A.K. GOPALAN V. STATE OF MADRAS, 1950 AIR27,1950 SCR 88

OVERVIEW

Case Name	A.K. Gopalan Vs The State Of Madras.Union Of India
Equivalent Citations	1950 AIR27, 1950 SCR 88.
Date Of Judgement	19 May, 1950.
Case No.	Petition No. Xiii Of 1950.
Case Type	Writ Petition
Petitioner	A.K. Gopalan
Respondent	The State Of Madras.Union Of India
Bench	Kania, Hiralal J. (Cj) , Justice Saiyid Fazal Ali, Justice M. Patanjali Sastri, Justice Mehr Chand Mahajan, Justice Sudhi Ranjan Das , Justice B.K Mukherjea
Statute  Referred	Preventive Detention Act (Iv Of 1950)- Section  8, 7, 10-I4 Constitution Of India, 1950- Article 13, 19 To 22, 32

FACTS OF THE CASE

1. The petitioner had been under detention previously under orders passed by the said Government under the Madras Maintenance of Public Order Act, 1947, but as the validity of that Act was challenged, he was detained under Preventive Detention Act, 1950.
2. After 1950, this Act came into force on 25th February 1950, and, on the 27th February, the Government of Madras, in purported exercise of the powers conferred by the impugned Act and in supersession of earlier orders, directed the detention of the petitioner, and the order was served on him on 1st March
3. The petitioner applied for writ petition under Art. 32 of the Constitution for a writ of habeas corpus and for his release from detention, and contended that since the act contravened the provisions of Arts. 13, 19, 21 and 22 of the Constitution therefore it is invalid
4. So it was before the apex court to determine whether there was infringement of rights conferred in Part III of Constitution of India.

ISSUES RAISED

1. Whether the order made under Act IV of 1950 contravenes the provisions of articles 13, 19 and 21 and the provisions of that Act are not in accordance with article 22 of the Constitution and it is Mala fides.
2. Whether a person detained as conviction of an offence can claim right under Article 19 of Indian constitution
3. Whether the right to move freely throughout the territory of India enumerated under the Article 19 (1)(d) is different from personal liberty mentioned in Art. 21 of Constitution of India.
4. Whether the law” used in article 21 means’ due process of law’ or state made law.
5. Whether the Section 3 the Preventive Detention Act, 1950, which delegate the power to an executive officer invalid on ground.
6. Whether the Section 7 and Section 11 of Preventive Detention s is invalid as it is against the Article 22 of Constitution of India.
7. Whether the Parliament prescribes either the circumstances or classes of cases or both as mentioned in Section 12 of Preventive Detention Act and in Art. 21(7) of Constitution of India.

PLAINTIFF’S ARGUMENT

1. It was contended on the behalf of plaintiff that right to move freely throughout the territory of India referred to in article 19 (1)(d) is the core of personal liberty, and the detention authorized by the impugned Act does not fall in the ambit of “reasonable restriction” mentioned in clause (5) of the article19, therefore, the impugned Act is void.
2. It was contended that article 21 states “No person shall be deprived of his life and personal liberty except according to procedure established by law”[i], but the above mentioned act authorize detention without following proper procedure and took away that right, so it is void.
3. And that the provisions of the Preventive Detention Act, 1950 referred  as ultra vires and as it against the article 22 clauses (4) to (7).
4. Counsel urged that the word “law” in article 21 should be understood, not in the sense of an enactment but as signifying the immutable and universal principles of natural justice the jus naturale of the civil law and that the expression “procedure established by law” meant the same thing as that of “due process of law” in the American Constitution.
5. That the Preventive Detention Act is invalid, as the procedure it lays down is not in conformity with the rules of natural justice, and also lack consideration which is mentioned in section 12 of the Preventive Detention Act, and it is ultra vires of the Constitution as contravene with the provision of article 22 (7)(a).
6. Counsel argue that article 21 refers to ‘procedure only and not to substantive law the procedure, however, and the word ‘law’ should be interpreted in the sense of ‘jus’ and not the ‘Lex’.

RESPONDENT’S ARGUMENT

1. The learned counsel urged that the whole object of the section was to prevent ventilation in public of the grounds and the representations, and that it was a rule of evidence only which the Parliament could prescribe.
2. The learned Attorney-General contended that the subject of preventive detention does not fall under article 21 at all and is covered wholly by article 22. According to him, article 22 is a complete code.
3. The learned counsel argued that article 19 (1) (d) has nothing to do with personal liberty and that the words which occur in the article bear the restricted meaning attributed to them.
4. That the word “law” which is used in article 21 means State-made law or law enacted by the State. And he referred the proceedings in the Constituent Assembly for the purpose of showing that the article as originally drafted contained the words “without due process of law” but these words were subsequently replaced by the words “except according to procedure established by law”.
5. While the petitioner’s counsel argue the Act would be void as principles of natural justice was not followed, whereas respondent’s Counsel contended, the Act would be perfectly valid.
6. He contended that the word “and” had been used in the same sense as “or.” And further argued that even if the word “and” is not given but it should be interpreted as that the Parliament could prescribe either the circumstances or the classes of cases.

JUDGEMENT ANALYSIS

The judgment is delivered in above mentioned case by different judges on different issues.

• Whether the order made under Act IV of 1950 contravenes the provisions of articles 13, 19 and 21 and the provisions of that Act are not in accordance with article 22 of the Constitution and challenged on the ground of Mala fides.

Chief Justice H.J. Kania , Justice Patanjali Sastri along with Justice Mukherjee And Das viewed that the preventive Detention Act, 1950, with the exception of Sec. 14 any other provisions of the code thereof did not contravene any of the Articles of the Constitution and even though Sec. 14 was ultra rites inasmuch as it contravened the provisions of Art. 19, (5) of the Constitution, as this section was severable i.e. they can be separated from the remaining sections of the Act, so it will not affect the validity of the above other provisions of this Act so, this act is valid , and the detention of the petitioner was not illegal.

While Justice Fazal Ali and Mahajan give dissenting view and held that Section 12, of the Act was also ultra vires, and since it contravened the very provision Constitution under which the Parliament derived its competence to enact the law, the detention was illegal.

They opined that Section 14 of the Preventive Detention Act, 1950, contravenes the provisions of Art.19 (5) of the Constitution as it prohibits a person detained from disclosing to the Court the grounds on his detention or to the representation made by him against the order of detention, so to that extent it is void.

• Whether a person detained can claim right under Article 19 of Indian constitution.

As per the then CJI H.J. Kania, Patanjali Sastri, Mahajan, Mukherjea and Das Article 19 of the Constitution has no application to a law which is related to preventive detention even though as a result of an order of detention the rights referred to in Art. 19(1)(a) to (e) may be restricted in general and Art. 19(1)(d)  i.e. may be curtailed in particular; and the constitutional validity of a law relating to such detention cannot therefore, be judged in the light of the test prescribed in Article 19 (5) of Constitution of India.

Justice Das viewed that Article 19 (1) postulates a legal capacity to exercise the rights guaranteed by it and if a citizen loses the freedom of by reason of lawful detention which is due to conviction in any offence or otherwise, he cannot claim the right s under- sub clause (a) to (e) and (g) of Art. 19 (1)(a) to (e) or Art. 19 (1)(g) of constitution of India.

Mahajan “Whatever be the precise scope of Art. 19 (1) (d) and Art.19(5) the provisions of Art. 19(5) do not apply to a law relating to preventive detention, inasmuch as ‘there is a special self-contained provision in Art.22 regulating it”.

While Justice Fazl Ali while giving his dissenting view held that Preventive detention is a direct infringement of the right guaranteed in Art. 19 (1) (d), and even if a narrow construction is placed but it will be subjected to such limited judicial review as is permitted by Art. 19 (5).

• Whether the right to move freely throughout the territory of India given in Article 19 (1)(d) is different from personal liberty mentioned in Art. 21 of Constitution of India.

Majority of judges viewed that the concept of the right “to move freely throughout the territory of India” referred to in Art. 19 (1) (d), of the Constitution is entirely different from the concept of the right to “personal liberty” referred to in Art. 21, and Art. 19 should not, therefore, be read as controlled by the provisions of Art. 21 and the view that Art. 19 guarantees substantive rights while Art. 21 prescribes the procedure for enforcement is incorrect.

Justice Das viewed that the Article 19 protects some of the important attributes of personal liberty as independent rights while the expression “personal liberty” is used in Art. 21 as a compendious term meaning all varieties of rights which go to make up the personal liberties of men.

While expressing dissenting view Justice Fazl Ali viewed that even if it be assumed that Art. 19 (1) (d) does not refer to ” personal liberty” and that it bears the restricted meaning attributed to it, that is to say, signifies merely the right to move from one locality to another, preventive detention must be held to affect this limited right of movement directly and substantially. One of the objects of preventive detention is to restrain a person detained from moving from place to place so that he may not spread disaffection or indulge in dangerous activities in the places he visits. The same consideration applies to the cases of persons who are interned or externed. Hence, externment, interment and certain other forms of restriction on movement have always been treated as kindred matters belonging to the same group or family, and the rule which applies to one must necessarily apply to the others.

• Whether the law” used in article 21 means’ due process of law’ or state made law.

Judges of Apex Court held that in Art. 21 the word ‘law” has been used in the sense of State-made law, it is not as an equivalent to due process of law of the American constitution.  “procedure established by law” means law is to be made by the State, that is to say, the Union Parliament or the Legislatures of the States by following the procedure.

Justice Patanjali Sastri opined that the “Law” mentioned in Art. 21 means positive or State-made law. “Procedure established by law” does not mean any procedure which may be prescribed by a competent legislature. The only alternative to this construction, if a constitutional transgression is to be avoided is to interpret the reference to “law” as implying a constitutional ‘amendment pro tanto’, for it is only a law enacted by the procedure provided for such amendment that could modify or override a fundamental right without contravening Art. 13 (2).

But all the judges did not agree with the above mentioned point of view, Justice Fazl Ali viewed that “procedure established by law “must include the four principles of elementary justice which are at the root of all civilized systems of law, they are: – (1) notice, (2) opportunity to be heard, (3) impartial tribunal and (4) orderly course of procedure. Hence the words “procedure established by law “, whatever its exact meaning be, must necessarily include the principle that no person shall be condemned without hearing by an impartial tribunal.

• Whether the Section 3 the Preventive Detention Act, 1950, which delegate the power to an executive officer invalid on ground.

According to judges of the Apex Court, they held that Section 3 of the Preventive Detention Act, 1950, does not delegate any legislative power to an executive officer but it merely confers on such officer a discretion to enforce the law, so it is therefore invalid on this ground.

• Whether the Section 7 and Section 11 of Preventive Detention Act, 1950 is invalid as it is against the Article 22 of Constitution of India.

Court held that the Section 7 is not invalid merely because it does not provide for an opportunity for oral hearing but only gives right to make a representation. Similarly, court held that the provision mentioned in Sec. 11 of the act which give right to detain a person for such period as the State thinks fit is not against Art. 22 (7), hence it is not invalid.

• Whether the Parliament prescribes either the circumstances or classes of cases or both as mentioned in Section 12 of the Preventive Detention Act and in Art. 21(7) of Constitution of India.

Chief Justice H.J. Kania, Justice Patanjali Sastri, Justice Das, and Justice Mukherjee viewed that Article 22 (7) is interpreted as Parliament may prescribe either the circumstances under which, or the class or classes of cases in which, without reference to the advisory board detention can be made for more than three months. It is not necessary that the Parliament should prescribe both.

 As mentioned in the matters referred to in clauses (a) and (b) of sub-sec. (1) of Sec. 12 constitute a sufficient description of such circumstances or classes of cases so it does not need to comply with Art. 22 (7). While few judges opined that Art. 22(7) need to interpret it as that both the circumstances as well as the class or classes of cases both should be prescribed.

 Judges views on debates of constituent Assembly while presenting bill should be taken into consideration to know the intention of legislature

The then Chief Justice of India H.J. Kania viewed that it is not proper to take into consideration the individual opinions of members of Parliament. Meanwhile Justice Patanjali Sastri viewed that the speeches made in the course of the debates on the bill should not be taken into consideration.

CONCLUSION

However the decision of A.K. Gopalan case was overuled in the case of Maneka Gandhi v. Union of India[ii]  and court held that the law has to be just, fair, and reasonable and “procedure establish by law” would be construe as “due process of law”.

Thus it empowers legislature to make any law but that law must be just fair and reasonable. 

This is written by Vartika Singh, an intern under Legal Vidhiya

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[i] Art. 21, constitution of India.

[ii] AIR 1978 SC 597.