Use externment orders with caution: SC

Recently the Supreme Court said that authorities can pass an order of externment against a person only under extraordinary circumstances.

• An order has been passed in December 2020 by which a man in Maharashtra was externed from Jalna district for two years.
• The authority had passed the December 15, 2020 order in exercise of powers under section 56(1)(a)(b) of the Maharashtra Police Act, 1951 and the man was directed to remove himself outside the limits of the district within five days for a period of two years.
  • Section 56 of the Act deals with removal of persons about to commit offence.

What is Externment?

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.

Indian constitution on freedom of movement and restrictions:

• Article 14 of the Indian Constitution promotes equality and prohibits discrimination on the grounds of “religion, race, caste, sex, or place of birth.”
  • 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.
• Article 19(1)(d), 19(1)(e) and Article 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.
  • However, 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. However, the court has said that an externment order “must stand the test of reasonableness”.

• To maintain the law and order in society.
• To ensure the restrictions on criminal acts.

• The principle of externment is to protect an area from probable danger of commission of offences by known criminals.
• The logic being that banishing a criminal from his area of operation would sever his link with the normal area of his criminal activities and reduce his criminal propensity in general.
• This provision is enacted with a view to ensure that the majority of the people may live in peace and harmony, and remain free from constant fear or threat of danger to their life or property by habitual criminals.

• Bhagubhai Dullabhbhai v. District Magistrate, 1956:
  • According to SC, since the restrictions under Article 19(5) have to be “reasonable”, the period for maximum externment must also be reasonable.
  • SC said that the orders of externment must remain only for a certain reasonable period (for a maximum of two years).
  • Also, the orders must be allowed to review at specific intervals since these laws come with restrictions on the personal liberty of a person.
• Nawabkhan Abbaskhan v. the State of Gujarat, 1974:
  • In this case, 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’ (Latin phrase meaning "listen to the other side") and must not injure the rights guaranteed by the Indian Constitution.
  • Town Area Committee v. Jagdish Prasad, 1978: SC ruled out that cross-examination of the witness is regarded as a part of natural justice.

• 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, there have been legislations as discussed earlier that certainly grants the power of externing a person having a criminal record or after the conviction in a crime, like
  • The Maharashtra Police Act (MPA) 1951
  • Punjab Security of State Act 1953
  • Assam Maintenance of Public Order Act 1947
  • Karnataka Police Act

• Externment Is Not An Ordinary Measure; Must Be Resorted To Sparingly And In Extraordinary Circumstances.
• The discretion should be used “very sparingly” as it deprived a person of his or her right of free movement in the country. An externed person may not even be able to stay with his family or home.

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. Also, 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.