suppose there would be 'no objection to our
keeping Muller in detention till the 19th instant. We
must issue order of his release as soon as his boat is
ready to sail".
.
The West Bengal Government had no, power' to deport the petitioner.
Only the · Central · Government
could do that, and up till the 20th of October the
Central Government had not passed any orders. On
that date the petitioner applied to the High , Court of
Calcutta .for a writ in the nature ·of . habeas . ,corpus
under section 491 of the Criminal Procedure, Code.
Because of that, and, because this matter has been
pending in the courts ever since, no orders have yet
been issued for his expulsion from India though we
are told by the learned Attorney-General that they
have been 'made and · sighed but are being held in
abeyance pending the decision of this petition.
The petitioner contended that 'his detention was
invalid for the following, among other, reasons :~
( 1) Because
section 3( 1) (b) ' of· the
Preventive
Detention Act, the section under which the order was
made,. is u'ltra vires 'the Constitution on three grounds-
( a) that it contravenes articles 21 and '22;
"
(b) that it contravenes article 14, and
(c) that it was beyond
the
legislative · compe-
. tence of Parliament to. enact such a law;,
(2) Because section 3(1)(1;>), is. not a law of preventive detention within the meaning. of article 22(3)
and ,therefore. it . contravenes , article., 22 (1) and (2);
and
(3) Because,. in any event, the o;d~r. was μ;~de in
bad faith.
·
The High Court · decided ·against the . petitioner on
all points and. dismissed the. petition. on
1().o12-1954.
He· thereujJ9nJ made the px:esent petition· to this, Court
<1n the same grounps, presumably under .. article. 32 of
the Constitution. It was filed on 10-1-1955.
,_
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v
S.C.R.
SUPREME COURT REPORTS.
1289
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(.,.,
We will first consider the vires of section 3(1)(b).
It is iri: ·these terms :
·
"The Ceiitral Government· or the · State Government may-'-· .
"
t
'
...................................................
(b) if s~tisfied with respect to any person who is
a foreigner within the meaning of the Foreigners Act,
1946 (XXXI ·of 1946), that · with a view to regulating
his continued presence in'. Iridia or with a view to
making arrangem~nts for his expulsion 'from India,
it is necessary so to do, 'make an order directing that
such person be detained".
· .
· ·
The detention ord.er is. by a State Government and
not by the Centre. The portion of the section on which
the order is based is the part that gives a State Government power. to make an order of detention against
a foreigner, on satisfaction, "with a view to making
arrangements for his expulsion from India".
The competence of. the Central Legislature to enact
a law dealing with this aspect of preventive detention
is derived from Entry 9 of the Union List read with
Entry 10. The portion of Entry 9 which concerns us
is as follows :
"Preventive
detention
for
reasons
connected
with .............. Foreign Affairs ............ "
The scope of the expression "Foreign Affairs" is indicated in Entry 10 :
"Foreign Affairs;
all matters which bring
the
Union into relation with any foreign country".
It is well settled that the language of these Entries
must be ·given the widest scope of which their meaning is fairly capable because they set up a machinery
of Government and are not mere Acts of a legislature
subordinate to the
Constitution.
Giving Entry 9 its
widest range we find it impossible to hold that legislation that deals with the right of a State to keep
foreigners
under
preventive detention without trial
does not bring the Union into relation with a foreign
country. Every country claims the right to the allegiance of its subjects wherever they may be arid in
return guarantees to them the right of diplomatic
1955
Hans Muller of
Nnrenburg.
To
Superintendent,
Presidency Jail,
Calcutta and others
Bose J.
1955
H/Jns Muller <if
Nurenburg·
v.
Superinundenl,
Presidency· Jail~
Calcutta and 'others
Bi:Jse·J•
1290
SUPREME COURT REPORTS
'
.
.
,.·,.
'
protection . .when abroad.. It is therefore . the privilege,
and the anxiety, of every civilised· nation . to keep
vigilant watch over
i~s subjects ab.road . and to. ensure
for them, as far as that is possible through diplomatic
channels,
fair play and justice administered ' along
lines of what is called, broadly for want of a better
term, natural justice. A foreign
State has a very
direct interest in what ls done to its 'subjects in a for:
eign land. Therefore,· legislation ·that confers jurisdiction upon Governments in this country to deprive
foreigners of therr liberty cannot but be · a matter
that will bring the Union into relation with foreign
States,. particularly when there is no public hearing
and no trial in the ordinary courts of the land. But
in this particular case, the relation is even more direct,
for the provision here is for detention with a view to
making arrangements for a foreigner's expul'sion from
India. A foreign State has a very deep interest in
knowing where and how its subjects can be forcibly
expelled against their will. The legislative competence
of Parliament to deal with this question is, we think,
clear; and this covers not only section 3(1)(b) of the
Preventive Detention Act but also the Foreigners Act,
1946 (Act XXXI of 1946) in so far as it <leals with
the pC>.wers @f expulsion anru llhe· right of the Central
Government to restrict the movements of foreigners
in India and prescribe the place of their residence and
the ambit of their movements in the land.
The learned Attorney-General sought to base the
legislative competence upon other Entries as well and
claimed that Parliament is not confined to Entry 9 in
1 .
'y
List I and Entry 3 in List III (the only Entries that
).
touch directly on preventive detention). He claimed;
for example, that laws
for
the preventi"e detentioR
of foreigners can .also be based upon Entry 17 in List
I which relates to aliens and Entry 19 which relates
to expulsion from India•; and also upon the portions
of Entries 9 in List I and 3 in List III that deal
with the "security of India,'' and the "security of
the State" and the "maintrnance of public order",
provided always that they comply with articles 21
.. ).
and 22 of the Constitution. We express no opiniOR
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S.CR.
SUPREME COURT REPORTS
1291
about this. as we can uphold the portion of the Statute
that is impugned here on the narrower ground we
have set out above.
The next question is whether the limitations imposed on this power by articles 21 and 22 have been
observed.
Article 21 guarantees the protection of personal
liberty to citizen and foreigner alike. No person can
be deprived of· his personal liberty
"except
according
to
procedure
established
by
law'',
and article 22 prescribes the minimum that the procedure established by law must provide. There can
be no arrest or detention without the person being
produced before the nearest magistrate within twenty
four hours, excluding the
time
necessary for
the
journey, etc., nor can he be detained beyond that
period _without the authority of a magistrate. The
only exceptions are (1) enemy aliens and (2) "any
person who is arrested or detained under any law
providing for preventive detention".
.
There are further limitations, but they were not
invoked
except
that
the
learned
Attorney-General
explained that the unrestricted power given by section 4(1) of the Foreigners Act, 1946 (a pre-constitution measure) to confine and detain foreigners became
invalid on the passing of the Constitution because of
articles 21 and 22. Therefore, to bring this part of
the law into line with the Constitution, section 3(l)(b)
of the Preventive Detention Act was enacted. It was
more convenient to insert new provisions about the
confinement and detention of foreigners in the Preventive Detention Act rather than amend the Foreigners Act because the Preventive Detention Act was
a comprehensive Act dealing with preventive detention and was framed with the limitations of articles
21 and 22 in view.
It was urged on behalf of the petitioner that section 3(l)(b) of the Preventive Detention Act is not
reasonably related to the purpose of the Act, namely,
~j
"preventive detention".
I~ was
argued that preventive detention can only be for the purpose of prevent1955
Hans Muller of
Nurenburg
VI
Superintendent,
Ptesideru,y Jail,
Calcutta and otlr4r1
Bose J.
1955
Hans Muller of
Nurenburg
y,
Superintendent,
Presidency Jail,
CalcUtta and others
Bose J.
1292
SUPREME COURT REPORTS
',J
-'"'
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• "
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!
•
ing something and when you seek to make arrangements for a man's expulsiorr from the country you
are not preventing· anything, or trying to,· but are
facilitating the performance of a positive act . by
the
State, namely the act of expulsion.
We do not agree and will first examine the pos1t10n
where an order of expulsion is made before any steps
to enforce it are taken. The right to expel is conferred
by section 3(2)(c) of the Foreigners Act, 1946 on
the Central Government and the right to enforce an
order of expulsion and also to prevent any breach of
it, and the right to use such force as may be reasonably
necessary
"for the effective
exercise
of
such
power" is conferred by 'section 11 ( 1), also on the
Central
Government.
There
is,
therefore,
implicit
in the right
of expulsion a number of ancillary
rights,
among · them,
the
right to
prevent
any
breach of the orders and the right to use force and to
take effective measures to
carry out those purposes.
Now the most effective method of preventing a breach
of the order and ensuring that it is duly obeyed is by
arresting and detaining the person ordered to be expelled until proper arrangements
for
the
explusion
can be made. Therefore, the right to make arrangements for an expulsion includes the right to make
arrangements for
preventing any evasion or
breach
of the order, and the Preventive Detention Act confers the power to use the_ means
of preventive deten .
tion as one of the methOds of achieving this end.
How far it is necessary to take this step in a given
case is a matter that must be left to the discretion of
the Government concerned, but, in any event, when
criminal charges for offences said to have been committed in this country and abroad are levelled against
a person, an apprehension that he is likely to disappear and evade an order of expulsion cannot be called
either
unfounded
or
urrreasonable.
Detention
rn
such circumstances is rightly termed preventive
and
falls within the ambit of the Preventive Detention
Act and is reasonably related to the purpose of the
Act.
The next question is whether any steps can be
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S.C.R.
SUPREME COURT REPORTS
1293
taken under the law in anticipation of an · order that
is about to be made, or which may be made, by the
competent authority on · the recommendation of another authority seized with certain powers of. Government and yet ·not competent to make an order of this
kind.
The Foreigners Act confers the right of expulsion
on
the
Central
Government.
Therefore, a
State
Government has no right either to make an order of
expulsion or to expel. It was argued that if a State
Government cannot expel or rriake an · order of expulsion, then it cannot be' permitted· to ·detain "with
a view to making arrangements for the expulsion".
It was contended that the only authority that can
make such arrangements, or direct that they should
b~ made, is
the Central Government. · It was also
argued that until an order of expulsion is made by the
proper authority, no one can start making arrangements for its due execution; the arrangements contemplated by section 3(1) (b) must follow
and not
precede the order, especially as they involve curtailment of a man's personal liberty, for the order may
never be made and it would be wrong to permit an
authority not authorised
to decide the question
to
,detain a man of its own motion till somebody else has
time and leisure to consider the matter. That would
be inconsistent with the fundamental right to liberty
guaranteed
by
the
Constitution
to
citizen
and
foreigner alike.
Again, we do not agree. The Preventive Detention
Act expressly confers the right to detain
"with a
view to making arrangements" for the expulsion upon
both the State and the Central Government and the
"satisfaction" required by section 3 ( 1) (b)
can be of
either Government.
The right to satisfy itself that
, the drastic method of preventive detention is necessary to enable suitable arrangements for expulsion to
be made is therefore expressly conferred on the State
Government and as a State Government cannot expel,
the conferral of the right can only mean that the
State" Government is given the power to decide and to
- satisfy itself whether expulsion is desirable or neces8- 90 S. C. India/59
. 1955
Hans Muller of
Nurenburg
v.
Superintendent
Presidency Jail,
Calcutta and others
Bose J.
1955
Hans Muller of
.Nurenburg
v.
Superintendent
Presi,dency ."'fail,
Calcutta and others
Bose J.
1294
SUPREME COURT REPORTS
[1955)
sary, and if it thinks it is, then to detain until proper
arrangements ·for the expulsion are made, one· of
them, and ·an essential one, being reference to· the Central Government for final
orders. It is evident that
the authorities must be vested with wide discretion
in the present field where international complications
might easily .follow in a given case. U nles. a State
Government has authority to act in anticipation of
·orders from rhe Centre, it might be too late to act at
all.
We now turn to the argument that section 3(1) (b)
is ultra vires because it offends article 14 of the Constitution. Actually, the attack here is .on section 3
{2)(c) of the Foreigners Act but as section (3)(1)(b) of
the Preventive Detention Act is .consequential on that
it is also involved. Section 3(1)(b) permits detention
of a "foreigner" within the meaning· of the Foreigners
Act, 1946. The definition of "foreigner" is given in
section 2( a) of that Act and is as follows :
" 'foreigner' means a person who--
( i) is not a natural-born British subject as
defined in sub-sections (1) and (2) of section (1) of the
British Nationality and Status of Aliens Act, 1914, or
(ii) has not been granted .a certificate of naturalization as a British subject under any law for the
.time being in force in India" ..
The rest of the definition is not material. The argument is that tills differentiates between foreigner and
foreigner.
It takes two classes
of
British subjects
who are now as much foreigners as anyone else not an
Indian citizen, out of the clas. of foreigners for the
purposes of preventive detention and for the purposes
of expulsion under the Foreigners Act. Tills, it was
contended, offen_ds article 14 which provides that
"The State shall not deny to any person equality
before the law or the equal protection of the laws
within the territory .of India".
This argument is easily :answered by the classification rule which has been repeatedly applied in this
Court. The dassification of foreigners into those who
are ·British subjects of the kind set out ·in the defirii-
.tion, and ·others, so
as to make the ·former not
. f
•
•
-
l ,
S.C.R.
SUPREME COURT REPORTS
1295
foreigners for the purposes of the Foreigners Act and
the Preventive Detention Act, :is a reasonable and
rational classification and so does not, on the authority of our previous. decisions, offend article 14. There
is no individual discrimination and it is easily understandable that reasons of State may make it desirable
to classify foreigners into different groups. We repel
this argument.
It was then said that at any rate there is differentiation in the same group because the definition discriminates between classes of British subjects inter se.
It was pointed out that the British Nationality and
Statuts of Aliens Act, 1914 was repealed in 1948 and
re-enacted in another form but as our Act has retained the 1914 definition that is the one we must consider.
We do not intend to examine this contention because,
even if it be true that there is
the discrimination
alleged, namely between one class of British subject
and another, that will not give the petitioner a right
of challenge on this ground. He is not a British
subject and so is not a member of the only class
that could claim to be aggrieved on this score. This
Court has decided
in earlier
cases that the only
persons who can impugn any given piece of legislation
under article 32 are those who are aggrieved thereby.
As the petitioner is not a person aggrieved, so far as
this point is concerned, he not being a British subject,
he cannot be attack the section on this gruund.
We hold that the impugned portions of section
3(1)(b) of the Preventive Detention Act and section
3(2)(c) of the Foreginers Act, 1946 are intra vires.
'
We now turn to a wider question that brings us to
the fringe of International law. It arises in this way.
The good faith of the Government of the State of
West Bengal in making the order of detention was
r
challenged on the following, among other, grounds.
It was argued that the real object of Government in
continuing the detention was to keep the petitioner
in custody so that it would be in a position to hand
> ,
him over to the West German authorities as soon as
a suitable German boat arrived. It will be remembered
l9.'Ji5
Hans Muller of
Nurenhurg
v.
Superintendent
Presidency Jail,
Calcutta and others
Bose j.
1955
Htins Mul/E'i of
Nurenburg
.
v.
Superintendent
. Presidency Jail,
Calculta and others
Bose J~
1296
SUPREME COURT REPORT.S
.[1955]
that the ·West German Government_ wants the . getitioner fot offences which ·he is alleged to have· committed in West · Germany and that. the· .West German
Consul at Calcutta wrote. to the West Bengal Government on 9-10-1954 asking that Government to issue a
provisional warrant of arrest against the, petitioner
and to keep him in custody until the · West,, German
Government
could
initiate
extradition·· · proceedings
against him, and added. that the West ,Genp.an. Consulate at Calcutta had already arrat;iged ,.f<w. his re·
patriation on a. Ger!llan boat that was to arrive on the
19th of October 1954. On receipt ,of this· letter, the
Secretary of the West . Bengal Government recorded :a
note saying that he supposed there would be no. objection to the West Bengal Government keeping the
petitioner in detention . till the .19th. It was said that
the connection between the letter, the expected arrival
of the boat on the 19th and the· Secretary's. proposal
to keep the petitioner till that date, was obvious. .
· ·
The attack on the good faith of the West Benga.I
Government at this p0int was two-fold. First, it was
said that whatever the original ·intention of the West
Bengal Government may have been, when the. West
German Consul's letter was recei".ed, the object of the
detention was no longer for the .purpose. of . m~king
.arrangements for ·the petitioner's expulsion bm for
keeping him in custpdy till. the West German Government was in a position to commence .extradition prnceedings; that, it was said, was an abuse of the Preventive Detention Act and was not justified by any of its
prov1s1.ons ..
The second ground of attack was that, if that was
not · the object, then, very clearly, the idea ·was to
hand the petitioner over to the Germari authorities
on a German boat without the. formality of extradition proceedings and without givirig . the petitioner ·. a
chance to defend himself and show that ·he. could not
be extradited. That, . it was said, made ·the. matter
worse than ever. It was denied that the petitione.r
had committed any offence in West Germany or anywhere else. He claimed to be· a communist and said
that the real object of the West German Government
. f
-
-
S.C.R.
SUPREME.COURT ,REPORTS.
1297
was 'to 'subject him to political persecution the moment
they could lay hands on · him. The contention was
that once
an order of extradition ·is asked . for, a
foreigner cannot be handed over to: the Government
seeking, his .extradition except under the Extradition
Act.
.
The
learned
Attorney-General
contended
very
strongly that this question was academic and should
not be
~onsidered because no order . of expulsion had
yet been · serv~d on the petitioner and no orie · knows
the terms of the order. We do not think it is in view
of what 'the )earned Attorney~GeneraL told us, namely
that all order of expulsion . has actually been made
and ,signed b~t is. kept in abeyance pending our decision.
· ·
·
·
We see no ~orce in th~ first part of the petitioner's
argument. · We.' are at. bottom considering the question
of the_ West Bengal Government's gOod
faith. · The
order of detention was made before the West German
Consul . ~rote his. letter, so there was no connection
between' that letter and the order. After that there
is no material to indicate that the West Bengal Government changed its mind and continued the detention for another purpose. The note referred to is the
note . of. a Secretarv to Government and embodies ·his
suggestion about what should be done. It cannot be
used either . as an order of Government itself or as an
indication of its mind.
·The second point raises a question of wider import
touching the status and rights of foreigners in India,
and ·the question we have to determine is whether
there is ·any- law in India vesting the executive government with power to expel a foreigner from this
land as opposed to extraditing him.
Article
19
of
the Constitution confers certain
fundamental rights of freedom on the citizens of India,
among them, the right "to move freely throughout the
territory· of India" and "to reside and settle in any
part of India", · subject only to laws that impose rea~
sonable restrictions on the exercise of those rights in
the interests of the general publiC' or for the protection of the interests of any Scheduled Tribe. No cor1955
Hans Muller of
Nurenburg
v.
Superihtendenl
Presidency Jail,
Calcutta and othtrs
•.955
Hans Mulltt •f
Nurenburg
v.
SuptTinletidbttt'
Presidency ]aif,.
Calcutta and othtrs
Bose j.
1298
SUPREME COURT REPORTS
[1955]
responding rights are given to foreigners. All that is
guaranteed to, them is protection to life and liberty
i1t accordance with the laws of the land. This is con·
ferred by article 21 which is in the following terms :
"No person shall be deprived of his lite or personal liberty
except
according
to procedure established by law".
_ Entries 9, 101 17, 18 and 19 in the Union List confer
wid~. powers
on the_ Centre to make laws about,
among. ,other things, admission into and
expulsion
from India, about, . extradition arid
aliens and about
preventive . de~ention
~onnectecf with foreign
affairs.
Therefore, the right to make laws about the extradition of aliens and about their expulsion from the land
is. express,ly ,conferred; al.so, it is to, be observed that
extradition . and expulsion are contained in· separate
entries indicating that_ though they may. 9v~lap ·'in
certain. aspects, they are different . ·and. distinct . subjects. And that brings us to the Foreigners Act which
deais, among ' other . t:lllngs, with, expulsi9n, and the
Extradi~on _Act which. regulates .extradition.
·
The · Foreigpers · Act confers the power to ·expel
foreighers
from India.
It vests the Central Government" With 'absolute""artd· unfettered ·discretion and,- as
there ·is · no provision fettering this discretion · in · the
Constirutioii, an unrestricted ·right to expel remains.
The law of extradition is quite different. ·Because
of tteaty obli'gati0ns it . confers a right on certain
countries (not all) to ·ask that personS' who 'are alleged
to havl: committed· certain specified offences in their
territories; or who . have already been convicted of
those bffences· by· their courts, be handed · over to them
in custody for prosecution 'Or ·punishment. But des·
pite that -the Government . of -India· is not . bound to
comply•., with · the .. ·request, ,and has. an.- abso.lute and
unfettered --discretion to refuse . .-
There· are important' · differences · between the two
Acts. · ., Irr ·the · first'"place, the Extradition Act "applies
to ev&¥ybody;" citizen ·and :foreigner alike,.-and to every
class "•of."foreignet, rhat··.is ''W· say, ·everi• to•··foreigners
who ·~re n6t' · nationak ···of .. the · coiμltrY' asking· for
-
S.C.R.
SUPREME COURT REPORTS·
1299
extradition.
But, as has, been seen, because , of article
19 no citizen can be expelled (as opposed · to extradition) in the absence of a specific law to that effect;
and there is none; also, the kind of ·law touching ex"
pulsion (as opposed to extradition) that could be made
in the case of a citizen would have to be restricted in
scope. That- is not the case where a foreigner -is .concerned because
article . 19
does
not appJy. . ~ut a
citizen who has committed certain kinds .. of offences
abroad can be extradited if the formalities,. prescribed
by the Extradition Act are observed. A foreigner has
no such right and he can be expelled withoμt. ,any
formality beyond the making · of . an order by the
Central Government.
But if he is extradited. instead
of being expelled, .then. the formalities ·.of the · Extraqition Act must be complied with. The importance ·of
the distinction will be realised from what follows; and
that applies ,to citizen and foreigner alike'.
. .
.
The Extradition . Act is really a special branch ·of
the law of. Criminal Procedure. It .. deals , with criminals and those accused of certain crimes. ·.The Foreigners Act ·is not directly concerned with criminals or
crime though the fact that a foreigner . has committed
offences, or is suspected of that, may be a good ground
for regarding him . as
undesirable. Therefore,. under
the Extradition Act warrants or a summons .must be
issued; there must be a magisterial enquiry. and. when
there is ·an arrest it is penal in character; and-,-and
this is . the most important distinction of all-when
the person to be . extradited leaves .India he does not
leave the country a fn;e man.· The police in India
hand him• over to the police of the requisitioning
State and. he remains in· custody thFOughout.
In the case of expulsion, no idea of• punishmeht is
involved, at any rate, ··in theory, and if a ·man is prepared to leave voluntarily he can ordinarily ·go ·as and
when he pleases.·· But· the• right is not' his. Under
the Indian law, 'the niattef -is I left to the ·unfettered
discretioh'-t>f the Union· Government ·an:d -.tha:t-'Government can1 prescribe ·the route and the port-ior 'place of
departure: ·and' ·can place ;him •on· -a ·particular·, ship ·1'0r
plane.: ·(See sectfons. 3(2):(h) :and·•6 ·of'•'thedForeigtu:rs
r955
Hans· Muller ef
Nurenburg
v.
Superintendent
Presidency Jai,
Calcutta and others
Bose J.
1955
Hans Muller of
Nutenburg
v.
Superintendtnt
Presidency Jail,
Calcutta and others
Bose :J.
1300.
SUPREME ·COURT REPORTS
[1955]
Act). Whether. the Captain of a foreign ship or .. Plane
can be compelled to take a .. passenger he does not want
or to follow a particular route is a matter .that does
not arise and we express no opinion on it. j3ut assuming that he is willing to do so, the righ.t of the
Government to make the order vis-a-vis the man expelled is absolute.
This may not be the law in all ·countries. ·· Oppenheim, for example, says· that in England, until Decem·
ber · 1919, the British Government had
"no power to expel even. the most dangerous .alien
without the recommendation of a court, or without
an Act of Parliament making provision for' , · such
expulsion, except during war
on ·an . occasion ··of
imminent .. national · . danger : or
great · .. emergency".
(Oppenheim's International Law, Vol. I, 7th edition,
page 631).
· ·"'
But that is immaterial, for the law m"'each country is
different and we are concerned . with ·the law as it
obtains in · our land. Here the matter· of. expulsion · has
to be viewed . from three points of view : ( 1) does the
Constitution permit the making of such a law? (2)
does it place any limits on such laws? and (3) is· there in
fact any law on this. topic. in India and ·if .so, what does
it enact? We· have already· examined the law··making
power in this behalf and its ·scope, and as to the· third ·
question the law on this · matter in India is embodied
in the Foreigners Act which . gives an unfettered right
to the Union Government to .expel.
But there ·is
this
distinction.
If the
order · is
one
of
expulsion, as opposed to extradition;· 'then the person expelled leaves India a free· man. It is true he· may• be
apprehended the moment he· ··leaves; by some other
power and consequently, in some . cases, this would be
small consolation to him, but in most cases the distinction is substantial,
for
the right of a . foreign
power to arrest except in its .own territory ~nd · on -its
own . boats is not unlimited. But however thii,t ·may
be, so:far as India is concerned; there must be .. an
order of release if he is in preventive. custody and
though he may Ii<; conducted to the frontier .. under
detention .he . must be permitted · to.· leave a free man
- f
-
...
:LS.C.R ..
SUPREME COURT REPORTS
1301
and cannot be handed over under arrest.
In a case of extradition, he does not leave a free
man. He remams under arrest throughout and
1s
merely handed over by one set of police to the next.
But m that event, the formalities of the Extradition
Act must be complied with. There must be a magisterial enqmry with a regular hearing and the person
sought to be extradited must be afforded the right to
submit a written statement to . the Central Government and to ask, if he so chooses, for political asyium; also he has the right to defend himself and the
right to consult, and to be defended by, a legal practitioner of his choice. (Article 22(1) ). Of course, he
can also make a representation against an order of expulsion and ask for political asylum apart from any
Act but those are not matters of right as under the
Extradition Act.
Our conclusion is that the Foreigners Act is not
governed by the prov1s10ns of the Extradition Act.
The two are distinct and neither impinges .