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AIR 1950 SC 27; 1950 SCR 88; 1950 SCJ 174

Supreme Court of India

Supreme Court of India

Date of Judgement :- 19 May 1950

Judges :-

Judges :-

M. H. Kania C.J. and Saiyid Fazl Ali, M. Patanjali Sastri, Mehr Chand Mahajan, B. K. Mukherjee and S. R. Das, JJ. ; Dissenting Opinion: – Justice Fazal Ali.

Important provisions :-

Important provisions :-

PREVENTIVE DETENTION ACT, 1950 INTRA VIRES THE CONSTITUTION OF INDIA WITH THE EXCEPTION OF ITS IN SECTION 14 (PREVENTIVE DETENTION CASE)

Facts:- This was a petition by the applicant under article 32 of the m

Constitution of India for a writ of habeas corpus against his detention in the Madras jail. In the petition he had given various dates showing how he had been under detention since December 1947. He had been sentenced to imprisonment but the convictions were set aside. While he was thus under detention under one of the Orders of the Madras State Government, on 1st March, 1950 he was served with Order of the Madras State Government under section 3(1) of Preventive Detention Act, 1950. He challenged the legality of the Order as it was contended that 1950 Act contravenes the provisions of articles 13, 19 and 21 and provisions of that Act were not in accordance with article 22 of the Constitution. He had also challenged the validity of the Order on the ground that it had been issued mala fide. The burden of proving that allegation was on the applicant. Because the applicant had not disclosed the grounds supplied to him for his detention and the question of mala fides of the Order, therefore, could not be gone into under the petition.

The question of the validity of the Preventive Detention Act was argued before the Supreme Court at a great length. This was the first case in which different articles of the Constitution of India contained in the Fundamental Rights Chapter had come for discussion.

Issues:-

1. Whether the Preventive Detention Act, 1950 ultra vires Fundamental Rights under the constitution?
2. Whether the detention Act of Madras State contravene the provisions of Article 19 and 21 of the Indian Constitution?
3. Whether the State’s detention Act, 1950 provisions in accordance with Article 22 of the Indian Constitution ?
4. Whether there is any relation between Article 19 and 21 of the Constitution or they are independent in nature?

Arguments
  1. It was argued that the word “personal liberty” includes freedom of movement under Article 19(1) (d), therefore Preventive Detention must satisfy the reasonable restriction under Article 19(5) of the Constitution.
  2. It was that Article 19 also confers personal liberty as a Fundamental Right and it is being violated of the detainee by the impugned order.
  3. It was argued that Article 19 and Article 21 should be read together as implementing each other.
  4. It was argued that 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, which is procedural law.
  5. It was argued that under Article 21 ‘procedure established by law’ means ‘due process of law’ of US Constitution which includes the principle of natural justice and since the impugned law does not satisfy the requirement of due process of law, therefore it is an invalid law.
Judgement:-
Majority Judgement Rejecting the contentions of AK Gopalan, the majority bench held that the ‘personal liberty’ which is enumerated under Article 21 of the Constitution means nothing more than the liberty of the physical body, that is freedom from arrest and detention without the authority of law.   According to Prof. Dicey, Personal liberty means freedom from physical restraint and coercion which is not authorised by law.   The word ‘liberty’ is a very comprehensive word and if interpreted it is capable of including the rights mentioned under Article 19. The court narrowed down the meaning of ‘personal liberty’ as it is given under English law.   Article 21 is a guarantee against deprivation (total loss) of personal liberty while Article 19 affords protection against unreasonable restriction (which is only partial control). Freedom guaranteed by Article 19 can be enjoyed by a citizen only when he is a freeman and not if his personal liberty is deprived under a valid law.   Court went on to enumerate that ‘procedure established under law’ is not as same as ‘due process of law’ under US Constitution. The word law interpreted by the US Supreme Court does not allow the same interpretation of the law under Article 21.   This is clear from the Drafting Committee of the Constitution in the respect of Article 21, that the Constituent Assembly formerly used the term ‘due process of law’ and later dropped it in the favour of ‘procedure established by law’. The expression ‘procedure established by law’ must mean procedure prescribed by the law of the State.   The interpretation put on the ‘due process of law’ by the US Supreme Court has been characterized as of utmost vagueness. If the Constitution-makers wanted to preserve in India the same protection as given in the US Constitution, there was nothing to prevent the Constituent Assembly from adopting that phrase.   The Prevention of detention Act followed the valid procedure, as it is enacted by State legislation, therefore the Act does not infringe Article 21 and 22 of the Constitution. Therefore, the said act was held valid and the court dismissed the writ petition.  
Minority Judgement Justice Fazal Ali in his dissenting judgement held that the Act was liable to be challenged as violating Article 19. He gave wide and comprehensive meaning to the word ‘personal liberty’ as consisting of freedom of movement and locomotion. Therefore, any law which deprives the person of his personal liberty must satisfy the requirements of Article 19 and 21.
Held:-
  • The Preventive Detention Act, 1950 was intra vires the Constitution of India with the exception of section 14 which is illegal and ultra vires.
  • The validity of section 14 does not affect the rest of the provisions in the Act. Section 12 of the Act also does not conform to the provisions of the Constitution of India and is therefore ultra vires.
  • that article 21 is applicable to preventive detention and Preventive Detention Act, 1950 permits detention beyond a period of three months and excludes the necessity of consulting an Advisory Board if the opening words of clause (7) of article 22 are complied with sub-clause (b) of said article is permissible. It is not obligatory on the Parliament to prescribe any maximum period.
Analysis of the Judgement / Conclusion:- A.K. Gopalan v. State of Madras, AIR 1950 SC 27, was a landmark decision of the Supreme Court of India in which the Court ruled that Article 21 of the Constitution did not require Indian courts to apply a due process of law standard. In doing so, the Court upheld the validity of the Preventive Detention Act, 1950, with the exception of Section 14, which provided that the grounds of detention communicated to the detainee or any representation made by him against these grounds cannot be disclosed in a court of law. In the AK Gopalan case, the Court had interpreted Article 21 extremely literally and went on to affirm that the expression procedure established by law meant any procedure which was laid down in the statute by the competent legislature that could deprive a person of his life or personal liberty.   It is however in the case of Maneka Gandhi v. Union of India, 1978 in the year 1977 that the dissenting opinion of Justice Fazal Ali was upheld. Apex Court held that the reasonableness of the procedure established by law should be reviewed by the court so that it is reasonable, just and fair and is free from any arbitrariness. Justice Bhagwati held that the expression ‘personal liberty’ in Article 21 has the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19.