Externment Order Extraordinary Measure, Must Be Used Sparingly: Supreme Court

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An order of externment is an “extraordinary measure” and has the effect of depriving a citizen of his fundamental right of free movement throughout the territory of India, the Supreme Court said on Friday.

While quashing an order passed in December 2020 by which a man in Maharashtra was externed from Jalna district for two years, the court said such an order must be resorted to sparingly as in practical terms, it prevents a person even from staying in his own house during this period and in a given case, may also deprive the individual of his livelihood.

A bench of Justices Ajay Rastogi and Abhay S Oka delivered the verdict on a plea filed by the man challenging the August last year order of the Bombay High Court which had dismissed his plea against the order of externment.

While referring to the facts on record, the top court said the order of externment showed “non-application of mind and smacks of arbitrariness” and it cannot be sustained in law.

“There cannot be any manner of doubt that an order of externment is an extraordinary measure. The effect of the order of externment is of depriving a citizen of his fundamental right of free movement throughout the territory of India,” the bench said.

It noted that the authority had passed the December 15, 2020 order in exercise of powers under section 56(1)(a)(b) of the Maharashtra Police Act, 1951 and the man, who is a resident of Jalna, was directed to remove himself outside the limits of the district within five days for a period of two years.

Section 56 of the Act deals with removal of persons about to commit offence.

The bench noted that in the order of externment, the authority had relied upon five cases registered against the appellant, who was acquitted in one of them.

It also noted the order was passed on the ground that confidential statements of two witnesses disclosed that they were not willing to come forward to give evidence against the appellant, whose activities were “very dangerous” and offences registered against him were of grave and serious nature.

The appellant had preferred a statutory appeal against the order of externment but it was dismissed by the appellate authority after which he had approached the high court.

In its verdict, the bench noted that counsel appearing for the appellant had claimed before it that the act of passing the order of externment was a “mala fide act” at the instance of an MLA with the object of settling family disputes.

The bench said that under clause (d) of Article 19(1) of the Constitution of India, there is a fundamental right conferred on the citizens to move freely throughout the territory of the country.

“In view of clause (5) of Article 19, State is empowered to make a law enabling the imposition of reasonable restrictions on the exercise of the right conferred by clause (d),” it said.

The court said an order of externment passed under provisions of section 56 of the 1951 Act imposes a restraint on the person, against whom the order is made from entering a particular area, and such an order infringes the fundamental right guaranteed under Article 19(1)(d).

“Hence, the restriction imposed by passing an order of externment must stand the test of reasonableness,” it said.

The bench observed that recourse should be taken to section 56 “very sparingly” keeping in mind that it is an extraordinary measure.

“Considering the nature of the power under section 56, the competent authority is not expected to write a judgment containing elaborate reasons. However, the competent authority must record its subjective satisfaction of the existence of one of the grounds in sub-section (1) of section 56 on the basis of objective material placed before it,” it noted.

The bench said the court, while testing the order of externment, cannot go into the question of sufficiency of material based on which the subjective satisfaction has been recorded.

It observed that the court can always consider whether there existed any material on the basis of which a subjective satisfaction could have been recorded.

“The impugned order appears to have been passed casually in a cavalier manner,” it said.

The bench noted that when the competent authority passes an order for the maximum permissible period of two years, the order of externment must disclose an application of mind and must record its subjective satisfaction about the necessity of passing such an order.

“Careful perusal of the impugned order of externment dated December 15, 2020 shows that it does not disclose any application of mind on this aspect,” it said.

The court said unfortunately, the high court did not notice that an order of externment is not an ordinary measure and it must be resorted to sparingly and in extraordinary circumstances.

“Accordingly, the appeal must succeed. The impugned order of externment dated December 15, 2020, as well as impugned judgment and order dated August 20, 2021 of the high court, are hereby quashed and set aside,” it said.

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