'Denial Of Hearing In Externment Proceedings Amounts To Violation Of Constitutional Values': Bombay High Court

The Bombay High Court has held that denial of an effective opportunity of hearing to a proposed externee under Section 59 of the Maharashtra Police Act, 1951, amounts to a violation of constitutional values and vitiates the entire externment proceedings. The Court observed that personal liberty guaranteed under Article 19 of the Constitution cannot be curtailed except by following due process of law, and externment orders passed mechanically and without application of mind cannot be sustained.Justice M.M. Nerlikar was hearing a writ petition filed challenging orders passed by the Sub-Divisional Magistrate and the Divisional Commissioner, externing the petitioner from two districts for a period of six months. The petitioner argued that, though a notice under Section 59 was stated to have been issued, it was never served on him, thereby depriving him of an opportunity to tender an explanation or to examine witnesses. The Court accepted these submissions and found that Section 59 of the Act, which is the “heart and soul” of the externment procedure, had been bypassed. It noted that the right to be heard, audi alteram partem, is implicit in Article 19 and forms a core component of natural justice. “Though this right to be heard was not explicitly listed as a fundamental right, Constitutional Courts have consistently held that it must be conferred in a proceeding that adversely affects the right or interest of an individual,” the Court observed.The Court noted that Section 59 mandates the officer to mandatorily issue a notice in writing of the general nature of material allegations against the externee and call upon him to give an explanation; violation of such mandatory provision amounts to violation of Article 19(d) of the Constitution, as well as principles of audi alteram partem. It observed: “… the Sub Divisional Police Officer, though issued notice, failed to consider whether the notice was served on the externee. Therefore, there is a gross violation of the fundamental right of the petitioner. “To be heard” in the proceeding, like externment, is of paramount consideration and violation of such amounts to violation of Constitutional values enshrined in the Constitution of India.”The Court further expressed concern that both the Sub-Divisional Magistrate and the Divisional Commissioner passed orders without application of mind, as there was no discussion of the in-camera statements relied upon in the police report, nor any reasoning as to how the cited offences justified externment. Merely referring to the number of cases was held to be insufficient. The Court remarked that the appellate authority also mechanically dismissed the appeal without addressing the petitioner's contentions.Accordingly, the Court quashed the externment orders.Case Title: Bharat Shatrughana Bhosale v. Divisional Commissioner & Ors. [Criminal Writ Petition No. 517 of 2025]Click Here To Read/Download Order

'Denial Of Hearing In Externment Proceedings Amounts To Violation Of Constitutional Values': Bombay High Court

Saksham Vaishya

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