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Whether the Preventive Detention Act, 1950 is ultra virus to Article 13, Article 19, Article 21, and Article 22 of constitution

CASE BRIEF

A.K. Gopalan

Vs

The State of Madras

1950 AIR 27

Petitioner – A.K. Gopalan

Respondent – The State of Madras

Intervener – Union of India

Decided on: 19.05.1950

Statutes referred:

  1. The Preventive Detention Act, IV of 1950 – Section 7, Section 8, Section 10, Section 12, Section 14.
  2. Constitution of India, 1950 – Article 13, Article 19, Article 19(5), Article 21, Article 22, Article 32.

Facts:

  1. This is a petition by the applicant A.K. Gopalan (Ayillyath Kuttiari Gopalan) a communist leader, under article 32(1) of the Constitution of India for a writ of habeas corpus against his detention in the Madras Jail.
  2. The petitioner, who was already under the custody of the Superintendent, Central Jail, Cuddalore, was served with an order of detention under section 3 (1) of the Preventive Detention Act, 1950 (Act IV of 1950) on the 27th February 1950.
  3. Under the ordinary Criminal Law he was sentenced to terms of imprisonment but those convictions were set aside.
  4. It was said in the order that the Governor of Madras was satisfied that it was necessary to make the order with a view to preventing him from acting in any manner prejudicial to the security of the State and the maintenance of public order.
  5. Due to the penal provisions of section 14 of the impugned Act the applicant has not disclosed the grounds, supplied to him, for his detention and the question of mala fides of the order therefore cannot be gone into under this petition
  6. He challenges the legality of the order as it is contended that Act IV of 1950 contravenes the provisions of articles 13, 19 and 21 and the provisions of that Act are not in accordance with article 22 of the Constitution. He has also challenged the validity of the order on the ground that it is issued mala fide. 

Issues:

  1. Whether the Preventive Detention Act, 1950 is ultra virus to Article 13, Article 19, Article 21, and Article 22 of constitution.
  2. Whether the act passed by Parliament conforms to the standard of ‘procedure established by law’ as laid down in Article 21 of the constitution.

Contentions by parties:

  • Petitioner’s arguments :
  1. The contention of the petitioner is that the impugned legislation abridges or infringes the rights given by articles 19-21 and is also not in accordance with the permissive legislation on preventive detention allowed under articles 22 (4) and (7) and in particular is an infringement of the provisions of article 22(5) 
  2. It was contended on his behalf that the rights specified in article 19 (1) (a), (b),(c), (d), (e) and (g) have been infringed. It was also argued that because of his detention, he cannot have a free right to speech as and where he desired and the same argument was urged in respect of the rest of the rights mentioned in sub-clauses (b), (c), (d), (e) and (g). 
  3. It was next urged that the right given by article 19 (1) (d) is left untouched. The Act under which petitioner has been detained deprives him who is a citizen of the Republic of India of the right to move freely throughout the territory of India, which is guaranteed under article 19 (1) (d), and (2) that under clause (5) of article 19.It was argued that by the confinement of the petitioner under the preventive detention order, his right to move freely throughout the territory of India is directly abridged and 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).
  4. It was urged that the words “territory of India” in article 19 (1) (d) may be treated as superfluous, and preventive detention would thus be an abridgement of the right to move freely.
  5. The provisions of the impugned Act already referred to were ultra vires and inoperative as Parliament in enacting them has overstepped the limitations placed on its legislative power by article 22 clauses (4) to (7).
  6. It was argued that section 11 of the impugned Act was invalid as it permitted the continuance of the detention for such period as the Central Government or the State Government thought fit. 
  7.  Section 14 was strongly attacked on the ground that it violated all principles of natural justice and even infringed the right given by article 22 (5) of the Constitution.
  8. It was contended that the rights declared by article 19 are the rights of a free citizen and 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.
  9. It was pointed out in the course of the arguments that preventive detention not only takes away the right in article 19 (1) (d) but also takes away all the other rights guaranteed by article 19 (1), except the right to hold, acquire and dispose of property. 
  10. The learned counsel for the petitioner strongly contended that the expression “procedure established by law” is used in a much wider sense and approximates in meaning to the expression “due process of law” as interpreted by the Supreme Court of America in the earliest times.
  11. The petitioner had a fundamental right under article 21 not to be deprived of his personal liberty except according to procedure established by law, and the impugned Act by authorising detention otherwise than in accordance with proper procedure took away that right and was therefore void.
  12. Mr. Nambiar turned his attack on section 14 which prohibits the disclosure of the grounds of detention communicated to the person detained.The petitioner complains that this provision nullifies in effect the rights conferred upon him under clause (5) of article 22 which entitles him to have the grounds of his detention communicated to him and to make a representation against the order. 
  13.  It was contended that the law had not provided a personal hearing to the petitioner before an advisory board, nor had it given him a right to lead evidence to establish his innocence
  • Respondent’s Arguments
  1. It was argued that article 19 and article 21 should be read together.. 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. 
  2. It was further argued that the meaning of the word “law” it was argued that it meant principles of natural justice.
  3. It is also argued that since preventive detention amounts to a total deprivation of freedom of movement, it is not a violation of the right granted under article 19 (1)(d) in regard to which the word “restriction” and not “deprivation” has been used in clause (5). 
  4. It was put forward that article 22 is a code by itself and the whole law of preventive detention is to be found within its four corners. 
  5. The combined effect of clauses (4) and (7) was that no person could be detained for a period over three months without obtaining the opinion of an advisory board that there was sufficient cause for detention for the longer period, except in cases where Parliament passed a law authorising detention for such period even without the opinion of an advisory board. 
  6. It was, however, urged that on matters on which the aforesaid article had made no special provision on this topic, the other provisions of Part III of the Constitution had application, namely, articles 10 and 21 and to that extent laws made on this subject were justiciable.
  7. It was argued that it was neither practicable nor possible to make a classification on any definite basis in the case of apprehended acts of persons whose activities are of a prejudicial character to the maintenance of public order or to the security of the State or to the defence of India. 
  • Intervener’s Arguments
  1. 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.
  2. The Attorney-General urged that the whole object of the section was to prevent ventilation in public of the grounds and the representations, and that it was a rule of evidence only which the Parliament could prescribe.
  3. The learned Attorney-General contended before us that the word “law” which is used in article 21 means State-made law or law enacted by the State.
  4. The Attorney-General further submitted that, article 21 is a protection against violation of the rights by the executive and by individuals, and that would be sufficient justification for the article ranking as a fundamental safeguard. 
  5. The learned Attorney-General contended that article 21 did not apply to preventive detention at all, as article 22 clauses (4) to (7) formed a complete code of constitutional safeguards in respect of preventive detention, and, provided only these provisions are conformed to, the validity of any law relating to preventive detention could not be challenged. 
  6. Lastly, the Attorney-General said that if the other provisions of the Act were held to be valid, it would not be open to the Court to examine the sufficiency of the grounds on which the executive authority was “satisfied” that detention was necessary, as laid down in Machindar Shivaji Mahar v. The King, and so the petitioner could not complain of any infringement of his rights by reason of section 14 which enacted only a rule of evidence

Judgement :

The Apex Court’s bench comprising of Kania CJ., Fazl Ali, Patanjali Sastri, Mahajan, Mukherjhea and Das JJ held the following:

  1. Section 14 of the Preventive Detention Act, 1950, contravenes the provisions of 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 or the representation made by him against the order of detention, and is to that extent ultra vires and void.
  2. The Preventive Detention Act, 1950, with the exception of Sec.14 thereof did not contravene any of the Articles of the Constitution.
  3. Article 19 of the Constitution has no application to a law which relates directly to preventive detention even though as a result of an order of detention the rights referred to in sub-clause. (a) to (e) and(g) in general, and sub-clause (d) in particular, of clause (1) of Article 19 may be restricted or abridged; and the constitutional validity of a law relating to such detention cannot therefore, be judged in the light of the test prescribed in clause (5) of the said Article.
  4. Article 19 (1) postulates a legal capacity to exercise the rights guaranteed by it and if a citizen loses the freedom of his person by reason of lawful detention as a result of a conviction for an offence or otherwise he cannot claim the rights under sub-clause. (a) to (e) and (g) of Article 19(1). The rights under sub-clause (a) to (e) and (g) end where lawful detention begins and therefore the validity of Preventive detention Act cannot be judged by Article. 19 (5).
  5. Whatever be the precise scope of Article 19 (1) (d) and Article 19(5), the provisions of Article 19(5) do not apply to a law relating to preventive detention, in as much as there is a special self-contained provision in Article 22 regulating it.
  6. Preventive detention is a direct infringement of the right guaranteed in Article 19 (1) (d), even if an arrow construction is placed on the said sub-clause, and a law relating to preventive detention is therefore subject to such limited judicial review as is permitted by Article 19(5).
  7. The concept of the right “to move freely throughout the territory of India” referred to in Article 19 (1) (d), of the Constitution is entirely different from the concept of the right to “personal liberty” referred to in Article. 21, and Article. 19 should not, therefore, be read as controlled by the provisions of Article. 21. The view that Article. 19 guarantees substantive rights and Article 21 prescribes the procedure is incorrect.
  8. Article19 protects some of the important attributes of personal liberty as independent rights and the expression “personal liberty” is used in Article 21 as a compendious term including within the meaning all varieties of rights which go to make up the personal liberties of men.
  9. One of the objects of preventive detention is to restrain a person detained from moving from place to place so that he may not spread disaffection or indulge in dangerous activities in the places he visits. The same consideration applies to the cases of persons who are interned or externed. Hence, externment, interment and certain other forms of restriction on movement have always been treated as kindred matters belonging to the same group or family, and the rule which applies to one must necessarily apply to the others.
  10. Even assuming 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.
  11. Article.22 does not form an exhaustive code by itself relating to preventive detention. Parliament can make further provisions and if it has done so Article. 19 (5) may be applied to see if those provisions have transgressed the bounds of reasonableness.
  12. There is nothing revolutionary in the view that “procedure established by law “must include the four principles of elementary justice which inhere in and are at the root of all civilized systems of law, and which have been stated by the American Courts and jurists as consisting in (1) notice, (2) opportunity to be heard, (3) impartial tribunal and (4) orderly course of procedure. These four principles are really different aspects of the same right, namely, the right to be heard before one is condemned. Hence the words “procedure established by law “, whatever its exact meaning be, must necessarily include the principle that no person shall be condemned without hearing by an impartial tribunal.
  13. Section 3 of the Preventive Detention Act, 1950, does not delegate any legislative power to an executive officer but merely confers on such officer a discretion to enforce the law made by the legislature, and is not therefore invalid on this ground. The fact that the section does not provide an objective standard for determining whether the requirements of law have been complied with, is not a ground for holding that it is invalid.
  14. Section 3 is however a reasonable provision only for the first step, i.e., for arrest and initial detention and must be followed by some procedure for testing the so-called subjective satisfaction, which can be done only by providing a suitable machinery for examining the grounds on which the order of detention is made and considering the representations of the persons detained in relation to those grounds.
  15. Section 7 of the said Act is not invalid merely because it does not provide for an oral hearing or an opportunity to lead evidence but only gives right to make a representation. Right to an oral hearing and right to give evidence are not necessarily implied in the right to make a representation given by Article 22
  16. The provision contained in Sec. 11 that a person may be detained for such period as the State thinks fit does not contravene Article. 22 (7) and it is not therefore invalid.
  17. Article 22 (7) means that Parliament may prescribe either the circumstances under which, or the class or classes of cases in which, a person may be detained for a period longer than three months without reference to an advisory board. It is not necessary that the Parliament should prescribe both. The matters referred to in clauses (a) and (b) of sub-section. (1) of Sec.12 constitute a sufficient description of such circumstances or classes of cases and Section 12 is not therefore open to the objection that it does not comply with Article. 22 (7)
  18. Parliament has in act and substance prescribed both in clauses (a) and (b) of sub-sec. (1) of Sec. 12.
  19. Article 22 (7) means that both the circumstances and the class or classes of cases (which are two different expressions with different meanings and connotations) should be prescribed, and the prescription of one without the other will not be enough. The enumeration of the subjects for reasons connected with which a law of Preventive detention could be made contained in clause. (a) and(b) of sub-see. (1) Of Sec.12 does not amount to prescribing the circumstances under which, or the class or classes of cases in which, a person can be detained for more than three months.
  20. While it is not proper to take into consideration the individual opinions of members of Parliament or Convention to construe the meaning of a particular clause, when a question is raised whether a certain phrase or expression was up for consideration at all or not, a reference to the debates may be permitted.
  21. In construing the provisions of an Act, speeches made in the course of the debates on the bill should not be taken into consideration.
  22. In construing the Constitution it is better to leave out of account the debates in the Constituent Assembly, but a higher value maybe placed on the report of the Drafting Committee.

Cases referred :

  1. Municipal council of Sydney v The Commonwealth 1904 1 Com LR 208
  2. Administrator General of Bengal v Premlal Mullick 1895 LR 22 IA 107
  3. The King v Military Governor of the Hair Park Camp 1924 2 Irish
  4. Eshugbayi Eleko v Officer Administering the Government of Nigeria 1931 ACC 62 at 670
  5. James v Commonwealth of Australia 1936 AC 578 AT 614
  6. Attorney General of New South Wales v Brewery Employees union 1908 6 Com LR 469
  7. Liversidge v Anderson 1942 AC 206
  8. Machinder Shivaji Mahar v King 1949-50 FCR 827

Constitutions referred :

  1. Japanese constitution ( Article 31 )
  2. Irish Constitution (Article 6)
  3. American constitution
  4. Canadian Constitution
  5. Australian Constitution

Rule of law :

The provision of the law which was under scrutiny by the Hon’ble Apex court of India was regarding the words “procedure established by law” laid down in Article 21 of Indian Constitution: No person shall be deprived of his life or personal liberty except according to procedure established by law.

Conclusion :

As the result, the application fails and is dismissed. This is the first case in which the Court has been called upon to determine how far the Constitution has secured personal liberty to the citizens of this country.

The Supreme Court in Maneka Gandhi v. Union of India (1978) case reversed its stand that it took in A K Gopalan case. In this case, the Court conceived of the Fundamental Rights as a cohesive bill of rights rather than a miscellaneous grouping of constitutional guarantees.