Supreme Court of India

A.K. Gopalan vs The State Of Madras, Union Of ... on 19 May, 1950

Equivalent citations: 1950 AIR 27, 1950 SCR 88

Author: H J Kania
Bench: Kania, Hiralal J. (Cj)

HEADNOTE:

The petitioner who was detained under the Preventive Detention

Act (Act IV of 1950) applied under Art. 32 of the Constitution
for a writ of habeas corpus and for his release from detention,
on the ground that the said Act contravened the provisions of
Arts. 13, 19, 21 and 22 of the Constitution and was
consequently ultra rites and that his detention was therefore
illegal.

Held
That 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 vires inasmuch
as it contravened the provisions of Art. 9.9,(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.

Held, by the Full Court -Section 14 of the Preventive

Detention Act, 1950, contravenes the provisions of Art. 9.9.
(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.

--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-
cls. (a) to (e) and (g) in general, and sub-cl. (d) in
particular, of cl. (1) of Art. 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 el. (5) of the said Article.

--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-cls. (a) to (e) and (g) of Art. 19 (1);
likewise if a citizen's property is compulsorily acquired under
Art. 31, he cannot claim the right under sub-cls. (f) of Art.
19 (1) with respect to that property. In short the rights
under sub-cls. (a) to (e) and (g) end where lawful detention
begins and therefore the validity of a preventive detention
Act cannot be judged by Arc. 19 (5).

Whatever be the precise scope of Art. 19 (1) (d) and Art.19(5)

the provisions of Art. 19(5) do not apply to a law relating to
preventive detention, inasmuch as 'there is a special self-
contained provision in Art. 22 regulating it.
--Preventive detention is a direct infringement of the right
guaranteed in Art. 19 (1) (d), even if a narrow 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 Art. 19 (5).

--The concept of the right "to move freely throughout the

territory of India" referred to in Art. 19 (1) (d), of the
Constitution is entirely different from the concept of the right
to "personal liberty" referred to in Art.21, and Art. 19 should
not, therefore, be read as controlled by the provisions of Art.
21. The view that Art. 19 guarantees substantive rights and
Art. 21 prescribes the procedure is incorrect.

-Article 19 protects some of the important attributes of

personal liberty as independent rights and the expression
"personal liberty" is used in Art. 21 as a compendious term
including within its meaning all varieties of rights which go
to make up the personal liberties of men.

--Even if it be assumed that Art. 19 (1)(d) does not refer to

"personal liberty" and that it bears the restricted meaning
attributed to it, that is to say, it signifies merely the right
to move from one locality to another, preventive detention
must be held to affect this limited right of movement directly
and substantially. 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.

--Article 22 does not form a complete code of constitutional

safeguards relating to preventive detention.

To the extent that provision is made in Art. 9.9, it cannot be

controlled by Art. 9,1; but on points of procedure which
expressly or by necessary implication are not dealt with by
Art. 22, Art. 9.1 will apply.

--Art. 21 protects substantive rights by requiring a procedure

and Art. 9.9. lays down the minimum rules of procedure that
even the Parliament cannot abrogate or overlook.

Art. 99. contains a self-contained code of constitutional

safeguards relating to preventive detention and cannot be
examined or controlled by the provisions of Art. 21. The
principles underlying Art. 21 are however kept in view in Art.
22 and there is no conflict between these articles. MUKH

--Even assuming that Art. 22 is not a self-contained code

relating to preventive detention and that Art. 21 would
apply, it is not permissible to supplement Art. 22 by the
application of rules of natural justice.

--Art. 22. does not form an exhaustive code by itself relating

to preventive detention. Parliament can make further provisions
and if it has done so Art. 19 (5) may be applied to see if
those provisions have transgressed the bounds of
reasonableness.
--In Art. 9.1 the word 'law" has been used in the sense of
State-made law and not as an equivalent of law in the abstract
or general sense embodying the principles of natural justice;
and "procedure established by law" means procedure established
by law made by the State, that is to say, the Union Parliament
or the Legislatures of the States.
It is not proper to construe this expression in the light of
the meaning given to the expression "due process of law" in
the American Constitution by the Supreme Court of America.

-- "Law" in Art. 21 does not mean the jus naturale of civil law
but means positive or State-made law. "Procedure established by
law" does not however mean any procedure which may be
prescribed by a competent legislature, but the ordinary well-
established criminal procedure, i.e., those settled usages and
normal modes of procedure sanctioned by the Criminal Procedure
Code, which is the general law of criminal procedure in this
country. The only alternative to this construction, if a
constitutional transgression is to be avoided is to interpret
the reference to "law" as implying a constitutional 'amendment
pro tanto, for it is only a law enacted by the procedure
provided for such amendment that could modify or override a
fundamental right without contravening Art. 13 (2).

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.

--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.

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.

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 Art. 22.
The provision contained in Sec. 11 that a person may be
detained for such period as the State thinks fit does not
contravene Art. 22 (7) and it is not therefore invalid.

--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-see. (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
Art. 22 (7)

--Parliament has in act and substance prescribed both in

clauses (a) and (b) of sub-sec. (1) of Sec. 12.

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
els. (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.

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.

In construing the provisions of an Act, speeches made in the

course of the debates on the bill should not be taken into
consideration.

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.