Thattikkarantavila Bamban vs The Island Inspecting Officer and Others

Rajagopala Ayyangar, J.—These two writ petitions raise for consideration the validity of the orders passed, whereby the petitioners, who

are the natives of Malabar, have been prevented from entering the Island of Minicoy in the Arabian Sea. These petitions originally came on for

hearing before one of us sitting singly, but in view of a challenge to the validity of Section 33 of the Laccadive Islands and Minicoy Regulation I of

1912, it was directed to be posted before a Bench and they were heard by us. The learned Advocate-General appeared for the State, and we are

obliged to him for the assistance he rendered us.

The facts giving rise to the petition were briefly these: W.P. No. 533 of 1955 is by a single petitioner. He is a native of Malabar District, of

which Minicoy Island forms part. He claims to have been permitted to reside in this island for about 18 years past, carrying on there a business in

grocery. He also claims to have married a native of the island and to have two children by her. All these years the petitioner was having a valid

permit from the Collector of Malabar for staying in the island the permit being renewed every year. While so, he states, that in December, 1954, he

received an order from the Island Inspecting Officer, who has been impleaded as the first respondent in these petitions, informing him that his

permit for staying in the island had been cancelled; similar orders were passed in respect of eight others, five of whom are the petitioners in W.P.

No. 646 of 1955. The order, dated 13th December, 1954, required these nine individuals to leave the island by the first available boat for the

mainland. The ground upon which this order was made was, that these nine mainlanders were creating factions and indulging in improper activities,

and that in the interests of peace and tranquillity of the island it was considered necessary that these persons should not be allowed to stay in the

island any more. A boat left the island the next day, and these individuals were put on board that vessel and were brought to Malabar. They

preferred an appeal to the Collector of Malabar from the order of the Island Inspecting Officer cancelling their permit and deporting them to the

mainland but this appeal was dismissed. The petitioner in W.P. No. 533 of 1955 thereupon preferred a revision petition to the Government praying

for their interference. This petition wound up with the prayer that he might be permitted to go back to his wife and children in the Minicoy Island.

The Government did not pass any order on this petition immediately and W.P. No. 533 of 1955 was filed to quash the order of the Island

Inspecting Officer cancelling the permit and ordering deportation, the Collector of Malabar who had dismissed the appeal of the petitioner being

impleaded as the second respondent. The Government finally passed their order in G.O. Ms. No. 2198, dated 23rd June, 1955, rejecting the

petitions of the nine deportees and instead passed an order u/s 33(a) and 33(b) of the Laccadive Islands and Minicoy Regulation, 1912 (Central

Regulation I of 1912) requiring ""these nine persons to leave Minicoy Islands"" and prohibiting them ""from visiting or taking up their residence in the

said land of which they are not natives"". This order was not served upon the petitioner in W.P. No. 533 of 1955 by the date on which he filed that

writ petition, and W.P. No. 646 of 1955 is directed to challenge the validity of the order of the Government whose material portion we have

extracted above.

In view of the order of Government u/s 33 it is not necessary to canvass minutely the validity of the order of the Island Inspecting Officer, as to

whether he had or had not the power to cancel the permit and direct deportation. So far as we have been able to gather from the regulations, he

does not appear to possess such a power. But this does not really benefit the petitioner, because Section 33 of Regulation I of 1912 undoubtedly

empowers the Government to pass the order, and therefore we consider that no orders are necessary in W.P. No. 533 of 1955, which is

dismissed.

Five of the persons affected by G.O. No. 2198, dated 23rd June, 1955, are the petitioners in W.P. No. 646 of 1955, in which proceeding the

State of Madras which passed the impugned G.O. has been impleaded as the third respondent. The attack on the validity of this order was rested

on two grounds, namely, (1) that the order passed by the Government was ex parte, and that they had no reasonable opportunity of snowing cause

against the action proposed to be taken against them, and that this vitiated the issue of the order and (2) that Section 33 of Regulation I of 1912

was unconstitutional, in that it vested in the State Government an undefined, arbitrary and uncontrolled power to restrict the freedom of movement

of the citizens of the Indian Republic within the limits of the territory of India, in violation of Article 19(1)(d) and (e) of the Constitution, the

restriction imposed being unreasonable and so not saved by Article 19(5) of the Constitution.

We shall first take up for consideration the second of the above objections as this is more fundamental and it was by reason of this objection

having been raised that the Writ Petitions were heard by a Bench. Section 33 of Regulation I of 1912 (which in its present form dates from an

amendment of 1926) whose validity is impugned before us, enacts:

The Provincial Government may by order (a) prohibit any person from visiting or taking up his residence in an island of which he is not a native and

(b) require any person to leave an island of which he is not a native and may make such rules as they deem fit to carry out the purposes of this

section.

Before dealing with the contents of this provision it is necessary to narrate the history of these islands. The Minicoy Island, with which this Writ

Petition is concerned, is one of a group of islands called generally Laccadive Islands. This group consists of islands known as Agathi, Kavarthi,

Androth Kalpani and Minicoy. All these are merely atoll formations that is they are merely coral reefs with mud flats nearby; and so far as Minicoy

Island is concerned, it consists of a large lagoon with a very small extent of hard surface. The total area of this Minicoy Island is said to be just over

thousand acres. These islands are said to have become part of the British Empire in 1909. The inhabitants of these islands are backward,

uneducated, and their social system is rudimentary. Hence the area was treated as a scheduled district subject to executive legislation. It was in

pursuance of this policy, and in exercise of the powers conferred by Section 33 of the Government of India Act, 1870, 33 and 34 Vict. Ch. III,

that Regulation I of 1912 was passed. u/s 3 of the Regulation the enactments in force in India were mostly excluded, the only Acts applying

proprio vigore being the State Prisoners Act and the Scheduled Districts Act. The provision in the Government of India Act, 1870, was replaced

by Section 71 of the Government of India Act, 1915. Under the Government of India Act, 1919, these islands were declared to be backward

tracts u/s 52(A) the area being therefore excluded from the power of the Central and Provincial Legislatures. The power of the Governor-General

to enact legislation for this area was retained, and the amendments which were effected to the original Regulation I of 1912 by Regulation I of

1926 were by virtue of the powers conferred u/s 71 of the Government of India Act, 1915. Section 33 as it originally stood ran:

The Governor-in-Council may by order prohibit persons residing on the mainland from visiting or taking up their residence in the islands and may

require persons ordinarily residing on the mainland who have taken up their residence in the island to leave the island: and he may make such rules

as he deems fit in pursuance of the above.

Regulation I of 1926 amended this section into its present form. These islands were brought within Section 91 and 92 of the Government of

India Act, 1935, and they were classified as wholly excluded areas under the Excluded Area Order in Council 1936. The result was that the

provisions of Section 92(2) of the Government of India Act, 1935, were attracted to this area. Section 92(2) enacted:

The Governor may make regulations for the peace and good government of any area in a province which is for the time being an excluded area, or

a partially excluded area, and any regulation so made may repeal or amend any Act of the Federal Legislature or of the Provincial Legislature, or

any existing Indian law, which is for the time being applicable to the area in question.

A separate treatment of these areas from the rest of the Indian territory was continued and indeed emphasised by the provisions of the

Constitution, and the orders made under it. Article 244(1) of the Constitution provided:

244(1). The provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any

State specified in Part A or Part B of the First Schedule other than the State of Assam.

Paragraph 6 of the Fifth Schedule makes provision for the territories which are to be Scheduled Areas. That paragraph runs:

Scheduled Areas.- (1) In this Constitution the expression ''Scheduled Areas'' means such areas as the President may by order declare to be

Scheduled Areas.

We are omitting the rest of the paragraph as not material in the present context. In exercise of this power the Scheduled Areas (Part A States)

Order, 1950, was passed. Paragraph 2 therein stated:

The areas specified below are declared to be the scheduled areas within the States specified in Part A of the First Schedule to the Constitution,

Madras: Laccadive Islands including Minicoy and Amindivi Islands.

By reason of the Laccadive and Minicoy Islands being a scheduled area, the provisions of paragraph 5 of the Fifth Schedule are attracted to it.

This lays down:

Law applicable to Scheduled Areas.- (i) Notwithstanding anything in this Constitution, the Governor...by public notification direct that any

particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a

Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction

given under this sub-paragraph may be given so far as to have retrospective effect.

(2) The Governor...may make regulations for the peace and good Government of any area in a State which is for the time being a Scheduled Area.

It will thus be seen that the Scheduled Areas are treated as a class or category apart from other territories of the Union as regards the laws

applicable thereto. There is one other matter that we might refer to at this stage, i.e., the special treatment accorded to the natives of Minicoy and

the Laccadive Islands being classified as Scheduled Tribes. Article 342 of the Constitution enables the President by public notification to specify

the tribes or tribal communities which shall for the purpose of this Constitution be deemed to be Scheduled Tribes in relation to that State. By the

Constitution (Scheduled Tribes) Order, 1950, dated 6th September, 1950, the President in exercise of his power conferred by Article 342(1) of

the Constitution designated:

the inhabitants of the Laccadive, Minicoy and Amindivi Islands who and both of whose parents were born in these islands to be the Scheduled

Tribes throughout the State of Madras.

It is in the context of these historical facts that the claim, of the petitioners of their right to move into these islands has to be judged.

The ground upon which the constitutional validity of Section 33 of the Regulation is attacked is that it is an unreasonable restriction on the rights

of the petitioners ""to move freely throughout the territory of India"" guaranteed by Article 19(1)(d) of the Constitution. This special right is subject to

the terms of Article 19(5) which provides:

9(5) - Nothing in Sub-clauses (d), (e) and (f) of the said clause (Sub-clauses (d) and (e) being what is relevant in the present context) shall affect

the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing reasonable restrictions on the exercise

of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any

Scheduled Tribe.

The argument is that though the law might impose reasonable restrictions for the protection of the interests of any Scheduled Tribe Section 33

in its present form is (a) unreasonable in that it vests in the Government an arbitrary and uncontrolled power and (b) that it is not a restriction that is

imposed by law but virtually a power to prohibit.

We shall consider these two points in that order. The first objection is rested on Section 33 not laying down any criteria, on the basis of which

the State Government could exercise this statutory power but leaves to them what; looks like an unfettered discretion to stop persons from going

to the islands or requiring the persons already in the island to leave them. Learned Counsel for the petitioners invited our attention in this connection

to the decision of this Court in Balakrishnan v. State of Madras ILR (1952) Mad. 957. He, however, conceded that the peculiar situation of this

area together with the backwardness of the inhabitants and the need for protecting them against exploitation by more advanced classes of citizens

of India, introduced elements which rendered it not possible to enumerate or define with certainty the grounds upon which such an order could be

passed. The very nature of the power and the reasons which led to its conferment would provide indicia on the basis of which it ought to be

exercised. In other words, the context would itself furnish the grounds and though ex facie the power appears to be arbitrary on analysis it is not

so. The necessity for the power arose out of the need to protect the inhabitants of the islands from exploitation by persons who disturbed or

prejudicially affected either their own economy, their morals or their society in general. It will be a very difficult, if not almost an impossible task to

lay down in the enactment or in the rules framed with any degree of precision or detail the principles which should guide the Government in

exercising their powers u/s 33. In the circumstances, therefore the failure to specify the grounds upon which an order u/s 33 could be passed in the

section itself does not vitiate it as violating the Constitution.

From the above reasoning it would follow that the power vested in the Government is not unfettered. As its purpose is the protection of the

inhabitants of the area, the grounds for its exercise must be related to that purpose. Where in any particular case, it is proved that the power was

exercised, not for the purpose for which it was vested in the Government, but for other ulterior or different ones, the order could certainly be called

in question before the Courts and set aside. This power of the Courts to scrutinise the orders of the authority and to examine whether the power

has been properly exercised would import two limitations on the exercise of the power namely (1) when an order is passed u/s 33 the Government

would be bound to adduce reasons which called forth the exercise of that power: without this it may not be possible for the Courts to examine the

validity of Government orders and therefore would in effect nullify the rights conferred by the Constitution on the Courts under Articles 32 and

226: secondly, as an order u/s 33 is an infraction of the right guaranteed by Article 19(1) (d) and (e), it is prima facie bad unless justified by a legal

order under a valid enactment. It would follow that the Government would have to give a reasonable opportunity to the affected persons to show

cause why that order should not be made before passing it. This is a requirement of the principles of natural justice, and though not specifically

provided for by the enactment would be required by Article 14, to ensure that there shall be equal protection of the laws. We should, however,

guard ourselves against being understood, that the Government cannot pass an interim order u/s 33(a), pending the notice to show cause to the

party and hearing his representations, if any, before making a final order. We are making this observation, because if the law requires that notice

should be given and an enquiry held before any order u/s 33(a) is passed, the purpose of the enquiry would be defeated if the persons affected

were free to exercise their right to move into the island pending the enquiry. Orders u/s 33(b) would stand on an entirely different footing. They

would have to be preceded by a notice to show cause and be passed only after considering the representations of the concerned individuals. We

shall deal with the result of this statement of the law on the orders u/s 33 passed in the present case a little later.

The second ground upon which the constitutional validity of Section 33 was attacked was that while Article 19(5) permitted reasonable

restrictions what Section 33 contemplated included a prohibition and was, therefore, not saved by Article 19(5). We are of the opinion that this

contention should be repelled. We have set out the history of these islands and the nature of their population for the purpose of explaining that

these islands and their inhabitants do not stand in the same situation as the rest of the Indian Union territory or its other citizens. In 1952 the

Government of Madras appointed a special officer to report on the conditions of the islands in the Laccadive group. In the course of his report this

officer stated that the area of Minicoy Island was 1120 acres in extent and the population in 1951 of this island was 3443 which meant a density of

1970 per square mile. He noted:

There is no vacant space available and in relation to existing means of livelihood and a low standard of life the population has reached saturation

point. There can be no question of emigration into any of the islands. On the contrary the recent incursion of destitute mainlanders has given rise to

serious problems of unemployment in islands like Agathi, Kadamath and Androth and is also partly responsible for the increasing incidence of petty

thefts. The existing orders by which mainlanders have to obtain permits to travel to the islands is salutary and should be continued.

From this two matters are clear, viz., (1) that the density of the population in the islands has reached almost the saturation point and (2) that the

inhabitants are so backward that it is necessary to impose considerable restriction upon the character of the mainlanders proceeding to or staying in

the islands. In these circumstances we consider that even the imposition of a complete prohibition of mainlanders visiting the islands or remaining

there would not be beyond the competence of the law. As we have reached this conclusion on the peculiar facts and the situation we do not

consider it necessary to set out or discuss the decisions relied on by the learned Counsel for the petitioners which deal with the movement of

citizens of India within the territories of the Union governed by ordinary laws and the restrictions which could reasonably be placed upon such

movement.

We shall consider the relief to which the petitioners in W.P. No. 646 of 1955 will be entitled in the light of the conclusions we have reached as

regards the law applicable. The five petitioners in this Writ Petition pray for the quashing of the order of the Island Inspecting Officer, directing the

deportation of the petitioners from the islands and the order of the Collector of Malabar confirming that order. The relief prayed for here is to this

extent identical with that which was prayed for in W.P. No. 533 of 1955. In view of the deportation having taken place and the supervening order

of the Government u/s 33 the prayer for this relief has become infructuous and is therefore rejected. In addition to calling in question the validity of

the orders of these two authorities, the petitioners also seek the quashing of the order of the Government u/s 33 contained in G.O. No. 2198,

dated 23rd June, 1955. In regard to this last prayer we have to hold that Section 33 is valid but that the exercise of the power under it must be

preceded by the Government informing the concerned individuals of the grounds upon which they propose to take action and giving the affected

persons the right to make their representations before the final order is passed. In the present case, though there was some enquiry which

preceded the order of deportation by the Island Inspecting Officer, which we have held he had no authority to pass on the law as indicated in

Regulation 1 of 1912 - no rules having been made u/s 33, - that cannot serve to satisfy the requirements of the principles of natural justice before

the order by Government u/s 33 is passed. We have already held that individual orders of Government which do not conform to the procedure we

have indicated above, are liable to be set aside by this Court under Article 226 of the Constitution. In the present case, as the final order embodied

in G.O. No. 2198, dated 23rd June, 1955, was passed ex parte, without informing the petitioners of the grounds upon which the Government

proposed to take action, and without giving them an opportunity to show cause against them that order must be set aside as not in conformity with

the law. But this quashing does not prevent the Government from observing the procedure we have indicated above and passing an order after

considering the representations of the petitioners. We have already stated that it is within the power of the Government to pass an interim order if

considered necessary preventing the petitioners from proceeding to the island pending final orders under Sections 33(a).

The result is that W.P. No. 646 of 1955 is allowed and G.O. No. 2198, dated 23rd June, 1955, is quashed the rule being made absolute; but

in the circumstances of the case there will be no order as to costs.