Externment order takes away fundamental right to move freely; must be used sparingly: Supreme Court

The Supreme Court on Friday held that an order of externment is an extraordinary measure and must, therefore, be used sparingly since it takes away the fundamental right to free movement under Article 19(1)(d) of the Constitution [Deepak v. State of Maharashtra]..- Appellant challenged an order of externment passed under Maharashtra Police Act, which had been upheld by the Bombay High Court;- The externment order was based on three stale offences, two offences against individuals and the two confidential witness testimonies;- The Supreme Court said that an externment order infringes the fundamental right under Article 19(1)(d) to move freely throughout the territory of India and must, therefore, stand the test of reasonableness; - Competent authority must be able in a position to show application of mind, the Bench stressed. - The order in the present case was found to be passed casually and thus, quashed..A Bench of Justices Ajay Rastogi and Abhay S Oka observed that Section 56 of the Maharashtra Police Act although did not require the authority to write a judgment with elaborate reasons, the authority must be able to demonstrate application of mind.“..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.”.The Appellant was externed from a district for two years based on five offences committed under the Indian Penal Code, and the statements of two witnesses who stated that appellant’s activities were dangerous..A challenge to the order was dismissed by the Appellate Authority and the Bombay High Court and the appeal reached the Supreme Court..It was the appellant’s submission that the order was mala fide since it was passed at the instance of his maternal uncle, a local Member of Legislative Assembly to resolve family disputes..The Court, while examining the case, noted that the restriction imposed by way of an externment order must stand the test of reasonableness since it made serious inroads into a citizen’s fundamental right to move freely throughout the territory of India under Article 19(1)(d) of the Constitution of India. .A judgment in the case of Pandharinath Shridhar Rangnekar v. Dy. Commr. of Police, State of Maharashtra was discussed, wherein the top court held that the reasons which necessitate or justify the passing of an extraordinary order of externment arise out of extraordinary circumstances..While considering this decision, the Bench took note of the practical reality of an externment order, which prevented the person from even staying in his own house, with his family and may deprive him of 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 said..Examining the facts of the case, the Bench found that the order was passed in a casual and cavalier manner.Since the police was unable to satisfy the magistrate of the necessity to extend the appellant’s detention, they initiated an action of externment, without even considering the judicial magistrate's refusal to extend detention..Consequently, the Bench while noting that it was the duty of the Constitutional Court to test the order on well-settled law, allowed the appeal and quashed the High Court’s judgment..[Read judgment]

Externment order takes away fundamental right to move freely; must be used sparingly: Supreme Court

Shagun Suryam

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