A.K Gopalan v. State of Madras [AIR 1950 SC 27]
Date of Judgement – Decided on 19th May, 1950
Supreme Court Bench: Hiralal J. Kania, M. Patanjali Sastri, Sudhi Ranjan Das,
Saiyid Fazal Ali, Mehr Chand Mahajan and B.K. Mukherjee
Petitioners – Ayillyath Kuttiari Gopalan represented by S.K. Aiyar,
V.G. Rao and M.K. Nambiar as his legal representatives.
Respondents – State of Madras represented by R. Ganapathi and Pattabi
Raman as it’s legal representatives.
Intervener – The Union of India represented by M.C. Setalvad was an
intervener in the case.
Facts
Ayillyath
Kuttiari Gopalan was kept under detention after being sentenced under criminal
law in December of 1947. But due to some reasons those convictions were
rendered invalid. While he was in the jail of Madras on March 1st,
1950, he was sentenced under the Section 3 clause 1 of the Preventive Detention
Act, 1950. The Section said that both
the Central and State Government to detain a person or group of persons in if
the Government feels it is needed to prevent that person or group of persons
from doing any act that might be harmful in any way
●
For
the Defence of India or its relations with foreign entities or its security.
●
For
the Security of the State or the maintainance of the public orders.
●
For
the supplies or maintenance of the services that are essential for the
continuation of the community.
The
Section also said that the Central and State Government may also make a order
to detain a foreigner (fulfilling the meaning of foreigner under the Foreigners
Act of 1946) to either manage his continuing presence in India or to arrange
for his expulsion from India.
Gopalan,
the petitioner to get freedom from the detention, applied for a writ of Habeas
Corpus, under the Article 32 of the Indian Constitution. He was not allowed to
reveal the grounds on which he was detained under Section 14 of the Detention
Act. The Section forbade the detained person or group of persons from revealing
the reason of their detention, even if they are asked by the Court of Law. For
this he justified his appeal by stating that the Preventive Detention Act was
violating the Articles 13, 19, 21 and 22 of the Indian Constitution. Also
stating the Detention Act being ultra vires with so many Articles, he contended
that his detention was absolutely illegal.
Issues Raised
●
Whether
the Preventive Detention Act, 1950 was violating the Articles 13, 19, 21 and 22
of the Indian Constitution?
●
Whether
the phrase ‘procedure established by law’ under the Article 21 of the Indian Constitution
was same as the phrase ‘due process of law’ under the Constitution of the
United States?
●
Whether
there is any relation of Article 19 with Article 21 of the Indian Constitution
or are both the Articles independent of the jurisdiction of each other?
Contentions
●
Gopalan
had the contention that the order under Preventive Detention Act of the Madras
State, detaining him was contravening with the Articles 13, 19, 21.
●
He
also contended that the requirements under the Detention Act were not in
conformity with the Article 22 of the Indian Constitution.
●
He
contended that the sentence was served with some sort of malafide intention.
●
Hence
the issues went up to the Supreme Court of India.
●
This
was the first case where the provisions in connection with the Fundamental
Rights were challenged before the Supreme Court.
Rationale
Article 13
clause 2 of the Indian Constitution says that the State cannot make any kind of
law that deprives its citizens under its jurisdictions, the Fundamental Rights
or violates such Rights. Any such law that breaches this clause shall to the
extent of the breach be void. Section 3 of the Preventive Detention Act does
not delegate any authority to an executive officer but it simply grants a few
discretions to carry out the order made by the legislator body and is therefore
valid on the grounds of the mentioned Article The Section does not provides
standards for the objective of deciding whether necessities of law has been
complied with, but this fact is not enough for the Section to be invalid. But
Section 3 is reasonable upto the extent for the arrest and the detention. But
such actions should be followed by an established set of procedures for the testing
of subjective satisfaction. This can only be done when suitable machinery has
been provided for the examining of the reasons for which the arrest and the
detention has been made and the detained person or persons would be given
proper opportunity to represent his or her views against such reasons.
Article 19
of the Indian Constitution speaks about protection of certain rights that all
the citizens of India under its jurisdiction may possess. Such rights include
the Freedom of a person to speak and express his or her views and opinions and
Freedom of a person to freely move within the territory of India. The Article
cannot apply its provisions for the protection of the rights mentioned under it
from sub clause (a) to sub clause (e) and (g) of clause 1, to a law i.e. the
Preventive Detention Act which has a direct relation with the provisions of
clause 5 of the Article. The clause 5 states that the Right to move freely
within the territory of India and to occupy and settle anywhere within the
territory of India won’t affect the provisions of any law. For this it has to
be provided that the Rights are imposing restrictions on the State from putting
reasonable restrictions to the application of such rights with the intention
and the restrictions are needed for the welfare of the public or the Scheduled
Tribe.
Article 19
clause 1 puts forward the scope of legality under which the citizens may
exercise their rights mentioned under its clause 1. But when that same citizen
loses those rights as a consequence of being sentenced for an offence, those
citizens cannot claim their Right to apply those rights. The Rights under
Article 19 are all restricted with the reasonable restrictions that the State
puts under lawful detention and therefore the lawful detention under the
Preventive Detention Act cannot be regulated by the Article 19 of the Indian
Constitution. Hence the Detention Act is valid under Article 19.
Article 21
of the Indian Constitution says that the citizens under its jurisdiction would
not be deprived of their life or personal liberty, except in the conditions
where the law has a procedure to be established. The idea of having the Right
to freely move within the territory of India mentioned in Article 19 clause 1
of the Constitution is different from the idea of personal liberty mentioned in
Article 21. Therefore the concept that Article 19 is regulated by the
provisions of Article 21 is incorrect. Also the viewpoint that the former
guarantees the fundamental rights and latter lays down the procedure for doing
so, is wrong. Article 19 protects few of the essential aspects of personal
liberty as rights that are independent. But the term ‘personal liberty’ used in
Article 21 as a brief term, includes all kinds or Rights that can constitute
the personal liberties of the citizens. Article 21 protects the essential
rights by needing a procedure and Article 19 lays down a basic structure of the
with the rules of the procedure that even the Parliament of India cannot
overlook or repeal. Article 21 provides protection against the total loss of
personal liberty while Article 19 provides protection against the reasonable
restrictions i.e. only partial control. The provisions of Article can only be
enjoyed by a citizen when he or she is not deprived of his ‘personal liberty’
under a valid law.
The term
‘law’ included in the Article 21 of the Indian Constitution is used in the
sense of a law made by the State. The term ‘law’ in the Article is not in the
normal sense meaning the embodiment of the principles of Natural Justice. The
term ‘procedure established by law’ in the Article refers to the laws that are
made by the State i.e. either by the Central Government or the State
Governments. It is not correct to interpret the given term with the assertion
of ‘due process of law’ in the Constitution of the United States. This can be
made clear from the actions of the Drafting Committee of our Constitution which
adopted the term ‘due process of law’ but later on replaced it with the
expression ‘procedure established by law’. If the Committee would have wanted
to provide India with the same protection as provided by the Constitution of
the United States then they would not have replaced it. The term ‘law’ in the Article does not mean the
Jus Naturale (meaning natural right, the laws common to all beings) of the
Civil Laws of the country but the State-made or positive laws of the country.
However, the expression ‘procedure established by law’ does not mean any
procedure that can be directed by any competent legislative body, but the
established ordinary criminal procedure. It means the modes and usages of the
procedures authorized by the Code of Criminal Procedure (CrPC), which is the
general law of the criminal procedure in India.
Article 22
of the Indian Constitution says that the person or group of persons who are
arrested and detained in the custody should be made aware of the reasons for
such arrest and detention. That person or group of persons should not be denied
their right to consult and be defended by a lawyer of his or her choice. Also
the Article says when an order is made under the provisions of a particular law
sentencing for preventive detention, the authorities giving such sentences
should make the sentenced person or persons aware about the reason for which such
sentence has been passed. The authorities should also give the opportunity of
validating his opinion and views, against such order through a legal
representative. Section 14 of the Preventive Detention Act was violating the
provisions of the Article 22 of the Indian Constitution to an extent where it
prohibited the person or persons from disclosing the reason for their arrest or
detention under the law to the Court of Law and even to their legal
representative. Without letting his representative know the reason for his
detention, the representative would not have been able to portray the case well
in front of the judge which means that the detained person was not getting a
fair chance to be represented in the Court of Law. Hence Article 14 of the
Detention Act was ultra vires and void with respect to Article 22.
Article 22
clause 7 talks says that the Parliament can prescribe the situations necessary
or the kinds of cases necessary for the detained person to be detained more
than three months under any law related to the Preventive Detention without
taking the advice of the Advisory Board. But it is not compulsory for the
Parliament to prescribe both. Section 12
of the Preventive Detention Act includes a particular definition for the
situations or the kinds of cases necessary and is therefore not in
contravention with Article 22. Article 19 and Article 21 should have been read
together as the former deals with substantive rights and Article 21 provides
procedural rights.
It was
held by the Supreme Court that only no Section of the Preventive Detention Act
except the Section 14, violated any of the Articles of the Indian Constitution.
The Section 14 was severable i.e. having legal independence from the other
Sections of the Detention Act, the invalidity of the Section 14 alone was not affecting the validity of the
Detention Act as a whole. Therefore the Preventive Detention Act was not
considered unconstitutional and the detention of Ayillyath Kuttiari Gopalan was
considered legal and valid.
Defects in the law
The Court
while determining whether there was a violation of the Fundamental Rights of
Gopalan should have interpreted the various Articles of the Indian Constitution
dealing with the Fundamental Rights as one coordinating with each other. But
instead of this, the Court judged each Fundamental Right in isolation with
respect to the other Fundamental Rights. In this case, the Court has extremely
interpreted the meaning of Article 21 to its literal meaning and affirmed that
the meaning of ‘procedure established by law’ was any procedure that was laid
down in the Statutes by the Legislative Authority that could deprive a person
of his or her Right to life and Right to personal liberty.
Inference
The
reasonableness of the procedures adopted by the law should be in review by the
Court so that they are fair and reasonable and free from any kind of
arbitration. The restrictive interpretation of personal liberty has been
followed by the Supreme Court in its following decisions. Like in Kharak Singh
v. State of Uttar Pradesh [AIR 1963 SC 1295], the Supreme Court was of the
opinion that the expression ‘personal liberty’ should not be limited to the
bodily restraint or confinement to prisons only. The expression should be
considered as a concise term including all kinds of rights which go to
constitute the personal liberty of the citizens other than those dealt within
Article 19 clause 1. The decision of the Gopalan case was overruled in the case
Maneka Gandhi v. Union of India [AIR 1978 SC 597 ] it was said the Court should
always attempt at expanding the reach and ambit of the Fundamental Rights
rather than reduce its meaning by the process of judicial interpretation. The
laws relating to the Preventive Detention should satisfy the provisions of both
the Articles 21 and 22 of the Constitution. The reasonableness of the
procedures prescribed by the Preventive Detentions laws should be considered in
conformity with the Articles 13, 21 and 22.
Author – Shreyanta Nag, Adamas University (School of Law and Justice).
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