Certain individuals tend to disturb a particular area’s condition through illegal or criminal activity. A legal method to restrain them from doing so is Externment. The word Externment means outward. This concept has been in practice for a very long time even before the constitution came into force. Earlier, it was used to punish wrongdoers, lawbreakers, and criminals. The reasoning behind externment is that if these people are forced to stay away from the place where they committed wrongful acts then it will affect their mindset and they will have to change themselves according to their new environment. As a result, their chances of committing a similar crime significantly reduced. Many states in India are having legislation dealing with externment. Their legislations empower police officers and magistrates to order the removal of criminals by following the procedure laid down by their respective laws.
EVOLUTION FROM ANCIENT TO MODERN ERA
Previously, witnesses to crimes were hesitant to testify against the goons because of their violent behaviour. As a result, the most appropriate formula here was to exile the offender in the public good. One could argue that if a person is a goon, he or she can continue to engage in an illegal activity even after being expelled. However, it was discovered that when these offenders were separated from their gang, their behaviour became unsuccessful without the help of other partners. In modern times, there are various rights given by the constitution which let the citizens live with liberty. Since externment is a discretionary power in the hands of the executive, these rights give the Judiciary an upper hand as compared to that of the executive, to check whether the externment order complies with the spirit of the constitution. When a statute grants more discretionary authority than the permissible limit, this discretionary power may be suspended or deemed illegal, limiting the authorities’ absolute discretionary power as a final order. Some of the statutes that provide for externment are, the Karnataka Police Act, Punjab Security of State Act 1953, The Maharashtra Police Act (MPA) 1951.
ROLE OF JUDICIARY
Externment Laws were introduced to deter criminals from committing crimes by prohibiting them from a specific area. Since this is a discretionary power there are chances of it getting misused. This is where the role of the judiciary comes into play. On a case-to-case basis, the judiciary keeps a balance between individual liberty and the discretion of the police.
In the case, Nawabkhan Abbaskhan v. the State of Gujarat, the court observed that such an order of externment is not valid in which the affected party was not heard. The court emphasized its concern that no order of externment should breach the rule of Audi Alteram Partem.
In Kathi Racing v. the State of Saurashtra, The court stated that if a statute gives the executive discretionary power, the wording used in the law must not be confusing and must be “clear and definite” concerning the scope and application of the discretionary power. If laws that deal with the executive’s discretionary power, have clear instructions which are to be followed by the authorities then there is a likelihood of them being upheld by the Supreme Court.
In Praful Bhausaheb Yadav v. Shri K. K. Pathak, The court stated that if the Externment order is carried out, it may have far-reaching negative implications for the external and his family members who rely on him for their livelihood. It might be the end of the external’s financial life. As a result, the externment order was overturned due to a lack of mental application.
In Gurbachan Singh v. the State of Bombay, the court stated that “The law is certainly an extraordinary, one and has been made only to meet those exceptional cases where no witnesses for fear of violence to their person or property are willing to depose publicly against certain bad characters whose presence-in certain areas constitutes a menace to the safety of the public residing therein”.
In Rauf Khan Wahab Khan Patel v. the State of Maharashtra, the court observed that to brand a person habitual criminal, it is necessary to find out his record. In this case, the authorities have not considered the fact that the petitioner is not convicted in any of the criminal cases registered against him. Hence the court set aside the externment order.
In Imran Abdul Wahid Hasmi v. Dy. Commissioner of Police and Ors., an externment order was issued to the accused under Section 56 of the Bombay Police Act, 1951 exiling him from Greater Bombay Suburban and Thane Districts for two years. The officer-in-charge had noted that witnesses were afraid of the accused disturbing peace and refused to depose against him in public.
The court, however, believed that the order was contrary to the provisions of the law. It expressed dissatisfaction over the determination that witnesses were not coming forward to depose against the accused out of fear, noting that they had already recorded in-camera statements. The Court quashed the order of externment for procedural insufficiencies and an unsuitable inference that his presence caused key witnesses to get cold feet.
In Pawan v. State of UP & Ors., the court opined that a goonda is an antithesis of what a respectable or honourable man is. An externment order, which, thus, works as an innate declaration about the man externed being a goonda, is irreversibly ruinous of his reputation. It has been said time over again that a reputation once lost can never be redeemed. The physical consequences of an externment order that last only for six months, with the limited effect of the abridgement of some liberty, are trivial when compared to the timeless consequence of ruining a reputation, that can perhaps never be regained.
In Jugal Kishore vs Lt.Governor, Delhi & Anr., the court stated that an externment order causes societal and personal deprivation, as well as a significant financial burden on the externee. An order of externment infringes on a person’s valued and valuable right to reside in the location of his or her choosing. This Court is mindful of the fact that unless such stringent measures are taken against such lawbreakers, it would be difficult for police authorities to maintain an even tempo of the society. At the same time, a person’s rights and liberties cannot be taken lightly and must be protected with utmost enthusiasm.
In Rahmat Khan vs Deputy Commissioner Of Police, An externment order may be necessary for the maintenance of law and order, according to the court. Externment, on the other hand, should only be used in extreme circumstances to maintain law and order in a community and/or to avoid a breach of public tranquillity and peace.
In a recent case, the Bombay high court overturned an externment order issued by the police because the judgment was void. After all, the authorities failed to take into account the externee’s acquittal. The court stated that the externment order was invalid since it was based on a case that did not exist against the externee.
The efficacy of externment has been questioned on the ground, that removal of a bad character or goonda is a very doubtful remedy, as the goonda is likely to start his activities afresh, wherever he is removed, and the near-impossible task of preventing his return to the place from where he is externed. Externment laws are good in preventing the crime as long as the discretion by the police is not getting misused and is exercised within permissible limits. The courts will scrutinize it on case to case basis and will check whether the discretion exercised suits the objective. From the above judgments, it is clear that Indian Courts hold the view that the externment orders should uphold article 14 of the constitution and principles of natural justice. From the above judgments, it will not be wrong to conclude that the misuse of this discretionary power is on the rise. The courts have to step in and terminate such externment orders and give justice to the externees. Externment may be used in exceptional cases and must be followed by community service to fetch better results.
Author(s) Name: Ashish Chhabra (Rajiv Gandhi National University of Law, Patiala)