Protest against Government Cannot Be Ground for Externment: Bombay High Court
SUBJECT: POLITY & GOVERNANCE
Why in News?
The Bombay High Court quashed an externment order issued against an individual, holding that peacefully protesting against government policies or raising slogans cannot by itself justify externment under the Maharashtra Police Act.
Key Highlights
- The High Court held that the externment order violated the petitioner’s Fundamental Rights under:
- Article 19 – Freedom of speech and expression, peaceful assembly, and association (subject to reasonable restrictions).
- Article 21 – Right to life and personal liberty, including the right to live with dignity.
- The Court observed that:
- Peaceful political dissent is an essential feature of a democratic society.
- Participation in morchas (protest marches) and dharnas (sit-ins) cannot be treated as grounds for externment.
- Merely criticizing or opposing government policies does not justify restricting personal liberty.
- The externment order was based on five FIRs registered against the petitioner.
- The Court found the police action prima facie mala fide, indicating a possible misuse of preventive powers.
- It emphasized that police authorities must act independently, fairly, and in accordance with the Constitution, free from political influence.
- The judgment reinforces:
- Protection of fundamental rights.
- Judicial scrutiny of arbitrary executive action.
- The constitutional value of peaceful political dissent.
What is Externment?
Externment is a preventive measure by which an individual is directed to leave a specified geographical area for a certain period to maintain public order.
Constitutional Requirements
An externment order must satisfy the tests of:
- Legality
- Necessity
- Proportionality
It cannot be used to suppress lawful dissent or peaceful protests.
Constitutional Basis for Externment Laws
State List (Seventh Schedule)
Entry 1 – Public Order
- Empowers States to enact laws relating to public order.
- Externment is considered a preventive policing measure to prevent disturbances to public peace.
Entry 2 – Police
- Empowers States to legislate on matters relating to the police.
- Externment orders are generally issued by police authorities or executive magistrates under State laws.
Can Parliament Legislate on Externment?
Normally, Public Order and Police are State List subjects, so Parliament cannot legislate on them.
However, Parliament may legislate under the following constitutional provisions:
| Constitutional Provision | Circumstance |
|---|---|
| Article 249 | Rajya Sabha passes a resolution (2/3 majority of members present and voting) declaring it to be in the national interest. |
| Article 250 | During a National Emergency. |
| Article 252 | Two or more States request Parliament to legislate on a State subject. |
| Article 253 | To implement international treaties or obligations. |
| Article 356 | During President’s Rule, when Parliament exercises the powers of the State Legislature. |
Effect of Parliamentary Law on State Law
| Constitutional Provision | Effect on State Law |
|---|---|
| Article 249 | Parliamentary law prevails during its operation. After it ceases, State law can again operate unless Parliament provides otherwise. |
| Article 250 | Parliamentary law prevails during the Emergency and for six months after it ends. Thereafter, State law revives to the extent of inconsistency. |
| Article 252 | Parliamentary law replaces State laws in the States that requested it. Those States cannot amend or repeal it; only Parliament can. Other States may adopt it later. |
| Article 356 | Parliamentary law operates as State law during President’s Rule. The restored State Legislature may later amend or repeal it, subject to constitutional limits. |
Related Posts
Article 239AA of Indian Constitution
Posted on
