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Many a times it happens that the State action is taken against us and we feel the brunt of it. Having patience and taking the right course of action at these times is the key to resolve these problems. The State action loses its force if we can prove that it was unconstitutional and if it is proved, not only we save our self from the ill will of government officials but also we are entitled to the compensation. One such case is the “State Of Madhya Pradesh & Anr. Vs Thakur Bharat Singh” which we are going to discuss in detail in this Article.
Background
In the year 1959 State of Madhya Pradesh passed an Act namely Madhya Pradesh Public Security Act, 1959 (MPPSA for short). It contained provisions similar to MISA (Maintenance Of Internal Security Act) whereby even on the slightest assumption of threat to public order or danger to the security of the State the State Government or the District Administration (read Collector or District Magistrate) by an order may prohibit a person from being present in any area of Madhya Pradesh or mandate a person to be present in any area of Madhya Pradesh and report and notify his movements as and when the District Administration or the State Government wants. Further the said Act prohibited the abovenamed person from associating with persons mentioned in the Order or carrying specific articles as specified in the Order. (Section 3)
From the first look any layman can tell that there is something illegal with this Act. But a lawyer at first blush is certain that not only this order is illegal but also unconstitutional as it contravenes freedom of movement and residence as guaranteed to every citizen of India under Article 19 (1) (d) & (e) of the Constitution of India.
Though this Act was passed in 1959 but till 1963 this unconstitutionality remained unchallenged as only when on 24th of April, 1963 an Order was promulgated under the aforesaid Section 3 of the MPPSA, 1959 which restricted the movements of one person named Thakur Bharat Singh, only then this unconstitutionality came to the fore glaringly and was duly challenged before the Single Judge and before the Division Bench in Letter Patents Appeal.
As the State lost at both the occasions i.e. the SB and the DB stage, the State finally appealed to Supreme Court of India where some important contentions was raised by the state.
Contentions of the State of Madhya Pradesh
The State argued that due to the Emergency which was declared from 20th October 1962, there is no restriction on the power of the State to make laws which are contrary to provisions of Article 19 (this aspect of Article 358 of Constitution of India has been dealt in my previous article Avoiding Arrest In The Absence Of Fundamental Rights)
Another argument of the State was that though MPPSA might not have been enacted during the tenure of the Emergency but the Order has been promulgated during such time and hence though the legislation may not be immune to Article 19 but the Executive Order is, as it found its birth after 1962 and hence Article 19 doesn’t apply.
Observations of the Hon’ble Supreme Court
Due to these contentions of the State Hon’ble Apex Court observed that situating a person anywhere in India on the whims and fancies of the State administration (and not State legislature) is an unreasonable restriction in terms of Article 19 of the Constitution. More so chances are there that by virtue of the Order a person is taken away from his home to a place where he has no home, no job and no family and therefore it certainly will be a travesty of justice to force him to live in a such a place where he has no one to call his family or nothing to call his home. Further there may not be any jobs available to him at this new place of relocation and therefore he will be condemned to penury. Hence the Order is hit by Article 14 as its arbitrary.
Further throughout the person named in the Order will also be in the fear of obeying the Order, as even stepping outside the containment area will invite a punishment of imprisonment of One Year or a fine of Rs. 1000, which may seem trifling today but seen in the context of those times i.e. the year 1963, it is a sizeable amount.
The Supreme Court also declared that those laws which are made on or after the Declaration of Emergency (i.e. after the 20th of October, 1962) are immune from these restrictions of Article 19 on the Legislature. But as the legislation i.e. the MPPSA, had been enacted in 1959 it doesn’t fall into the said category to which Article 358 applies. In short if a legislation is made before the Declaration of Emergency, it is not immune from the fetters of Article 19. At this point it will not be out of place to understand what an Executive action and Legislative action is. Legislative actions are basically the law made by people elected by citizens. But an Executive Action is taken by the Government of the State and not the Parliamentary or Legislative Assembly members so these orders don’t pass the scrutiny of all the parliamentary or legislative debates. So Government may pass an order which might not be in consonance with the provisions of the constitution or some law and still save itself from the challenge of the opposition. Further the Apex Court very rightly stated that only the law is protected by Article 358 and not the Executive Action, which is taken in its pursuit. Furthermore this is in opposition to Dicey’s concept of Rule of Law which propounds that more the discretion to the Monarch (in this case the State) means more anarchy as he will be more arbitrary (read unlawful) in his actions which will instil insecurity in the mind of subjects (read citizens) towards their constitutional freedom.
Conclusion
From the above article it is clear that though a legislation may be immune to the safeguards of the Constitution in special times but in no case this exemption applies to an executive act. If an executive act is in breach of the Constitution then the proper remedy will be to impugn the same in the High Court of that State or the Supreme Court itself so that one can be saved from the high handedness of the State officials.
Parveen Semwal
Advocate, Delhi High Court and Supreme Court of India