“An Order of Externment is an extraordinary measure which should be used sparingly”. SC reiterates the duties of Competent Authority and Court while issuing and testing externment orders

Supreme Court: While deciding the instant appeal wherein the appellant challenged the externment order issued against him under Section 56(1)(a)(b) of the Maharashtra Police Act, 1951, the Division Bench of Ajay Rastogi and Abhay S. Oka*, JJ., quashed the impugned externment order observing that that an order of externment is not an ordinary measure and it must be resorted to sparingly and in extraordinary circumstances. The Bench held that,

“If the order of externment for the maximum permissible period of two years is passed without recording subjective satisfaction regarding the necessity of extending the order of externment to the maximum permissible period, it will amount to imposing unreasonable restrictions on the fundamental right guaranteed under Article 19(1) (d) of the Constitution”.

Facts: As per the facts; the respondents, while exercising their powers under Section 56(1)(a)(b) of the Maharashtra Police Act, 1951, issued an externment order dated 15-12.2020. By this order, the appellant, who is a resident of Mandeolgaon, Taluka Badnapur, District Jalna was directed to remove himself outside the limits of District Jalna within 5 days. By the said order, he was externed from District Jalna for a period of two years from the date on which he removes himself from District Jalna.

A statutory appeal was preferred by the appellant against the impugned order of externment, but the appeal was dismissed by the Appellate Authority. The appellant further challenged the impugned order by filing a writ petition under Article 226 of the Constitution of India before the Bombay High Court. A Division Bench of the Bombay High Court dismissed the writ petition and the impugned order of externment was passed on the ground that the confidential statements of witnesses ‘A’ and ‘B’ disclose that witnesses are not willing to come forward to give evidence against the appellant, the activities of the appellant are very dangerous and the offences registered against the appellant under the IPC, are of grave and serious nature which are causing disturbance to the public at large.

Contentions: The counsel for the appellant, Sandeep Sudhakar Deshmukh, contended that the act of passing the impugned order of externment was a mala fide act at the instance of a local Member of the Legislative Assembly (MLA) with the object of settling family disputes. He argued that, the offences stated in the impugned order, would not attract Section 56(1) and the rest of the offences stated in the order are “stale offences and there is no live link between the said three offences and the object of passing the impugned order of externment”.  He also submitted that under Section 58 of the 1951 Act, the maximum period for which a person can be externed is of two years and that in the impugned order of externment, no reasons have been assigned for externing the appellant for a maximum period of two years.

Sachin Patil, appearing for the respondents, urged that while passing the order of externment, the competent authority is not required to pass a reasoned order. The competent authority has recorded subjective satisfaction of the existence of the grounds as required under Section 56 of the 1951 Act.

Observations: After carefully perusing the facts and contentions of the parties, the Court noted that Article 19(1)(d) of the Constitution contains the fundamental right to the citizens to move freely throughout the territory of India, subject to reasonable restrictions as provided in Art. 19(5) of the Constitution. An order of externment passed under provisions of Section 56 of the 1951 Act makes serious inroads on the personal liberty of a citizen guaranteed under Article 19(1) (d) of the Constitution. Hence, the restriction imposed by an order of externment must stand the test of reasonableness.

The Court further noted that, externment order is an extraordinary measure, “Such an order prevents the person even from staying in his own house along with his family members during the period for which this order is in subsistence. In a given case, such order may deprive the person of his livelihood. It thus follows that recourse should be taken to Section 56 very sparingly keeping in mind that it is an extraordinary measure”. The Court also observed that for the invocation of Section 56 (1), there must be

• Objective material on record on the basis of which the competent authority must record its subjective satisfaction that the movements or acts of any person are causing or calculated to cause alarm, danger to persons or property
• The competent authority must record subjective satisfaction that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or offences punishable under Chapter XII, XVI or XVII of the IPC.
• The competent authority must be satisfied that witnesses are not willing to come forward to give evidence against the person proposed to be externed by reason of apprehension on their part for their safety or their property.
• The competent authority is not expected to write an elaborate decision. However, the competent authority must record the existence of one of the grounds in Section 56 (1) because if the order is challenged the competent authority must be in a position to show the application of mind.

Regarding the duty of a Court while testing an exterment order, the Bench noted that-

• A 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. However, the Court can always consider whether there existed any material on the basis of which a subjective satisfaction could have been recorded.
• The Court can interfere when either there is no material or the relevant material has not been considered. “In the case of any other administrative order, the judicial review is permissible on the grounds of mala fide, unreasonableness or arbitrariness”

With the aforementioned observations, the Court stated that the bare facts of the case reveal there was an apparent non-application of mind while deliberating upon the impugned externment order. The Court also noted that the Order itself was passed in a casual manner and reeks of arbitrariness. Therefore, the order cannot be held sustainable. The Court also held that the Bombay High Court, being a Constitutional Court, was duty bound to test the externment order on established criteria. However the HC failed to notice the extraordinary nature of an externment order.

[Deepak v. State of Maharashtra, 2022 SCC OnLine SC 99, decided on 28-01-2022]

*Judgment by: Justice Abhay S. Oka

Sucheta Sarkar, Editorial Assistant has put this report together