Externment directly affects fundamental freedoms, cannot be ordered routinely: SC

The Supreme Court on Monday, August 31, held that externment orders, which restrict a citizen’s fundamental freedoms, cannot be passed routinely or merely on the basis of multiple criminal cases.

A bench of Justices Dipankar Datta and Sheel Nagu quashed an externment order issued against a man in November last year, directing him to leave Raigarh and adjoining districts in Chhattisgarh for one year.

The court termed the order “infirm and indefensible”, saying there were no cogent reasons to justify such an extreme measure.

“Merely because multiple criminal cases have been registered against a person would not, ipso facto, be a ground for ordering externment,” the bench said.

It held that before exercising the power of externment, the district magistrate must arrive at a bona fide and informed subjective satisfaction that the circumstances warrant such action and that it is necessary to prevent an apprehended threat.

While an authority is not required to give reasons in the same manner as a court, the externment order must indicate, at least broadly, the material and reasons that led to the decision, the bench said.

“The existence of objective material and a discernible nexus between such material and the conclusion reached are indispensable safeguards against arbitrary exercise of power,” it said.

An externment order “directly impinges upon valuable fundamental freedoms guaranteed to a citizen” and therefore cannot be issued as a matter of routine or on the authority’s mere assertion, the court observed.

The verdict came on an appeal challenging a January order of the Chhattisgarh High Court, which had dismissed the man’s plea against his externment and directed him to pursue the alternative statutory remedy of appeal under Section 9 of the Chhattisgarh Rajya Suraksha Adhiniyam, 1990.

The appellant had challenged an ex-parte externment order passed against him.

The Supreme Court noted that there was no material before it showing why the offences attributed to the appellant warranted his externment.

More importantly, he had neither been served a notice nor given an opportunity to explain his position before the order was issued, it said.

The bench consequently set aside both the High Court’s order and the externment order, allowing the appellant to enter the districts from which he had been barred.

Referring to the relevant provision of the Adhiniyam, the court said its purpose was to ensure that a person facing proposed externment is informed of the allegations and material against him and is given an effective opportunity to respond.

“There was no statutory basis for dispensing with the mandatory requirements of notice and opportunity of hearing,” the bench said.

The case dates back to April 2019, when the Raigarh superintendent of police submitted a memorandum to the district magistrate recommending externment proceedings against the appellant under Sections 5(a) and (b) of the Adhiniyam.

The recommendation cited his alleged involvement in 10 criminal cases registered between 2009 and 2019.

The Supreme Court noted that the appellant had subsequently been acquitted in the cases mentioned in the memorandum. The district magistrate had initially closed the proceedings, warning him to stay away from criminal activities in the future.

However, after two fresh FIRs were registered against him, including one concerning allegations that he had insulted a saint revered by a particular community, another report was submitted to the district magistrate.

The DM thereafter passed the externment order.

The Supreme Court said the order failed on two fundamental grounds, denial of a meaningful and effective opportunity of hearing and the absence of adequate material justifying externment.

It also questioned the High Court’s decision to take a “hands-off approach” in a case involving what it described as an “egregious violation of law” and to relegate the appellant to the alternative statutory remedy.

The bench said this amounted to an “abject failure” by the High Court to exercise jurisdiction vested in it.

The court further observed that an administrative authority cannot review its own earlier order unless the governing statute specifically grants such power.

“We have not been shown any such empowering provision,” it said, holding that the district magistrate had exercised a jurisdiction not vested in him by law.