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Post at: Oct 08 2021

Right to Reside, Move Freely Can’t Be Denied:SC

Recent Context
On August 28, 2021, Supreme Court held in a judgment that the rights to free movement and residence across India cannot be curtailed on ‘flimsy grounds’.
Background
The judgment was based on an appeal filed by a journalist, Rahmat Khan, who was at the receiving end of an externment order passed by the Maharashtra police.
He was banned from entering Amravati City or Amravati rural district for a year.
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. 

Externment Laws and Orders

  • The power to direct a person to leave a particular area existed in many police statutes present in the country.
  • Goonda laws of various States continue to give the local administration the power to extern people declared as ‘goondas’( eg, Goondas Act 1923 (West Bengal); Uttar Pradesh Control of Goondas Act 1970 etc.).
  • The Indian Supreme Court has construed the provisions of such laws liberally to allow these laws to exist, but has also required minimum procedural fairness in the application of these laws.
  • The Supreme Court heard one of the first major challenges to such powers in a five-judge bench in Hari Khemu Gawali’s case.

  • By 1967, the Supreme Court had substantially come round to the minority view and narrowed the majority’s construction in Maneka Gandhi’s case.
  • Similar considerations of procedural safeguards were considered while scrutinising the impugned measures in Gurbachan Singh’s case 27 and Baldeo Prasad’s case.

Supreme Courts Observation in the Present Case.

  • The Supreme Court has held that the power of the State to pass an externment order or a direction barring certain people entry to specified areas should be exercised only in “exceptional cases”.
  • The court observed that externment orders have their use in maintaining law and order. 
  • However, they cannot be employed as a vindictive or retaliatory measure.

Article related to ‘Right to Reside’

  • (a)    Right to  to move freely throughout the territory of India
  • Article 19(1)(d)- in the Constitution of India entitles every citizens of the country to move freely throughout the territory of India.
  • This privilege is solely protected from government action, not from private persons.
  • This right is however, subject to reasonable restrictions mentioned in clause (5) of Article 19, i.e. in the interest of general public or for the protection of the interest of any Scheduled Tribe.
  • (b)    Right  to reside and settle in any part of the territory of India
  • According to Article 19(1)(e) every citizen of India has the right "to reside and settle in any part of the territory of India."
  • However, under clause (5) of Article 19 reasonable restriction may be imposed on this right by law in the interest of the general public or for the protection of the interest of any Scheduled Tribe.
  • The object of the clause is to remove internal barriers within India or any of its parts. 

Judicial Approach Towards Article 19 (I) (D) & (E)

  • There are three broad classifications of the judicial approach to free movement and residence:
  1. On restrictions imposed for promoting law and order, courts have used Article 21 principles of procedural fairness and natural justice to scrutinise externment, deportation, and preventive detention laws. 
  2. On restrictions imposed in order to promote equality interests (including rehabilitation for land acquisition), there is an absence of engagement with the curtailment of the freedom interests by the impugned laws or measures.
  3. On restrictions imposed in order to promote public health, safety, and the environment, courts have given wide latitude to State action, in one instance expressly disavowing a more costly, but less restrictive method of regulation.
     

 


 


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