Case name- A.K.

Gopalan v/s State of Madras

Dissenting Judge-Fazl Ali

Ratio- 6:1

History of descent:

The most critical words in Article 21 are „procedure established by law‟. Immediately after the
Constitution became active, the question of interpretation of these words arose in the famous
Gopalan case whereby the validity of the Prevention Detention Act, 1950, was challenged.

On behalf of Gopalan, the issues contended in the case were:

The word law in Article 21 does not mean merely enacted legislation. It also incorporates the
principle of natural justice so that a law denying a person his liberty can‟t be held to be valid.

The reasonableness of Article 21 ought not to be viewed under Article 19.

The expression procedure established by law introduces into India the American concept of
procedural due process, which enables the Court to see whether a law fulfills the essential
elements of a reasonable procedure or not.

Concerning the first issue, it was held that the word „law‟ in Article 21 could not be read as
meaning rules of natural justice. The provisions of natural justice were vague and indefinite.

The word „law,‟ according to them, was "used in the sense of lex (state model law) and not jus."
The expression procedure as established by law, would, therefore, mean only the process as laid
down in an enacted law.

Under the 2nd issue, the petitioner tried to establish a link between Article 22, 21, and 19. The
underlying purpose was to persuade the Court to adjudge the Preventive Detention Act‟s
reasonableness as the detained person had his several rights under Art. 19 affected and, thus, the
reasonableness of the law, and the procedure contained therein, should be justiciable with
reference to Arts. 19(2) to (6).

Rejecting this argument, the Court pointed out that the word 'personal liberty' in Art. 21 in itself
had a comprehensive content. Art. 19 must be held to deal with a few specific freedoms
mentioned therein and not with freedom from detention, whether punitive or preventive.
Similarly, Art. 21 should be held as excluding the freedoms dealt with in Art. 19. The Court
ruled that Arts. 20 to 22 constituted a comprehensive code and embodied the entire constitutional
protection in relation to life and personal liberty and was not controlled by Art. 19.

“A detailed discussion of the true limits of Article 21 will not be necessary if Article 22 is
considered a code to the extent there are provisions therein for preventive detention. In this
connection, it may be noticed that the articles in Part III deal with different and separate rights.
Under the caption “Right to Freedom” Articles 19-22 are grouped, but each with a separate
marginal note. It is obvious that Article 22(1) and (2) prescribe limitations on the right given by
Article 21. If the procedure mentioned in those articles is followed the arrest and detention
contemplated by Article 22(1) and (2), although they infringe the personal liberty of the
individual, will be legal because that becomes the established legal procedure in respect of arrest
and detention.”

It was also contended in Gopalan (under issue 3) that the expression 'procedure established by
law' in Art. 21 was synonymous with the American concept of 'procedural due process' and,
therefore, the reasonableness of the Preventive Detention Act, or for that matter, of any law
affecting a person's life or personal liberty, should be justiciable just like in America, in order to
assess whether the person affected was given a right of fair hearing.

The Supreme Court rejected the contention giving several reasons:

First, the word 'due' was absent in Art. 21. This was a significant omission for the entire efficacy
of the procedural due process concept emanating from the word 'due'.

Secondly, the draft constitution had contained the words 'due process of law' but these words
were later dropped and the present phraseology adopted instead.11 This was strong evidence to
show that the Constituent Assembly did not desire to introduce into India the concept of
procedural due process. This was done mainly to avoid the uncertainty surrounding the due
process concept in the U.S.A.

What was held in the descent

On the other hand, Fazi Ali J disagreeing with the majority view held that under the principle of
natural justice, 'no one shall be condemned unheard' was a part of the general law of the land and
the same should accordingly be read into Art. 21 He interpreted the phrase 'procedure established
by law' in Art. 21 as implying 'procedural due process', meaning thereby that no person could be
condemned unheard, a principle well recognized in all modern civilized legal systems.

“To my mind, the scheme of the Chapter dealing with the fundamental rights does not
contemplate what is attributed to it, namely, that each article is a code by itself and is
independent of the others. In my opinion, it cannot be said that Articles 19, 20, 21, and 22 do not
to some extent overlap each other.”

He further explained his point stating, “That there are other instances of overlapping of articles in
the Constitution as may be illustrated by reference to Article 19(1)(f) and Article 31, both of
which deal with the right to property and to some extent overlap each other…... But, as I shall
point out later, however literally we may construe the words used in Article 19(1)(d) and
however restricted may be the meaning we may attribute to those words, there can be no escape
from the conclusion that preventive detention is a direct infringement of the right guaranteed in
Article 19(1)(d).”

How it turned into majority opinion later or if it didn‟t turn into the majority

The way the majority handled Art. 21 in Gopalan was not free from criticism. Gopalan was
characterized as the 'high-water mark of legal positivism'. Court's approach was very static,
mechanical, purely literal, and was too much colored by the positivist or imperative theory of
law. The Court treated the Constitution as merely another statute.

Fazl Ali, J., in his minority opinion had taken a much more liberal view of Art. 21, and it took
nearly three decades for his views to be vindicated in Maneka Gandhi. Maneka Gandhi v. Union
of India is a landmark case of the post-emergency period. This case shows how liberal tendencies
have influenced the Supreme Court in interpreting Fundamental Rights, particularly Art. 21. A
great transformation had come about in the judicial attitude towards protecting personal liberty
after the traumatic experiences of the emergency during 1975-77 when personal liberty had
reached its nadir.

This case showed that Art. 21, as interpreted in Gopalan could not play any role in providing any
protection against any harsh law seeking to deprive a person of his life or personal liberty.

The Court, in this case, re-interpreted Art. 21 and practically overruled Gopalan, which can be
regarded as a highly creative judicial pronouncement on the part of the Supreme Court.

The fact situation of Maneka Gandhi was as follows:

S. 10(3)(c) of the Passport Act, authorises the passport authority to impound a passport if it
deems it necessary to do so in the interest of the sovereignty and integrity of India, the security
of India, friendly relations of India with any foreign country, or in the interest of the general
public. Maneka's passport was impounded by the Central Government under the Passport Act in

the interest of the general public. Maneka filed a writ petition challenging the order on the
ground of violation of her Fundamental Rights under Art. 21. One of the major grounds of
challenge was that the order impounding the passport was null and void as it had been made
without affording her an opportunity of being heard in her defense.

The Court, therefore, laid down a number of propositions seeking to make Art. 21 much more
meaningful than hitherto.

(1) The Court reiterated the proposition that Arts. 14, 19, and 21 are not mutually exclusive. A
nexus has been established between these three Articles. This means that a law prescribing a
procedure for depriving a person of 'personal liberty' has to meet the requirements of Art. 19.
Also, the procedure established by law in Art. 21 must answer the requirement of Art. 14 as well.

According to K. Iyer, J., no Article in the Constitution pertaining to a Fundamental Right is an

(2) The expression 'personal liberty' in Art. 21 was given an expansive interpretation. The Court
emphasized that the expression 'personal liberty' is of the "widest amplitude" covering a variety
of rights "which go to constitute the personal liberty of man". Some of these attributes have been
raised to the status of distinct Fundamental Rights and given additional protection under Art. 19.

The expression 'personal liberty' ought not to be read in a narrow and restricted sense so as to
exclude those attributes of personal liberty which are specifically dealt with in Art. 19. "The
attempt of the Court should be to expand the reach and ambit of the Fundamental Rights rather
than attenuate their meaning and content by a process of judicial construction." The right to
travel abroad falls under Art. 21.

According to Krishna Iyer, J., "the spirit of man is at the root of Article 21"; "personal liberty
makes for the worth of the human person" and "Travel makes liberty worthwhile". Thus, no
person can be deprived of his right to go abroad except according to procedure established by
law.

(3) The most significant and creative aspect of Maneka is the re-interpretation by the Court of the
expression 'procedure established by law' used in Art. 21. The Court now gave a new orientation
to this expression. Article 21 would no longer mean that law could prescribe some semblance of
procedure, however arbitrary or fanciful, to deprive a person of his personal liberty. It now
means that the procedure must satisfy certain requisites in the sense of being fair and reasonable.

The Court has now assumed the power to adjudge the fairness and justness of procedure
established by law to deprive a person of his personal liberty. The Court has reached this
conclusion by holding that Arts. 21, 19, and 14 are not mutually exclusive but are inter-linked.

The procedure contemplated by Art. 21 must answer the test of reasonableness in order to
conform with Art. 14 for, in the words of Bhagwati, J:, "The principle of reasonableness which
legally as well as philosophically is an essential element of equality or non-arbitrariness pervades
Art. 14 like a brooding omnipresence." According to Iyer, J., procedure in Art. 21 means fair, not
formal, procedure; 'law' is reasonable law and not any enacted piece.

This makes the words "procedure established by law" by and large synonymous with the
'procedural due process' in the U.S.A. This makes the right of hearing a component part of
natural justice.

As the right to travel abroad falls under Art. 21, natural justice must be applied while exercising
the power of impounding a passport under the Passport Act. Although the Passport Act does not
expressly provide for the requirement of hearing before a passport is impounded, yet the same
has to be implied therein.

Impact of jurisprudence or how the law developed on the aspect

Art. 21 has been emerging since Maneka as the Indian version of the American concept of "due
process of law". Art. 21 has become the source of many substantive rights and procedural
safeguards to the people.

Once Gopalan was overruled in Maneka Gandhi, Art. 21 got unshackled from the restrictive
meaning placed upon it in Gopalan. It came to acquire a force and vitality hitherto unimagined.
A burst of creative decisions of the Court, fast on the heels of Maneka Gandhi, gave a new
meaning to the Article and expanded its content and connotation.

The reincarnation of Art. 21 which Maneka Gandhi brought about has been exerting a deep
impact on contemporary constitutional jurisprudence.

Since Maneka, the Supreme Court has, again and again, underlined the theme that Arts. 14, 19
and 21 are not mutually exclusive, but they sustain, strengthen, and nourish each other.

For long, life and personal liberty occupied a back seat in India as accent was placed on property
rights, but this situation has changed now. Maneka has brought the Fundamental Right of life
and personal liberty into prominence; it is now regarded as the heart of Fundamental Rights. This
is, as it should be, in a democratic society. To any civilized society, there can be no attributes
more valuable than the life and personal liberty of its members. That is why the Supreme Court
has now given pride of place to Art. 21.

Maneka has also deeply influenced the administration of criminal justice and prison
administration. In a number of cases, the Supreme Court has expounded several propositions
with a view to humanize the administration of criminal justice in all its aspects. Art. 21 has
proved to be a very productive source of several Fundamental Rights over and above those
mentioned in the Constitution in Arts. 14 to 31