-Avanti Deshpande
Introduction
In January 2022, a Division Bench of the Supreme Court set aside an order of externment against a man from Maharashtra who had been externed from the Jalna district for a period of two years, holding that, an order of externment was not an ordinary measure, but an extraordinary one, and it must be resorted to sparingly and in extraordinary circumstances only [Deepak v. The State of Maharashtra & Ors., AIR 2022 SC 1241]. The Court also noted the impact of an externment order on the livelihood of a person and on the person’s fundamental right enshrined under Article 19(1)(d) of the Constitution, stressing the importance of application of mind on the part of the competent authority while passing an order of externment.
This judgement draws attention to the often overlooked, widespread use of externment orders by authorities in a mechanical manner, and secondly, leads us to question the value, utility, and purpose that externment orders purport to serve in the present day. This piece will attempt to answer the same.
Existing Legal Framework vis á vis Externment
A product of the British era, the term ‘extern’ derived from the Latin root ‘externus’ meaning ‘outward’ is a time-tested practice of curbing crime and rowdyism in India. Externment as a punishment is provided for under various state legislations such as the Bombay Police Act, 1951 (subsequently changed to Maharashtra Police Act); the Assam Maintenance of Public Order Act, 1947; the Karnataka Police Act, 1963; the Uttar Pradesh Control of Goondas Act, 1970; the Telangana Prevention of Anti-Social and Hazardous Activities Act, 1930; and the Andhra Pradesh Prevention of Anti-Social and Hazardous Activities Act, 1980 to name a few.
The primary objective of externment is to move such persons away from their familiar/habitual environment in which they committed criminal activities, thereby protecting an area from the probable danger of the commission of crimes. Such externment orders are typically aimed towards the removal of ‘bad characters’, usually ‘goondas’ who are defined by state laws as a person who either by himself or as a member or leader of a gang, habitually commits, attempts to commit or abets the commission of offences punishable under section 294 (Obscene acts and songs), Chapter XVI (Offences Affecting the Human Body), Chapter XVII (Offences Against Property), or Chapter XXII (Criminal Intimidation, Insult and Annoyance) of the Indian Penal Code, 1860 (“IPC”). For instance, as per section 55 of the Bombay Police Act, 1951, “if the movement or encampment of any gang or body of persons is causing or is calculated to cause danger or alarm or reasonable suspicion that unlawful designs are entertained by such gang, or by members thereof, then such gangs/ bodies of persons can be dispersed and ordered that they remove themselves outside the area.” Further, section 56 of the Act empowers the authorities to extern persons engaged in or about to be engaged in offences punishable under Chapters XII, XVI, or XVII of the IPC. Thus, fundamentally, the objective of externment is to weed out ‘bad characters’ from a particular area with the intention that such removal from their known surroundings and subsequent prevention from returning to those surroundings for a stipulated minimum period is likely to lead to a reduction in criminal activities.
In August 2021, a bench of Indira Banerjee and V. Ramasubramanian JJ.for highlighted the importance of resorting to externement only in “exceptional cases” as may be required for the maintenance of law and order, The Court went on to iterate that unsubstantial grounds cannot be used to restrict the fundamental right to move freely and to reside in any part of the country. [Rahmat Khan @ Rammu Bismillah v. Deputy Commissioner of Police (2021) 8 SCC 362]
The Allahabad High Court in 2021 while overturning an externment order passed by the District Magistrate, noted that an order of externment is a “serious inroad on a citizen’s liberty” and also went on to observe the “ruinous” implications that an externment order has on an individual’s reputation. [Pavan @ Pavan Singhal v. State Of U.P. and Others (2021) 4 All LJ 181]. In 2022, the Bombay High Court in the case of Mayur Vasant Sonawane v. State of Maharashtra & Anr. held that the orders passed in an appeal against externment orders under the Maharashtra Police Act, 1951 by Divisional Commissioners and Sub-divisional Commissioners are quasi-judicial in nature and should, therefore, be reasoned orders. Thus, it is evident from numerous cases that the practice of arbitrarily granting externment orders is seemingly a common practice, with courts having to time and again reiterate the importance of application of mind and reasoned orders by magistrates while considering externment applications.
Lastly, it would be remiss to not note that externment has significant constitutional implications as well, especially in terms of freedom of movement as given under Article 19(1)(d) and the right to life and liberty as provided under Article 21 of the Indian Constitution. The Supreme Court has a mixed record on the constitutionality of externment, having both upheld the validity of state externment laws (Maharashtra) and striking them down as unconstitutional when they failed to provide sufficient safeguards for the protection of fundamental rights (Madhya Pradesh).
Evaluating the Effectiveness of Externment
Serious questions can be raised regarding the supposed deterrent effect of punishing offenders with externment orders, as can be seen from the case of a man externed from Mumbai in 2019 who returned despite an externment order being in force, and went to once again commit serious crimes. Further, the efficacy of externment can be questioned on multiple grounds such as the questionable presumption that the removal of a bad character is likely to act as a form of rehabilitation. It is greatly unconvincing that such a person will suddenly stop indulging in criminal activities, wherever he is simply because he is prohibited from entering a particular area/region that he is familiar with. Further, with the existence of phones and the internet how effective can externment orders be when the externed person has the means to easily stay in contact with the people in whose company he carried out criminal activities?
Another important aspect to consider is the significantly increased connectivity in terms of transport, and ease of mobility that exists today, as compared to the times when a majority of these laws were framed. Lastly, an already depleted and understaffed police force is also faced with the additional burden of enforcing externment orders. One of the proposed solutions for the police to enforce externment orders is to use surveillance technology to keep tabs on such criminals who have been externed. However, it is difficult to support this as a viable solution without a proper privacy and data protection law framework in place, leading to little oversight of any kind, to keep a check on the usage of such technology by police authorities.
Given the numerous times, courts have either struck down state legislation pertaining to externment for being violative of fundamental rights or admonished the executive for thoughtlessly approving externment orders, the setting up of an independent impartial tribunal to review externment orders has been proposed as well. However, this author proposes that it is time to delve even deeper and fundamentally ask what purpose externment serves in both the modern society and the criminal justice system, and further, whether externment orders are meeting that purpose effectively or merely leading to a drain of both limited time and resources.
Exploring Alternatives to Externment
Externment orders are essentially passed to control ‘anti-social elements’ colloquially known as ‘goondas’ which provide for their inter-state or intra-state removal as the case may require, for a stipulated period of time, the maximum limit of which is prescribed under the state law. Thus, fundamentally, externment can be described as a preventive measure for control of anti-social behaviour. As simply removing persons exhibiting such anti-social behaviour from one environment and placing them in another is unlikely to cause any actual behavioural change, perhaps it is time for the law and policy-making to come together to provide alternate solutions. After all, anti-social elements exist everywhere across jurisdictions, even where externment is not provided for. For example, in the UK, the Anti-social Behaviour, Crime and Policing Act, 2014 provides measures for controlling anti-social behaviour which encompasses rowdy behaviour, nuisance behaviour, begging, intimidation/harassment, and street drinking, among other activities requiring the involvement of the police. These situations are typically handled through various measures such as mediation, closure orders (the power to close properties after serious persistent nuisance or disorder), public spaces protection orders (for public spaces such as schools and health centres), dispersal orders, criminal behaviour orders (for gang members, to prevent affiliation, for being aggressive in public etc.) and others.
Dispersal orders in the UK perhaps bear the closest resemblance to externment orders here in India. A dispersal order is a flexible power which the police can use to disperse anti-social individuals and provide immediate short-term respite to the local community. It is preventative in nature, which grants the police the time to swiftly handle a situation before it escalates. Notably, the statutory guidance in this regard itself notes that curbing the freedom of movement of a person is a grave matter and therefore highlights that dispersal orders should be called into use for substantial reasons only. Additionally, the law mandates that the authorising officer has to be satisfied on “reasonable grounds” that the situation necessitates the use of the power to “remove or reduce the likelihood of people being harassed, alarmed or distressed or the occurrence of crime or disorder”. Further, unlike externment which typically authorises the period of externment to be a maximum of two years, the maximum amount of time the dispersal order can be issued is 48 hours – 2 days. Most importantly, the law itself provides that in deciding whether to give such an authorisation an officer must have particular regard for the rights of freedom of expression and freedom of assembly set out in Articles 10 and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms as provided under UK’s Human Rights Act, 1998. Thus, it is evident here that, the law itself has put in place safeguards to ensure that the rights of the individual are not violated.
Considering that courts in India have repeatedly called attention to the constitutional pitfalls in relation to externment orders, combined with the increasing practical difficulties of executing them, the time has perhaps come to review whether externment forms a necessary and integral part of the criminal justice system, and more specifically whether it is likely to continue being a feasible measure to control anti-social elements and their behaviour.
Avanti Deshpande is a graduate of ILS Law College, Pune
The Criminal Law Blog 