MANU/SC/0012/1950

A.K. Gopalan vs. The State of Madras

Decided On: 19.05.1950

Judges: H.J. Kania, C.J., B.K. Mukherjea, M.C. Mahajan, M. Patanjali Sastri, Sudhi
Ranjan Das and Sir Saiyid Fazl Ali, JJ.

Facts:

The petitioner, who was held under the Preventive Detention Act, 1950 (hereinafter,
‘impugned Act’), requested a writ of habeas corpus and his release from detention
under Article 32 of the Constitution. This petition was filed on the grounds that the
impugned Act was ultra vires and, as a result, in violation of the Constitution’s
provisions for Articles 13, 19, 21, and 22 of the Constitution. He, therefore,
challenged the legality of his detention.

Issues:

(i) Whether provisions of impugned Act, and in particular, Sections 8, 7, 10-

14 Preventive Detention Act, 1950 are in violation of the Constitution’s
provisions for Articles 13, 19, 21, and 22?
(ii) Whether law relating to preventive detention infringes fundamental right as
to freedom of movement?
(iii) Whether law relating to preventive detention are subject to judicial review
as to reasonableness under Article 19(5) of the Constitution?
(iv) Whether Article 22 of the Constitution is a complete code as to preventive
detention?
(v) Whether the words ‘law’ and ‘procedure established by law’, as appearing
in Article 21 of the Constitution include rules of natural justice?
(vi) Whether American decisions on ‘due process of law’ have any value in
Indian jurisprudence?
(vii) Whether it is permissible to make reference to Constituent Assembly
Debates and Report of Drafting Committee while constructing provisions of
Constitution?
Law:

Constitution of India - Article 19 – Article 19(1)(a) guarantees the citizens of India

freedom of speech and expression. Article 19(1)(b) guarantees the citizens of India
to collect peacefully without arms. Article 19(1)(c) guarantees the citizens of India,
the right to form associations and unions. Article 19(1)(d) says that any citizen of
India is allowed free movement across any part of India, be it in any territory. Article
19(1)(g) guarantees any citizen of India to practice any profession or to carry out any
occupation, trade or business.

Constitution of India - Article 19(2) – It permits the government to impose

reasonable restrictions upon the freedom of speech and expression “in the interests
of public order”.

Constitution of India - Article 21 – It reads, “no person shall be deprived of his life
or personal liberty except according to a procedure established by law”.

Two rights are guaranteed under Article 21, the ‘right to life’ and the ‘right to personal
liberty’. It forbids the taking away of the aforementioned rights except in accordance
with the procedure established by law.

Constitution of India - Article 22(1) – Any individual who is in custody must be

made aware of his grounds of arrest. Additionally, his right to speak with a lawyer
cannot be restricted.

Constitution of India - Article 22(2) – The right to appear before a magistrate in

person within 24 hours, excluding travel time.

Constitution of India - Article 22(5) – The person who is being held should be
informed of the reasons behind it and he must be given the chance to make a
defence of his or her case as well.

Constitution of India - Article 22(7) – This article grants the legislature the
authority to enact laws, details the processes for advisory board inquiries, and
specifies the length of detention.

Contentions:
Petitioner

(i) As the preventive detention order results in the detention of the applicant
in a cell, the rights specified in Article 19(1)(a), (b), (c), (d), (e) and (g) of
the Constitution have been infringed.
(ii) Because of his detention he cannot have a free right to speech as and
where he desired. He claimed similar infringement of rest of the rights
mentioned in sub-clauses (b), (c), (d), (e) and (g) of Article 19 of the
Constitution.
(iii) Article 19(1)(d) of the Constitution expressly gives the right ‘to move freely
throughout the territory of India’. By the confinement of the petitioner under
the preventive detention order, his right to move freely throughout the
territory of India is directly abridged. Therefore, the State must show that
the impugned legislation imposes only reasonable restrictions on the
exercise of that right in the interests of the general public or for the
protection of the interests of any Scheduled Tribe, under Article 19(5).
(iv) Articles 19 and 21 of the Constitution should be read together as
implementing each other. Article 19 gave substantive rights to citizens
while Article 21 prescribed that no person can be deprived of his life and
personal liberty except by procedure established by law.
(v) Indian Constitution gives the same protection to every person in India, as
the Constitution of USA gives to its citizen, except that in the United States
‘due process of law’ has been construed by its Supreme Court to cover
both substantive and procedural law. In India, only the protection of
procedural law is guaranteed.
(vi) The omission of the word ‘due’ made no difference to the interpretation of
the words in Article 21 of the Constitution. The word ‘established’ was not
equivalent to ‘prescribed’. It had a wider meaning.
(vii) The word ‘law’ in Article 21 of the Constitution did not mean enacted law
because that will be no 'legislative protection’ at all. If so construed, any
Act passed by the Parliament or the State Legislature, which was
otherwise within its legislative power, can destroy or abridge this right.
(viii) Section 3 of impugned Act prescribes no limit of time for detention and
therefore the legislation is ultra vires.
 (ix) Right to make a representation in Articles 22(5) and 21 of the Constitution
must carry with it a right to be heard by an independent tribunal. In the
absence of it, the making of a representation has no substance, because it
is not an effective remedy.
(x) Rights declared by Articles 19 and 21 of the Constitution are the rights of a
free citizen. If he has already been deprived of his liberty in the
circumstances referred to in Articles 20, 21 and 22, then it would be idle to
say that he still enjoys the right referred to in Article 19.

Respondent

(i) Subject of preventive detention does not fall under Article 21 of the
Constitution at all and is covered wholly by Article 22.
(ii) Article 22 of the Constitution, especially clauses (4) to (7), formed a
complete code of constitutional safeguards in respect of preventive
detention. In any given circumstance, if these provisions are conformed to,
the validity of any law relating to preventive detention could not be
challenged.
(iii) Freedom of movement to which reference has been made in Article
19(1)(d) of the Constitution is not the freedom of movement to which
Blackstone and other authors have referred. It is a different species of
freedom which is qualified by the words ‘throughout the territory of India’.
(iv) The word ‘law’ which is used in the phrase ‘procedure established by law’
in Article 21 of the Constitution means State-made law or law enacted by
the State.
(v) Each of the rights guaranteed under Articles 19(1)(a) to (g) of the
Constitution is considered separately from the point of view of a similar
right in the other citizens. Individual liberty must give way, to the extent it is
necessary, when the good or safety of the people generally is concerned.
(vi) The right to freedom of speech and expression is given by Article 19(1)(a)
of the Constitution. But Article 19(2) provides that such right shall not
prevent the operation of a law which relates to libel, slander, defamation,
contempt of Court or any matter which offends against decency or morality
or which undermines the security of, or tends to overthrow, the State.
 (vii) A similar analysis of Articles 19(3) and (4) of the Constitution shows similar
restrictions imposed on similar grounds.
(viii) In the same way Article 19(2) also permits reasonable restrictions in the
exercise of the right to freedom of movement throughout the territory of
India. It also permits restrictions on the right to reside and settle in any part
of the territory of India or the right to acquire, hold and dispose of property.
However, such reasonable restrictions on the exercise of such right must
be in the interest of the general public.
(ix) The specified rights of a free citizen are thus controlled by what the
framers of the Constitution thought were necessary restrictions in the
interest of the rest of the citizens.
(x) The Parliament by Preventive Detention Act, 1950 has expressly given a
right to the person detained under a preventive detention order to receive
the grounds for detention. It also has given him a right to make a
representation. The impugned Act has thus complied with the
requirements of Article 22 of the Constitution.

Analysis:

Section 14 of Preventive Detention Act, 1950 contravenes the provisions of

Article 19(5) of the Constitution

(i) Section 14 of impugned Act contravenes Article 19(5) of the Constitution in so far
as it prohibits a person detained from disclosing to the Court the grounds on which a
detention order has been made. It further prohibits disclosure of representation made
by him against the order of detention. To that extent Section 14 of impugned Act
ultra vires and void.

(ii) It is improper to read Article 19 of Constitution as dealing with the same subject
as Article 21. Article 19 gives the rights specified therein only to the citizens of India
while Article 21 is applicable to all persons. The word citizen is expressly defined in
the Constitution to indicate only a certain section of the inhabitants of India.
Moreover, the protection given by Article 21 of Constitution is very general. It is of
‘law’ – whatever that expression is interpreted to mean.
The legislative restrictions on the law-marking powers of the legislature are not here
prescribed in detail as in the case of the rights specified in Article 19 of Constitution.
Article 19 of Constitution should, therefore, be read as a separate complete article.

Per Sudhi Ranjan Das, J., the phrase ‘personal liberty’ is used in Article 21 as a
compendious term including within its meaning all sorts of rights which contribute to
make up the personal liberties of persons. Article 19 of the Constitution guarantees
some of the significant aspects of personal liberty as autonomous rights.

(iii) Section 14 of the impugned Act, contravenes Article 19(5) of the Constitution. It
prohibits a person detained from disclosing to the Court the grounds on which a
detention order has been made or the representation made by him against the order
of detention. To that extent, impugned provision is ultra vires and void.

It also prevents the Court from calling upon any public officer to disclose the
substance of those grounds. Production of the proceedings or report of the advisory
board may be declared confidential. If this provision is permitted to stand, the Court
can have no material before it to determine whether the detention is proper or not.

(iv) It even prevents the Court from ascertaining whether the alleged grounds of
detention have anything to do with the circumstances or class or classes of cases
mentioned in Section 12(1)(a) or (b) of impugned Act.

(v) An examination of the grounds for these purposes was made impossible by
Section 14 of impugned Act, and the protection afforded by Articles 22(5) and 32
was rendered nugatory.

Section 14 of impugned Act contravenes the Articles 22(5) and 32 of the

Constitution. It prohibited the person detained from disclosing to the Court the
grounds of his detention communicated to him by the detaining authority or the
representation made by him against the order of detention. It prevented the Court
from examining them for the purposes aforesaid, and to that extent it must be held
under Article 13(2) of the Constitution to be void.

Section 3 of the Preventive Detention Act, 1950 is not invalid.

(i) An executive officer is not given any legislative authority under Section 3 of the
impugned Act. It is not unlawful on this basis since it only grants the enforcement of
the legislation passed by the legislature to the designated official.The absence of an
objective test for establishing whether legal requirements have been met by an
action is not a reason to declare the aforesaid section unconstitutional.

Section 7 of the Preventive Detention Act, 1950 is not invalid.

(i) Simply because Section 7 of the impugned Act does not allow for an oral hearing
or the chance to present evidence, but only grants the right to make a
representation, does not render it unconstitutional. The right to make a
representation provided by Article 22 of the Constitution does not always imply the
right to an oral hearing or the opportunity to submit evidence.

Section 11 of the Preventive Detention Act, 1950 is not invalid.

(i) The provision in Section 11 of the impugned Act which states that a person may
be held for whatever long the State deems appropriate is not illegal since it does not
violate Article 22(7) of the Constitution.

Section 12 of the Preventive Detention Act, 1950 is not invalid.

(i) According to Article 22(7) of the Constitution, Parliament may specify the
conditions or class(es) of circumstances under which a person may be detained for a
period greater than three months without consulting an advisory board. The
Parliament does not necessarily need to impose both.

(ii) The matters referred to Section 12(1)(a) and (b) of the impugned Act constitute a
sufficient description of such circumstances or classes of cases. Section 12 of the
impugned Act is not therefore open to the objection that it does not comply with
Article 22(7) of the Constitution.

Notwithstanding the illegality of Section 14 of Preventive Detention Act, 1950,

remaining Act valid

(i) The impugned Act minus Section 14 of impugned Act can remain unaffected. The
omission of this section will not change the nature or the structure or the object of the
legislation. Therefore the decision that Section 14 is ultra virus does not affect the
validity of the rest of the Act.

(ii) Per M.C. Mahajan, J., Section 14 of impugned Act does materially affect the
fundamental rights declared under Part III of the Constitution and for this reason it
must be held to be illegal and ultra vires. However, this section can be severed from
the rest of the Act without affecting the other provisions of the Act in any way. The
whole Act cannot, therefore, be held to be ultra vires.

Preventive Detention Act, 1950 permitting preventive detention is not in

conflict with the rights mentioned in Article 19(1) of Constitution

(i) Article 19 of Constitution does not purport to cover all aspects of liberty or of
personal liberty. In that article only certain phases of liberty are dealt with. ‘Personal
liberty’ would primarily mean liberty of the physical body. The rights given under
Article 19(1) of Constitution do not directly come under that description. They are
rights which accompany the freedom or liberty of the person. By their very nature
they are freedoms of a person assumed to be in full possession of his personal
liberty.

If Article 19 of Constitution is considered to be the only article safeguarding personal

liberty, several well recognised rights, as for instance, the right to eat or drink, the
right to work, play, swim and numerous other rights and activities and even the right
to life will not be deemed protected under the Constitution.

(ii) Per Sudhi Ranjan Das, J., the rights under Article 19(1)(a) to (e) and (g) of the
Constitution cannot be invoked by a citizen who has lost his or her freedom of
movement due to legitimate detention because of an arrest or conviction for an
offence.

Article 19(5) of the Constitution is not applicable to a law dealing to preventive

detention

(i) Rights under Article 19(1)(a) to (e) and (g) ceases when lawful detention starts.
Hence, Article 19(5) of the Constitution cannot be used to determine the legality of a
preventative detention order.
(ii) Per M.C. Mahajan, J., the requirements of Article 19(5) of the Constitution do not
apply to a legislation dealing to preventive detention. This is regardless of the
precise extent of Article 19(1)(d) and Article 19(5) of the Constitution, since ‘there is
a particular self-contained provision in Article 22 regulating it’.

Article 22 of the Constitution does not form a complete code of constitutional

safeguards relating to preventive detention.

(i) Article 21 will apply to procedural issues that are expressly or impliedly not
covered by Article 22 but cannot be regulated by it to the degree that provision is
provided in Article 22 of the Constitution.

(ii) Per Sudhi Ranjan Das, J., by establishing a mechanism, Article 21 of the
Constitution safeguards substantive rights. The minimum norms of process are
outlined in Article 22 and cannot be waived or ignored by the Parliament or anybody
else.

(iii) Per M.C. Mahajan, J., restrictions under Article 21 of the Constitution cannot be
investigated or restricted by Article 22. The later offers a self-contained set of
constitutional protections pertaining to preventative detention. However, Article 22
maintains the concepts of Article 21, hence there is no conflict between these two
provisions.

(iii) Per B.K. Mukherjea, J., even if we assume that Article 22 is not a self-contained
code relating to preventive detention and that Article 21 would apply, it is not
permissible to supplement Article 22 by the application of rules of natural justice.

‘Law’ in Article 21 of Constitution is not equivalent of ‘law’ in the abstract or

general sense embodying the principles of natural justice.

(i) In Article 21 of the Constitution, the word 'law' has been used in the sense of
State-made law. It has not been used as an equivalent of ‘law’ in the abstract or
general sense embodying the principles of natural justice. The phrase ‘procedure
established by law’ means procedure established by law made by the State. That is
to say, law made by the Union Parliament or the Legislatures of the States.
(ii) It is not proper to construe this expression in the light of the meaning given to the
phrase ‘due process of law’ in the American jurisprudence by the Supreme Court of
America.

(iii) Per M. Patanjali Sastri, J. the term ‘law’ in Article 21 refers to positive or State-
made law rather than the jus naturale of civil law. However, ‘procedure established
by law’ does not refer to any procedure that may be prescribed by a competent
legislature. It refers to the standard, well-established criminal procedure. That is the
customs and practises that are approved by the Criminal Procedure Code, which is
the country’s primary criminal procedure statute.

If a constitutional violation is to be avoided, the only alternative to this interpretation

is to interpret the word ‘law’ as implying a constitutional ‘amendment pro tanto’. This
is because only a law passed through the process established for such an
amendment could modify or supersede a fundamental right without violating Article
13(2) of the Constitution.

(iii) ‘Procedure established by law’ and ‘due process of law’ are two different
concept. The only right flowing from Article 21 of Constitution is that, ‘no person shall
be deprived of his life or liberty except according to procedure established by law’.

To read the word ‘law’ as meaning ‘rules of natural justice’ will land one in difficulties
because the rules of natural justice, as regards procedure, are nowhere defined. The
Constitution cannot be read as laying down a vague standard.

This is particularly so when in omitting to adopt ‘due process of law’ it was

considered that the expression ‘procedure established by law’ made the standard
specific. It cannot be specific, except, by reading the expression as meaning
procedure prescribed by the legislature.

The word, ‘law’ as used in this Part has different shades of meaning but in no other
Article it appears to bear the indefinite meaning of natural justice. If so, there
appears no reason why in Article 21 of the Constitution, it should receive this
peculiar meaning.
(iv) The word ‘due’ in the expression ‘due process of law’ in the American
Constitution is interpreted to mean ‘just’. That word imparts jurisdiction to the Courts
to pronounce what is ‘due’ from otherwise, according to law. The deliberate omission
of the word ‘due’ from Article 21 of Indian Constitution lends strength to the
contention that the justifiable aspect of ‘law’, i.e., to consider whether it is reasonable
or not by the Court, does not form part of the Indian Constitution.

The omission of the word ‘due’, the limitation imposed by the word ‘procedure’ and
the insertion of the word ‘established’ thus brings out more clearly the idea of
legislative prescription in the expression used in Article 21. By, adopting the phrase
‘procedure established by law’ the Constitution gave the legislature the final word to
determine the law.

Reference to Constituent Assembly Debates and Report of Drafting Committee

while constructing provisions of Constitution

(i) Per H.J. Kania, CJ., it is improper to examine the individual viewpoints of
members of Parliament or the Convention when interpreting a specific provision.
However, a reference to the discussions may be acceptable for determining whether
a certain word or expression was ever available for consideration.

(ii) Per M. Patanjali Sastri, J., speeches made during the course of the debates on
bill should not be taken into account for interpreting and constructing the provision of
the Act.

(iii) Per B.K. Mukherjea, J., in construing the Constitution it is better to leave out of
account the debates in the Constituent Assembly, but a higher value may be placed
on the report of the Drafting Committee.

Dissenting opinion by Justice Fazl Ali

(i) It cannot be said that Articles 19, 20, 21 and 22 of Constitution do not to some
extent overlap each other.

(ii) The case of a person who is convicted of an offence will come under Articles 20
and 21 and also under Article 22 of Constitution so far as his arrest and detention in
custody before trial are concerned.
(iii) Preventive detention, which is dealt with in Article 22 of Constitution, also
amounts to deprivation of personal liberty which is referred to in Article 21.

(iv) Article 19(1)(d) of Constitution guarantees the right of freedom of movement in its
widest sense. Freedom of movement is the essence of personal liberty. The right
guaranteed under this Article is really a right to personal liberty and preventive
detention is a deprivation of that right.

(v) The juristic conception that personal liberty and freedom of movement connote
the same thing is the correct and true conception. The words used in Article 19(1)(d)
of Constitution must be construed according to this universally accepted legal
conception.

(vi) The law of preventive detention is subject to such limited judicial review as is
permitted under Article 19(5) of Constitution. The scope of the review is simply to
see whether any particular law imposes any unreasonable restrictions. Considering
that the restrictions are imposed on a most valuable right, there is nothing
revolutionary in the legislature trusting the Supreme Court to examine whether an
Act which infringes upon that right is within the limits of reason.

(vii) The phrase ‘procedure established by law’ as in under Article 21 of Constitution

should be interpreted liberally.

(viii) Per Sir Saiyid Fazl Ali, J., the correct position is that Article 22 of Constitution
must prevail in so far as there are specific provisions therein regarding preventive
detention. But, where there are no such provisions in that article, the operation of
Articles 19 and 21 of Constitution cannot be excluded. The mere fact that different
aspects of the same right have been dealt with in three different articles will not
make them mutually exclusive.

Conclusion:

(i) Preventive Detention Act, 1950, with the exception of Section 14 thereof
did not contravene any of the Articles of the Constitution.
(ii) Section 14 of the Preventive Detention Act, 1950 was ultra rites inasmuch
as it contravened the provisions of Article 19(5) of the Constitution.
 (iii) Personal liberty would primarily mean liberty of the physical body.
(iv) Section 14 of the Preventive Detention Act, 1950 was severable from the
remaining provisions of the Act. The invalidity of Section 14 of the
impugned Act did not affect the validity of the Act as a whole, and the
detention of the petitioner was not illegal.
(v) Articles 19 and 21 of the Constitution have no connection to one another
because Article 21 protects against the loss of personal freedom.

Important Precedents:

(i) Machindar Shivaji Mahar v. The King

(ii) Rex v. Halliday
(iii) Westervelt v. Gregg
(iv) Bardwell v. Collins
(v) Sambhu Nath Sarkar v. The State Of West Bengal And Others,
MANU/SC/0163/1973
(vi) Bachan Singh v. State of Punjab MANU/SC/0055/1982
(vii) Ashok Kumar Gupta and Anr. v. State of U.P. and Ors.,
MANU/SC/1176/1997
(viii) M Nagaraj v. Union of India, MANU/SC/4560/2006
(ix) Attorney General for India and Ors. v. Amratlal Prajivandas and Ors.,
MANU/SC/0774/1994