Ghulam Hasan, J.

1. This batch of appeals raises a common question of the constitutional validity of S. 7 Influx from Pakistan Control Act (23) of 1949. Section 3 of the same Act is also assailed on behalf of some of the appellants but for the purpose of deciding these appeals it will not be necessary to deal with latter question.

2. Criminal Appeals Nos. 65 and 66 of 1952 which are directed against the judgment and order of High Court of Judicature at Bombay in two petitions under Art. 226 of the Constitution praying for the issue of a writ of mandamus requiring the respondent not to remove them from India on the ground that the impugned S. 7 is void may be treated as the leading case which will govern the other appeals.

3. 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 leaned counsel appearing in support of the appeals and the learned Solicitor-General we have reached the conclusion that S. 7 is void in so far as it infringes the right of a citizen of India under Art. 19(1) (e) of the Constitution.

4. The Act in question received the assent of the Governor-General on 22-4-1949, 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". The preamble opens with the words "Whereas it is expedient to control the admission into, and regulate the movements in, India of persons from Pakistan".

5. 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 whereof 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 domicile in India or Pakistan, he is in possession of a valid passport as required by the Indian Passport Act, 1920 (34 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".

Section 4 empowers the Central Government, by notification in 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 in 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 provision of S. 3, or having entered India contravenes the provisions of any rule made under S. 4, or commits a breach of any of the conditions of his permit, shall be punishable with imprisonment 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 provisions 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 powers necessary to enforce such direction."

Section 8 provides for protection to person acting in good faith and Section 9 repeals the Influx from Pakistan (Control) Ordinance 34 of 1948.

6. The use of the word person in S. 7 read with the title and preamble of the Act leaves no doubt that the Act applies to citizens and non-citizen alike. So 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 only 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 S. 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 S. 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 purpose 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 Art. 19(1) (e), "to reside and settle in any part of the territory of India".

The order is sought to be supported by the learned Solicitor-General on the ground that it falls within exception (5) of Art, 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 statable. It is possible to conceive of an Indian citizen being guilty of serious prejudicial acts such as espionage 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 citizenship conferred by Part II of the Constitution.

This result is permissible only by recourse to Art. 11 of the Constitution. Again it will be noticed that S. 7 imposes the penalty of removal not only upon a conviction under S. 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 issue an order that a reasonable suspicion exists in their mind that an offence under S. 5 has been committed. The section does not provide for the issue of a notice to the person concerned to show cause against the order nor is be 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.

7. 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 disproportionate 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 S.7 oversteps the limits of control 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. State of Madhya Pradesh AIR 1951 SC 118 [LQ/SC/1950/36] (A) "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".

8. It may be said that 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 sentrys duty would be to hand him over to the Commander of 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 clams. In the case of an unauthorised entry, ordinarily the duty of the seatry is to arrest a man and hand him over 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.

9. The learned Chief Justice (Chagla, C. J.) took the view that S. 7 is consequential to S. 3 and held that if S. 3 controlling admission by means of a permit is valid, S. 7 must be held to be equally valid. This argument is fallacious. In the first place, S. 7 is by no means wholly consequential to S. 3 . The first part no doubt renders the person concerned liable to removal upon conviction under S. 5 but further empowers the Central Government to pass the same order independently of these provisions even where there is no conviction and a reasonable suspicion exists that an offence has been committed.

Assuming, however, that S. 7 is consequential to S. 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. Neither 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 S. 3 or of the rules under S. 4 has taken place.

10. In-Shabbir Hussain v. The State of U. P., AIR 1952 all 257 [LQ/AllHC/1951/203] (B) the Allahabad High Court held that a law allowing the removal from a territory of India of any citizen is in contravention of Art. 19(1) (b) and (e) of the Constitution and is void in view of Art 13 (1). The order which was challenged before them was one passed under S. 7 and was set aside.

11. In Criminal Writ No. 147 of 1951, D/ 11-12-1951 (C) a Bench of the Punjab High Court (Western C. J. and Harman Singh J.) while setting aside the order under S. 7 against a citizen of India who had entered India without a permit and was first convicted and then ordered to be extended observed:

"The powers of removal or banishment given by S. 7 Influx from Pakistan (Control) Act, 1949, cannot be involved 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".

We are not prepared to accede to the contention urged by the Solicitor-General that a citizen of India who returns to the country without a permit or without a valid permit commits such a grave offence as to justify him expulsion from the country. The object of the act is not to deport Indian nationals 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 S. 7 was intended to achieve the objective expelling India citizens, by and large, if they brought themselves within the mischief of S. 3.

12. It was faintly contended that the order of physical removal from India, in addition to the punishment imposed under S. 5 of the Act, amounted to what may be called "double jeopardy" and is in conflict with Article 20(2) of the Constitution. The short answer to this contention is that there in no second prosecution for the same offence and therefore no question of double jeopardy arises.....See-Maqbool Hussain v. State of Bombay, AIR 1953 SC 325 [LQ/SC/1953/50] SC (D).

13. As a result of foregoing discussion we declare S. 7 to be void under Art. 13(1) in so far as it conflicts with the fundamental right of a citizen of India under Art. 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 affidavit or give other evidence which they may wish to produce.

CRIMINAL APPEAL NO. 5 OF 1953.

Judgment of Mehr Chand Mahajan C. J., B. K. Mukherjea, Vivian Bose and Ghulam Hassan JJ., was delivered by GHULAM HASAN, J.:

14. 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 23 of 1949 for having obtained a permit which was not in accordance with the provisions of the Act. The prosecution was withdrawn after 21/2 years. Subsequently on 5th December, 1952, he was served with a notice ordering him to leave India for Pakistan within 10 days else he would be bodily removed to the Indo-Pakistan Border.

Thereupon the appellants filed a petition under Article 226 contending that S. 7 was contrary to his fundamental rights under Arts 14 and 19 of the Constitution 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 15th Dec. 1952., whereupon leave to appeal to this Court was granted under Art. 132(1) of the Constitution. As this appeal also raises the question of the constitutional validity of S. 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.

Judgment of Mehr Chand Mahajan C. J., B. K. Mukherjea, Vivlan Bose and Ghulam Hasan JJ. was delivered by GHULAM HASAN J.:

15. The appellant Haji Ahmad is a resident of Rewa in Vindhya Pradesh and alleges that he is a citizen of India. He was prosecuted under S. 5 of Act 23 of 1949 on the ground that he had entered India from Pakistan without a permit and convicted and sentenced. Thereafter he was by an order passed under S. 7 bodily removed out of India. His father applied under Art. 226 of the Constitution and S. 491 of Criminal P. C. for setting aside the order. The learned Judicial Commissioner dismissed the application summarily holding that S. 7 was not ultra vires the Constitution.

16. Mr. Asthana, who appeared on behalf of the appellant, raised a further question that the order was void under Art. 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 communities 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 discriminatory manner in which those provisions have been applies. This argument is to be mentioned only to be rejected, for there is no material whatsoever placed before us to justify the statement. The case in ---Yick Wo v. Peter Hopkins, (1886) Us 356 (E), is wholly inapplicable to the facts of the present case. We accordingly reject the contention. This case will also be governed by the decision in Appeals Nos. 65 and 66 of 1952.

PETITION NO. 170 OF 1952 AND PETITION No. 19 of 1953.

Judgment of Mehr Chand Mahajan C. J., B. K. Mukherjea, Vivian Bose and Ghulam Hasan JJ. was delivered by GHULAM HASAN, J.:

16a. These petitions under Article 32 of the Constitution raise the constitutional validity of Section 7 of the Influx from Pakistan Control Act 23 of 1949. Mr. S. P. Sinha, who appears for the petitioners withdraws these petitions and undertakes to file two petitions under Art. 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.

Judgment of Mehr Chand Mahajan C. J., B. K. Mukherjea, Vivian Bose and Ghulam Hasan JJ. was delivered by GHULAM HASAN, J.:

17. This is a petition under Art. 32 of the Constitution by Inamullah Khan alias Qamar Jamali for the issue of a writ in the nature of habeas corpur directing that the petitioner, who is illegally 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 of 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 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 well as in the electoral roll of the Municipal Board, Bhopal. He was arrested on 24 November, 1952 by the Sub-Inspector of Police at Ibrahimpura, Bhopal, under S. 7, Influx from Pakistan Control Act 23 of 1949 and was told that he would be removed to Pakistan.

At the time of the arrest the petitioner was being tried under S. 448, I.P.C. 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 S. 7 as being void under Art. 19(1) and (e) and Arts. 21 and 22.

18. 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 mentioned that the petitioner had gone to Pakistan in May 1952, and returned in August, 1952, without a permit. He was arrested on 24th Nov. 1952, without any prior 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 Justicial Commissioner, Bhopal, under Art. 226 on 25-11-1952, challenging the order.

The Judicial Commissioner granted an interim stay order on the same day. The petition was dismissed on 23-2-1953, and the interim order was vacated on 10th March, 1953. It is admitted that an oral request was made to the Judicial 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 same day and the stay order was vacated.

19. There 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 addressed to this Court. The Superintendent of Jail sent it to the Chief Secretary on 13th March, 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 12-3-1953, and a reply was received by the Inspector-General of Police, Jaipur that the petitioner had crossed the border on 18-3-1953. 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 believed that as the order for stay had been vacated by the Judicial Commissioner, he should fist sent 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 Wazir Mavat v. State of Bombay , and - Noor Mohammad Ali Mohammad v. State of Bombay, Criminal Appeals Nos. 65 and 66 of 1952, in which we have just delivered judgment we have held that S. 7 of the Act is void as against a citizen of India being an encroachment on his fundamental right under Art. 19(1) (e) of the Constitution. Following that decision we hold that the order of removal of the petitioner is liable to be set aside.

20. Mr. Umrigar, who appeared for the petitioner, pointed out that the Judicial Commissioner has already held that the petitioner is a citizen of India and that it will serve no useful purpose by remanding 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 appeals involving the validity of S. 7. We accordingly hold that the order passed against the petitioner is void and set it aside.

21. 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.

22. 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 23, of 1949).

23. 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.

24. 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 expiry of the period and were convicted under S. 5 of the Act.

Later on they retuned 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 Pakistan. 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 on the allegation that it had been obtained by fraud.

The appellant in Appeal No. 19 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 S. 7 of the impugned Act to the effect that unless they left India within the time specified tin the respective orders they would be bodily removed from India.

These 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.

25. It will be recalled that on 15-8-1947 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 resulting 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 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 strains 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 (17 of 1949) was promulgated on 19-7-1948 by the Governor-General in exercise of the powers conferred on him by S. 42, 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 (34 of 1948) was issued on the 10-11-1948 replacing the earlier Ordinance. This Ordinance applies to persons entering into India from both West Pakistan and East Pakistan. It substantially reproduced all the sections of the previous Ordinance.

Finally, on 22-4-1949 the Influx from Pakistan (Control) Act (23 of 1949) replaced the second Ordinance. Sections 3 and 7 of this Act substantially reproduced the provisions of Ss. 3 and 7 of the Ordinance. The Permit System Rules of 1948 were replaced on 20-5-1949 by the Permit System Rules of 1949. This Act, however, was repealed on 15-10-1952 by Act 66 of 1952. Section 3 of this repealing Act, however, expressly preserved the application of S. 6 of the General Clauses Act, 1897.

Although the Influx from Pakistan (Control) Act, 1949, has been repealed and the number of persons who, like the appellants and the petitioners before us, are affected by that Act is small, nevertheless the matter has to be scrutinized closely, for our decision may conceivably affect the passport regulations which have replaced the permit system.

26. The contention advanced in these appeals and the petition is that Ss. 3 and 7 of the Act have, since the commencement of the Constitution become void in that they violate the fundamental rights guaranteed by Arts. 14 and 19(1)(d) and (e) of the Constitution. 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 non-citizens 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 centered round the question whether these two sections offend against the provisions of Art. 19(1)(d) and (e) of the Constitution.

27. The learned Solicitor-General appearing for the Respondents contends that those sections are protected by Art. 19(5) as being reasonable restrictions on the exercise of the rights guaranteed by sub-clause (d) and (e) of clause (1) of that Article. In-The State of Madras v. Y. G. Row, AIR 1952 SC 196 [LQ/SC/1952/23] at p. 200 (F), Patanjali Satri, 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. 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 reasoale, 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 authorising 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,

28. I find nothing unconstitutional about S. 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 (Arts. 43-45), Wiemar Germany (Art. III) Czechosiovakia (Art. 108) Jugoslavia (Art 10), Danzing (Art. 75) and Albania (S. 202). Such regulations seve 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 Clause (5) of Art. 19 of the Constitution. Indeed, the objection to S. 3 has not been seriously pressed before us.

29. The main objection urged by learned counsel appearing in support of these appeals and petitions was directed to the question to the validity of S. 7. In the first place, it is clear that no objection can be taken to S. 7 in so far as it affected persons who were not citizens of India, for Art. 19 guarantees certain fundamental rights to the citizens of India only. In the next place, this section did not affect all citizens but touched only a well defined small class of citizens, namely, those who went to Pakistan and intended to return to India. The question is whether qua these citizens S. 7 can also be regarded as a reasonable restriction within the meaning of Cl. (5) of Art. 19.

The High Court of Bombay has held, and in my opinion quite correctly, that the provisions of S. 7 cannot but be regarded as consequential to the provisions of S.3. Suppose at the check-post a person from Pakistan, whether a citizen or not, tried to cross the border without a permit. Surely, the officer at the check-post would have been well within the law to prevent a violation of S. 3 of the Act and with that end in view to prevent that person, who had no permit, from crossing the border and entering India.

I have no doubt that the officer might also have prevented a person from Pakistan from crossing the border if he suspected that the permit produced by the person was forged on otherwise irregular and left him to take up the matter with the higher authorities from Pakistan. Suppose the man who sought to enter India without a permit or with a permit which was suspected to be spurious forcibly crossed the border and took a step or two on our side of the line, the Indian officer would certainly have been entitled to thrown him back to the other side of the line.

Surely, such a person could not be permitted to take advantage of his own wrong and could not be heard to say that, in such circumstances he had, by his wrong doing, acquired a better right than the person who had not the temerity to violate the provisions of S.3. If this is so then, logically, I can see no difference if the man ran into the Indian territory for some distance and the Indian officer ran after him, overtook him and took him back to the check-post and pushed him out of our side of the line.

It is futile, in such a situation, to expect or to say that the officer should have held a judicial enquiry and come to a judicial decision after hearing an argument as to the validity of the permit or as to the status of the permit holder or the fundamental rights of a citizen of India to move freely in India and to settle anywhere he liked in India.

The truth and substance of the matter are that in acting in the way indicated above the officer simply performed an executive act and prevented a person who held no permit or held a permit which appeared to the officer to be spurious from entering India from Pakistan in violation of S. 3 of the Act. To throw out such a person was not to inflict any punishment on him or to do him any greater injury than what was imposed on or done to a person who, not having a permit, was stopped at the check-post and not allowed to enter India at all. The man thus thrown out was placed under no greater disability than the man who had initially been prevented from entering India at the check-post barrier.

30. In both cases such a person might, while staying in Pakistan, have taken steps to obtain a permanent permit upon proof of his status as an Indian citizen and if such permit was illegally withheld from him he might have through some agent in India taken proceedings in Indian Courts for appropriate reliefs. To my mind the position of the person who entered India on a temporary permit but who, in violation of the rules or order made under the Act, stayed on after the period of the permits expired was as from that date, logically, the same as that of the person who entered India without a permit.

31. To arrest such a person, after the expiry of the period of the temporary permit, with a view to sending him back to where he came from and to acturrally send him back there did not involve or constitute a judicial act at all but was a rough and ready executive act for enforcing and giving effect to the provisions of S. 3 of the Act. To arrest and send such a person back to Pakistan was not to inflict a punishment but was only to restore the status quo and to put him back to the position he would have been in but for his illegal act.

32. In my opinion the act authorised by S. 7 was in essence a purely executive act for implementing the provisions of S.3. Without such a provision it would have been impossible for the State to control the admission into India of persons from Pakistan and to prevent the concomitant dangers referred to above. The act authorised by the section being an executive act, discretion had perforce to be left to the executive Government which, by reason to the information available to it, was in a much better position than the Courts to know and judge the antecedents of such a person and his ultimate purpose.

33. Suppose an Indian citizen, no matter whether he was a Hindu or a Muslim, had entered India from Pakistan without a permit and suppose he was, upon confidential reports which could not be safely disclosed, suspected to be engaged in espionage in the interests of Pakistan, would it have been safe enough in those hectic days have only prosecuted him under S. 5 and inflicted on him a fine of rupee one thousand or a term of imprisonment not exceeding a year and then to have left him free, after the term of imprisonment was over, to surreptitiously carry on his nefarious activities of espionage and sabotage against our State while embarking upon a protracted judicial enquiry to ascertain the truth or otherwise of his claim to India citizenship

34. It cannot be overlooked that there are long common borders between Pakistan and India both on the west and on the east. The Kashmir situation had also aggravated the emergency brought about by the partition of India. Having regard to all the circumstances, the tension, bitterness and hatred between the two countries that were generated at the time of the partition and all which must enter into thee judicial verdict, the provisions of S. 7 appear to me to have been eminently reasonable restrictions imposed in the interests of the general 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.

35. The Indian citizen who was thrown out for not having the proper permit or who was suspected to have violated the provisions of the Act was placed in no worse position than an Indian citizen who, not having a permit, had not been permitted to enter into India at all. They were by no means without remedy. They could from the other side o the border take steps under the rules to obtain valid permanent permits upon proof of their citizenship of India and if such permits were illegally withheld from them they could move the appropriate High Court under Art. 226 or even this Court under Art. 32 while they were outside India and might, on proof of their citizenship, have got appropriate writs or order directing the State or its officers to issue suitable permits and to desist from otherwise preventing them from entering India or interfering with their movement while in India.

36. It is said that if such a person would have been entitled to a permit on proof of his status as an Indian citizen then why should he have been thrown out at all unless and until he failed to establish his claim to Indian Citizenship There occur to my mind several answers to this question. In the first place, it would have been putting a premium on wrong doing. In the second place, the person would have been left free to carry on his secret activities, if any, while judicial proceedings would have been going on for ascertaining his status. In the third place, if the person could not be thrown out before his status had been judicially determined there would have been no incentive on his part to take proceedings in Court to establish his status and it would have thrown upon the State the duty of initiating proceedings and of discharging the onus of proving the negative fact of his not being a citizen of India.

37. In view of all the circumstances prevailing at the time the law was enacted and remained in force and in view of the considerations hereinbefore alluded to I have no doubt in my mind-except what arises out of my respect for the opinions of my Lord and other learned brothers - That the provisions of S. 7 were necessary and reasonable and fell within Claimant;. (5) of Art. 19. In my judgment the four appeals as well as Petition No. 57 of 1952 should be dismissed.

38. Orders accordingly.