An order of externment must always be restricted to the area of illegal activities of the externee. The executive order must demonstrate due application of mind on the part of the statutory authority. When the validity of an order is questioned, what would be seen is the material on which the satisfaction of the authority is based. The satisfaction of the authority although primarily subjective, should be based on objectivity
Section 52 of the Delhi Police Act attaches finality to the order passed by the Externing Authority and the Appellate Authority. Hence the scope of interference by judicial review in a writ petition is very limited, the same being that the Additional DCP and the Lt. Governor did not follow the procedure as prescribed under Section 50 and 51 of the DP Act. Though Section 52 limits the scope of consideration by the courts, the scope for judicial review in writ jurisdiction is not restricted, subject of course to well settled parameters of judicial review.
Some material must exist to justify the externment. What is required is not an elaborate decision akin to a judgment. An order directing externment should show existence of some material warranting an order of externment. Reference should be made to some material on record and if that is done, the requirements of law are met. The sufficiency of material is not relevant. The existence of material is sine qua non.
In Gazi Saduddin case [(2003) 7 SCC 330 : 2003 SCC (Cri) 1637], the Supreme Court held that satisfaction of the authority can be interfered with if the satisfaction recorded is demonstratively perverse based on no evidence, misreading of evidence or which a reasonable man could not form or that the person concerned was not given due opportunity resulting in prejudice. To that extent, objectivity is inbuilt in the subjective satisfaction of the authority.
In Governor, NCT & Ors. Vs. Ved Prakash, the Supreme Court summarized the law applicable to externment as follows:
“13. The law operating in the field is no longer res integra which may hereinafter be noticed:
(i) In a proceeding under the Act all statutory and constitutional requirements must be fulfilled.
(ii) An externment proceeding having regard to the purport and object thereof, cannot be equated with a preventive detention matter.
(iii) Before an order of externment is passed, the proceedee is entitled to an opportunity of hearing.
(iv) The test of procedural safeguards contained in the Act must be scrupulously complied with.
(v) The satisfaction of the authority must be based on objective criteria.
(vi) A proceeding under Section 47 of the Delhi Police Act stands on a different footing than the ordinary proceeding in the sense that whereas in the latter the details of the evidence are required to be disclosed and, thus, giving an opportunity to the proceedee to deal with them, in the former, general allegations would serve the purpose.
The High Court ordinarily should insist on production of the entire records including the statement of the witnesses to express their intention to keep their identity in secret so as to arrive at a satisfaction that such statements are absolutely voluntary in nature and had not been procured by the police officers themselves.”
It was emphasized that an order of externment must always be restricted to the area of illegal activities of the externee. The executive order must demonstrate due application of mind on the part of the statutory authority. When the validity of an order is questioned, what would be seen is the material on which the satisfaction of the authority is based. The satisfaction of the authority although primarily subjective, should be based on objectivity. But sufficiency of material as such may not be gone into by the writ court unless it is found that in passing the impugned order the authority has failed to take into consideration the relevant facts or had based its decision on irrelevant factors not germane therefor. Mere possibility of another view may not be a ground for interference. It is not a case where malice was alleged against the third appellant.
The Supreme Court was at pains to emphasize that the Courts should undoubtedly jealously guard the fundamental rights of a citizen and while exercising the jurisdiction rested in them invariably, the courts would make all attempts to uphold the human right of the proceedee. The fundamental right under Article 21 of the Constitution undoubtedly must be safeguarded. However, while interpreting the provisions of a statute like the present one and in view of the precedents operating in the field, the court may examine the records itself so as to satisfy its conscience not only for the purpose that the procedural safeguards available to the proceedee have been provided but also for the purpose that the witnesses have disclosed their apprehension about deposing in court truthfully and fearlessly because of the activities of the proceedee.
It was held that once such a satisfaction is arrived at, the superior court will normally not interfere with an order of externment. The court, in any event, would not direct the authorities to either disclose the names of the witnesses or the number of cases where such witnesses were examined for the simple reason that they may lead to causing of further harm to them. In a given case, the number of prosecution witnesses may not be many and the proceedee as an accused in the said case is expected to know who were the witnesses who had been examined on behalf of the prosecution and, thus, the purpose of maintaining the secrecy as regards identity of such persons may be defeated. The court must remind itself that the law is not mere logic but is required to be applied on the basis of its experience.