Case Analysis: Hari Khemu Gawali vs The Deputy Commissioner of Police, Bombay and another
Case Details
Case name: Hari Khemu Gawali vs The Deputy Commissioner of Police, Bombay and another
Court: Supreme Court of India
Judges: S. R. Das C.J., Venkatarama Ayyar, B. P. Sinha, Syed Jaffer Imam, B. Jagannadhadas
Date of decision: 08-05-1956
Citation / citations: 1956 AIR 559; 1956 SCR 506
Case number / petition number: Petition No. 272 of 1955; Petition Nos. 439 and 440 of 1955
Proceeding type: Petition under Article 32 of the Constitution of India
Source court or forum: Supreme Court of India
Source Judgment: Read judgment
Factual and Procedural Background
The petitioner, Hari Khemu Gawali, was a native of Bombay who earned his livelihood as a bullock‑cart owner and milk‑seller. He had previously been the subject of several criminal prosecutions, which had ended in discharge or acquittal, and he had earlier been convicted under Sections 304/109 and 324/109 of the Indian Penal Code. On 9 October 1954 the Crime Branch’s “Ghost Squad” arrested him on allegations that he possessed knives and other weapons. On 25 October 1954 he received a notice issued under Section 59 of the Bombay Police Act, 1951, informing him that proceedings under Section 57 of the same Act would be initiated against him. An inquiry was conducted by the Superintendent of Police on 8 November 1954, after which the Deputy Commissioner of Police, Greater Bombay, passed an externment order dated the same day. The order directed Gawali to remove himself from Greater Bombay for a period of two years and prohibited his return without written permission. Gawali appealed the externment order, but the Government of Bombay dismissed his appeal. Consequently, he instituted Petition No. 272 of 1955 under Article 32 of the Constitution of India in the Supreme Court, seeking a writ of habeas corpus, a declaration that Section 57 was unconstitutional, and the quashing of the externment order.
Issues, Contentions and Controversy
The Court was called upon to determine:
(1) Whether Section 57 of the Bombay Police Act, 1951, imposed an unreasonable restriction on the petitioner’s fundamental rights to move freely throughout the territory of India (Article 19(1)(d)) and to reside and settle in any part thereof (Article 19(1)(e)).
(2) Whether the externment order issued against the petitioner was illegal because it was based on vague allegations and on material consisting of prior discharges or acquittals.
(3) Whether the procedural safeguards provided by Sections 59, 60 and 61 of the Act were constitutionally sufficient, particularly in view of the absence of an Advisory Board.
(4) What the geographic scope of the power conferred by Section 57 was – whether it was limited to the local jurisdiction of the issuing authority or extended to the entire State of Bombay.
The petitioner contended that Section 57 conferred an unlimited power to remove a person from the whole State, that it lacked an Advisory Board and therefore permitted arbitrary exercise, that the notice and appeal provisions were illusory, and that the grouping of a wide range of offences under Chapters XII, XVI and XVII of the IPC was irrational. The State argued that the provision represented a reasonable restriction in the interest of public order, required a prior conviction and a subjective satisfaction of likelihood of recurrence, that the procedural safeguards of notice, appeal and limited judicial review were adequate, and that the power of externment was confined to the local jurisdiction of the officer who issued the order.
Statutory Framework and Legal Principles
Section 57 of the Bombay Police Act, 1951 empowered a police authority to issue an externment order against a person who had been previously convicted of offences specified in certain chapters of the Indian Penal Code or other Acts and who was deemed likely to repeat such offences. Section 59 required service of a notice stating the general nature of the material allegations; Section 60 conferred a right of appeal to the State Government; and Section 61 permitted limited judicial review of the order.
Article 19(1) of the Constitution guaranteed the freedoms to move freely throughout the territory of India (clause d) and to reside and settle in any part thereof (clause e), subject to reasonable restrictions. Article 19(5) authorized the State to impose such reasonable restrictions in the interest of public order, security, decency, morality or any other purpose specified therein. Article 22(4) required the establishment of an Advisory Board for the review of preventive detention orders, a requirement that the Court noted did not extend to statutes dealing with preventive restriction such as Section 57.
The Court applied three principal tests: the constitutional “reasonableness” test to assess whether the restriction fell within the ambit of Article 19(5); the “legislative wisdom” test, which restrained judicial interference with legislative classifications unless they produced an unreasonable restriction; and a procedural adequacy test, which examined whether the statutory mechanisms of notice, appeal and limited judicial review satisfied the constitutional demand for procedural safeguards.
Court’s Reasoning and Application of Law
The majority, delivered by Justice B. P. Sinha, applied the reasonableness test and held that Section 57 did not impose an unreasonable restriction on the petitioner’s Article 19 rights. The Court observed that the legislature had legitimately grouped a wide range of offences for the purpose of preventing recurrence, and that such classification could not be substituted by the judiciary unless it resulted in an unreasonable limitation of fundamental rights. The statutory requirement of a prior conviction and a subjective satisfaction that the person was likely to repeat the offence satisfied the reasonableness criterion.
Regarding procedural safeguards, the Court found that Section 59’s requirement of notice of the general nature of the material allegations afforded the petitioner an opportunity to be heard. The appellate mechanism under Section 60 and the limited scope of judicial review under Section 61 were deemed sufficient safeguards. The Court rejected the petitioner’s contention that the absence of an Advisory Board rendered the provision unconstitutional, noting that Article 22(4) mandated such a board only for preventive detention, not for preventive restriction.
The Court clarified that the power to issue an externment order under Section 57 was confined to the local jurisdiction of the authority – for example, the Commissioner or a District Magistrate – and could not be used to compel a person to leave the entire State of Bombay. Applying these principles to the facts, the Court held that the material placed before it (the affidavit of the first respondent) demonstrated that the petitioner had prior convictions and that the authority had reason to believe he was likely to repeat similar offences. Consequently, the Court found no arbitrariness in the issuance of the externment order.
Justice B. Jagannadhadas delivered a dissenting opinion, arguing that Section 57 prima facie infringed the fundamental right to move and reside, lacked a reasonable nexus to public interest, and should have been declared unconstitutional. He would have set aside the externment order. However, his dissent was not adopted and therefore did not form part of the binding rule.
Final Relief and Conclusion
The Supreme Court refused the petition for a writ of habeas corpus and the related reliefs. It dismissed the petition, holding that there was no ground to quash the externment order or to declare Section 57 of the Bombay Police Act, 1951 unconstitutional. The Court affirmed that Section 57 constituted a constitutionally valid, reasonable restriction on the freedoms guaranteed by Article 19(1)(d) and (e), provided that the authority was satisfied of a prior conviction and of a likelihood of recurrence, and that the externment order was limited to the local jurisdiction of the issuing officer.