Dr. N.B. Khare v The State of Delhi (1950)

Article 19 lets the State impose "reasonable restrictions" on the freedoms. The first question the Supreme Court had to answer in 1950 was: reasonable in what sense? Does the Court look only at the restriction itself — how long and over what area — or also at how the law imposes it: who decides, on what material, with what hearing?

Khare gave the answer that every later case builds on. Four of the five Judges held that reasonableness depends on the procedural part of a law as much as on its substance. In State of Madras v V.G. Row (1952) the Court recalled exactly this — that both the substantive and procedural aspects of a restrictive law must be examined — before setting out its own celebrated test. For labour law, this is the constitutional yardstick used whenever a law restricting trade, association or movement is challenged.

The case is also a sharp split on the result: 3–2 to uphold the externment law. Learn both the point on which four Judges agreed and the point on which they divided.

Dr. N.B. Khare, President of the All India Hindu Mahasabha since December 1949, was served by the District Magistrate, Delhi, with an externment order in March 1950 under s. 4(1)(c) of the East Punjab Public Safety Act 1949, directing him to leave the Delhi District and not return. The order was to run for three months.

Under s. 4(3), a District Magistrate's order could not remain in force beyond three months unless the Provincial Government by special order directed otherwise; an order of the Provincial Government had no time limit. Under s. 4(6), the grounds "may be communicated" to the externee, and where the order was to last beyond three months he had a right to make a representation to an Advisory Tribunal. The Act was to remain in force until 14 August 1951.

The grounds served on him said his activities had been of a communal nature tending to excite hatred between communities, and that his presence in Delhi was likely to prejudice law and order. He petitioned under Art. 32, arguing the Act violated Art. 19(1)(d), that the grounds were vague, and that the order was a mala fide attempt to stifle political opposition.

1. In judging whether restrictions are "reasonable" under Art. 19(5), may the Court consider the procedural part of the law, or only the restrictions themselves (their duration and extent)?
2. Were the provisions of s. 4 — final subjective satisfaction of the officer, no maximum period for extended orders, and optional communication of grounds — reasonable restrictions?
3. Were the grounds of externment vague or insufficient?

The petition was dismissed by majority (Kania CJ, Fazl Ali and Patanjali Sastri JJ; Mahajan and Mukherjea JJ dissenting).

Issue 1 — reasonableness covers procedure (four Judges)

Kania CJ: "In my opinion, clause (5) must be given its full meaning." The law "may contain substantive provisions as well as procedural provisions. While the reasonableness of the restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the Court the question of reasonableness of the procedural part of the law." He illustrated: a fiveor ten-year externment period is substantive and for the Court; equally, "if the law provides the procedure under which the exercise of the right may be restricted, the same is also for the consideration of the Court". He rejected the "narrow construction" that confined the Court to the substantive law.

Mukherjea J agreed that "reasonable" qualifies the restrictions, not the law, "but that does not mean that in deciding the reasonableness or otherwise of the restrictions, we have to confine ourselves to an examination of the restrictions in the abstract with reference merely to their duration or territorial extent". In his words, "All the attendant circumstances must be taken into consideration and one cannot dissociate the actual contents of the restrictions from the manner of their imposition or the mode of putting them into practice."

Patanjali Sastri J expressly declined to decide this point, holding himself "free to deal with that point when it becomes necessary to do so." That is why the proposition is one of four of five Judges.

Issue 2 — the provisions were reasonable (majority)

• Subjective satisfaction: Kania CJ held this "is not legislative delegation"; the need for an individual order must be left to an officer, and his final satisfaction is not an unreasonable restriction. Mukherjea J agreed on this point.
• Duration (s. 4(3)): preventive detention, a more severe restriction, is itself permitted by Art. 22 for three months without a remedy, so "The period of three months therefore prima facie does not appear unreasonable." Extensions were indefinite, but the Act itself expired on 14 August 1951, and the argument assumed the Government would abuse its power: "Abuse of the power given by a law sometimes occurs; but the validity of the law cannot be contested because of such an apprehension."
• Grounds (s. 4(6)): read with the absolute right of representation, "may" had to be read as "shall" — the externee cannot represent without grounds — so communication of grounds was obligatory.

Issue 3 — grounds

The grounds were held not vague: they were "specific and if honestly believed can support the order". The District Magistrate was not concerned with Government policy on appeasement, so the mala fide argument failed.

The dissent (Mukherjea J, Mahajan J concurring)

Mukherjea J accepted that initial orders could rest on an officer's satisfaction, but "the position would certainly be different if the order thus made is allowed to continue for any indefinite period of time without giving the aggrieved person an opportunity to say what he has got to say against the order." Section 4(3) set no maximum, and he found the Act's own expiry date irrelevant: "I have no hesitation in holding that the provision of sub-section (3) of section 4 is manifestly unreasonable". Reading s. 4(6) as written, communication of grounds was optional, so the right of representation was "purely illusory". He would have quashed the externment order.

Whether a law imposes "reasonable restrictions" under Art. 19(5) is judged on the procedural as well as the substantive part of the law: the Court may consider not only the duration and extent of the restrictions but also the circumstances under which, and the manner in which, their imposition is authorised (Kania CJ, Fazl Ali, Mahajan and Mukherjea JJ). On the facts, externment on the subjective satisfaction of the executive, for a limited initial period, with grounds (read as compulsorily communicated) and a right of representation to an advisory tribunal, was a reasonable restriction (majority).

• Direct question: What is the test of "reasonable restrictions" under Article 19? Discuss with reference to Dr. Khare v State of Delhi and State of Madras v V.G. Row. Start with Khare: four of five Judges held both substance and procedure are examined; then V.G. Row's formulation.
• Labour law link: use this when a law restricting the freedom of trade, association or movement of workers is attacked as unreasonable — the Court will look at the procedure (hearing, grounds, review, time limits) as well as the restriction.
• Marks for precision: say it was a 3–2 decision on the result but 4–1 on the principle, and that Patanjali Sastri J reserved his opinion on the scope of review.
• Statutory interpretation: cite Kania CJ's reading of "may" as "shall" as an example of reading a permissive word as mandatory to give effect to a right conferred in the same provision.