SUBJECT- Interpretation of Statutes

TOPIC:- A.k.Gopalan vs. State of Madras, AIR 1950, SC 27

SOURADEEP RAKSHIT

NAME: BINESH KUMAR PRASAD

ROLL NO: 08
COURSE: LLB 3YEAR
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Indian Institute of Legal Studies

Interpretation of Statutes

IN THE HON’BLE SUPREME COURT

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

A.K. GOPALAN

V.

STATE OF MADRAS

MEMORIAL SUBMITTED ON BEHALF OF THE PETITIONER

COUNSEL APPEARING ON BEHALF OF

A.K. GOPALAN
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CONTENT

LIST OF ABBREVIATIONS

INDEX OF AUTHORITIES

LEGISLATION

CASE REFFERRED

BOOKS REFFERRED

LEGAL DATABASES

STATEMENT OF JURISDICTION

STATEMENT OF FACTS

ISSUES RAISED

SUMMARY OF PLEADINGS

PLEADINGS

I. Whether the order passed by the Government of Madras under the

Preventive Detention Act, 1950 is in contravention to the Indian
constitution, 1950.
II. Whether the fundamental rights of Mr. A.K. Gopalan are violated as under
article 19, 21, 22 as provided by the Indian Constitution Act, 1950.
III. Whether the Preventive Detention Act, 1950 is violating the Indian
Constitution, 1950.

PRAYER
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LIST OF ABBREVIATION

AIR All India Reporter

Art. Article

Anr Another

Ed. Edition

Hon’ble Honourable

Ors. Others

S. Section

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

Vs. Versus

Vol. Volume
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INDEX OF AUTHORITIES

LEGISLATION

THE CONSTITUTION OF INDIA, 1950

PREVENTIVE DETENTION ACT, 1950.

BOOKS REFERRED

Dr. J.N. Pandey, THE CONSTITUTIONAL LAW OF INDIA, (54th ed., 2017).

LEGAL DATABASES

www.manupatra.com

www.indiankanoon.org

www.juris.quora.com

www.scribd .com

www.lawyerservices.in
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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of India has the jurisdiction to hear the instant matter under the
Article 32 of the constitution of India, 1950.

Article 32 of the Constitution of India, 1950 states:

Remedies for enforcement of rights conferred by this part

Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever
may be appropriate, for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution
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STATEMENT OF FACTS

1. That Mr. A.K. Gopalan a Communist Leader was under detention in jail of Madras since
1947. 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.
2. That he was thus under detention under one of the orders of the Madras State
Government, on 1st March, 1950 he was served with an Order of the Madras State
Government under section 3(1) of Preventive Detention Act,1950.

A. CASE CONCERNING VIOLATION OF FUNDAMENTAL RIGHTS:

3. That it is guaranteed by The Indian Constitution, 1950 under article 13, that any law
made in contravention to the Indian Constitution would be declared as null and void or
else required provisions to be amended.
4. That Fundamental are guaranteed by the Constitution of India from article 12 to 35.
5. That the Power exercised by the State Government of Madras under Section 3(1) of the
Preventive Detention Act, 1950 is a violation to Article 19, 21 and 22 of the Indian
Constitution 1950
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ISSUES RAISED

ISSUE I

WHETHER THE ORDER PASSED BY THE GOVERNMENT OF MADRAS UNDER

THE PREVENTIVE DETENTION ACT, 1950 IS IN CONTRAVENTION TO THE
INDIAN CONSTITUTION, 1950.

ISSUE II

WHETHER THE FUNDAMENTAL RIGHTS OF MR. A.K. GOPALAN ARE

VIOLATED AS GIVEN UNDER ARTICLE 19, 21, 22 WHICH IS PROVIDED IN PART
III BY THE INDIAN CONSTITUTION ACT, 1950.

ISSUE II

WHETHER THE PREVENTIVE DETENTION ACT, 1950 IS VIOLATING THE

INDIAN CONSTITUTION, 1950.
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SUMMARY OF PLEADINGS

I. WHETHER THE ORDER PASSED BY THE GOVERNMENT OF MADRAS

UNDER THE PREVENTIVE DETENTION ACT, 1950 IS IN CONTRAVENTION
TO THE INDIAN CONSTITUTION, 1950.

It is humbly submitted that the order passed by the State Government is in contravention
to the Constitution of India as it violates several provisions of Part III of the Constitution.

II. WHETHER THE FUNDAMENTAL RIGHTS OF MR. A.K. GOPALAN ARE

VIOLATED AS GIVEN UNDER ARTICLE 19, 21, 22 WHICH IS PROVIDED IN
PART III BY THE INDIAN CONSTITUTION ACT, 1950.

It is humbly submitted that the order passed by the State Government violates the
Fundamental rights of Mr. A.K. Gopalan as guaranteed by Part III of the Constitution of
India and exclusively under Articles 19, 21 and 22. Thus the order passed by the State
Government is in contravention of the Indian Constitution Act, 1950. As the powers
given under Section 3(1) has been misused to take away the Fundamental Rights
guaranteed by the Indian Constitution, 1950 which in itself is a violation.

III. WHETHER THE PREVENTIVE DETENTION ACT, 1950 IS VIOLATING THE

INDIAN CONSTITUTION, 1950.

The act in itself is in violation to the Indian Constitution of India, 1950 as the prime
purpose of the Act is to stop a person from doing an act and can be detained just for
thinking about it which is provided in the Indian Penal Code, 1860 that a person cannot
be convicted just for thinking about the crime. A person should only be detained if he is
caught preparing for any crime or id doing it and not just for the satisfaction of the
executive without any reasonable cause or notice.
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PLEADINGS

1. WHETHER THE ORDER PASSED BY THE GOVERNMENT OF MADRAS UNDER

THE PREVENTIVE DETENTION ACT, 1950 IS IN CONTRAVENTION TO THE
INDIAN CONSTITUTION, 1950.

It is humbly submitted that the order passed by the State Government is in contravention
to the Constitution of India as it violates several provisions of Part III of the Constitution
and the Act itself is Ultra virus and not in consistent with the Constitution of India.

1.1 Contravention of the Order passed by the Government of Madras.

It is humbly submitted before the Hon’ble Supreme Court that the order passed by the
Madras Government is in contravention to the Indian Constitution as it violates the
general fundamental rights guaranteed to an individual against his wrongful detention
only on the satisfaction of the executive that a person can be detained for a crime a
person only thought for and never worked or acted upon it was the strategy of the
Britishers that they wound detain any person wrongfully if they think that a person can be
harmful to them.
It is against the natural theory of law as well as against the Indian Constitution thus the
order passed by the State Government should be nullified as no charges against the
convicted are ever proved and has been wrongfully detained since 1947.
All his convictions were set aside in the past but again on the enactment of this Act he is
being wrongfully detained just he is the Leader of the Communist Party.
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2. WHETHER THE FUNDAMENTAL RIGHTS OF MR. A.K. GOPALAN ARE

VIOLATED AS GIVEN UNDER ARTICLE 19, 21, 22 WHICH IS PROVIDED IN
PART III BY THE INDIAN CONSTITUTION ACT, 1950.

It is humbly submitted that the order passed by the State Government violates the
Fundamental rights of Mr. A.K. Gopalan as guaranteed by Part III of the Constitution of
India and exclusively under Articles 19, 21 and 22. Thus the order passed by the State
Government is in contravention of the Indian Constitution Act, 1950. As the powers
given under Section 3(1) has been misused to take away the Fundamental Rights
guaranteed by the Indian Constitution, 1950 which in itself is a violation.

2.1 Breach of Fundamental Rights

The order that was passed by the State Government is a breach to toh fundamental rights
as guaranteed by the Indian Constitution, 1950 as the Powers conferred under Section 3(1)
of the over rides the Part III of the Constitution as it takes away the Fundamental Rights of
the person who is wrong fully or detained on unreasonable grounds.

2.2 The order is violates the Fundamental Rights as given under article 19.
The order passed by the State Government contravenes the article 19 of the Indian
Constitution which guarantees every citizen of the Country some fundamental rights such
as:-
1) All citizens shall have the right—
(a) To freedom of speech and expression;
(b) To assemble peaceably and without arms;
(c) To form associations or unions [or Co-operative societies];
(d) To move freely throughout the territory of India;
(e) To reside and settle in any part of the territory of India;
(g) To practice any profession, or to carry on any
Occupation, trade or business
Thus if a person is detained wrongfully then that person whose conviction is not proved
will be deprived of his fundamental rights as guaranteed by our own Constitution.
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2.3 Violation of Article 21 (Protection of life and personal liberty)

That the fundamental right granted under article 21 which states that the person has a right
to life and personal liberty which means every person has a right to live with his own
liberty and cannot be convicted on unreasonable ground as that would takle away the
liberty so such person as in the instant case the petitioner is a victim of the act that has
been passed in the parliament and giver wrongful power to the executive to act on their
own cause and without any reasonable justification.
Although all the charges against the petitioner has been set aside which wese imposed
upon him since 1947 and was detained without any reason and as of the new order
released by the State Government takes the right of Protection of life and personal liberty
which has been guaranteed by the Indian Constitution Itself and the acts of the law makers
are not justified in this regard.

2.4 Violation of Article 22 of the Constitution.

Article 22 provides that:-
No person who is arrested shall be detained in custody without being informed, as soon as
may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice.
Every person who is arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty-four hours of such arrest excluding the time
necessary for the journey from the place of arrest to the court of the magistrate and no
such
person shall be detained in custody beyond the said period without the authority of a
magistrate.
Nothing in clauses (1) and (2) shall apply—
(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law providing for preventive
detention.
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No law providing for preventive detention shall authorize the detention of a person for a
longer period than three months unless—
(a) An Advisory Board consisting of persons who are, or have been, or are qualified to be
appointed as, Judges of a High Court has reported before the expiration of the said period
of three months that there is in its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorize the detention of any person
beyond the maximum period prescribed by any law made by Parliament under sub-clause
(b) of clause (7); or
(b) such person is detained in accordance with the provisions of any law made by
Parliament under sub-clauses(a) and (b) of clause (7).
When any person is detained in pursuance of an order made under any law providing for
preventive detention, the authority making the order shall, as soon as may be,
communicate to such person the grounds on which the order has been made and shall
afford him the earliest opportunity of making a representation against the order.
Nothing in clause (5) shall require the authority making any such order as is referred to in
that clause to disclose facts which such authority considers to be against the public interest
to disclose.
Parliament may by law prescribe—
The circumstances under which, and the class or classes of cases in which, a person may
be detained for a period longer than three months under any law providing for preventive
detention without obtaining the opinion of an Advisory Board in accordance with the
provisions of sub-clause (a) of clause (4);
The maximum period for which any person may in any class or classes of cases be
detained under any law providing for preventive detention; and
The procedure to be followed by an Advisory Board in an inquiry under [sub-clause (a) of
clause (4)].

But no such clauses applicable as a leave to the Petitioner and was detained wrongfully for
which we moved to the Supreme Court.
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He had been detained by the Government from 1947 but none of the relief was provided to
him ss guaranteed in Article 22 of the Indian Constitution rather a new order was released
that he would be further detained for no reason.

3. WHETHER THE PREVENTIVE DETENTION ACT, 1950 IS VIOLATING THE

INDIAN CONSTITUTION, 1950.

It is humbly submitted that Article 13 of the Indian Constitution Provides that:-

(1) All laws in force in the territory of India immediately before the commencement of
this Constitution, in so far as they are inconsistent with the provisions of this Part,
shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred
by this Part and any law made in contravention of this clause shall, to the extent of the
contravention, be void.
(3) In this article, unless the context otherwise requires,—
(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification,
custom or usage having in the territory of India the force of law;
(b) “laws in force” includes laws passed or made by a Legislature or other competent
authority in the territory of India before the commencement of this Constitution
and not previously repealed, notwithstanding that any such law or any part thereof
may not be then in operation either at all or in particular areas.

Thus the Preventive and Detention Act, 1950 is inconsistent with the Indian Constitution Act,
1950 as it infringes the fundamental rights of any person which is guaranteed by the constitution
itself as according to the act any executive who thinks that any person if thinking of doing
something evil can be detained on the will of the executive which is a violation to the
Fundamental Rights.
As also provided in The Indian Penal Coce,1860 that no man can be punished for Mens-rea but
there has to b actus-reus i.e. he need to act or must be working on the evil thought to be
convicted and detained.
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PRAYER

IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND AUTHORITIES

CITED, THE COUNSEL FOR PETITIONER HUMBLY PRAYS THAT THE HON‟BLE HIGH
COURT BE PLEASED:

A. TO DECLARE THAT THE ORDER PASSED BY THE GOVERNMENT OF STATE

OF MADRAS IS NULL AND VOID.

B. TO CANCEL THE ORDER PASSED BY THE STATE GOVERNMENT.

C. TO DECLARE THAT THE PROVISIONS OF THE PREVENTIVE DETENTION ACT,

1950 IS VIOLATIVE TO THE INDIAN CONSTITUTION.

D. TO DECLARE THAT THE PREVENTIVE DETENTION ACT, 1950 IS

INCONSISTENT TO THE INDIAN CONSTITUTION.

AND/OR

PASS ANY ORDER THAT THIS HON‟BLE COURT MAY DEEM FIT IN THE
INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

AND FOR THIS ACT OF KINDNESS, THE COUNSELS FOR

THE PETITIONER AS IN DUTY BOUND

SHALL EVER PRAY.

COUNSEL FOR THE PETITIONERS