A) ABSTRACT / HEADNOTE

The judgment in Dr. N. B. Khare v. The State of Delhi, AIR 1950 SC 211, 1950 SCR 519, is among the earliest constitutional law decisions of the Hon’ble Supreme Court of India interpreting Article 19(1)(d) of the Indian Constitution in light of restrictions permissible under Article 19(5). It dealt with the validity of the East Punjab Public Safety Act, 1949, specifically the power of the State Government and the District Magistrate to extern individuals in the interest of public safety. The petitioner, Dr. Khare, a political figure, contended that such externment orders violated his fundamental right to move freely across the Indian territory.

The case exposed conflicting judicial philosophies among the Judges regarding the scope of “reasonable restrictions” and procedural fairness. The majority upheld the law, interpreting the power to extern and the procedural rights granted therein as not violating the Constitution. However, Justice Mukherjea and Justice Mahajan dissented, holding that provisions permitting indefinite externment without procedural safeguards were manifestly unreasonable and void under Article 13(1).

This case formed a foundational judicial exposition of balancing civil liberties against State’s interest in public order and set early standards of judicial review for legislation infringing fundamental rights under Part III.

Keywords: Externment, Fundamental Rights, Article 19, Public Safety, Procedural Safeguards, Reasonableness, Constitutionality, Preventive Action, Certiorari.

B) CASE DETAILS

i) Judgement Cause Title:
Dr. N. B. Khare v. The State of Delhi

ii) Case Number:
Petition No. XXXVII of 1950

iii) Judgement Date:
26th May 1950

iv) Court:
Supreme Court of India

v) Quorum:
Harilal Kania C.J., Saiyid Fazl Ali, Patanjali Sastri, Mehr Chand Mahajan, B.K. Mukherjea JJ.

vi) Author:
Majority: Harilal Kania C.J.
Dissent: Justice Mukherjea (Justice Mahajan concurred)

vii) Citation:
AIR 1950 SC 211, 1950 SCR 519

viii) Legal Provisions Involved:

• Article 19(1)(d) of the Constitution of India

• Article 19(5) – Reasonable restrictions

• Article 13(1) – Existing law inconsistent with Part III

• Article 32 – Constitutional Remedies

• Section 4(1)(c), 4(3), and 4(6) of the East Punjab Public Safety Act, 1949

ix) Judgments Overruled by the Case (if any):
None mentioned.

x) Case is Related to which Law Subjects:
Constitutional Law, Preventive Law, Public Safety Law, Administrative Law, Fundamental Rights

C) INTRODUCTION AND BACKGROUND OF JUDGEMENT

The case arose in the immediate aftermath of Indian independence and the adoption of the Constitution. During this period, India faced acute communal tensions and a massive refugee influx following Partition. The State had enacted emergency powers statutes such as the East Punjab Public Safety Act, 1949, empowering authorities to act pre-emptively in the interest of public order.

Dr. N. B. Khare, a noted political figure and then-President of the Hindu Mahasabha, was served an externment order under the above Act. He approached the Supreme Court under Article 32, challenging the constitutional validity of the provisions used against him, arguing that they infringed upon his fundamental right to move freely throughout the territory of India.

The case became a classic confrontation between individual liberty and state security, placing the recently adopted constitutional ideals under immediate judicial scrutiny.

D) FACTS OF THE CASE

Dr. Khare was issued an externment order dated 31st March 1950, by the District Magistrate, Delhi, directing him to immediately leave Delhi and not return for three months. The grounds cited alleged that his presence and political activities had a communal character and could incite hatred, affecting law and order.

Another subsequent order from the Madhya Bharat Government directed him to reside in Nagpur, but it was later withdrawn.

Dr. Khare challenged the Delhi externment order under Article 32, asserting that it was based on arbitrary executive satisfaction and lacked procedural safeguards. He claimed violation of his Article 19(1)(d) right and that the law under which the order was passed became void post-Constitution under Article 13(1).

He also asserted mala fides behind the order, claiming political suppression of opposition voices against governmental appeasement policies.

E) LEGAL ISSUES RAISED

i) Whether Section 4(1)(c), 4(3), and 4(6) of the East Punjab Public Safety Act, 1949 imposed unreasonable restrictions on the right to freedom of movement under Article 19(1)(d)?

ii) Whether the satisfaction of the District Magistrate or Provincial Government, without judicial review, could form a constitutional basis for limiting a fundamental right?

iii) Whether indefinite or renewable externment without time limit or mandatory communication of grounds is constitutionally valid?

iv) Whether the impugned Act became void under Article 13(1) after commencement of the Constitution?

F) PETITIONER/APPELLANT’S ARGUMENTS

i) The counsels for Petitioner / Appellant submitted that:

• The externment order was based on a law (East Punjab Public Safety Act) that contradicted the Constitution and hence void under Article 13(1)[1].

• Section 4(1)(c) allowed externment on the unchallengeable personal satisfaction of the District Magistrate or Government, which was arbitrary and violated due process[2].

• Section 4(3) permitted the order to be extended indefinitely by the Government without providing any upper time limit, making the restriction unreasonable[3].

• Section 4(6) used the word “may” for communicating grounds, leaving it optional and denying affected individuals a chance to make meaningful representations[4].

• The grounds communicated were vague and politically motivated, aimed at silencing dissent and violating the petitioner’s political freedom[5].

• Reference was made to Brijnandan v. The State of Bihar (Patna HC) and Jaisinghbhai Modi v. State of Bombay (Bombay HC), where similar legislations were held unconstitutional.

G) RESPONDENT’S ARGUMENTS

i) The counsels for Respondent submitted that:

• The law in question was a preventive measure to protect public order and hence justified under Article 19(5)[6].

• Satisfaction of the Government or District Magistrate was necessary in emergency preventive actions, which do not require prior judicial review[7].

• Section 4(6) did provide for communication of grounds and representation, particularly when the order was for more than three months; thus procedural fairness was maintained[8].

• The externment order lasted only three months, within the limits even accepted for preventive detention under Article 22(4)[9].

• The State argued that mere possibility of abuse cannot be a ground to declare legislation unconstitutional unless structural safeguards were absent.