Externment Meaning: Legal Framework, Process, and Constitutional Implications

Externment is often used interchangeably with the terms ‘expulsion’ or ‘banishment.’ In India, this legal mechanism allows the law enforcement authorities or the police to direct a person to leave a particular geographical area, usually for a certain period. While you may think that this concept is strait-jacketed since it is merely a tool used by law enforcement authorities to maintain public order and prevent the commission of crime or criminal activities, it is much more than that since it poses several challenges in the context of individual rights, freedom, and the extent of the power exercised by the executive. This precautionary measure lies at the junction of law enforcement and fundamental rights, making its analysis of this term both significant and relevant for grasping its implication in a democratic country like India that is governed by a written constitution.

In this blog, we’ll explore the meaning of externment, its legal framework, the step-by-step process and the delicate balance between public order and individual liberties.

What Is Externment?

The act of authorities removing someone who they deem to be a threat to public safety and order is known as externment. In contrast to criminal prosecution, externment is a preventive measure; it is predicated more on a person's potential to conduct crimes or disturb the peace than it is on a conviction for a crime. Expulsion from a specific area is one way that authorities try to stop criminal activity and stop conflicts or disturbances from getting worse.

Legal Framework Governing Externment

In India, the regulations pertaining to externment are controlled by different state statutes, and their implementation varies based on the specific situation at hand. Notably, the Code of Criminal Procedure (CrPC) and state-specific police statutes also have similar clauses. Section 56 of the Bombay Police Act, 1951 is a commonly referenced provision that grants police authorities in Maharashtra the authority to extern individuals who are considered a threat to the preservation of public order or peace.

Under such rules, authorities may:

1. Order the individual to leave a particular area for a defined term (typically ranging from six months to two years).
2. Banish the offender from visiting or living in specific areas.
3. Even if the person has not yet committed a crime but is thought to be engaging in actions that endanger public safety, take preventive measures.

Types Of Individuals Typically Externed

Externment orders are typically given to people whose presence in a community is thought to be harmful to public order. Typical categories consist of

1. Individuals with a history of recurring criminal activity, such as theft, assault, robbery, or extortion, are considered habitual offenders.
2. Individuals engaged in organized crime, gang-related violence, or antisocial actions that jeopardize public order are classified as gang members or anti-social elements.
3. People who potentially incite unrest, disputes, or rioting in vulnerable locations due to their activities or affiliations are considered potential disturbers of public peace.
4. Individuals who reside or work in close proximity to sensitive locations, such as government offices, public institutions, or areas that are prone to communal strife, are referred to as those living near sensitive installations.

The Process Of Externment: Step-By-Step

The externment procedure normally evolves through multiple procedural steps, ensuring that the action performed is both warranted and proportionate. The procedure is summed up in the following steps:

Notice Issuance

The person is formally notified by authorities of the reasons behind their impending externment. The notification often details the actions or conduct that is thought to pose a risk to public safety and includes supporting documentation.

Right To A Hearing

Externment laws usually give the person a chance to defend themselves in front of a court or other appropriate authority (usually a magistrate or police official). During this phase, the person can refute the accusations and provide an argument against the order of externship.

Decision And Issuance Of Externment Order

Following the hearing, if the authorities determine there are good reasons, they will issue an externment order that details the places the person must stay away from and how long the restriction will last.

Right To Appeal

The right to appeal the order to a higher court exists for the person who is being subjected to externment (typically the district court or the High Court). This guarantees that the action is scrutinized and reviewed by the courts.

Constitutional Dimensions Of Externment: A Complex Balance

Externment refers to a number of fundamental rights protected under Articles 19 and 21 of the Indian Constitution. Its use must, however, be carefully scrutinized to ensure it conforms with constitutional norms and principles. Let's take a closer look at these constitutional dimensions:

Freedom Of Movement And Residence (Article 19(1)(d) & Article 19(1)(e))

Under Article 19(1)(d) of the Indian Constitution, the right to freedom of movement is guaranteed, as is the right to reside and settle wherever in India (e). These rights give people the freedom to travel about and settle down without excessive intervention from the government. By definition, externment limits these rights because it forces someone to leave a certain location or forbids them from entering a specific locality.

These rights cannot be applied in a blanket sense, though. The state may reasonably restrict these liberties in the public interest or to safeguard scheduled tribes, as allowed by Article 19(5). An externment order might be upheld by the Constitution if it accomplishes a justifiable public goal, such stopping crime or preserving public order.

The question of whether the restriction is appropriate and reasonable is crucial, though. The action must be justified by the authorities as being essential, meeting a critical public need, and outperforming less stringent alternatives. An externment order, for example, may be considered an abuse of authority and an unconstitutional violation of an individual's rights if it is based on unfounded claims or vague suspicions.

Right To Life And Personal Liberty (Article 21)

The right to life and personal liberty are guaranteed by Article 21 of the Indian Constitution. It includes a wide variety of rights, such as the freedom to travel around, the right to a means of subsistence, and the right to live in dignity. Any limitation on an individual's freedom must correspond to the principles of natural justice and the due process of law, guaranteeing procedural fairness.

The following requirements under Article 21 must be met by externment laws:

Grounds Based on Evidence

The authorities are required to give accurate and strong justifications for the externment. Lack of proof on general or speculative grounds is insufficient.

Principle of Natural Justice

The person must be given a fair hearing and a chance to make their case by the authorities. The externment order might be deemed null and void in the absence of such a chance.

Non-Arbitrariness

There cannot be an arbitrary or excessive externment. Given the circumstances, the restriction's length and scope should be reasonable and acceptable.

In a number of rulings, the Apex Court of India has stressed that externment orders must be supported by convincing, factual evidence and provide the accused party with a reasonable chance to challenge the proceeding.

Judicial Interpretation Of Externment

Let us have a look at the landmark judgements where the Indian Judiciary has reviewed and interpreted externment orders:

Nawabkhan Abbaskhan vs The State Of Gujarat (1974)

The case concerns a man who was charged with violating an externment order issued by the Police Commissioner. The High Court had previously quashed the externment order, finding that the appellant was not given a proper opportunity to defend himself. The issue before the Supreme Court was whether the quashing of the externment order meant the order was void ab initio, rendering the appellant’s subsequent actions no longer an offence. The Supreme Court, in a majority judgement, held that the externment order was a nullity from the beginning, as it violated the appellant’s fundamental right to freedom of movement under Article 19 of the Indian Constitution. Therefore, the appellant’s actions were not criminal, and he was acquitted. The judgement considers the distinction between voidable and void orders, drawing from Anglo-American case law, and the implications of a citizen’s right to disobey an invalid official order.

Town Area Committee, Jalalabad vs Jagdish Prasad And Ors. (1978)

This case concerns the wrongful dismissal of an employee, Jagdish Prasad, by the Town Area Committ’s decision that Prasad was wrongfully dismissed as he was not given a fair opportunity to defend himself against the charges brought against him, violating the principle of audi alteram partem. The court found that the dismissal was not in accordance with the department's notification which required a reasonable opportunity to be given to employees facing disciplinary action. The Court rejected the appeal and dismissed the case on the grounds that the appellant was raising this point for the first time in the Supreme Court and allowing this would cause injustice to the plaintiff.

Bhagubhai Dullabhabhai Bhandari vs The District Magistrate, Thana (1956)

This case deals with the constitutionality of Section 56 of the Bombay Police Act, 1951. This section allows for the externment of individuals from specific areas under certain circumstances. The case involves two petitioners, Bhagubhai Dullabhabhai Bhandari and Kunwar Rameshwar Singh, who both challenged the validity of the externment orders issued against them. The Apex Court ultimately upheld the constitutionality of Section 56 and dismissed the petitions, concluding that the externment orders were not invalid. Justice Jagannadhadas, however, expressed reservations about the section's broad scope and the length of the externment period in his separate judgement.

Jugal Kishore vs Lt. Governor, Delhi & Anr. (2017)

This case, heard in the Delhi High Court, involves Jugal Kishore's challenge to an externment order that required him to leave Delhi for two years. The order was issued by the Additional Deputy Commissioner of Police, who cited Kishore's involvement in multiple gambling and criminal offences, arguing that his presence in Delhi posed a threat to the community. However, the court, after examining the evidence and considering the legal framework for externment orders, found that the order was based on insufficient grounds. The court determined that the order was not justified and quashed it, highlighting the need for a thorough assessment of the circumstances and potential for harm before such a restrictive measure is imposed.

Rauf Khan Wahab Khan Patel vs The State Of Maharashtra (2018)

In this case, the petitioner, Rauf Khan Wahab Khan Patel, was ordered to be externed (banned from entering) Aurangabad district for two years by the Deputy Commissioner of Police. Patel appealed this order to the Divisional Commissioner, who upheld the decision. Patel then filed a writ petition with the Bombay High Court to challenge the externment order. The court found that both lower authorities had failed to adequately consider Patel's arguments and the fact that he had not been convicted of any crimes. The court ultimately quashed the externment order and ordered the Divisional Commissioner to reconsider the appeal.

Externment And Fundamental Rights: Balancing Act

Externment functions at the narrow juncture between state obligations and individual freedoms. While upholding public order is a justifiable goal, citizens' fundamental rights cannot be sacrificed in the process. To keep the delicate balance of the constitution:

Reasonable Restrictions

Any limitations on the right to travel or reside anywhere must be within the parameters of reasonable restrictions as outlined in Article 19(5). The burden of proving that the externment order is necessary for maintaining public safety and order rests with the state.

Adherence To Natural Justice

In order to guarantee that people have the right to a fair trial and the chance to appeal, the authorities must make sure that externment procedures adhere to the concept of natural justice.

Judicial Oversight

The judiciary is essential to preserving the harmony between individual liberties and public order. Courts ensure that decisions are fair, legal, and proportionate by serving as a check on the abuse of externment powers granted to the authorities.

Conclusion

Externment is an effective deterrent measure meant to preserve public safety, but in order to be consistent with the values of justice entrenched in the Indian Constitution, its implementation must be circumspect, open, and equitable. India, as a constitutional democracy, has to strike a balance between safeguarding individual rights and maintaining public order. The judiciary's careful examination of externment orders protects the rule of law and is a vital protection against abuse.