Externment is a system of preventing people from entering into a particular place for a certain period of time due to their ability to affect that place’s conditions by criminal activities as exhibited by their prior conduct. This is in the nature of preventive measures of restraining criminal activities of a person. The intent behind invoking externment proceedings is to keep the person away from his/ her familiar environment or area of influence in which they usually commit their criminal activities.
The term “extern” finds its origin in “externus” which is a Latin word meaning outward. Externment is an age-old practice which bestows an authority with the power to remove a bad character, a habitual criminal or an anti-social element, who is a threat to public peace and the society at large, from a specified locality for a stipulated period of time. As police is a state subject, every state gets the authority to form its laws regarding crime prevention measures. Delhi for instance has enacted externment provisions in the Delhi Police Act, 1978 where sections 46 to 54 deal with such measures. In Bombay Police Act, 1951, sections 55 to 63 govern externment proceedings. Likewise, Punjab, Madhya Pradesh and many other states also, provide the power of externment to the state police in order to maintain public order.
The proceedings of externment contemplated under law are not prosecutions for the offences but are in the nature of measures to prevent the commission of offences by persons with criminal propensities or previous records of conviction. A gang of criminals or potential criminals operate or may intend to operate within certain local limits and the idea behind the provisions of externment is to see to it that a person with criminal antecedents, who may have banded together with other such persons, should be disbanded, dispersed and hounded out of the limits of his ordinary activities away from his associates and place of influence, so that the gang is broken up and the persons constituting it may be removed to different parts of the state so as to reduce or curb his criminal activities to the minimum. The utility of the provision of externment is also to curb the surge in organized crime like prostitution, gambling, bootlegging, smuggling etc., as such crimes are generally performed because of the involvement of gangs which form channels. The rationale behind the power of externment lies in the belief that if this channel is broken by displacing the members, it becomes harder for them to carry out these activities outside their territory or area of influence. When these members are in a territory under their control, they have influence and authority governed by fear over regular citizens as well. The threat in the mind of general public is so strong that in many cases witnesses refuse to appear in court because of the fear associated with the proposed externee.
The constitutional validity of the provision of externment under the Bombay Police Act came to be tested and was upheld by the Supreme Court in the case of Hari Khemu Gawli v. Deputy Commissioner of Police and Anr[1]. It is true that the provisions of externment make a serious inroad on personal liberty of the externe, but it has been held that such restraints have to be suffered in the larger interest of the society. However, care must be taken to ensure that the requirement of the provisions of law of externment under the respective Police Acts are strictly complied with and the safeguards which those provisions offer, are made available to the proposed externee. Where the exercise of power is found to be arbitrary or not proximate to the criminal activities relied upon or the order being excessive, the same can be struck down because no greater restraint on personal liberty can be permitted than is reasonable in the circumstances of a particular case.
When one glances at the case law governing externment, there is no exhaustive list as to what kind of crimes qualify to extern an individual. In Munshi Ram v. Lt. Governor, Union Territory of Delhi[2], a contention was raised that the externment order cannot be issued against cases involving gambling, as they do not act as a threat to public order and hence, would not fall within the ambit of any of the clauses under section 47 of the Delhi Police Act. Dealing with this contention, the Court observed that running a gambling den falls under activities which are certainly harmful to the society; for any man who runs a gambling den, his activities are bound to cause alarm and danger and they would be harmful to the person and property of persons who come and gamble in that den. It was further observed that it is a matter of common knowledge that in gambling dens all sorts of activities and crimes go on; on the facts of the said case, it was held that the externee was man of desperate and dangerous character and his being at large would be hazardous to the community and consequently, the externment order was upheld. In the case of Dheeraj v. State (NCT of Delhi)[3], the High Court of Delhi observed that externment proceeding can be initiated on account of involvements in excise cases. Likewise, involvement in multiple cases under Immoral Traffic (Prevention) Act have also formed the basis of passing of externment orders in certain cases.
Even the previous cases where a proposed externee has been acquitted or discharged can at times be taken into account as the basis for passing of order of externment, if such orders have been passed because there was not sufficient evidence to bring the charge home to the accused. In Hari Khemu Gawli v. Deputy Commissioner of Police, Bombay[4], the Supreme Court observed that the insufficiency of the evidence may be due to witnesses not being available to depose in open court or they may have been overawed and their testimony tampered with. In the case of Imtiyaz Hussain Sayyad v. State of Maharashtra[5], the Bombay High Court held that the alleged offences which are still under investigation and for which a charge sheet has not been filed or even cases which are pending trial, cannot be considered for passing an externment order because such case(s) have not attained finality.
There are certain procedural safeguards laid down in the provisions pertaining to the externment proceedings itself. These include issuance of show cause notice to the proposed externee calling upon him to explain as to why externment proceedings may not be initiated against him and granting hearing to the proposed externee. The proceedings may include examination of witnesses, with the right to proposed externee or his counsel to cross examine the witnesses except ‘in-camera’ witnesses, whose identity can be kept confidential. At times, during the pendency of externment proceedings, the proposed externee gets involved in more cases which did not form part of the earlier notice. In such situations, it is permissible for the authorities to issue supplementary notice after the initial show cause notice. Such issuance of supplementary notice found approval by the Delhi High Court in Mohd. Afzal v. State and Ors.[6]. Another procedural safeguard laid down is that the order of externment passed by the competent authority is made appealable to the appellate authority specified under the respective state Acts.
In Pandharinath Sridhar v. Deputy Commissioner of Police, State of Maharashtra[7], it was observed that it is primarily for the externing authority to decide how best the externment order can be made effective so as to subserve its real purpose. How long within the statutory limit fixed, the order shall operate and to what territories it should extend, are matters which must depend for their decision on the nature of the data which the externing authority is able to collect during the externment proceedings. At times, an order not actually externing a person from the geographical limits may also be passed by ordering the person to be bound down and not indulge in any criminal activity for a specified period of time. Such an order is in the nature of a warning and akin to putting the person on probation. Approval for such binding down order can be found in the decision of Munshi Ram v. Lt. Governor, Delhi[8].
Though the laws pertaining to externment do not provide for protection to witnesses who come to depose, the judicial precedents have laid down various exemptions which are allowed in these cases. There have been cases in which the validity of statements given by witnesses ‘in-camera’ have been challenged, but the courts have upheld recording of ‘in-camera’ witnesses and permitted such testimonies to be considered in externment proceedings. In the case of Phulwari Jagdamba Prasad Pathak v. R.H. Mendonca and others[9], the challenge to the validity of ‘in-camera’ statements was turned down by the Apex Court. While the officer concerned has to satisfy himself that witnesses are unwilling to give in the public, it is not necessary that all witnesses must be found to be so unwilling.
In Dheeraj v. State (NCT of Delhi)[10], the High Court of Delhi held that in such extra-ordinary proceedings pertaining to externment, exceptions such as ‘in-camera’ witnesses, can be permitted. The Courts have been cognizant in acknowledging the sense of fear in the minds of witnesses and it has been held in the case of Ajay Pal Singh v. State (NCT of Delhi)[11] that there is no obligation to provide the witness’ statement to the externee. In Surjit Singh v. State[12], the Court opined that in case the names of such witnesses are disclosed to the accused person, the very purpose of enactment of provisions of externment under the Police Act would be frustrated because the provisions are meant to deal with desperate type of criminals under extra-ordinary situations, who do not allow witnesses to appear against them and so witnesses do not come to depose against them for fear of reprisal.
The scope of judicial review and interference by the Courts against externment orders is limited. In the case of Pandhiranath Shridhar Rangnekar v. Deputy Commissioner of Police, State of Maharashtra[13], the Supreme Court held that the duration of externment cannot be adjudicated upon or reduced by the Court and held that it is primarily for the externing authority to decide how best the externment order can be made effective, so as to subserve its real purpose. The same opinion was reinforced in the case of State of NCT of Delhi & Anr. v. Sanjeev @ Bittu[14]. Sanjeev @ Bittu (supra) also delved deeper into the scope of judicial review in cases pertaining to externment. It was held that the courts should be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability like illegality, irrationality and procedural impropriety. Further, when cases of externment are put forth before the court, the satisfaction of the externing authority is given priority. The court has always taken into account that there would always be different views to tackle a situation when looked at from different vantage points, but just because there is a different view possible, it does not act as a ground enough to challenge the externing authority’s decision.
In the case of Gazi Saduddin vs State of Maharashtra[15] the Apex Court held that primarily, the satisfaction for passing of an order of externment must be of the authority passing the order. If the satisfaction recorded by the authority is based on the material on record, then the courts should not ordinarily interfere with the order passed by the authority only because another view can possibly be taken. Such satisfaction of the authority can be interfered with only if the satisfaction recorded is either demonstratively perverse based on no evidence or complete misreading of evidence or which a reasonable person could not form or that the person concerned was not given due opportunity resulting in prejudicing his rights under the Act. This highlights the importance that the courts have accorded to the subjective satisfaction of the externing authority, which contributes to the limited scope of judicial review and judicial intervention.
One of the common grounds for challenging externment orders is the fact that the particulars on the basis of which the individual is externed are not disclosed and hence the order is contended to be invalid. This contention was also raised in the case of Hari Khemu Gawli v. Deputy Commissioner of Police, Bombay[16] where the petitioners claimed that not providing the details of the allegations was violative of the principles of natural justice. However, the Court rejected the contention and held that a proposed externee is entitled to being informed about the general nature of allegations and not the entire details because of the nature of the proceedings itself. In Pandharinath Shridhar v. Deputy Commissioner of Police, State of Maharashtra[17], it was held that although a proposed externee is entitled before an order of externment is passed to know the material allegations against him and their general nature, he is not entitled to be informed of specific particulars relating to material allegations. It was further held that neither the externing authority nor the state government in appeal can be asked to write reasoned order in the nature of a judgment because if those authorities were to discuss the evidence in the case in detail, it would be easy to fix the identity of the witnesses who were unwilling to depose in public against the proposed externee; a reasoned order containing a discussion on the evidence led against the externee would probably spark off another round of tyranny and harassment. The said reasoning was also approved in State of Maharashtra and Anr. v. Salem Hassan Khan[18].
Upon exploration of the various facets of externment, one can conclude that the provisions of externment holds useful importance in maintaining law and order in the society and acts as a deterrent to crime. However, in many situations this provision has also been critiqued on the grounds that mere physical displacement of an individual does not stop them from indulging in criminal activities. This is more pertinent in the present times where the criminals are increasingly taking the help of technology and switching to digital modes for commission of crimes. The rationale behind passing of externment order is to break the nexus, and once the individual is externed, his/ or activities need to be monitored constantly, though respecting the right of privacy of an individual.
To conclude, while externment is a useful tool to prevent crime by dispersing the person from his area of influence, however, since an order for externment is an extraordinary measure, which impinges on the personal liberty and right to freedom of movement of a person, it ought to be applied cautiously and in exceptional cases where it is not possible to deal with the criminal in accordance with the general criminal law procedure prescribed for the offences he is involved in. In practical terms, such an order prevents the person even from staying in his own house along with his family members during the subsistence of the order of externment. In a given case, such order may deprive the person of his livelihood, which may have a serious impact on his family as well. It thus follows that recourse to such measure should be resorted to very sparingly. The courts need to closely scrutinize the following of the safeguards to ensure that the provisions of externment are not misused by the authorities concerned for malafide reasons or to circumvent trying an accused for offences he/ she is alleged to have committed in accordance with procedure established by general law. For invoking the provisions of externment, there must be objective material on record on the basis of which the competent authority must record its subjective satisfaction that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to persons or property. As an externment order impinges upon the fundamental rights under Article 19(1)(d) of the Constitution of India, it must always stand the test of reasonableness contemplated by clause (5) of Article 19.
[1] AIR 1956 SC 559
[2] 32 (1987) DLT 243
[3] 93 (2001) DLT 548 (DB)
[4] AIR 1956 SC 559
[5] 2024 SCC OnLine Bom 442
[6] 95 (2002) DLT 684 (DB)
[7] AIR 1973 SC 630
[8] 32 (1987) DLT 243
[9] (2000) 6 SCC 751
[10] 93 (2001) DLT 548 (DB)
[11] 91 (2001) DLT 91 (DB)
[12] 74 (1998) DLT 389
[13]AIR 1973 SC 630
[14] 2005 SCC (Crl) 1025
[15] (2003) 7 SCC 330
[16] AIR 1956 SC 559
[17] AIR 1973 SC 630
[18] (1989) 2 SCC 316