Some of the most instructive moments in a constitutional case are not found in the holding. They are found in what the State’s own counsel is prepared to accept. Hans Muller of Nurenburg v Superintendent, Presidency Jail, Calcutta, decided by a Constitution Bench of the Supreme Court in February 1955, is usually remembered for its sweeping statement that the executive’s power to expel a foreigner is absolute and unfettered. Less remembered, and more interesting, is the line of argument taken by the Attorney General for India, M. C. Setalvad, and in particular a concession he made about the old law on detaining foreigners.
The case in brief
Hans Muller was a foreigner, said to be a West German national, who was arrested in Calcutta in 1954. The West Bengal Government detained him under the Preventive Detention Act, 1950, on the stated ground that he was being held so that arrangements could be made for his expulsion from India. Around the same time, the West German authorities informed the State that he was wanted at home on charges of fraud and that they intended to seek his extradition. Muller’s case was that the detention was a disguised extradition: a way of handing him over to his home State without the safeguards that extradition law provides. He challenged the detention provision itself as unconstitutional, and he alleged bad faith.
The Court rejected his petition. It upheld the detention provision, found Parliament competent to make it, saw no bad faith, and drew a sharp line between expulsion and extradition.
The shape of Setalvad’s argument
Setalvad’s argument for the Union moved on three levels, and each reveals something about how the State itself understood its powers over foreigners in the early years of the Republic.
First, competence. He located Parliament’s power to legislate on the detention of foreigners in the Union’s authority over matters such as defence, foreign affairs and dealings with other States, and he also pointed to other heads of legislative power touching security and public order. The Court accepted the first part of this and found it unnecessary to rule on the rest. The logic here is straightforward: the presence and removal of a foreigner is never purely a domestic matter, because it always touches the interests of another State.
Second, and most significant, the concession. The Foreigners Act, 1946 had contained a provision that gave the executive an unrestricted power to detain foreigners. That provision was enacted before the Constitution, for a colonial government, with no thought of fundamental rights. The Attorney General explained to the Court that this unrestricted power had not survived the coming into force of the Constitution, and that the detention provision in the Preventive Detention Act had been enacted precisely so that the detention of foreigners would conform to the guarantees of Articles 21 and 22.
Third, restraint on the extradition question. Setalvad urged that the question whether expulsion could be used as a substitute for extradition was academic, because no expulsion order had yet been served and its terms were unknown. At the same time, he informed the Court that expulsion orders had in fact been made and signed, and were being held back pending the case. The Court used that very statement to decide the question anyway.
Why the concession matters
The concession is the heart of the matter. The Union’s own chief law officer, defending the State’s power to hold a foreigner, did not claim that the executive could detain foreigners at will. He accepted the opposite. A pre-Constitution law that allowed the executive to lock up a foreigner without limits was, in his account, incompatible with the new constitutional order. The way to detain a foreigner after 1950 was not through the old colonial statute but through a law framed with the limits of Articles 21 and 22 in view.
This is a striking position for the State to take, and it rests on a clear logic. Article 21 protects every person, not only citizens. Article 22 attaches safeguards to arrest and detention, and it treats preventive detention as an exception that must be carefully structured by law. If those guarantees mean anything for non-citizens, then a power to detain foreigners must pass through them. An executive power that recognises no limits cannot coexist with a Constitution that recognises the liberty of every person. Setalvad’s argument did not deny the State’s authority over foreigners. It channelled that authority through constitutional law.
There is a quiet irony in the outcome. The State conceded that detention must be disciplined by the Constitution, and the Court accepted that the challenged detention law had been made with those limits in mind. Yet the Court then went further than the Union needed it to, declaring that the power to expel a foreigner is absolute and unfettered, and that the choice between expulsion and extradition belongs to the government. The careful logic of constraint advanced by the Attorney General sits beside a far broader statement of executive freedom by the Court. Later generations have cited the broad statement far more often than they have remembered the concession.
The lesson for today
The concession deserves a second life. The Foreigners Act was later amended, and the power to provide for the arrest and detention of foreigners by executive order found its way back into the statute. Detention of persons suspected of being foreigners, often for long periods, became a familiar feature of the system, particularly in Assam. More recently, executive instructions have provided for holding centres and for detention pending verification, without any adjudicatory body in sight.
Against that background, the position taken by India’s first Attorney General reads as a standard the State once set for itself. In 1955, the Union of India told its Supreme Court that an unrestricted executive power to detain foreigners could not survive the Constitution, and that any such detention had to be brought within the guarantees of Articles 21 and 22. That was not the argument of a petitioner or an activist. It was the argument of the State. The question worth asking of every detention regime that has followed is a simple one: would it have satisfied the logic of the Attorney General’s own concession?
This post is commentary and not legal advice.
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