[Kerala Anti-Social Activities (Prevention) Act] Externment Order Vitiated If Reasons For Imposing Maximum Period Not Disclosed: High Court

The Kerala High Court recently observed that when issuing an externment order with the maximum period of punishment for one year under Section 15(1)(a) of Kerala Anti-Social Activities (Prevention) Act, 2007, the reasons for passing such an order must be stated.

A division bench of Justice P B Suresh Kumar and Justice C S Sudha observed:

“As Section 15(1)(a) of the Act makes a serious inroad on the personal liberty of citizens guaranteed under Article 19(1)(d) of the Constitution, it is an extraordinary power, to be exercised under extra ordinary circumstances. An externment order would certainly deprive a citizen concerned of his fundamental right of free movement throughout the territory of India. At times, it would also prevent a citizen from residing in his house with his family during the subsistence of the order.”

The Court while referring to the decision of the Apex Court in Deepak v. State of Maharashtra, 2022 SCC OnLine SC 99 observed :

“Inasmuch as the Statute confers power on the competent authority to pass an order of externment for an appropriate period not exceeding one year, as held by the Apex Court in the decision referred to above, in a given case, when an order of externment is passed by the competent authority for the maximum period provided for under the provision, the reasons for passing such an order shall certainly be stated in the order.”

The Court was considering a challenge to an externment order restraining the Petitioner from entering Malappuram Revenue District for a period of one year due to various prejudicial activities.

The Counsel for the Petitioner argued that that there was inordinate delay between the last prejudicial activity alleged and the date of initiation of proceedings against the Petitioner. The order has been passed without application of mind and the delay in issuing the order has not been satisfactorily explained in the order, the Petitioner argued. The Petitioner also argued that the externment order has been issued for the maximum period permissible under Section 15(1)(a) of the Act. When maximum punishment is imposed, the order should state specific reasons for doing so it was argued by the Petitioner.

The Respondent however pointed out that the delay in initiating the proceedings had been explained in the externment order.

The Court observed that whether the explanation for the delay is satisfactory or not is to be ascertained in the facts of the case.

“No doubt, there has to be a live link between the prejudicial activities and the decision of the competent authority. The petitioner is right in contending that if there is inordinate delay between the last prejudicial activity and the order of externment and if the said delay is not explained in the order, the order would be vitiated for want of due application of mind.”

In the matter at hand, the Court noted that there was a delay of 3 months and 5 days in initiating proceedings under the Act. Even though the Court stated that it did not approve of the manner in which the authorities delayed in initiating proceedings, it did not agree with the contention of the petitioner that there was non application of mind with regard to delay.

“Even though we are unable to give our stamp of approval to the manner in which the competent authority has dealt with the aspects relating to the delay in the order, having regard to the totality of the facts and circumstances of this case, we are unable to accept the argument that the order is vitiated for want of due application of mind on the aspect of the live link to be maintained between the prejudicial activity and the externment of the petitioner.”

However, the Court noted the order did not disclose any reason for issuing the order for a maximum period of one year, and set aside the order on the ground of non application of mind on that aspect.

Counsel For Petitioner: Advcates Renjith B Marar, Lakshmi N Kaimal, Arun Poomulli, Preetha S Chandran and Abhijith Sreekumar appeared for the Petitioner.

Public Prosecutor: Adv K A Anas

Case Title: Ashraf Ali v State of Kerala

Citation: 2023 LiveLaw (Ker) 279

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