ADMINISTRARIVE LAW – MEMORANDUM

A.K.GOPALAN VS THE STATE OF MADRS. UNION OF INDIA

19 May 1950

PETITIONER

A.K. GOPALAN

v.
RESPONDENT

THE STATE OF MADRAS.UNION OF INDIA

COUNCIL APPEARING BEHALF OF PETITIONER

V.LAKSHMI PRIYA

MEMORIAL ON BEHALF OF PETITIONER

 TABLE OF CONTENTS

S.NO HEADING PAGE NO.

1. Table of Content 1

2. Table of Abbreviations 2

3. Index of Authorities 3

4. Statement of Jurisdiction 4

5. Statement of Facts 5

6. Issued Raised 6

7. Summary of Arguments 7

8. Arguments Advanced 8
(1) Whether article 32 of Indian
constitution can be filed against the
respondent?

8
9. Prayer 12
 TABLE OF ABBREVIATIONS

* Important Note

¶/¶¶ Paragraph(s)

Sec. Section

& And

AIR All India Reporter

Anr. Another

Hon’ble Honourable

No. Number

Ors Others

P. Page

SC Supreme Court

SCC Supreme Court Cases

Vol. Volume

V Versus

Sd/- Signed
 INDEX OF AUTHORITIES

Books:
M.P. JAIN AND S.N JAIN, PRINCIPLES OF ADMINISTRATIVE LAW.

I.P. MASSEY, ADMINISTRATIVE LAW.

 STATEMENT OF JURISDICTION

The instant matter is heard in Supreme Court of India

 STATEMENT OF FACTS

A.K. Gopalan vs. The State Of Madras. Union Of India

This was a petition by the applicant under article 32 of the 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 December1947. He had been sentenced to imprisonment
but the convictions were set aside. While he was thus under detention
under 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 1 March, 1950 he was served with an 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 article13, 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.
 ISSUES RAISED
1. Whether article 32 of Indian constitution can be filed against the
respondent?
 ARGUMENTS ADVANCED
1. Whether article 32 of Indian constitution can be filed against the
respondent?

Art. 32 (1) of the Constitution of India for a writ of habeas corpus against the
detention of the appellant in the Madras jail in pursuance of an order of detention
made under the Preventive Detention Act, 1950. The material facts of the case and
arguments of counsel are set out in detail in the judgments. The relevant provisions of
the Preventive Detention Act, 1950, are printed below.

Short title, extent and duration. --This Act may be called the Preventive Detention
Act, 1950. It extends to the whole of India...

It shall cease to have effect on the 1st day of April, 1951, as respects things done or
omitted to be done before that date.

Definitions.--In this Act, unless the context other- wise requires,--

(a) "State Government" means, in relation to a Part C State, the Chief Commissioner
of the State; and

(b) "detention order" means an order made under Section 3.

Power to make orders detaining certain persons.--(1) The Central Government or the
State Government may---

(a) if satisfied with respect to any person that with a view to preventing him from
acting in any manner prejudicial to--

(i) the defence of India, the relations of India foreign power, or the security of India,
or

(ii) the security of the State or the maintenance of public order, or

(iii) the maintenance of supplies and services to the community, or

(b) if satisfied with respect to any person who is a foreigner within the meaning of
the Foreigners Act, 1946 (XXXI of 1946), that with a view to regulating his continued
presence in India or with a view to making arrangements for his expulsion from India
it is necessary so to do, make an order directing that such person be detained.

Any District Magistrate or Sub-Divisional Magistrate, or Presidency-town, the

Commissioner of Police, may, if satisfied provided in sub-clauses (ii) and (iii) of
clause
(a) of sub-section (1), exercise the power conferred by the said sub-section.

When any order is made under this section by a Dis- trict Magistrate, Sub-Divisional
Magistrate or Commissioner of Police, he shall forthwith report the fact to the State
Government to which he is subordinate together with the grounds on which the order
has been made and such other particulars as in his opinion have a bearing on the
necessi- ty for the order.

Grounds of order of detention to be disclosed to persons affected by the order.--(1)

When a person is de- tained in pursuance of a detention order, the authority making
the order shall, as soon as may be, communicate to him the grounds on which the
order his been made, and shall afford him the earliest opportunity of making a
representa- tion against the order, in a case where such order has been made by the
Central Government, to that Government, and in a case where it has been made by a
State Government or an officer subordinate thereto, to the State Government.

Confirmation of detention order.--In any case where the Advisory Board has reported
that* there is in Rs opinion suffcient cause for the detention of the person concerned,
the Central Government or the State Government. as the case may be, may confirm
the detention order and continue the detention of the person concerned for' such
period as it thinks fit. Duration of detention in certain cases.--(1) Any person detained
in any of the following classes of cases or under 'my of the following circumstances
may be detained without obtaining the opinion of an Advisory Board for a period
longer than three months, but not exceeding one year from the date of his detention,
namely, where such person has been detained wish a view to preventing him from
acting in any manner prejudicial to--

(a) the defence of India, relations of India with foreign powers or the security- of
India; or

(b) the security of a State or the maintenance of public order. * * *

14. Disclosure of grounds of detention, etc.--(1) No court shall, except for the purpose
of a prosecution for an offence punishable under sub-section (9,), allow any state-
ment to be made, or any evidence to be given. before it of the substance of any
communication made under section 7 of the grounds on which a detention order has
been made against any person or of any representation made by 'him against such
order; and notwithstanding anything contained in any other law, no court shall be
entitled to require any public officer to produce before it, or to disclose the substance
of, any such communication or representation made, or the proceedings of an
Advisory Board or that par of the report of an Advisory Board which is confidential.
(2) It shall be an offence punishable with imprisonment for term which may extend to
one year, or with fine, or with both, for any person to disclose or publish without the
previous authorisation of the Central Government or the State Government, as the
case may be, any contents or matter purporting to be contents of any such
communication or representation as is referred to in sub-section (1):

Provided that nothing in this sub-section shall apply to a disclosure made' to his legal
adviser by a person who is the subject of a detention order.
M. K. Nambiar (S. K. Aiyar and V.G. Rao, with him) for the petitioner.

K. Rajah Aiyar, Advocate-General of Madras (C. R. Pattabi Raman and R. Ganapathi,

with him) lot the State of Madras.

M.C. Setalvad, Attorney-General for India (Jindralal, with him) for the Union of
India.

1950. May 19. The following Judgments were delivered. KANIA C. J--This is a
petition by the applicant under article 32 (1) of the Constitution of India for a writ of
habeas corpus against his detention in the Madras Jail. In the petition he has given
various dates showing how he has been under detention since December, 1947. Under
the ordi- nary Criminal Law he was sentenced to terms of imprisonment but those
convictions were set aside. While he was tires under detention under one of the orders
of the Madras State Government, on the 1st of March, 1950, he was served with an
order made under section 3 (1) of the Preventive Detention Act, IV of 1950. 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 Con- stitution. He has also challenged the validity of
the order on the ground that it is issued mala fide. The burden of proving that
allegation is on the applicant. Because of 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. The question of the validity of Act IV of 1950 was argued before
us at great length. This is the first case in which the different articles of the
Constitution of India contained in the Chapter on Fundamental Rights has come for
discussion before us. The Court is indebted to the learned counsel for the applicant
and the Attorney-General for their assistance in interpreting the true meaning of the
relevant clauses of the Constitution.

In order to appreciate the rival contentions it is useful first to bear in mind the general
scheme of the Constitution. Under article 53 of the Constitution the executive power
of the Union is vested in the President and is to be exercised by him in accordance
with the Constitution either directly or through officers subordinate to him. The
legislative powers of the Union are divided between the Parliament and Legislatures
of the States. The ambit and limitations on their respective powers are found in article
246 read with article 245, Schedule VII, Lists 1,2 and 3 of the Constitution. For the
Union of India the Supreme Court is established and its powers and jurisdiction are
set out in articles 124 to 147. This follows the pat- tern of the Government of India
Act, 1935, which was the previous Constitution of the Government of India. Unlike
the American Constitution, there is no article vesting the judicial power of the Union
of India in the Supreme Court. The material points substantially altering the edifice
are first in the Preamble which declares india a Sovereign Democratic Republic to
secure to all its citizens justice, liberty and equality and to promote among them all,
frater- nity. Part III of the Constitution is an important innova- tion. It is headed
"Fundamental Rights." In that Part the word "State" includes both the Government of
the Union and the Government of the States. By article 13 it is expressly provided that
all laws in force in the territory of India, immediately before the commencement of
the Constitution, in so far as they are inconsistent with the provisions of this Part, to
the extent of such inconsistency, are void. There- fore, all laws in operation in India
on the day the Consti- tution came into force, unless otherwise saved, to the extent
they are inconsistent with this Chapter on Fundamen- tal Rights, become
automatically void. Under article 13 (2) provision is made for legislation after the
Constitution comes into operation. It is there provided that the State shall not make
any law which takes away or abridges the rights conferred by this Part and any law
made in contraven- tion of this clause shall to the extent of the contraven- tion, be
void. Therefore, as regards future legislation also the Fundamental Rights in Part III
have to be respected and, unless otherwise saved by the provisions of the Consti-
tution, they will be void to the extent they contravene the provisions of Part III.
Under article 245 (1) the legisla- tive powers conferred under article 246 are also
made "subject to the provisions of this Constitution," which of course includes Part III
dealing with the Fundamental Rights. The term law in article 13, is expressed to be
wide enough to include Acts, Ordinances, Orders, Bye-laws, Rules, Regulations and
even custom or usage having, in the territory of India, the force of law. The rest of
this Part is divided in seven divisions. "Right to Equality" is found in articles 14-18,
"Eight to Freedom" in articles 19-22, "Right against Exploitation" in articles 23 and
24, "Right to Freedom of Religion" in articles 25-28, "Cultural and Educational
Rights" in articles 29 and 30, "Right to Property" in article 31 and "Right to Constitu-
tional Remedies" in articles 32-35. In this case we are directly concerned only with
the articles under the caption "Right to Freedom" (19-22) and article 32 which gives a
remedy to enforce, the rights conferred by this Part. The rest of the articles may have
to be referred to only to assist in the interpretation of the above-mentioned arti- cles.

It is obvious that by the insertion of this Part the powers of the Legislature and the
Executive, both of the Union and the States, are further curtailed and the right to
enforce the Fundamental Rights found in Part III by a direct application to the
Supreme Court is removed from the legislative control. The wording of article
32 shows that the Supreme Court can be moved to grant a suitable relief, mentioned
in article 32 (2), only in respect of the Funda- mental Rights mentioned in Part III of
the Constitution. The petitioner is detained under a preventive detention order, made
under Act IV of 1950, which has been passed by the Parliament of India. In the
Seventh Schedule of the Constitution, List I contains entries specifying items in
respect of which the Parliament has exclusive legislative powers. Entry 9 is in these
terms: "preventive detention for reasons connected with Defence, Foreign Affairs or
the Security of India; persons subjected to such detention." List III of that Schedule
enumerates topics on which both the Union and the States have concurrent
legislative powers. Entry 3 of that List is in these terms: "Preventive detention for
reasons connected with the security of a State, the maintenance of public order or the
maintenance of supplies and services essential to the community; persons subjected to
such detention." It is not disputed that Act IV of 1950 is covered by these two Entries
in List I and List III of the Seventh Schedule. The contention of the peti- tioner is that
the impugned legislation abridges or in- fringes 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)
 PRAYER

In the light of the facts of the case, issues raised, arguments advanced and
authorities cited the Counsel humbly pray and implore before this Hon’ble
Court to adjudge and declare that:
1. The article 32 of Indian constitution can be filed against the respondent
and so, respondent is liable and so he should be punished.

And/ or pass any other order that is deemed necessary.

And for this act of kindness the Respondent in duty bound for ever shall pray.

Sd/-
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Counsel for the petitioner