A.K Gopalan v. State of Madras

 


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.

 

AuthorShreyanta Nag, Adamas University (School of Law and Justice).

 

 

 

 

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