Citation: 1950 SCR 88
Case Type: Writ Petition
Case No: 13 of 1950
Petitioner- A.K. Gopalan
Respondents- The State of Madras
Decided On: 19/05/1950
Statues Referred:
- Constitution of India
- The Preventive Detention Act, 1950.
Bench:
KANIA, HIRALAL J. (CJ) FAZAL ALI, SAIYID SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN MUKHERJEA, B.K.
Facts:
The petitioner A.K. Gopalan was detained under the Preventive Detention Act 1950.
The petitioner applied under Article 32 of the Constitution for a writ of habeas corpus for his release from detention.
The petitioner challenged the Act as violating the fundamental rights enumerated in Part III of the constitution and that it was in conformity with Article 22 of the Constitution of India.
Issue:
Whether the Preventive Detention Act, 1950 as a whole was ultra vires of the Constitution or that only Section 14 of the Act, was ultra vires.
Whether the detention of the petitioner was legal.
Whether Article 19-22 of the Constitution applied to the Preventive Detention Act, 1950.
Contention by the petitioner:
The petitioner contented that the Preventive Detention Act, 1950 breached the fundamental rights as guaranteed to every citizen by Article 19(1). It did not satisfy the test of Article 19(2) to (6).
The petitioner’s right to “personal liberty” as guaranteed by Article 21 is also infringed due to impugned Act.
It was argued that Article 19(1) and Article 21 should be read together as a substantive rights to the citizen.
The requirements of Article 22(4) to (7) was not fulfilled and hence Section 3 of the Preventive Detention Act, 1950 is ultra vires. And that the order passed was with a mala fide intention.
Contention by the respondent:
The respondent argued that Section 19 and 21 should be read individually and not coordinately.
The respondent urged that in order to avoid the usage of the word “due process” the Japanese Constitution used the word “procedure established by law” and thus both the words have different meaning. Therefore it is not violative of Art. 21. To clear the doubts of ambiguity the respondent had put forward the debates of the drafting committee.
Observation/Obiter Dicta:
Hon’ble Supreme Court observed that under Article 32 it can grant relief only in respect of matters which contravene the provision mentioned in Part III of the Constitution of India.
The petitioner contented that the Preventive Detention Act,1950 violates the provision of Article 19-21 along with Article 22(4) and (7). It also infringes the Article 22(5).
Hon’ble Supreme Court was of the opinion the if the detention of the petitioner was infringing the fundamental rights enumerated under Article 19, then punitive detention under relevant provision of Indian Penal Code would also be illegal. But such construction is not possible and vague. Hence the argument about infringement of Article 19 failed and dismissed.
Hon’ble Supreme Court held that the “Personal Liberty”, under Article 21 was controlled by the “procedure established by law”. Deprivation of “Personal Liberty” cannot stand on same footing with restriction imposed on free movement within the territory of India.
The word “law” used in Article 21 only mean the law prescribed by the State. It gave the legislature the final word to determine the law.
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. The Court rejected the contention on the ground that the safeguard enumerated in Article 22(1) and (2) are excluded in the Preventive Detention Act,1950 by way of Article 22(3).
With regard to Section 14 of the Preventive Detention Act, 1950, the learned Attorney General urged that the ground of detention could not be made public which was a rule of evidence which the parliament could prescribe.
Hon’ble Court rejected the contention on the ground that the words of Article 22(5) does not permit the Government to refrain from disclosing such grounds. It was held hat Section 14 of the Act abridged the right given under Article 22 (5) and therefore ultra vires.
Hon’ble Court maintained that the impugned Act minus Section 14 of the Preventive Detention Act,1950 was intra vires. It does not infringe any provision of part III of the Constitution. The petition therefore failed and was dismissed.
Judgement:
The Apex Court’s bench comprising of Kania C.J., Patanjali Sastri, Mukherjea And Das Jj. (Fazl Ali And Mahajan Jj. dissenting) held as follows:-
“the Preventive Detention Act, 1950, with the exception of Sec. 14 thereof did not contravene any of the Articles of the Constitution and even though Sec. 14 was ultra rites in as much as it contravened the provisions of Art. 19 (5) of the Constitution, as this section was severable from the remaining sections of the Act, the invalidity of Sec. 14 did not affect the validity of the Act as a whole, and the detention of the petitioner was not illegal.”
Fazl Ali .J. stated that Preventive Detention Act,1950 contravened the rights guaranteed under Article 19 (1)(d) and that those rights needs to be interpreted coordinately and not individually.
Kania C. J ,Patanjali Sastri And Das (Mahajan dissenting.)–Article 22 does not form a complete code of constitutional safeguards relating to preventive detention.
Fazl Ali.J. and Mahajan .J. held Section 12 and 14 of the Act as contravening Article 22 of the Constitution
Rule of Law:
The majority judges of the Supreme Court held that the word “procedure established by law” does not mean “due process”. If the legislature intended to give it a similar meaning then the framers of the constitution would have expressly provided it.
The law over here only means the abstract law and not the enacted law. The legitimacy of any law can be recognised based upon the principle of natural justice.
Conclusion:
This landmark judgement was an attempt to expound the newly made constitution to the people of free India. In the interest of the public in general the detention law was preventive and hence is not subject to the test of reasonableness.
But however, the dissenting judgement was later on accepted by the apex court in Maneka Gandhi case in 1977 where the court held that the test of reasonableness of procedure established by law must be reviewed to do away with arbitrariness.
Kaushal Agarwal.
