Externment and the Indian Constitution : a critical analysis considering the golden triangle of the Indian Constitution.
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This article is written by Priyansh Agarwal, from the West Bengal National University of Juridical Sciences (NUJS) Kolkata, India.

Introduction

“What are we having this liberty for? We are having this liberty in order to reform our social system, which is full of inequality, discrimination and other things, which conflict with our fundamental rights.”

B. R. Ambedkar

A system of preventing people from entering into a particular place for a certain period, due to their ability to affect that place’s conditions by criminal activity, as exhibited by their prior conduct, this system of restraining the criminal activities is known as externment. Roots of the word externment or extern comes from the word ‘externus’, which means ‘outward’ and is opposite to Latin root ‘intern’ that means ‘to contain into a particular place or within certain boundaries’. Today, we have fundamental rights as guaranteed by part three of our Indian Constitution. Certainly, these rights are protected by the courts of law. Although Article 19(1)(d) of the Indian Constitution gives citizens of India the right to move freely in the nation’s territory, Clause 5 of Article 19 of the Indian Constitution itself allows the State to impose certain reasonable restrictions in the interest of the general public as well. 

What can be identified from the regulations of the present democracies is their Parliament’s inclination to endow the administrative authorities with the enhancing power of discretion to grip on a “welfare state”. In the facet of administering the State for the people’s well-being, it has been observed that when these powers are given to the individual authorities to extern someone as they deem fit on their discretion for society’s welfare, it must also be considered that these absolute powers tend to weaken the Judiciary’s power to maintain the situation by upholding law and order in the State because of the “discretionary” power of the authority. What protects the citizens’ interest over these discretionary powers is that Parliament has complete command over the administration and assumes that authorities are prudently exercising their powers. 

In this article, the author endeavours to answer the questions as to how the concept of externment had evolved with respect to the Indian Constitution?; What was the need for externment when there were other criminal procedures followed by the country?; and further analysis of the constitutionality of externment laws in light of Articles 14, 19, and 21. These concepts will be further, critically analysed with the help of the journals and case laws.

How has the concept of externment for deterrence evolved vis-à-vis the Indian Constitution?

To contain crime, the concept of externment pre-existed before the enactment of the Indian Constitution and many penal laws that prevails in our country. In ancient India, the kings and the rulers throughout the territory used this method to deter criminals. Externment at that time purportedly served as a punishment and to rehabilitate a person like corrupt judges, dishonest statesmen, thief et al. The primary intent of imposing an externment on people was to keep them away from their familiar environment in which they committed the criminal activities. The chances of them committing similar crimes significantly decreased. This system primarily affected the convicts’ psychological levels as they had to stay away from their surroundings when traveling and making a livelihood wasn’t an easy task, further enabling them to work hard.

India has had penal laws from way back when the British ruled India. However, few provisions are tweaked to meet the acceptance of this dynamic society; these penal laws provided for the structured procedures to be followed for deterring crime and rehabilitation. Then, naturally, one would ponder about the need for externment in this modern era. Studies found that the witnesses were, more often than not, were reluctant to give statements against the goons due to their violent conduct. Therefore the apt formula here was to extern the convict in the interest of the general public. One could argue here that being a goon, even after externment, he/she could again start doing the criminal activities. But, it was found that in most cases, when these criminals were disassociated with their group, then, the conduct of those criminals became unsuccessful without other associates. Or one could argue that a person who is externed can even come to the barred places in an unnoticed manner, but then too that person would restrict himself to carry out any criminal activity since he has to go unnoticed by the police.

In the present day, there are constitutionally guaranteed rights allowing people to live out their liberty. These rights give the Judiciary an overarching discretionary power over that of the administration since the discretion of administration for externing a person could always be looked after by a court to check the validity or the righteousness of the order whether or not they comply with the fundamental rights. This discretionary power could also be put on hold or regarded as unconstitutional in the occasions where a statute grants additional discretionary power than the acceptable limit, therefore curtailing the authorities’ absolute discretionary power as a final order. The provisions for providing the power of externment to the concerned authorities can be found in many statutes such as The Maharashtra Police Act (MPA) 1951, Punjab Security of State Act 1953, and Assam Maintenance of Public Order Act 1947, Karnataka Police Act et al.

Why was it necessary: externment a coherent deterrence solution?

Law enforcement agencies and the criminal justice system have long been there to maintain the situation of law and order in society’s interest at large.  However, a sheer use of the procedural penal laws has been insufficient to maintain peace in society. Therefore, gradually, discretionary power has been granted to administrative authorities by the State to maintain the status quo in a healthy environment. It was necessary for the legislators to implement the externment laws to ensure the restrictions on criminal acts to keep away the criminals from indulging in such activities as prohibited by law. The necessary safeguards for the use of discretionary powers were that the judiciary can always check and balance the discretion on a case-to-case basis. 

These necessities for bringing up such laws, in addition to the other penal laws, came with backlash. It was argued that these laws have partly disturbed natural justice’s principle, which is based on Articles 14 and 21 of the Indian Constitution.  These principles are attracted in cases where the administrative actions have caused prejudice in carrying out a decision concerning a person’s conviction. One such concept was Audi Alteram Partem, which says that No party shall remain unheard in the Court of law. In the case, Nawabkhan Abbaskhan v. the State of Gujarat, the court explicitly ruled out that any order of externment, where the affected party is not heard before concluding a decision, is null and void. The court expressed its concern that no order of externment shall violate the rule of Audi Alteram Partem and must not injure the rights guaranteed by the Indian Constitution. Separately, cross-examination of the witness is also regarded as a part of natural justice as regarded in the case, Town Area Committee v. Jagdish Prasad. However, in the same case, the court ruled that in externment proceedings, it is not a violation of Natural Justice principles if cross-examination of the witness is disallowed.

As discussed, we can put forth that these externment laws for preventing a person from going in a certain area are a coherent solution for deterring a criminal only to the extent where the discretion of the administrative authorities is not violating the fundamental rights of the citizens of India. The assertion of which would be done by the judiciary on a case-to-case basis.  

“Discretionary” power of externment in light of Article 14, 19 and 21

As the guardian of our Constitution, the judiciary has to protect the rights guaranteed by the Indian Constitution. In the aspect of externment, laws granting the power of administrative discretion were to be ascertained by the judiciary to check the conformity of discretion vis-à-vis the Fundamental Rights. In Dr. Khare v. State of Delhi, the court held that for scrutinizing such laws, both facets, including the procedural and the substantive part, were to be examined by the court. The substantive part was to be reviewed by the court to check whether the discretionary power is within the permissible limit. While the courts ensured the necessary safeguards to be in place for the public’s protection concerning the discretionary power. Under this, we will try to determine the judiciary’s inclination towards the laws that provide for the discretionary power to the administrative authorities for carrying out the functions.

Analysis concerning Article 14 of the Indian Constitution

Article 14 of the Indian Constitution promotes equality and prohibits discrimination on the grounds of “religion, race, caste, sex, or place of birth.” Nevertheless, Article 14 allows the law originating on the foundation of intelligible differentia with a rational nexus to the object that the law wants to achieve. In the case, State of West Bengal v. Anwar Ali Sarkar, special courts were set up by the State wherein the State, by bringing up legislation, granted the executives discretionary power to decide which case would be tried in which court. Here, the court held the law invalid because the law conferred “uncontrolled” authority to the executives, which could be “discriminatory” in nature as the terms laid in the impugned law were ambiguous. However, the position of the court was seen to be changing in the case, Kathi Raning v. State of Saurashtra, wherein the terms were vague too, but the court held the law to be valid. At this juncture, the court also stood on its earlier position that if a law grants discretionary power to the executives, then the terms used in the law must not be ambiguous and should be “clear and definite” about the extent and usage of the discretionary power. With the skeptical position of courts in determining the control over the discretionary powers of the executive, in 1970, in the case of Purtabpore Company Ltd. v. Cane Commissioner of Bihar, the cane commissioner was attributed with the ability to reserve the sugarcane areas for the sugar companies that run their business in the vicinity. After this, the commissioner, on the Chief Minister’s request, excluded 99 villages reserved for the Purtabpore Company. The Apex Court held that the commissioner’s discretion was not exercised as specified by the policies’ instructions since the commissioner omitted to use his “own” discretion instead followed the dictation of the Chief Minister.

We could observe that the Apex Court is inclined to uphold the laws that provide the executives’ discretionary powers; provided those laws contain properly specified instructions to be followed while executing the orders. These developments have been used in specific externment cases as well. In the case of N. B. Khare v. The State of Delhi, the East Punjab Safety Act 1949 provided the power of externment to the District Magistrate at his own discretion. Though the legislation itself restrained the scrutiny of a final order of externment by the judicial forum, the court upheld the law to be valid as it provided certain clear safeguards in the externment proceedings for the protection of the people. Similarly, in the case, Gurbachan Singh v. The State of Bombay, the court held that the Bombay Police Act 1902 conferred the power of externment to the commissioner to be a valid law. Since the court was satisfied that when laid provisions are vehemently followed by the executive while externing a convict and there are the necessary safeguards in the people’s interest to appeal. Nevertheless, courts have been stringent on the executives’ actions misusing their discretionary powers while ordering the externment of a person. In Praful Bhausaheb Yadav v. Shri K. K. Pathak, Bombay High Court ruled that the externment orders were passed without any basis and hence held that the order must be set aside since it is suffering from the “non-application of mind.”

On scrutinizing a law that is founded on intelligible differentia with the rational nexus to its objective, courts have been observed to uphold such externment laws. However, the “arbitrariness” & “discrimination” through these externment orders are decided based on the case by the Court. As Article 14 of the Indian Constitution upholds the principle of natural justice, the Supreme Court has been of the view that no externment order shall destroy natural justice’s principles in any manner. Further, the accusation for externment must not be vague since it is a violation of Articles 14, 19, and 21.

Analysis with respect to the Article 19 and 21 of the Indian Constitution

Externment orders prevent the movement of a person in certain areas. But, Article 19(1)(d), 19(1)(e), and 21 of the Indian Constitution guarantees the right to every citizen of India to move freely throughout the country and have a right to personal liberty. The Rights under Article 19(1)(d) and 19(1)(e) are subjected to coherent restrictions enabled by the State “in the interest of general public” as defined under Article 19(5) of the Constitution of India.

The most prevalent restriction under 19(5) of the Indian Constitution is the externment of a person entering a particular place. While disposing of the Constitutionality of such externment orders, the Apex Court’s general trend has been liberal in allowing the laws to be constitutional concerning Article 19(5). Although, for upholding the Article 19 rights, the court has said that even though the externment order could prevent a person from entering a state, the order must not specify the confined place where the externee shall stay outside the State.

As these restrictions have to “reasonable”, the period for maximum externment must also be reasonable. In Bhagubhai Dullabhbhai v. District Magistrate, Justice Jagannadhadas opined that these orders of externment must remain only for a certain reasonable period (for a maximum of two years) and must be allowed to review at specific intervals as these laws come with restrictions on the personal liberty of a person. However, in some cases, Apex Court has not been reluctant to uphold the externment order for indefinite time where the review of the externment order was allowed.

Regulations passed by the legislature for externment order were thus found to be constitutional under Article 19 of the Indian Constitution, where the provisions were certain about the use of discretionary power of the executive and if the law provides for review hearing of order at regular intervals. It must also be noted that an externment order cannot hamper Article 19 rights of a citizen of India to confine a person in a certain area rather they can only prevent from entering a specific place. Confining a person by State is possible through other stringent laws like the Preventive Detention Act, 1950.

Position of externment in UK vis-à-vis India

Due to the presence of the Doctrine of the sovereignty of Parliament (it confers absolute power to the Parliament over all other institutions) in England and the lack of any judicial review legislation, their judiciary does not have any power to scrutinize a law that confers discretionary power to the executives. Therefore, any legislation that confers even “absolute” discretion to the executive is valid there. The legislation can even grant the power of deciding the case, to an executive, which would act as a final judgment. However, in India, the position is substantially different since India’s courts can always check the permissibility of the discretionary power bestowed to the executive. 

As far as the concept of externment is concerned, the UK does not have any legislation for externment. The legislation of The Vagrancy Acts 1824 & 1935 in the United Kingdom provides for imprisonment as a punitive action for constraining the crime but don’t exhibit any provision of externment order by an executive. In India, on the other hand, there have been legislations as discussed earlier like The Maharashtra Police Act (MPA) 1951, Punjab Security of State Act 1953, Assam Maintenance of Public Order Act 1947, Karnataka Police Act et al, that certainly grants the power of externing a person having a criminal record or after the conviction in a crime.

Alleged misuse of discretionary power and its impact through the constitutional lens

We can observe that after looking at the provisions of Externment, like Section 55, 56, and 57 of The Maharashtra Police Act (MPA) 1951, these provisions can be interpreted broadly. The interpretation ultimately could be misused by the executive authorities to extern a person because the court, in the case of State of UP and Ors. v. Renusagar Power Co. and Ors, itself have accepted that it is improbable that court would interfere with the administrative authorities’ discretion until and unless the decision is prima facie violating the procedures laid by the legislation. There have been cases where the externment orders were passed without any sufficient reasons established by the executive authorities to extern. As in the case, Jugal Kishore v. Lt.Governor, Delhi & Anr, the court while quashing the externment orders ruled that the authorities were not able to establish the sufficient reasons to extern a person and such externment violates the “right to have domicile at the place of his choice.”

Furthermore, executives conferred with this discretionary power, often, while passing an externment order, skip the procedures that are needed to be satisfied before externing someone. In Rauf Khan Wahab Khan Patel v. State of Maharashtra, when the executive missed the requirement of externment to only extern those who are habitual criminals, the court expressly said that a person could not be externed until and unless his record confirms that the person is a habitual criminal. Moreover, the misuse of discretionary power can be observed in the aforementioned case, Nawabkhan Abbaskhan v. the State of Gujarat, where after externing a person, the executive did not even allowed the affected party to be heard, then, Court held the externment order to violative of the natural justice principle of Audi Alteram Partem.

After examining such cases, we can conclude that even though there have been safeguards in place to protect the people’s interest, nevertheless the misuse of discretionary power is prevalent. Misuse of discretion like this depends upon the court’s humility to swiftly adjudicate the case and undo the damages caused to the externee.

Conclusion

After analysing the certain aspects of externment concerning Indian Constitution, we can conclude that these laws are regarded constitutional by the Indian courts. We have observed that these provisions are there to put a constraint on the increasing number of crimes. However, a study based in Pune, Maharashtra, has shown that these externment orders against the habitual criminals were not deterring them, and they repeatedly tried to enter the barred area, after which they were arrested. And the court’s inability to decipher what actually would amount to the satisfaction of the executive to exercise the discretion. Since, if all the procedures are duly followed, then we have found that courts have been upholding the externment orders. Therefore, our lawmakers should look forward to placing standardised law throughout the country so that courts can evolve a particular jurisprudence to avoid violations of natural justice principles. 

References

Journal articles

  • R. Deb, D. R. Puri, Kalyan Rudra, Y. Vaikuntha and S. M. Edmond, “OPERATION OF SPECIAL LAWS RELATING TO EXTERNMENT OF BAD CHARACTERS” .
  • M.P. Jain, “ ADMINISTRATIVE DISCRETION AND FUNDAMENTAL RIGHTS IN INIDA” .
  • Parmeshwar P. Srivastava,  “CORRECTIONAL PENOLOGY : A STUDY IN ETHICS”.
  • “The power of externment” (JSPUI) .
  • Lydia Kerketta, “Audi Alterem Partem Right to fair hearing” (LegalServicesIndia).
  • Asseem Shaikh, “Externment violations are more norm than exception”.
  • Clemens Arzt , “Police Reform and Preventive Powers of Police in India – Observations on an Unnoticed Problem.”

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