A) ABSTRACT / HEADNOTE

The landmark decision in Hari Khemu Gawali v. The Deputy Commissioner of Police, Bombay and Another, [1956 SCR 506], intricately examined the scope of preventive action under Section 57 of the Bombay Police Act, 1951 in light of Article 19(1)(d) and (e) of the Indian Constitution. The case revolved around the constitutionality of externment orders that restrict a citizen’s right to move freely and reside in any part of India. The majority of the Supreme Court upheld the constitutionality of the impugned provision, recognizing the preventive nature of such statutory measures for maintaining public order. The Court emphasized that such restrictions were reasonable and designed to safeguard public interest, even when founded upon subjective satisfaction. The minority, represented by Justice Jagannadhadas, dissented, holding that Section 57 was unconstitutional due to its excessive delegation, lack of specific safeguards, and potential to cause arbitrary deprivation of liberty. The case remains pivotal in shaping jurisprudence on the balance between individual freedoms and state security under preventive laws.

Keywords: Externment, Bombay Police Act, Preventive Action, Article 19(1)(d)(e), Constitutional Validity, Public Order, Fundamental Rights.

B) CASE DETAILS

i) Judgement Cause Title
Hari Khemu Gawali v. The Deputy Commissioner of Police, Bombay and Another

ii) Case Number
Petition No. 272 of 1955

iii) Judgement Date
8 May 1956

iv) Court
Supreme Court of India

v) Quorum
S.R. Das, C.J.; Jagannadhadas, Venkatarama Ayyar, B.P. Sinha, and Jafer Imam, JJ.

vi) Author
Justice B.P. Sinha (majority); Justice Jagannadhadas (dissenting)

vii) Citation
AIR 1956 SC 559; [1956] SCR 506

viii) Legal Provisions Involved

• Article 19(1)(d), (e) & (5) of the Constitution of India

• Section 57, 59, and 61 of the Bombay Police Act, 1951 (Bombay Act XXII of 1951)

ix) Judgments Overruled by the Case (if any)
None expressly overruled.

x) Case is Related to which Law Subjects
Constitutional Law, Criminal Law, Human Rights Law, Preventive Law Enforcement.

C) INTRODUCTION AND BACKGROUND OF JUDGEMENT

This case emerged during a period when newly independent India was grappling with the challenge of ensuring internal security while upholding the democratic ethos embedded in the Constitution. The petitioner, Hari Khemu Gawali, a resident of Bombay, was subjected to an externment order issued under Section 57 of the Bombay Police Act, 1951, directing him to vacate the Greater Bombay area due to his criminal antecedents. Gawali challenged the constitutional validity of the section on the grounds that it violated his fundamental rights under Article 19(1)(d) and (e) of the Constitution, particularly his right to move freely and reside anywhere in India. The Court had to analyze whether preventive measures aimed at curbing criminal tendencies could justifiably restrict constitutional liberties.

D) FACTS OF THE CASE

The petitioner was previously convicted under Sections 304/109 and 324/109 IPC. He claimed he had since reformed, but the police suspected continued involvement in criminal activities. The externment order dated 8 November 1954, based on past criminal history and suspicions of renewed criminal conduct, was passed without a fresh conviction but relying on the subjective satisfaction of the Deputy Commissioner of Police. Notably, some prior cases against him had ended in discharge or acquittal. He was alleged to associate with known criminals and to have been found with weapons, prompting authorities to act preventively. A notice under Section 59 was issued, and following his representation, the order under Section 57 was enforced. The petitioner’s appeal to the Government was dismissed, leading to the constitutional challenge before the Supreme Court under Article 32.

E) LEGAL ISSUES RAISED

i) Whether Section 57 of the Bombay Police Act, 1951 is constitutionally valid?
ii) Whether the externment order passed against the petitioner violates his fundamental rights under Article 19(1)(d) and (e)?
iii) Whether reliance on vague allegations and non-conviction-based evidence violates principles of natural justice?
iv) Whether the absence of an independent advisory review mechanism renders the procedure arbitrary?

F) PETITIONER / APPELLANT’S ARGUMENTS

i) The counsels for Petitioner / Appellant submitted that:

The petitioner’s counsels contended that Section 57 was ultra vires the Constitution as it imposed unreasonable restrictions on fundamental rights guaranteed under Article 19(1)(d) and (e). They argued that prior convictions, particularly old ones or those without substantive evidence (e.g., discharges), cannot justify perpetual suspicion or interference with liberty. The lack of requirement for objective proof or judicial scrutiny, they argued, rendered the law susceptible to arbitrary application. They further claimed the externment process was devoid of transparency, especially since only general allegations were disclosed, thus denying the petitioner a fair opportunity to respond. They emphasized that the law granted disproportionate powers to police officers without the safeguards typically found in preventive detention laws, such as review by an Advisory Board, which the Constitution mandates under Article 22(4)-(7). The reliance on vague police records, instead of convictions, and the absence of any statutory check on abuse of power, were said to violate the essence of Article 21 as well.

G) RESPONDENT’S ARGUMENTS

i) The counsels for Respondent submitted that:

The Attorney General for India and government counsels defended Section 57 as a reasonable restriction under Article 19(5). They stressed that the provision was designed to prevent recurrence of crime by habitual offenders. The authorities’ satisfaction, based on consistent criminal behavior and association with criminals, sufficed to trigger externment. The respondents emphasized the preventive nature of the law, differentiating it from penal statutes. They argued that externment decisions were administrative and thus only required subjective satisfaction of the designated authority. They drew support from prior precedent, especially Gurbachan Singh v. State of Bombay [(1952) SCR 737], which upheld similar preventive measures under Section 27 of the Bombay Police Act, 1902. The government also asserted that the impugned provision did not violate Article 21, as procedural safeguards, including the right to a hearing and the ability to appeal to the State Government, were adequately in place under Section 59 and 60.

H) RELATED LEGAL PROVISIONS

i) Article 19(1)(d), (e) and (5) of the Constitution of India – Guarantees the right to move freely and reside anywhere in India, subject to reasonable restrictions in the interest of general public.
ii) Section 57 of the Bombay Police Act, 1951 – Authorizes externment of persons with prior convictions if they are likely to reoffend.
iii) Section 59 of the Bombay Police Act, 1951 – Requires notice and opportunity to respond before an externment order.
iv) Section 61 of the Bombay Police Act, 1951 – Limits judicial review but provides some grounds for challenging orders.

I) JUDGEMENT

a. RATIO DECIDENDI
The majority held that Section 57 was not unconstitutional. The Court found the provision to be a reasonable restriction under Article 19(5). It accepted that preventive actions were necessary to protect the public from individuals likely to disrupt peace. The Court emphasized that prior convictions and consistent criminal conduct provided sufficient material for the subjective satisfaction of the authorities. It ruled that procedural safeguards like notice, hearing, and appeal met the requirements of reasonableness. The Court also clarified that the lack of an Advisory Board, akin to preventive detention laws, was not fatal to the validity of this provision.

b. OBITER DICTA
The Court stated that while preventive laws are exceptional, they serve a legitimate public interest and cannot be struck down merely due to the possibility of misuse. It emphasized the principle that “prevention is better than cure” applies in the realm of public law as well.

c. GUIDELINES 

• Authorities must provide the general nature of allegations before passing externment orders.

• Externment must be based on prior convictions and likelihood of repetition.

• Orders are not open to full judicial review but may be challenged on limited grounds under Section 61.

• Lack of a review board does not render the law unconstitutional, as Article 22 requirements do not apply to externment.

J) CONCLUSION & COMMENTS

The judgment marks a pivotal moment in constitutional law, upholding the balance between individual liberty and public interest. It legitimized externment as a preventive measure, distinguishing it from punitive detention. While the majority underscored administrative efficacy, the dissenting opinion of Justice Jagannadhadas raised critical concerns about overbreadth and the absence of proportionality. The judgment draws clear lines between judicial process and administrative discretion, reinforcing the idea that subjective satisfaction can serve as a lawful basis in preventive frameworks. Yet, it also opened enduring debates on whether such discretion, if unchecked by independent scrutiny, threatens civil liberties in a constitutional democracy.

K) REFERENCES

a. Important Cases Referred
[1] Gurbachan Singh v. State of Bombay, [1952] SCR 737.
[2] State of Madras v. V.G. Row, [1952] SCR 597.
[3] Chintaman Rao v. State of M.P., [1950] SCR 759.
[4] Dwarka Prasad Laxmi Narain v. State of U.P., [1954] SCR 803.
[5] Ebrahim Vazir Mavat v. State of Bombay, [1954] SCR 933.
[6] Rex v. Halliday, [1917] AC 260.

b. Important Statutes Referred
[1] Constitution of India, Articles 19(1)(d), (e), and (5)
[2] Bombay Police Act, 1951, Sections 57, 59, 61
[3] Indian Penal Code, Sections 304, 324, Chapters XII, XVI, XVII
[4] Code of Criminal Procedure, Sections 107, 110
[5] Bombay Prevention of Prostitution Act, 1923
[6] Bombay Prohibition Act, 1949