19~0
May, 19.
88 SUPREME COURT REPORTS [1950)
A.K.GOPALAN
ti.
THE STATE OF MADRAS.
UNION OF INDIA : INTERVENER.
[SHRl HAluLAL KANIA C.J., SAIYID FAZL ALI,
l'ATANJALI SASTRI, MEHR CHAND MAHAJAN,
MuKHERJF:A and S. R. DAs JJ.J
Preventive Detention Act (IV of 1950), ss. 3, 7, 10-14.-VaJid
ity-Constitution of India, 1950, Arts. 13, 19 to 22, 32-Law
relating :o preventive detention-Whether infringes Fundamental
Right as to freedom of movement-Whether subject to judicial
review a. to reasonableness under Art. 19 (5)-Scope of Art. 19-
Right of free movement and Right to personal liberty, nature and
incidents of-Art. 22
1 whether complete code as to preventive detro·
tion-Scope and applicability of Art. 21-"Law," "procedure
established ·by
law,"
meanings of-Whether incluile rules of natural
justice-Construction of Art. 21-American decisions on °d«e pro.
cess of U.W,n value of-Omission to provide objective standard for
satisfaction of authorities, to pravirl< for oral hearing or leading of
evidence, to fix maximum· period of detention, and to specify "cir
cumstances" and "classes of cases" where period of detention may
be extended over 3 months, prohibiting detenu from disclosing
grounds of detention-Validity of law-Construction of Constitution
-Reference to· debates and Report of Drafting Committee
Permissibility.
The Petitioner who was detained under the Preventive
Detention Act (Act IV of 1950) applied under Art. 32 of the Con
stitution for a writ of habeas corpus and for his release from
detention, on the ground that the said Act contravened the pro
viSions of Arts. 13, 19, 21 and 22 of the Constitution and was
consequently ultra vires and that his detention was therefore
illegal:
Held, per
KANIA C. )., PATA1'JAL1 SAsTIU, Mu1<HERJEA and
DAs JJ. (FAZL Au and MAHAJAN JJ. dissenting)-that the Preven
tive 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. 22(5) of the Constitution,·'" this section was
severable from the remaining sections of the, ~t, the invalidity
of Sec. 14 did not affect the validity of the Act as a whole, and
the detentiori of the petitioner
was not illegal.
FAZL Au and MAHAJAN JJ.-Scction 12 of the Act was also
ultra, vires, · and since it contravened the very provision in the
·1
J
•
S.C.R. SUPREME COURT REPORTS 89
Constitution under which the· Parliament derived its competence 19j0
to enact the law, the detention was illegal.
Held, by the Full Court (KANIA C. J., FAZL Au, l'ATANJALI A.K. Gopalan
SAsTRI, MAHAJAN, MuKHERJEA and DAs JJ.)-Section 14 of the v.
Preventive Detention Act, 1950, contravenes the provisions of The Stall
Art~ 22 ( 5) of the Constitution in so far as it prohibits
a person detained trom 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.
Per KANIA C. J., PATANJALI SAsTR1, MAHAJAN, MuKHERJEA
and DAs JJ. (FAZL Au J. dissenting).-Article 19 of the Consti
tution has no application to a law which relates directly to
preventive detention even though
as a result of an order 'bf
detention the rights referred to in
sub-els. (a) to (e) and (g) in
gen
eral, and sub-cl. (d) in particular, of d. (I) of Art. 19 may be res
tricted or abridged ; and .the constitutional validity of _a law relat
ing to such detention cannot therefore, be judged in the light
of the test prescribed in cl. ( 5) of the said Article.
DAs J.-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
con
viction for an offence or otherwise he cannot claim the rights
under
sub-els. (a) to (e) and (g) of Art. 19 (I); likewise if a citizen's
property
is compulsorily acquired under Art. 31, he cannot claim
the right under
sub-cl. (f) of Art. 19 ( l) with respect to that pro
perty. In short the rights under sub-els. (a) to (e) and (g) ~nd
where lawful detention begins and therefore the validity of a
preventive detention Act cannot
be judged by Art. 19 (5).
MAHAJAN J.-Whatever bethe precise scope of Art. 19 (I) (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.
F
AZL
Au J .-Preventive detention is a direct infringement
of the right guaranteed in Art.
19.(J) (d), even if a narrow
con
struction is placed on the said sµb-clause, ' and a law relating
to preventive detention
is therefore subject to such limited
judi
cial review as is permitted by Art. 19 ( 5).
Per KANIA C. J., PATANJALI SAsrn1, MuKHERJEA and DAs JJ.
(FAzL Au J. dissenting).-The concept of the right "to move
freely throughout the territory of India" referred to in
Art.
19 (I) ( 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 sub
stantive rights and Art. 21 prescribes the procedure is incorrect.
DAs. J.-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
19j()
A.K. Cop.Ian
. v.
T1" Sl<JU
"
90 SUPREME COURT REPORTS [1950]
including WJth1n . its meaning all varieties of rights which
go to make up the personal liberties of men.
FAzi. Ac1 ).-Even if it be assumed that Art. 19 (l)(d) does not
.refer to "personal liberty" and that it. bears the restricted mean .
ing 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
sub.
stantially. One of the objects of preventive detentioq is. to res·
train 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 externcd. Hence,
extcrn
ment, internment and certain other forms of restriction on
movement have always been treated
as kindred matters
belong
ing to the same group or family, :rnd the rule which applies to
one must necessarily apply to the others.
Per KANIA C. J., PATANJALI SAsTa1 and DAs JJ. (MAHAJAN J.
dissenting),_:_Article 22 does not form a complete code of consti
tutional safeguards relating to preventive detention.
To the
extent that provision
is made in Art. 22 it cannot be controlled
by Art. 21 ; but on points of procedure which expressly or by
necessary implication are not dealt with by Art. 22, Art. 21 will
apply.
DAs J.-Art. 21 protects substantive rights by requiring
a procedure and Art.
22 lays down the minimum rules of
pro
cedure that even the Parliament cannot abrogate or overlook.
MAHAJAN J.-Art. 22 contains a self-contained code of constitu
tional safeguards relating to preventive detention and cannot be
examined or controlled by the provisions of Art. 21. The princi
ples underlying Art.
21 are however kept in vic\v in Art. 22 and
there
is no conflict between these articles. M
UKHER JEA J .
Even assuming that Art. 22 is not a self.-contained cWe 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.
FAzL ALI J.-Art. 22
docs· not form an exhaust
ive
cod.e 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.
Per KANIA C. J., MuKHERJEA and DAs JJ. (FAzL Au J.
tfusttnting).-in Art. 21 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
scn5': 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 Sup~me Court of America. PATANJALI SAsTP.I J.-'-"Law~
.in Art. 21 docs not 'mean the jus naturale of civil law but means
S.C.R. SUPREME COURT REPORTS 91
positive or State-made law. "Procedure established by law" 1950
does not however mean any procedure which may be prescribed
by a competent legislature, but the ordinary well-established 1f.K •. Gopalan
criminal procedure, i.e., those settled usages and normal modes v.
of procedure sanctioned by the Criminal Procedure Code, which 7 M stak.
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 contraven-
ing Art.
13 (2).
FAZL Au ].-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 civi
lized 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 pro
cedure. 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.
Per KANIA C. J., F.\zL Au, PATANJAU SAsTRI, MAHAJAN
and DAS JJ.-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
tbe 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.
FAZL Au ].-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.
Per KANIA C. ]., MAHAJAN and DAs JJ.-Scction 7 of, the
said Act
is not invalid merely because it
docs not provide for an
oral hearing or an opportunity
to lead evidence but only gives a
right to
make a representation. Right to. an oral hearing and
right
to give evidence arc not
necessarily implm in the right to
make a representation given by Art. , 22.
fer KANIA C. J. and MAHAJAN J,-Thc _provision contained in
Sec. 11 that a person may be detained for such period aa the
12-A
1950
A.Jr.
Goj>olan
v.
Tlw StaU
92 SUPREME COURT REPORTS [1950]
State thinks fit docs not contravene Art. 22 (7) and it is n<(t there.
fore invalid.
Per ~IA C. J., PATANJALI SASTRI, MuKHERJEA and DAs JJ,
(FAZL Au and MAHAJAN Jj. dissenting).-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 loqger than three months without reference
to an advisory
board. It is not necessary that the . Parliament shoµld prescribe both. The matters referred to in cla11ses (a)
and (b) of s11b-sec. ( 1) of Sec. 12 constirute a sllfii~ient descrip
tion of such circumstances or classes of cases and Section 12 is
not
therefore open to -the objection that it does not comply
':Vith
Art. 22(7). Das J.-Parliament has in fact .and substance pres
cribed both in clauses (a) and (b) of sub-sec. (1) of Sec. 12.
FAZL Au and MAHAJAN JJ.-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-sec. (I) of Sec. 12
docs riot amount to pre§cribing the circu~stanccs under which,
or the class or classes of cases in which, a person can be detained
for mote than three months.
Per KANIA C. J .-While it is not proper to take into consi
deration the individual opinions of members of. Parliament or
Convention to construe the meaning of a particular clause, when
a question . is raiScd whether a certain phrase or expression was
up
for consideration at all or not, a
ref~rcnce to the debates may
be permitted. PATANJALl SAsTR1 J~In construing the provisions
of an Act, speeches made in the course of the debates on the bill
should not be taken into consideration. MuKHERJEA J.-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.
ORIGINAL Jmuso1cnoN : PEnnoN No. XIII OF 1950.
Application under Art. 32 (1) of. the CoJ¥titution
of India for a writ of habeas corpus :i.gainst the deten
tion. 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.
~\
S.C.R. SUPREME COURT REPORTS 93
J. Short title, extent and duration.-This· Act may be called
the Preventive Detention Act, 1950.
(2) It extends to the whole of India ......
(3) It shall cease to have effect on the lst day of April, 1951,
save as respects things done or omitted to be done before that
date.
2. Definitions.-ln this Act, unless the context otherwise
requires. · (a) ".State Government" means, in relation to a Part C
State, the CKief Commissioner of the State ; and
(b) '
1
detention order'' means an order made under
Section 3 ..
3 .. Powq to make prders detaining certain persons.-(1) The
Central Governmel!t--Or. the State Government may-
(a) if satisfied with respect to any pers~n that _with a view
to preventing him from acting in any manner prejudicial to-
(i) the defence of India, the relations of India with
foreign powers, or the security of India, or
(ii) the security of the State or the maintenance of
public order, or
(iii) the
maintenanci: of supplies and services essential
to the community, or
( b) if satisfied with respect to any person who is a foreigner
within the meaning of the Foreigner~ 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.
(2) Any District Magistrate . or Sub-Divisional Magistrate, or
in a Presidency-town, the Commissioner of Police, may, if satisfied
as provided in sub-clauses (ii) and (iii) of clause (a) of sub-sec
tion ( 1), exercise th• power conferred by the said sub-section.
(3) When any order
is made under this section by a
District
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 necessity for the order.
7. Grounds of order of
detention to be disclosed to persons
affected by the order.-(J)When a person is detained 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
has been m:tde, and sha.11 afford him the earliest opportunity of
making a representation against the order, in a case where such
order has
been made bv the
Central· Government, to that Govern
ment, and in a case where it has been made by a State Govern
ment or an officer subordinate thereto, to the State Government.
1950
A.K. Gopalan
v.
The Stal8
-.
1950 ''
SUPREl\IE COURT REPORTS [1950}
i\. K. Gopa!an·
·· 11. ConfiTmation of detention order.-In any case where the
Advisory Board has reported that -there is in its opinion sufficient
cause for
the detention of the person concerned, the Central
Government or the
State Goverllment, ·as the· case ma.y be, may
v.
Tke State
cOnfirm the detention order and continue the detention of the
person concerned for stich .period as it thinks fit.
--,-~--'-12. Duration of detention in certain cases.-(!} Any person
"detained in any of the following classes of cases or under any of
the following circumstances may· be detained without obtainingc
. 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 with lJo 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.
*
\..;* -· · * .-o-. ~-~ . •
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 (2), allow any statement to be
made, or any evidence io -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 any1 person or of·
any representation made by him. against such order; and not-
. withstanding anything contained in any other la.w, no court shall
be entitled to require any public officer to produce before it, or~
to disclose the substance of, any such communication or repre .. -
sentation made, or the proceedings of an Advisory Board or that -
· part of the report of an Advisory Board which is confidenti•l.
(2) It sh~ll · be an offenee punishable with imprisonment for·
a term which maY extend to One );.ear, or with fine, or with both,
·for any person to ·disclose or publish w_ithout the previous·
authorisation of. the Central __ Government or the State Govern ..
ment, 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 pe~son wh-o is the sub· -
· ject of a. detention order.
lYf. K. Nambiar (S. K. Aiyar and V. G. Rao,.
with. him) for the petitioner.
K. Rajali Aiyar, Advocate-General of JJfadras ·
(C.R. Pattabhi Raman and R. Ganapathi, with him)
for
the State of
Madras .
. JJ{. C. Setalvad, Attorney-General for India (Jindra-·
lal, with him) for the Union of India.
•
•,
S.C.R. SUPREME COURT REPORTS 95
1950. May 19. The following Judgments were
delivered.
KANIA C. J.-This is a pet1t1on 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 ordinary Criminal Law
he
was sentenced to terms of imprisonment but those
convictions
were set aside. While he was thus 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
Preven
tive 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
<"'A>nstitution. He has also chal
lenge~ the validity of the order on the ground that it
is issued mala fide. The burden of proving that alle
gation is on the applicant. Because of the penal pro
visions 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 interpret
ing 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
1950
Jf.K. Gopa/1111
v.
Tiu Stat1
Kania C.]
195()
A.K. Gopalan
v.
The State
Kania C.J.
96 SUPREME COURT REPORTS [1950]
Constitution either directly or through officers subordi
nate to him. The legislative powers of the Union are
divided between the Parliament and Legislatures of
the States. The ambit and limitations on their respec
tive 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 establi
shed and its powers and jurisdiction are set out in
articles
124 to 147. This follows the pattern of the
Government
of India Act, 1935, which was the
previ
ous 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, fraternity. Part III of the
Constitu
tion is an important innovation. It is headed "Funda
mental Rights". In that Part the word "State"
includes both the Government of the Unio)l and the
Government of the States.
By articles. 13 it is expressly
provided that all
laws in force in the territory of India,
immediately before the commencement of the
Consti
tution, in so far as they are inconsistenl with the pro
visions of this Part, to the extent of such inconsistency,
are void. Therefore, all laws in operation in India on
the day the Constitution came into force, unless other
wise saved, to the extent they are inconsistent with
this Chapter on Fundamental Rights, become auto
matically void. Under article 13 (2) provision is made
for legislation after the Constitution comes into opera
tion. It is there provided that the State shall not make
any law which takes away or abridges the rights con
ferred by this Part and any law made in contravention
of this clause shall to the extent of the contravention,
be void. Therefore, as regards future legislation also
the Fundamental Rights in Part III have to be reS:
pected and, unless otherwise saved by the provisions
of the Constitution, they will
be void to the extent
they contravene the provisions of Part III.
Under
article 245 (1) the legislative powers conferred under
S.C.R. SUPREME COURT REPORTS 97
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, Reg\llations
and even custom or
usage having, in the territory of
India, the
force of law. The rest of this
Part js divided
in
seven divisions.
"Right to Equality" is found in
articles · 14-18, "Right 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
Constitutional Remedies" in artciles 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
right§
conferred by this Part. The rest of the articles may
have
to be referred to only to assist in the
interpreta
tion of the above-mentioned articles.
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
FuJ?damental Rights
'1 mentioned in Part III of the Constitution.
The petitioner
is detained under a preventive
de
tention 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 whieh the Parlia-.
ment has exclusive legislative powers. Entry 9 is in
these terms : "Preventive detention for reasons con
nected 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
1950
A.K. Copalan
v.
TJ.e Slate
Kania C.J.
1950
A.Jr. -G•J>alan
. v.
Kania C.J.
98 SUPREME COURT REPORTS f 1950]
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 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). It
is therefore
neces>ary to consider in detail each of these
articles and the arguments advanced in respect thereof.
Article
19 is for the protection of certain rights
of freedom to citizens. It runs
as follows :-
"19. (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 ;
(
d) to move freely throughout the territory of
India:
( e) to reside and settle in any part of the
territory of India ;
( f) to acquire, .hold and dispose of property ;
and ·
(g) to practise any profession, or to carry on
any occupation, trade or business.
"(2) Nothing in sub-clause (a) of clause (1) shall
affect the operation of any existing law in
so far as it
relates to, or prevent the
State from making any law
relating to, libel, slander, defamation, contempt of
court or any matter which offends against decency or
morality or which undermines the security
of, or tends
.to overthrow, the State.
(3) Nothing in sub-clause (b) of the said clause
shall affect the operation of any existing law in so far
as it imposes, or prevent the State from making
any law imposing, in the interests of public order
•·
'
S.C.R. SUPREME COURT REPORTS 99
reasonable restrictions on the exercise. of the right
conferred
by the said sub-clause.
(4) Nothing in sub-clause (c) of the said clause
shall affect the operation of any existing law in so far
as it imposes, or prevent the
State from making any
law imposing, in the interests of public order or
morality, reasonable restrictions on the
exercise of the
right conferred
by
the said sub-clause.
(5) Nothing in sub-clauses (d), (e) and (f) of the
said clause shall affect the operation of any existing
law in
so
far· as it imposes, or prevent the State from
making
any law imposing, reasonable restrictions on
the
exercise, of any of the rights conferred by the said
sub-clauses either in the interests of the general public
or for the protection of the interests
of any Scheduled
Tribe.
(6) Nothing in
sub-clause (g) of the said clause
shall affect the operation of any existing law in so far
as it imposes, 9r prevent the
State from making any
law imposing, in the interests of the general public,
reasonable restrictions on the exercise of the right
conferred
by the said sub-clause, and, in particular,
nothing
in the said sub-clause shall
affect the operation
of
any existing law in so far as it prescribes or em
powers any authority to prescribe, or prevent the State from making any law prescribing or empowering
any authority to prescribe, the professional or technical
· qualifications necessary for practising any profession
or carrying on
any occupation, trade or
business."
Clause (2) specifies the limits up to which the
abridgement
of the right contained in 19 (1) (a) may
be permitted. It is an
exceptionr Similarly· clause
(3) sets out the limit of abridgement of the right in 19
(1) (b) and clause (4) specifi~s such limits in respect of
the right in
19 (1) (c). Clause (5)
.is in respect of the
rights mentioned in
19 (I) (d), (e) and (f) and clause . (6) is in respect .of the rights contained in 19 (l) (g).
It cannot
be disputed that the articles collected under,
the caption
"Right to Freedom" have to be considered
together to appreciate the extent of the Fundamental
Rights. In the first place it is necessary to notice that
2-3 S. C. India/58.
1950
A.K. Gopalan
v.
The Slate
Kania C.J.
1950
.4.E. Gap.Ian
v.
Kania C.J.
100 SUPREME COURT REPORTS (1950]
there is a distinction between rights given to citizens
and
persons. This is clear on a perusal of the provi
sions of article 19 on the one hand and articles
20, 21
and 22 on the other. I~ order to determine whether a
right
is
· abridged or infringed it is first necessary to
determine the extent
of the right given by the articles
and the limitations prescribed in the articles themselves permitting its curtailment. The inclusion of
article 13 (1) and (2) in the Constitution appears to be
a matter of abundant caution. Even in their absence,
if any of the fundamental rights was infringed by any
legislative enactment, the Court has always the power
to declare the enactment, to the extent it transgresses
the limits, invalid. The
existence of article 13( 1) and
(2) in the Constitution therefore
is not material for the
decision of the question what fundamental right is
given and to what extent it is permitted to be abridged
by the Constitution itself.
As the preventive detention order results in the
detention
of the applicant in a cell 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 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). Although
this argument is advanced in a
case
which· deals with preventive detention, if correct,
it should
be applicable in the case of punitive deten
tion
also to any
· one sentenced to a term of imprison
ment under the relevant
section of the Indian
Penal
Code. So considered, the argument must clearly be
rejected. In spite of the saving clause's (2) to (6),
permitting abridgement of the rights connected with
each
of them, punitive detention under several sections
.
.of the Penal Code, e.g., for theft, cheating, forgery and
even ordinary assault, will be illegal. Unless sui:h
conclusion necessarily follows from the article, it is
obvious that such construction should be avoided. In
my opinion, such result is clearly not the outco~e of
the Constitution. The article
has to be read
wh:hout ·
any pre-conceived notions. So read, it clearly means
•
•
S.C.R. SUPREME COURT REPORTS 101
that the legislation to be examined must be directly
in respect of one of the rights mentioned in the
sub
clauses. If there is a legislation directly
attemp~ing
to control a citizen's freedom of speech or expression,
or his right to assemble peaceably and without arms,
etc., the question whether that legislation
is saved by
the relevant saving clause of article 19 will arise. If,
however, the legislation is
l)Ot directly in respect of
any of these subjects, but
as a result of the operation
of other legislation, for instance, for punitive or
preventive detention, his right under any of these sub
clauses
is abridged, the question of the application of
article
19 does not arise.
The true approach is only
to consider the directness of the legislation and not
what will
be the result of the detention otherwise
valid, on the mode of the detenue's life.
On that
short ground, in my opinion, this argument . about the
infringement of the rights mentioned in article
19 (I)
generally must fail. Any other construction put on
the article, it seems to me, will
.be unreasonable.
It was next urged that while this interpretation
may meet the contention in respect of rights under
article
19 (1) (a), (b), (c), (e) and (g), the right given by
article 19 (1), (d) is left untouched. That sub-clause
expressly gives. the right
"to move freely throughout
the territory of India". 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 onlv 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). The Court is thus enjoined to
inquire whether the
res.tnct10ns imposed on the
detained person are reasonable in the -interests of the
general public. Article
14 of the Constitution gives
the right to equality in these terms :
"The State shall not denv to any person equality
before the law or the equal protection of the laws
within the territory of India."
A.K. Copa/an.
v.
The Stale
Kanin C.J.
1950
A.Jr. Gopalan
v.
The Stat•
Kama C.J.
102 SUPREME COURT REPORTS [1950]
It was argued that the words "within the territory
of India" are unnecessary in that article because the
Parliament
is supreme to make laws operative only
within the territory
of India. Without those words
also the article will bear the same meaning. Similarly,
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. In my opinion, this rule
of construction itself
is faulty. Because certain words
may be considered <uperfluous (assuming them to be
so in article 14 for the present discussion) it is quite
improper
to assume that they arc superfluous wherever
found in the
rest of the Constitution.
On the contrary,
in
my opinion, reading sub-clause ( d) as a whole the
words
"territory of India" arc very important.
What
is sought to be protected by that
sub-clause is
the right to freedom of movement, i.e., without
restriction, throughout the territory
of India. Read
with their natural grammatical meaning the
sub-clause
only means that if restrictions are sought to be put
upon movement of a citizen from State to State or
even within a State such restrictions will have to be
tested by the permissive limits prescribed· in clause
(5) of that Article. Sub-clause ( d) has nothing to do with
detention, preventive or punitive. The Constitution
mentions a right
to freedom of movement throughout
the territorv of India.
Every word of that clause must
be given its true and legitimate meaning and in the
construction of a
Statute, particularly a Constitution,
it
is
· improper to omit any word which has a
reasonable and proper
place in it or to refrain
from giving
effect to its meaning. This position
is made quite clear when clause (5) is read along with
this
sub-clause. It permits the imposition of reasonable
restrictions on the
exercise of such right either in the
interest of general public or the protection of the
interest
of any Scheduled Tribe. It is difficult to
conceive of a reasonable restriction necessary in the
interests
of the
general public for confining a person in
a
cell.
Such restriction may be appropriate to prevent
a person from going from one Province
to another or
S.C.R. SUPREME COURT REPORTS 103
one area to another; having regard to local conditions
prevailing in particular areas. The point however is
made abundantly clear by the alternative, viz., for the
protection of the interests of any Scheduled Tribe.
What protection of the interests of a Scheduled Tribe
requires the confinement of a man in a cell? On the
other hand, preventing the movement of a person from
one part of the territory
of India to another and the
question of reasonable restriction imposed to protect
the interests of a Scheduled Tribe
is clearly intelligi
ble and often noticed in the course of the administra
tion of the country. Scheduled Tribes have certain
rights, privileges and also disabilities. They have
their own civilization, customs and mode of life and
prevention of contact with persons or groups with a
particular Scheduled Tribe may
be considered
undesirable during a certain time
or in certain
conditions. The legislative history of India shows
that Scheduled Tribes have been
·given a separate
place on these grounds. Reading article
19 as a
whole, therefore, it
seems to me that it has no
application
to a legislation dealing with preventive or
punitive detention
as its direct object. I may point
out that the acceptance of the petitioner's argument
on the interpretation
of this clause will result in the
Court being called upon
to decide upon the reasonable
ness of several provisions of the Indian
Penal Code
and several other penal legislations
as abridging this
right. Even under clause (5), the Court
is permitted
to apply the test of reasonableness of the restrictions
or limits not generally, but only to the extent they
are either in the interests of the general public,
e.g.,
in case
,of an epidemic, riot, etc., or for the protection
of the interests
of any Scheduled Tribe. In my
opinion, this
is not the intention of the Constitution.
Therefore the contention urged in respect of article
19
fails.
It was argued that article 19 and article 21
should be read together as implementing each other.
Article
19 gave substantive rights to citizens while
article
21 prescribed that no person can be deprived
of
hrs life and personal liberty except by procedure
1950
A .K. Gopal an
v.
The State
Kania C.J.
19 0
A.K. Gopalan
v.
The Stale
Kania C.J.
104 SUPREME COURT REPORTS (1950]
established by law. Even so, on a true construction
of article -19, it seems to me that both preventive and
punitive detention are outside the
scope of article 19.
In order to appreciate the true scope of article 19
it is useful to read it by itself and then to consider
how far the other articles in
Part III affect or control
its meaning. It
is the first article under the caption "Right to Freedom". It gives the rights mentioned
in
19 (1) (a) to (g) to all citizens of India. These rights
read
by themselves and apart from the controls
"found
in clauses (2) to (6} of tht same article, specify the
different general rights which a free citizeD. in a
democratic country ordinarily
has. Having .specified
those rights, each of them is considered separately
from the point
of view of a similar right in the other
citizens, and
also after taking into consideration the
principle that individual liberty must
give way, to the
extent it
is necessary, when the good or safety of the
peope genlerally
is concerned. -Thus the right to free
dom of speech and expression is given by 19 (1) (a).
But
clause (2) provides that such right shall not
prevent the operation
of a law which relates to libel",
slander, defamation, contempt
of Court or any matter
which offends against
decency or morality or which
undermines the security
of, or tends to overthrow, the
State. Clause (2) thus only emphasizes that while the
individual citizen
has a free right of speech
· or
expression,
he cannot be permitted to use the same to
the detriment of a similar right in another citizen or
to the detriment of the
State. Thus, all laws of libel,
slander, contempt
of Court or laws in respect of matters
which offend against
decency or morality. are
reaffirmed
to be operative in spite of this individual right of the
citizen to freedom
of speech and expression. Similarly,
that right
is also subject to laws which prevent
un
dermining the securitv of the State or against activities
which tend
to overthrow the
State. A similar analysis of
clauses (3) and (4) shows similar restrictions imposed on.
similar grounds. In the same way clause (5) al5o permits
reasonable restrictions in the
exercise of the right to
freedom
of movement throughout the
· territoq of
India, th~ right to reside and settle in any part of the
S.C.R. SUPREME COURT REPORTS 105
territory of India o_r the right to acquire, hold and
dispose of property, being imposed by law provided
such reasonable restrictions on the
exercise of such
right are in the interest of the general public.
The
Constitution further provides by the same clause that
similar
reasonable restrictions could be put on the
exercise of those rights for the protection of the
interest
of a Scheduled Tribe. This is obviously to
prevent
an argument being advanced that while such
restriction could
be put in the interest of general
public,
the Constitution did not provide for the
imposition
of such restriction to protect the interests
o_f a
sm~ler group of people only. Reading article 19 in
that
way as a whole the only concept appears to be that
the
specified rights of a free citizen are thus controlled
by what the tramers of the Constitution
thouEfht were
necessary restrictions in the interest of the rest of the
citizens.
Reading article
19 in that way it appears to me
that the concept of the right to move freely through
out the territory of India
is an
entirely different
concept from the right
to
"personal liberty" contem
plated
by article 21.
"Personal liberty" covers
many more rights in one sense and has a restricted
meaning in another
sense. For instance, while the
right to
move or reside may be covered by
· the
expression "personal liberty" the right to freedom
of speech [mentioned in article 19 (1) (a)J or the right
to acquire, hold or dispose of property (mentioned in
19 (1) (f) cannot be considered a part of the personal
liberty of a citizen. They form part of the liberty of
a citizen but the limitation imposed
by the word "personal" leads me to believe that those rights an·
not covered by the expression personal liberty. So
read there is no conflict between articles 1'9 and 21.
The contents and subject matters of articles 19 and
21 are thus not the same and they proceed to deal
with the rights covered by their respective words
from totally different angles.
As already men
tioned in respect
of each of the rights specified in
sub-clauses of article 19 ( 1)
· specific limitations in res
pect of each is provided, while the expression "personal
19:;0
.A.·K. Gopola
v.
Tiii Stau
Kania C.j.
.1950
AS. c.,aiao
••
TIN Sia#
KaaioC.J.
106 SUPREME COURT REPORTS f 1950)
liberty" in article 21 is generally controlled by the
general
expression
"procedure established by law."
The Constitution, in article 19, and also in
other . articles in Part HI, thus attempts to strike a
balance petween individual liberty and the general
interest
of the society. The restraints provided by the
Constitution on the legislative powers or the
exectifive
authority of the State thus operate as guarantees of life
and personal liberty
of the individuals.
Deprivation (total
loss) of personal liberty, which
inter alia includes the right to eat or sleep when one
likes or to work or not to work as and when one
pleases and several such rights sought to be protected
by the expression "personal liberty" in article 21, is
.quite different from restriction (which is only a partial
control) of the right
to move freely (which is relatively
a minor right of a citizen)
as safeguarded by article 19
( 1) ( d). Deprivation of personal liberty has not the
same meaning as restriction of free movement
·in the
territory of India. This
is made
clear .. when the
provisions of the Criminal Procedure
Code
In Chapter
VIU relating to security of peace or maintenance "f
public oraer arc read. Therefore article 19 (5) cannot
apply
to a substantive law depriving a citizen of
personal liberty. I am
unable; to accept the contention
that the word "deprivation" includes within its scope
"restriction" when interpreting article 21. Article 22
envisages the law of preventive detention. SO does
article 246 read with Scheduk Seven, List I, Entry 9
and List HI, Entry 3. Therefore, when the subject of
preventive detention is specifically dealt with
in the Chapter on Fundamental Rights I ·do not
think
it is
· proper to consider a legislation permitting
preventive detention as in conflict with the rights
mentioned in article 19 ( 1). Article 19 ( 1) does not
purport to
·cover all aspects of liberty or of personal
liberty. In that article
only certain phases of liberty
arc dealt with.
"Personal liberty" would primarily
mean liberty of the
physical body. The rights given
under article 19 ( 1) do not directly come under that
description. They are rights which accompany the
freedom or liberty of the person.
By their very.
S.C.R. SUPREME COURT REPORTS 107
nature they are freedoms of a person assumed to be
in full possession of his personal liberty. If
article 19 is considered to be the only
article safeguarding personal liberty several
well-recognised rights,
as for instance, the right to eat
or drink, the right
to work, play, swim and numerous
other rights and activities and
even the right to life will
not
be deemed protected under the Constitution.
I do not think that
is the intention. It seems to me
improper to read article
19 as dealing with the same
subject as article 21. Article 19 gives the rights
specified therein only to the citizens
of India while
article
21 is applicable to all persons. The word
citizen
is expressly defined in the Constitution to
indicate only a certain section of the inhabitants
of
India. Moreover, the protection given by article 21
is very general. lt is
of "law"-whatever that expres
sion is interpreted to mean. The legislative restrictions
on the law-making powers
of the legislature are not
here prescribed in detail
as in the case of the rights
specified in article
19. In my opinion therefore article
19 should be read as a separate complete article.
Article
21 which is also in
Part III under the
caption "Right to Freedom" runs as follows :-
"No person shall be deprived of his life or
personal liberty except according to procedure
established
by
law."
This article has been strongly relied upon by the
petitioner in support of his contention · that the
impugaed Act
is
ultra vires the Parliament as i~
abridges the right given by this article to every
person. It was argued that under the Constitution of
the United States of America the corresponding
provision
is found in the 5th and 14th Amendments
where the
provision, inter alia, is "that no person
shall
be deprived of his life or liberty or property
except
by
due process of law." It was contended for
the petitioner that the Indian Constitution
gives the
same protection to
every person in India, except that
in the
United States "due process of law" has been
construed
by its
Supreme Court to cover both
i.5(1
,f K. Gop.'llan
v.
T/,. Stau
Kania C.J.
1900
A..K. Gopalt111
v.
T1" Siok
Kania C.J.
108 SUPREME COURT REPORTS [1950]
substantive and procedural law, while in. India only
the protection
of procedural law is guaranteed. It was
contended that the omission of the word
"due" made
no difference
to the interpretation of the words in
article
21. The word
"established" was not equivalent
to "prescribed". It had a wider meaning. The word
"law" did not mean enacted law because that will be
no legislative protection at all. If so construed, any
Act passed by the Parliament or the State Legislature,
which
was otherwise within its legislative power, can
destroy or abridge this right.
On the same line of
reasoning, it
was argued that if that was the intention
there
was no necessity to put this as a fundamental
right in Part III
a.t all. As to the meaning of the word
"law" it was argued that it meant principles
of natural justice. It meant "jus", i.e., law
in the abstract sense of the principles of natural
justice,
as mentioned in standard works of Jurisprudeace, and not "lex", i.e., enacted law. Against the
contention that such construction will leave the mean
ing vague, it was argued that four principles of
natural justice recognised in all civilized countries
were covered, in any event, by the word "law". They
are: (1) An
objective test,
i.e., a certain, definite and
ascertainable rule
of human conduct for the violation
of which one
can be detained ; (2) Notice of the
grounds
of such detention; (3) An impartial tribunal,
administrative, judicial or
advisory, to decide whether
the detention
is justified ; and (4) Orderly course of
procedure, induding an opportunity to be heard orally
(not merely
by making a written repres.entation) with
a right
to lead evidence and call witnesses.
In my opinion, this line of approach is not proper
and indeed
is misleading. As regards the American
Constitution
its general structure is noticed in the5e
words in "The Government of the United States" by
Munro (5th Edition) at page 53 : "The architects of
1787 built only the basement. Their descendants
have kept adding walls and windows, wings and
gables, pillars and porches to make a rambling struc
ture which
is not yet finished.
Or, to change the
metaphor, it
has a fabric which, to use the words of
'
S.C.R. SUPREME COURT REPORTS 109
James Russell Lowell, is still being 'woven on the
roaring loom
of time'. That
·is what the framers of
the original Constitution intended it to
be. Never was
it in their mind to work out a final scheme for the
government
of the country and stereotype it for all
time. They sought merely to provide a starting
point." The same aspect is emphasized in Professor
Willis's book on Constitutional Law and
Cooley's
Constitutional Limitations. In contrast to the
American Constitution, the Indian Constitution
is
a
very detailed one. The Constitution itself provides in
minute details the legislative powers of the Parliament
and the State Legislatures. The same feature is
noticeable in the case of the judiciary, finance, trade,
commerce and
services. It is thus quite detailed and
the whole
of it has to be read with the same sanctity,
without giving undue weight to
Part III or article
246, except to the extent one is legitimately and
clearly limited
by the other.
Four
markt!d points of distinction between the
clause in the American Constitution and article
21 of
. the Constitution
of India may be noticed at this stage.
'Ilhe first is that iii. U.S.A. Constitution the word
'"liberty" is used simpliciter while in India it is
restricted to personal liberty. (2) In U.S.A. Consti
tution the
same protection is given to property, while . in India the fundamental right in respect of property
is contained in article 31. (3) The word "due" is
omitted altogether and the expression "due process of
law" is not used deliberately. ( 4) The word "establi
shed" is used and is limited to "Procedure" in our
article
21.
The whole argument of the petitioner is founded
on the meaning
of the word
"law" given to it by the
Supreme Court of America. It seems unnecessary to
embark on a
discussion of the powers and jurisdiction
of the
Supreme Court of the U.S.A. and how they
~ame to enlarge or abridge the meaning of law in the
expression "due process of law" Without going into
details, I think there
is no justification to adopt the
meaning of the word
"law" as interpreted by the
Supreme Court of U.S.A. m the expression "due
19:o
A.K. Gopalan
v.
The Slau
Kania C.J.
1950
A.K. Goftalan
••
Till SIOll
Kania C.j.
110 SUPREME COURT REPORTS [1950]
process of law" merely because the word "law" is used
in article 21. The discussion of the meaning of "due
process of law" found in Willis on Constitutional Law
and in
Cooley's Constitutional Limitations shows the diverse meanings given to that expression at different
times and under different circumstances
by the Supreme Court of U.S.A., so much so that the conclu
sion reached by these authors is that the expression
means reasonable law. according to the view of the
majority
of the judges of the
Supreme Court at a
particular time holding
office. It also shows how the
meaning
of the expression was widened or abridged
in certain
decades. Moreover, to control the meaning
so given to that expression from time to time the
doctrine
of police powers was brought into play.
That doctrine, shortly put,
is that legislation meant
for the good of the people generally, and in which the
individual
has to surrender his freedom to a certain
extent
because it is for the benefit of the
people at
large, has not
to be tested by the touchstone of the "due process of law" formula.
Our attention was drawn to the debates and
report of the drafting committee of the Constituent
Assembly in respect of the wording of this clause.
The report may be read not to contrbl the meaning of
the article, but
may be seen in case of ambiguity.
In
The Municipal Council of Sydney v. The Common
wealth ( ), it was tho'!ght that individual opinion of
members of the Convention expressed in the debate
cannot
be referred to for the purpose of construing
the Constitution. The
same opinion was expressed in
United States v. Wong Kim Ark ( ' ). The result appears
to be that while it is not proper to take into consider
ation the individual opinions of Members of Parlia
ment or Convention to ·construe the meaning of the
particular
clause, when a question is raised whether a
certain phrase or expression
was lip for consideration
at all or not, a reference
to the debates may be
permitted. In the present case the
debate~ were
referred
to to show that the expression
• "due process of
law" was known to exist in the American .Constitution
(') (1904) 1 Com, L:R. 208. (
1
) (169) U.S. &19 at 699.
•.'
S.C.R. SUPU.ME COURT REPORTS 111
and after a discussion was not adopted by the Consti
tuent Assembly in our Constitution. In Administrator
General of Bengal v. Prem/al Mullick (1), a reference to
the proceedings of the Legislature which resulted in
the passing
of the Act was not considered legitimate
aid in the construction of a particular section. The
same reasons were held as cogent for excluding a
reference to
such debate.s in construing an Indian
Statute. Resort
may
be had to these sources with
great caution and
only when latent ambiguities are to
be resolved. See Craies' Statute. Law. (4th Edition)
page
122, Maxwell on Interpretation of Statutes
(9th
Edition)' pp. 28-29 and Crawford on Statutory
Construction · (1940 Edition) p. 379, article 214.
A perusal of the report of the drafting committee to
which our attention
was drawn shows clearly that the
Constituent
Assembly had before it the American
article and the
expression
"due process of law" but
they deliberately dropped the
use of that expression
from our Constitution.
No extrinsic
aid is needed to interpret the words
of article 21, which in my opinion, are not ambig\lous.
Normally r¢ad, and without thinking of other
Constitutions, . the expression "procedure esta
blished by law" must mean procedure prescribed
by the law of the State. If the Indian Consti
tution wanted to preserve to every person the ·
pr~ction given by the due process clause of the
American Constitution there
was nothing to prevent
the Assembly from adopting the phrase, or if they
wanted
to limit
. the same· to procedure only, to adopt
that
expression with only the word
"procedural" pre
fixed to "law". However, the correct question is what
is the right given by article 21 ? The · only right is
that no person shall be deprived of his life or liberty
. except according to procedure established by law. One
may like that right to cover a larger area, but to give
such a right is not the function of the Court ; it is the
function of the Constitution.
To read the word
"law"
as meaning rules of natural justice will land one in
(1) (1895) L.R. 22 I.A. 107 ..
1950
A.K. Gopalan
v.
Thi Stau
Kania C.J.
1950
A.Jr. Gopalan
v.
Till Stau
Kania C.J.
112 SUPREME COURT REPORTS [1950]
difficulties because the rules of natural justice, as
regards procedure, are nowhere defined and in my
opinion the Constitution canriot be read as .laying
down a
vague standard. This is particularly so when
in omitting
to adopt
"due process of law" it was
considered that the expression "procedure established
by law" made the standard specific. It cannot be
specific except by reading the expression .as meaning
procedure prescribed
by the legislature, The word, "law" as used in this Part has different shades of
meaning but in no other article it appears to bear the
indefinite meaning
of natural justice. If so, there
appears no
reason why in this article it should receive
this peculiar meaning. Article 31 which is also in
Part III and relates to the fundamental rights in
respect of property runs
as follows :--"No person shall be deprived of his property save
by authority of law."
It is obvious that in that clause "law" must mean
enacted law. The obiect
of dealing with property
under a different article appears
more to provide the
exceptions found in article
31 (2) to (6), rather than to
give the
word "law" a different meaning than the one
given in article
21. The word
"established" according
to the Oxford Dictionarv means "to fix, settle; institute
or ordain
by enactment or
agreement." The word
"established" itself suggests an agency which fixes the
limits. According to the dictionary this agency can
be either the legislature or an agreement between the
parties. There
is therefore no justification to give the
meaning
of
"jus" to "Jaw" in article 21.
The phrase "procedure established by law" seems
to be borrowed from article 31 of the Japanese Consti
tution. But other. articles. of that Constitution
which
express! y preserve other personal liberties in
different
clauses have to be read together to determine
the meaning of
"law" in the expression "procedure
established by law." These articles of the Japanese
Constitution have not been incorporated in the
Constitution
of India in the same language. It is not
shown that the word
"law" means "jus" in the Japa
nese Constitution. In the Japanese Constitution these
S.C.R. SUPREME COURT REPORTS 113
rights claimed under the rules of natural justice are
not given
by the interpretation of the words "procedure established by law" in their article 31.
The word "due" in the expression "due process of law"
in the American Constitution is interpreted to meah
"just," according to the opinion of the Supreme Court
of U.S.A. That word imparts jurisdiction to the Courts
to pronounce what
is
"due" from otherwise, according
to law.
The deliberate omission of the word
"due"
from article ·21 lends strength to the contention
that the justiciable aspect of "law", i.e., to consider
whether it
is reasonable or not by the Court, does not
form part of the Indian Constitution. The omission
of the word
"due'', the limitation imposed by the word
"procedure" and the insertiop. of the word "established"
thus brings out more clearly the idea of legislative
prescription in the expression used
in article 21. By
adopting the phrase
"procedure established by law"
the Constitution gave the legislature the final word to
determine the law.
Our attention was drawn to The King v. The
Military Governor of the Hair Park Camp (1 ), where
articles 6 and 70 of the Irish Constitution are dis
cussed. Under article 6 it is provided that the liberty
of the person
is inviolable and no person shall be
deprived of such except
"in accordance with law" ..... .
In article 70 it is provided that no one shall be tried
"save in due course of law" and extraordinary Courts
were not permitted to
be established except the
Military Courts to try military offences.
The ex
pression
"in accordance with law" was interpreted to
mean not rules of natural justice but
as the law in
force at the time. The Irish
Court" gave the expression
"due course of law" the meaning given to it according
to the English law and not the American law
.. It was
observed
by Lord Atkin in Eshugbayi Eleko v. Officer
Administering the Government of Nigeria
(
2
), that
in accordance with British --J'w-isprudence no
member
.of the executive can interfere
with the liberty
or property of a British subject except when he can
support the legality of his act before a Court of justice.
(
1
) [1924] ~ Irish Reports K.B. 104. (
1
) [1931] A. C. 662 at 670.
1950
A. K. Gopa/1J11
v.
TheStalii
KaniaC.J.
1950
A. K. Gopalan
v.
Tiu State
KaniaC.J.
114 SUPREME COURT REPORTS [1950]
In The King v. The Secretary of State for Home
Affairs ( ), Scrutton L. J. observed : "A man undoubt
edly guilty of murder must yet be released if due
forms of law have not been followed in his conviction."
It seems .very arguable that in the whole set-up of
Part III _of our Constitution these principles only
remain guaranteed
by article 21.
A detailed discussion of the true limits of article
21 will not be necessary if article 22 is. considered a
code to the extent there
are provisions therein for
preventive detention.
In
this connection it may be
noticed that the articles in Part III deal with different
and separate rights. Under the caption "Right to
Freedom" articles 19-22 are grouped bur each with a
separate marginal note, It is obvious that article 22
(1) and (2) prescribe limitations on the right given by
article 21. If the procedure mentioned-in those articles
is followed the arrest and detention contemplated by
article 22 (1) and (2), although they infringe the
personal liberty of the individual, will
be legal, because
that becomes the established legal procedure in respect
of arrest and detention. Article
22 is for protection
against arrest and detention in certain
cases, and runs
as follows :-
"22. (1) 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 practitiorier of his
choice.
(2) Every person who is arrested and detained in
custody shall
be produced before the
nearest magis
trate 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.
(3) Nothing in clauses (1) and (2) shall.
apply-
( a) to any person who for the time being is an
enemy alien ; or
(
1
) [1923] to K.B. 361 at
382·
'
S.C.R. SUPREME COURT REPORTS 115
(b) to any person who is arrested or detained
under any law providing for preventive detention.
( 4)
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 ex
piration 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
authorise the detention of any person beyond the
maximum period prescribed
by any law made by
Parliament under sub-clause (b) of clause ( 1) ; 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).
(5) )Vhen any person is detained in pursuance
of an order made under any law providing for pre
ventive detention, the authority making the order
shall,
as
spon 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.
(6) 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.
(7) Parliament may
by law prescribe-
( a)
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) ;
(b) the maximum period for which any person
may in any
class or
clas5es of cases be detained under
any law providing for preventive detention ; and
( c) the procedure
to be followed by an Advisory
Board in an inquiry under sub-clause (a)
of clause ( 4)
."
The learned Attornev-General contended that the
subject of preventive detention
does not fall under 3-3 S. C. India{5 8.
1950
A. K. Gopa/an
v.
The State
Kania C.J.
1950
A. IC Gopa!an
v.
TIN Siau
Kania C.J.
116 SUPREME COURT REPORTS [1950]
article 21 at all and is covered wholly by article 22.
According to him, article 22 is a complete code. I am
unable to accept that contention. It
is obvious that
in respect of arrest and detention article 22 (1) and (2)
provide safeguards. These safeguards are excluded
in
the case of preventive detention by article 22 (3), but
safeguards in connection with such detention are
pro
vided by clauses ( 4) to (7) of the same article. It is
therefore clear that article 21 has to be read as supple
mented by article 22. Reading in that way the proper
mode of construction will be that to the extent the
procedure
is prescribed by article 22 the same is to be
observed ; otherwise article 21 will apply. But if
cer
tain procedural safeguards are expressly stated as not
required, or
specific rules on certain points of
proce
dure are prescribed, it seems improper to interpm
these points as not covered by article 22 and left open
for consideration under article
21. To the extent the
points are
dealt with, and included or excluded,
article 22 .is a complete code. On the points of proce
dure which expressly or by necessary implication are
not dealt with by article 22, the opetation of article 21
will remain . unaffected. It is thus necessary first to
look at article
22 ( 4) to (7) and next at the provisions_
of the impugned Act to determine if the Act or any of
its provisions are
ultra
vires. It may be noticed that
neither the American nor the Japanese Constitution
contain provisions permitting preventive detention,
much
less laying down limitations on such right of
detention, in normal times,
i.e., without a declaration
of emergency. Preventive detention in normal times,
i.e., without the existence of an emergency like war,
is recognised as a normal topic of legislation in List I,
Entry 9, and List III, Entry 3, of the Seventh Sche
dule. Even in the Chapter on Fundamental Rights
article
22 envisages legislation in respect of preventive
detention in normal times. The provisions of article
22
( 4) to (7) by their very wording leave unaffected the
large powers of legislation on this point and emphasize
particularly
by article 22 (7) the power of the
Parlia
ment to deprive a person of a right to have his case
considered by an advisory board. Part III and
'
'
S.C.R. SUPREME COURT REPORTS 117
article 22 · in particular are the only restrictions on that
power . and but for those provisions the power to legis
late on this subject would have been quite unrestrict
ed. Parliament could have made a faw without any
safcglJMd · or any procedure for preventive detention.
Such an autocratic supremacy of the legislature is cer
tainly cut down by article 21. Therefore, if the legis
lature pr~scribes arprocedure by a validly enacted law
and such procedure in the case of preventive detention
does not come in conflict with the express provisions of
Part III or article 22 (4) to (7), _the Preventive Denten
tion Act must be held valid notwithstanding that . the
Court may not fully approve of the procedure prescri
bed under such Act.
Article
22 (4) opens with a double negative. Put
in a positive form it will mean that a
law which
pro
vides for preventive detention for a perioo longer than
three months shall contain a provision establishing an
advisory board, (consisting of persons with the
quali
fications mentioned in sub-clause (a), and which has to
report before the expiration
of three months if in its
opinion there was sufficient cause for -such detention.
This
clause, if it stood by itself and without the
re
maining provisions of article 22, will apply both-to the
Parliament and the State Legislatures. The proviso
to this
clause further enjoins that even though
the· ·ad~
visory board may be of the opinion that there was
sufficient cause for such detention, i.e., detention I»
yond the perioo of three months, still the detention is
not to be permitted beyond the maximum perioo, if
any, prescribed by Parliament under article 22 (7) (b).
Again the whole of this sub-clause is made inoperative
by article 22 ( 4) (b) in respect of an Act of preventive
detention
passed by
Parliament under clauses (7) (a)
and (b). Inasmuch
as the impugned Act is an Act of
the
Parliament purported to be so made, clause 22 (4)
has no operation and may for the present discussion
be kept aside. Article 22 (5) prescribes that· when any
person under a preventive detention law is detained,
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
-1950
Jt. K. O.J.fltin
v.
TlrlS"1#
Kani4 C.J.
1950
A. K. Gopalan
v.
Tlw Stot.
x.,,;,, C.}.
118 SUPREME COURT REPORTS [1950]
earliest opportunity of making a representation against
the order. This.
clause is of general operation in respect
of every detention order made under any law
permit
ting detention. Article 22 ( 6) permits the authority
making the order
to withhold disclosure of facts which
such authority considers against the public interest to
disclose. It may be noticed that this clause only
per
mits the non-disclosure of facts, and reading clauses
(5) and (6) together a distinction is drawn between
facts and grounds of detention. Article 22 ( 4) and (7)
deal not with the period of detention only but with
other requirements in the
case of preventive detention
also. They provide for the establishment of an advisory
board, and the
necessity of furnishing grounds to the
detenue.
and· also to give him a right to make a repre
sentation. Reading article 22 clauses ( 4) and (7) to
gether it appears to be implied that preventive deten
tion for less than three months, without an advisory
board, is permitted under the Chapter on Fundamental
Rights, provided such legislation is within the legisla
tive competence of the Parliament or the State Legis
lature, as the case may be. .
Article
22 (5) permits the detained person to make
a representation. The Constitution
is silent as to the
person
to whom it has to be made, or how it has to be
dealt with. But that is the procedure laid down by
the Constitution. It does not therefore mean that if a
law made by the Parliament in respect of preventive
detention
docs not make provision on those two points
it
is invalid. Silence on these points does not make
the impugned Act in contravention
of the Constitution
because the first question is what are the rights given
by the Constitution in the case of preventive detention.
The contention· that the representation
should be to an
outside body
has no support in law. Even in the
Liversidge case the representation had to be made to
•.he Secretary of State 'and not to another body. After
such representation
was made, another advisory board
had to consider it, but it
was not necessary to make
the representation itself
to a third party. Article 22
( 4) and (7)
permit the non-establishment of an advisory
board
expressly in a parliamentary legislation
S.C.R. SUPREME COURT REPORTS 119
providing for preventive detention beyond three
months.
If so, how can it be urged that the
non
establishment of an advisory board is a fundamental
right vio1ated by the procedure prescribed in the
Act
passed by the Parliament
?
The important clause to be considered is article
22 (7). Sub-clause (a)·. is important for this ca5e. In
the case of an Act of -preventive detention passed by
the Parliament this clause contained in the Chapter
on Fundamental Rights, thus permits detention be
yond a period of three months and excludes the neces
sity of consulting an advisory board, if the opening
words
of the
sub-clause are complied with. Sub-clause
(b) is permissive. It is not obligatory on the Parlia
ment to prescribe any maximum period. It was argued
that this
gives the Parliament a right to allow a person
to be detained indefinitely.
If that construction is
correct, it springs out of the words of sub-clause: (7)
itself and the Court cannot help
in the matter.
Sub
clause (c) permits the Parliament to lay down the
procedure: to be: followc:q by the advisory board in an
inquiry under
sub-clause
(~) of clause (4). I am unable
to
accept the contention tliat article 22 ( 4) (a) is the
rule and article
22 (7) the exception. I read
them as
two alternatives, provided by the Constitution for
making laws·on preventive detention.
Bearing ·in mind the provisions of article 22 read
with article
246 and Schedule VII, List I, Entry 9,
and,
List III, Entry 3, it is thus clear that the Parliament
is empowered to enact a law of preventive detention
(a) for
reasons connected with defence, (b) for reasons
connected with foreign affairs, ( c)
fer reasons connect
ed with the security of India ; and (under List III},
(
d)
for reasons connected with the security of a State,
( e) for
reasons connected with the maintenance of
public order, or (£) for
rea.Sons connected with the
maintenance of supplies and
services essential to the
community. Counsel for the petitioner
has challenged
the validity of several provisions
of the Act. . In
res
pect of the construction of a Constitution Lore~ Wright
in
James v. The
Commonwealth of Australif' (1),
(') (1936) A.C. 578 at 614.
1950
A. K. GoltJlaa
v.
T1" Stall
Kania C.J.
1950
A. E. Gop,/an
v.
T/,. Stat<
Kania C.J.
120 SUPREME COURT REPORTS [1950]
observed that "a Constitution must not be construed
in any narrow and pedantic sense." Mr. Justice Higgins
in
Attorney-General of New
South Wales v. Brewery
Employees' Union (
1
), observed: "Although we are to
interpret words
of the Constitution on the same prin
ciples
of interpretation as we apply to any ordinary
law, these
very principles of interpretation compel us
to take into account the nature and scope of the Act
that
we are interpreting-to remember that it is a
Constitution, a mechanism under which laws are
to be
made and not a mere Act which declares what the law
is to
be." In In re The Central Provinces and Berar Act
XIV of 1938 (
2
), Sir Maurice Gwyer C. J. after adopt
ing these observations said : "especially is this true of
a Federal Constitution with its nice balance
of jurisdic
tions. I conceive that a broad and liberal spirit should
inspire those whose duty it
is to interpret it ; but I do
not imply by this that they
are free to stretch or prevert
the language
of the enactment in the interest of any
legal or constitutional theory
o.r even for the purpose
of supplying omissions or of correcting supposed
errors." There is considerable authority for the
statement that the Courts are not at liberty
to declare
an
A,ct void because in their opinion it is opposed to a
spirit supposed to pervade the Constitution but not
expressed in words. Where the fundamental law has
not limited, either in terms or
by necessary implica
tion, the general powers conferred upon the Legislature
we cannot declare a limitation under the notion of
having discovered something in the spirit of the
Constitution which
is not even mentioned in the.
instrument. It is difficult upon any general principles
to limit the omnipotence of the sovereign legislative
power
by judicial interposition, except so far as the
express
:words of a written Constitution give that
authority. It
is also stated, if the words be positive
and without ambiguity, there
is no authority for a
Court
to vacate or repeal a Statute on that ground
alone.
·But it is only in express constitutional . provi
sions limiting legislative power and controlling the
temporary ·will of a majority by a permanent and
(') (1908) 6 Com. L.R. 469 at 611-12. (2) (1939) F.C.R. 18 at 37.
s.c.R. SUPREME COURT REPORTS 121
paramount law settled. by the ddibcrate wisdom of
the nation that one can find a safe and solid ground
for the authority of Courts of justice to declare void
any legislative enactment. Any assumption of autho
rity beyond this would be to place in the hands
of the judiciary powers too great and too indefinite
either for its own security or the protection of private
rights.
It
was first argµcd that by section 3
the
Parliament had delegated its legislative power to the
executive
officer in detaining a person on his being
satisfied
of its necessity. It was urged that the
satis
faction must be of the legislative body. This conten
tion of delegation of the legislative power in such cases
has been considered and rejected in numerous cases by
our Federal Court and by the English Courts. It is
unnecessary to refer to all those cases. A reading of
the various speeches in liversidge v. Anderson (1)
clearly negatives this contention. Section 3 of · the
impugned Act
is no delegation of legislative power to
make laws. It only confers discretion on the
officer to
enforce the law made
by the legislature.
S.ection 3 is
also impugned on the ground that it does not provide
?Jl objective standard which the Court can utilize for
determining whether the requirements of law have
been complied with. It
is clear that no such objective
standard of conduct can
be prescribed, except as
laying down conduct tending to achieve
or to avoid a
particular object. For preventive detention action
must
be taken on good suspicion. It is a subjective
test
based on the cumulative effect of different actions,
perhaps spread over a considerable period.
. As observed
by Lord Finlay in The King v. Halliday (•), a Court
is the least appropriate· tribunal to investigate the
question whether circumstances of suspicion exist
warranting the restraint on a person. The contention
is urged in respect of preventive detention and not
punitive detention.
Before a person can be held liable
for an
offence it is obvious that he should be in a
position
to know what he may do or not do, and an
omission
to do or not to do will result in the
State
(I) (1942) A.C. 206. (2) (1917) A.C.260 at 269.
1950
A.K.~•
v.
7/wSll*
Kaia C.J.
1950
A. K. Gopalan
v.
The State
Kania C.J.
122 SUPREME COURT REPORTS [1950]
considering him guilty according to the penal enact
ment. When it comes however to preventive detention,
the
very purpose is to prevent the individual not
merely from acting in a particular
way but, as the
sub-heads summarized
above show, from achieving a
particular object. It will not
be humanly possible to
tabulate exhaustively all actions which
may lead to a
particular object. It has therefore been considered
that a punitive detention Act which sufficiently
prescribes the objects which the legislature considers
have not
to be worked up to is a sufficient standard to
prevent the legislation being vague. In my opinion,
therefore, the argument
of the petitioner against sec
tion 3 of the impugned Act fails. It was also
con
tended that section 3 prescribes no limit of time for
detention and therefore the legislation
is ultra vires.
The answer is found in article 22 (7) (b). A perusal
of the provisions of the impugned Act moreover shows
that in section
12 provision is made for detention for
a period longer than three months bur not exceeding
one year in respect of clauses (a) and (b)
of that
section_ It appears therefore that in respect of the
rest of the clauses mentioned in section 3 (
1) (a) the
detention
is not contemplated to be for a period longer
than three months, and in such
cases a reference to
the advisory board under section
9 is contemplated.
Section 7 of the Act which is next challenged,
runs on the same .lines
as article 22 (5) and (6) and in
my opinion infringes no provision of the Constitution.
It'
was argued that this gave only the right of making
a representation without being heard orally or
with
out affording an opportunity to lead evidence and
therefore
was
not an orderly course of procedure, as
required by the rules of natural justice. The Parlia
ment by the Act has expressly given a right to the
person detained under a preventive detention order to
receive the grounds for detention and also has given
him a right to make a representation. The Act has
thus complied with the requirements of article
22 (5).
That clause, which prescribes what procedure has to
be followed as a matter of fundamental right, is silent,
about the person detained having a right
to be heard
S.C.R. SUPREME COURT REPORTS 123
orally or by a lawyer. The Constituent Assembly had
before them the provisions
of clause (I) of the same
article. The
Assembly having dealt with the
require
ments of receiving grounds and giving an opportunity
to make a representation
has deliberately refrained
from providing a right to
be heard orally. If so,. I do
not read the
clause as guaranteeing such right under
article
.22 (5). An
"orderly course of procedure" is
not limited to procedure which has been sanctioned by
settled usage. New forms of procedure are as much,
held even
by the
Supreme Court of America, due
process of law as old forms, provided they give a
person a fair opportunity to present his ca5e. It was
contended that the right to make a representation in
article
22 (5) must carry with it a right to be heard by
an independent tribunal ; otherwise the making of a repn:sentation has no substance because it is not an
effective remedy. I am unable to read clause (5) of
article
22 as
giving a fundamental right to be heard
by an. ind¢pendent tribunal. The Constitution deli
.berately · stops at giving the right of representation.
This is natural because under article 22 (7), in terms,
the Constitution permits the making
of a law by
Parliament· in which a reference to an advisory board
may be omitted. To consider the right to make a
representation
:rs necessarily including a right to be
heard by an independent judicial, administrative or
advisory tribunal will thus be directly in conflict with
the
express words of article 22 (7).
Even according to the
Supreme Court of U.S.A. a
right to a judicial trial
is not absolute. In the
United
States v. Ju Toy (
1
), a question arose about the exclu
sion from entry into the States, of a Chinese who
claimed to
be a citizen of the
United States. At page
263 the majority judgment contains the following
passage :-"If for the purpose of argument, we assume
that the Fifth Amendment applies to him, and
that to
deny entrance to a citizen is to deprive him
of liberty, we
nevertheles5 are of opinion that with
regard to him due
process of law does not require juclicial trial: That is the result of the cases which
we·
have cited, and the almost necessary result of the (I) (198)U.S. 253 at 263.
1950
A.K.Gopalatt
11.
Tiii S"1U
Kania C.].
1950
A. K. Copa/a•
-v.
TM Siok
Kama C.J.
124 SUPREME COURT REPORTS [1950]
power of the Congress to pass exclusion laws. That
the decision
may be entrusted to
an executive officer,
and ·that his decision is due process of law, was affirmed
and explained in several
cases. It is unnecessary to ~epeat the often-quoted rema,ks of Mr. Justice Curits,
speaking for the whole Court, in Den Exden ltfurray v.
Hoboken Land and Improvement Company (
1
), to
show that the requirement of a judicial trial
does
·not
prevail in every case."
Again, I am not prepared to accept the conten
tion that a right to
be heard orally is an essential
right of procedure even according to the rules of
natural justice. The right to make a defence may
be admitted, but there is nothing to support the
contention that an oral interview
is compulsory. In
the Local Government Board
v. Arlidge
(
1
), the respon
dent applied to the Board constituted under the Hous
ing Act to state a special case for the opinion of the High
Court, contending that the order was invalid
because
( 1) the report of the Inspector had been treated as a
confidential document and had not been disclosed to
the respondent, and (2)
because the Board had
declined to give the respondent an opportunity of
be
ing heard orally by the person or
ptrsons by whom
the appeal
was finalry decided. The Board rejected
the application. Both the points were urged before
the House
of Lords on appeal. Viscount Haldane
L. C. in his speech rejected the contention about the
necessity of an oral hearing
by observing
"But it
does not follow that the procedure of
every tribunal
must
be the same. In the case of a Court of law
tradition in this country has prescribed certain princi
ples to which, in the main, the procedure must
con
form. But what that procedure is to be in detail
must depend on the nature of a tribunal." In reject
ing the contention about the disclosure of the
report·
of the Inspector, the Lord Chancellor stated: "It might
or might not have been useful to disclose this report,
but I do not think that the Board was bound to do
so
any more than it would have been bound
to disclose
all the minutes made on the papers in the office before
(I) 18 H.O.W. 272 at 280. (2) (1915) A.C. 120.
S.C.R. SUPREME COURT REPORTS 125
a decision was come to . . . . What appears to me to
have been the fallacy of the judgment of the majority
in the Court of appeal
is that it begs the question at
. the beginning
by setting up the test of the procedure
·of a Court of justice instead of the other standard
which
was laid down for such cases in Board of
Edu
cation v. Rice (
1
). I do not think the Board was bound
to hear the respondent orally provided it
gave him
the opportunities he actually
had." In spite of the
fact that in England the Parliament
is supreme I am
unable
to accept the view that the Parliament in
making
laws, legislates against the well-recognised
principles of natural justice
accepted as such in all
civilized countries. The
same view is accepted in the
United States in Federal Communications Commission
v. W/R The Goodwill Station (• ).
A right to lead evidence against facts suspected to
exist
is also not essential in the case of preventive de
tention. Article 22 ( 6) permits the non-disclosure of
facts. That is one of
the:_ clauses of the Constitution
dealing with fundamental rights.
If even the
non-dis
closure of facts is permitted, I fail to see how there can
exist a right to contest facts by evidence and the non
inclusion
of such procedural right could make this Act
invalid.
Section
10 (3) was challenged on the ground that
it
excludes the right to appear in person or by any
lawyer
before the advisory board and it was
argued
that this was an infringement of a fundamental right.
It must be noticed that article 22 (1) which gives a de
tained person a right to consult or be defended by his
own legal practitioner
is specifically excluded
· by
article 22 (3) in the case of legislation dealing with
preventive detention. Moreover, the Parliament
is
expressly given power under article 22 (7) (c) to lay
down the procedure in an inquiry by an advisory board.
This
is also a part of article 22 itself. If so, how can
the omission to
give a right to audience be considered
against the constitutional rights
? It wa.~ pointed 'out
that section 10 (3) prevents even the disclosure of a
(I) (191 n A.C. 179. (2) 337 U.S. 265 at 276.
1950
A. K. Gopalaa
v.
Tu Stall
Klllfia
C.].
1950
A. K. Gopalan
v.
The Stale
Kania C.J.
126 SUPREME COURT REPORTS [1950]
portion: of the report and opinion of the advisory board.
It
was argued that if so how can the detained person
put forth his
case before a Court and challenge the con
clusions
? This argument was similarly advanced in.
Local Government Board v. Arlidge (
1
)
and rejected, as
mentioned above. In my opinion, the answer is in the
provision found in article
22 (7) ( c) of the Constitution
of India.
It was argued that section 11 of the impugned Act
was invalid as it permitted the continuance
cif the de
tention for such period
as the Central Government or
the
State Government thought fit. This may mean an
indefinite period. In my opinion this argument has no
substance-because the Act has to
be read as a whole.
The whole life
of the Act is for a year and therefore
the argument that the detention may
be for an in
definite period
is unsound. Again, by virtue of article
22 (7) (b ), the Parliament is not obliged to fix the
maximum term of such detention. It
has not so fixed
it, except under section
12, and therefore it cannot be
stated that section 11 is in contravention of article
22 (7).
Section 12 of the impugned Act is challenged on
the ground that it
does not conform to the provisions
of article
22 (7). It is argued that article 22 (7) per
mits preventive detention beyond three months, when
the Parliament prescribes
"the circumstances in which,
and the
class or classes of cases in
which," a person:
may be detained. It was argued that both these con
ditions must
be fulfilled. In my opinion, this argu
ment
is unsound, because the words used in article 22
(7) themselves are against such interpretation. The
use of the word
"which" twice in the first part of the
sub-clause, read with the. comma put after each, shows
that the legislature wanted these to be read
as dis
junctive and not conjunctive.
Such argument might
have been possible (
tl,JOugh not necessarily accepted) if
the article in the Constitution
was
"the circumstances
and the class or classes of cases in which .... " I have
no doubt that
by the clause, as worded, the· legislature
(l) (1915)
A.C. 120.
(
S.C.R. SUPREME COURT REPORTS 127
intended that the power of preventive detention beyond
three months may
be exercised either if the
circum
stances in which, or the class or classes of cases in which,
a person
is suspected or apprehended to be doing the
objectionable things mentioned in the section. This
contention therefore fails.
It
was next contended that by section 12 the
Parliament had provided that a perso.n might be
detained for a period longer than three months but
not exceeding one year from the date
of his detention,
without obtaining the opinion
of an advisory board,
with a
view to prevent 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.
It must be noticed that the contingency
provided in section 3 (1) (a) (iii),
viz., the maintenance
of supplies and
services essential to the community
is omitted in section 12. Relying on the wording of
these two sub-sections in section
12, it was argued
that in the impugned Act the wording of Schedule
VII
List I, Entry 9, and List III, ~ntry 3, except the last
part are only copied. This did not comply with the
requirement
to specify either the circumstances or the
class or classes of cases as is necessary to be done
under article
22 (7) of the Constitution.
Circum
stances ordinarily mean events or situation extraneous
to the actions of the individual concerned, while a
class of cases mean determinable groups based on the
actions of the individuals with a common aim or idea.
Determinable may
be according to the nature of the
object
also. It is obvious that the classification can
be by grouping the activities of people or by
specify
ing the objectives to be attained or avoided. The
argument advanced on behalf of the petitioner on this
point does not appeal to me because it
assumes that
the words of Schedule
VII List I, Entry 9, and List
III, Entry 3 t<re never capable of being considered
as circumstances or classes of cases. In my opinion,
th.at assumption is not justified, particularly when we
have to take into consideration cases of preventive
1950
A. K. Gopalan
v.
Th• State
Kania C.J.
1950
A. K. Copa/an
v.
Tlv Stall
Kania G.].
128 SUPREME COURT REPORTS [1950]
detention and not of conviction and punitive deten
tion. Each of the expressions used in those entries is
capable of complying with the requirement of men
tioning circumstances or classes of cases. The classifica
tion of cases, having regard to an object, may itself
amount
to a description of the circumstances. It is
not disputed that each of the entries in the Legislative
Lists in the Seventh Schedule has a
specific
connota
tion well understood and ascertainable in law. If so,
there appears no reason why the same expression
when used in section
12 (1) (a) and (b) of the
impugn
ed Act should not be held to have such specific mean
ing and thus comply with the requirement of prescrib
ing circumstances or classes of cases. This argument
therefore must
be rejected.
Section .. 13 (2) was attacked on the ground that
even if a detention order was revoked, another deten
tion order under section 3 might be made against the
same person on the same grounds. This clause
appears to
be inserted to prevent a man being released
if a detention order
was held invalid on some
techni
cal ground. There is nothing in the Chapter on
Fundamental Rights and in article
21 or 22 to prevent
the inclusion of such a clause in a par
liame11tary
legislation, permitting preventive detention. Article
20 (2) may be read as a contrast on this point.
Dealing with the four fundamental principles of
natural justice in procedure claimed
by the petitioner,
it
is thus clear that in respect of preventive detention
no question of an objective standard of human
con
duct can be laid down. It is conceded that no notice
before detention can
be claimed by the very nature
of such detention. The argument that after
deten
tion i.ntimation of the grounds should be given has
been recognised in article
22 (5) and incorporated
in the impugned Act.
As regards an impartial
tribunal, article
22 ( 4) and (7) read together
give the Parliament ample discretion. When in
specified circumstances and
classes of cases the
preventive detention
exceeds three months, the
absence of an advisory board is expressly permitted
S.C.R. SUPREME COURT REPORTS 129
by article 22 (7). Under article 22 (4) it appears impli
ed that a provision for such tribunal
is not necessary
if the detention is for less than three months. As
regards an opportunity to be heard, there is no
absolute natural right recognised in respect
of oral
representation. It
has been held to depend on the
nature of the tribunal. -The right
to make a representa
tion, is affirmed by the Constitution in artitie 22 (5)
and finds a place in the impugned Act. The right to
an orderly course of procedure
to the extent it is
guaranteed by
article 22 (4) read with article 22 (7) (c),
and
by article 22 (7) (a) and (b), has also been
thus provided in the Act. It
seems to me
therefore that the petitioner's contentions
even on
these po in
ts fail.
-
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.
It runs as follows :
"14. (1) No Court shall, except for the purposes
of a prosecution for an
offence punishable under
sub
section (2), allow any ·statement 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
sha~l be entitled to require
any public
officer to produce before it, or to Jisclose
the substance
of, any such communication or represen
tation made, or the proceedings of an Advisory Board
or that part of the report of an Advisory Board which
is confidential.
(2)
It shall be an offence punishable with impri
sonment for a 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) :
1950
A.
K. Gopalara
v.
Tll4 State
Kania C.].
1950
A. K. Gopalan
v.
The Stale
Kania C.J.
130 SUPREME COURT REPORTS [1950]
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."
By that section the Court is prevented (except for
the purpose
of punishment for such disclosure) from
being informed, either
by a statement or by leading
evidence, of the substance of the grounds conveyed to
the detained person under section 7 on which the order
was made, or of any representation made
by him
against such order. It also prevents the Court from
calling upon any public
officer to disclose the substance
of those grounds or from the production of the proceed
ings or report of the advisory board which may
be
declared confidential. It is clear that if this provision
is permitted to stand the Court can have no material
before' it to determine whether the detention
is proper
or not. I do not mean whether the grounds
are suffi
cient or not. It even prevents the Court from ascer
taining whether the alleged grounds of detention have
anything to
do with the circumstances or class or
classes of cases mentioned in section 12 ( 1) (a) or (b).
In Machindar
Shivaji Mahar v. The King (1), the
Federal Court held that the Court can examine the
grounds given
by the Government to see if they are
relevant to the object which the legislation has in
view. The provisions of article
22 (5) do not
exclude
that right of the Court. Section 14 of the impugned
Act appears
to be a drastic provision which requires
considerable support to sustain it in a preventive
detention Act. The learned Attorney-General urged
that the whole object
of the section was to prevent
ventilation in public of the grounds and the represen
tations, and that it
was a rule of evidence only which
the
Parliament could prescribe. I do not agree. This
argument
is clearly not sustainable on the words of
article
22 clauses (5) and (6). The Government has
the right under article
22 ( 6) not to disclose facts
which it considers undersirable to disclose in the public
interest.
It does not permit the Government to refrain
from disclosing grounds which fall under clause (5).
(1)
[1949-50) F.C.R. 827.
S.C.R. SUPREME COURT REPORTS 131
Therefore, it cannot successfully be contended t,,hat the
disclosure of grounds
may be withheld from the Court
in public interest,
as a rule of evidence. Moreover,
the position
is made clear by the words of article 22
(5). It provides that the detaining authority shall
communicate to
such detained person the grounds
on which the order
hat been made. It is therefore
essential that the grounds mtist
be connected with the
order
of preventive detention. If they are not so
connected the requirements of article 22 (5) are not
complied with and the detention order
. will be
invalid. Therefore, it is open to a detained per
son to contend before a Court that the grounds
on which the order
has
been made have no connec
tion at all with the order; or have no connection
with the circumstances or
class or classes, of cases ·under which a preventive detention order cou1d be
supported under section 12. To urge this argument tltc:
aggrieved party must have a right to intimate to the
Cqurt the grounds ·given for the alleged detention and
the representation made by him. For instance, a
person
is served with a paper on which there
are written
three stanzas of a poem or three alphabets written in
three different ways.· For the va!Wity of the detention
order it
is necessary that the grounds should be
thost
on which the order has been made. H the detained
persori is not· in a position to put before the Court this
paper, the Court will
be prevented from considering :yvhether the. requirement~ of article 22 (5) are complied
with and that
is a: right. which is guaranteed to. every
person. It
seems to me therefore that the provisions
of section
14
abridge the ,right given under article 22 (5)
and
a:te therefore ultra
vires.
It next remains to be considered how far the in
validity of this section affects the rest of the impugned
,'\.ct. The .impugned Act minu.s this section can remain
unaffected. The omission of this section will not
change the. hature or
.the structure or the object of the
legislation.
. Therefore the decision that section 14 is
ultra ilires does no.t.affect the validity of the rest of the
Act.
In my opinion therefore Act IV of
1950, except
section 14, ·is not ultra vires. It does not infringe any
4-3 s. C. India/58
1950
A. K. Gopa/11n
v.
tMState
Kania C.J.
1950
A. K. Gopalan
v.
The State
Fad Ali J.
132 SUPREME COURT REPORTS [1950]
provJS1orts of Part III of the Constitution and the con
tention of the applicant against the validity of that
Act, except to the extent of section 14, fails. The
petition therefore
fails and is dismissed.
FAZL
Au J.-The question to be decided in this
case is whether the Preventive Detention Act, 1950
(Act IV of 1950), is wholly or in part invalid and
whether the petitioner who
has been detained under
that Act
is entitled to a writ in the nature of
habeas
corpus on the ground that his detention is illegal. . The
question being a pure question
of law can be decided
without referring
to a long chain of facts which are
narrated in the petitioner's application to this Court
and which
have a more direct bearing on the alleged
mala
{ides of the authorities who have detained him
than on the validity
of the Act.
The Act which is
i!Ilpugned was enacted by the
Parliament on the
26th February,
1950, and will cease
to have effect on the 1st April, 1951, save as respects
things done or omitted to be done before that date.
The main provisions
of the Act are set out in sections
3, 7, 8, 9,
10, ll, 12 and 14. Section 3 (1) provides
that "the Central Government or the State Govern
ment
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
with foreign
powers, or the security of India, or
(ii)
the security of the
State or the mainten
ance of public order, or
(iii)
the maintenance of supplies and services
essential 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
. makmg arrangements for his expulsi1 n from
India,
S.C.R. SUPREME COURT REPORTS 133
it is necessary so to do, make an .order directing
that such person
be
detained."
Sub-sections (2) and (3) of this section empower a
District Magistrate, Sub-Divisional Magistarte or the
Commissioner of Police in a Presidency Town to
exercise the power conferred by and · make the order
contemplated in sub-section ( 1), but with the qualifica
tion that any order made thereunder must be reported
forthiwth to the Government
of the State to which the
officer in question is subordinate with the
groi,mds on
which the order
has been made and such other
parti
culars as in his opinion have a bearing on the necessity
for the order. Section 7 of the Act provides that the
authority making an order of detention shall
as soon as
may be communicate to the person detained the
grounds on which the order
has been
made and shall
afford him the earliest opportunity
of making a
representation against the order, in a
case
wh<;re 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. Section 8 provides
that the Central Government and each State Govern
ment shall, whenever necessary, constitute one or more
advisory boards for the purposes
of the Act. and
state the qualifications of persons of which the board
should
consist. Section 9 provides that when a
deten
tion order has been made with a view to preventing
a person from acting in
any manner prejudicial to
the
maintenance of supplies and services essential to the
community or if it
is made in regard to a person who
is
:i. foreigner within the meaning of the Foreigners
Act with a
view to regulating his continued presence
in India or making arrangements for . his expulsion
from India,
· the grounds on which the order I/as
been made and the representation, if any, of the
person detained shall, within
six weeks from the date
of detention,
be placed before an advisory board.
It will be noticed that this section does not provide
that the
cases of persons who are detained under
section 3 (1) (a) (i) and (ii) will
also be placed before
the advisory board.
Section 10 lays down the
1950
A. K. Goftalan
v.
T!uSlall
Fazl Ali].
1950
.A. K. Gopalan
v.
The Stale
Fa</ Ali J.
134 SUPREME COURT REPORTS [1950]
procedure to be followed by. the advisory board and
section
11 provides that in any case where the
advisory board has reported that there
is sufficient
cause for the detention of the person concerned, the
detention order may
be confirmed and the detention
of the person concerned may
be continued for such
period
as the Central Government or the
State Govern
ment, as the case may be, thinks fit. Section 12
which is a very important section, as we shall pres
ently see, runs as follows :-
"12 (I) Any person detained in any of the follow
ing classes of cases or under any of the following cir
cumstances 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 with 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.
(2) The
case of every person detained under a
detention order to which the provisions of sub-section
(1) apply shall, within a period of
six months from
the date of his detention,
be reviewed where
the order
was made
by the Central Government or a
. State
Government,
by such Government, and where the
order was made
by any officer, specified in sub-section
(2) of section
3, by the
State Government to which
such
officer is subordinate, in consultation with a person
who
is or has been or is qualified to be appointed as
Judge of a High Court nominated in that behalf by
the Central Government or the
State Government, as
the case may be."
Section 14, which is also a material section for
the purpose of this
case, is to the following effect :-
" ( 1) No Court shall, except for the purposes of
a prosecution for an offence punishable under sub
section (2), allow any statement to be made, or any .
S.C.R. SUPREME COQRT REPORTS 135
evidence to be given, before it of the substance of any
communication made l.fnder 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 ·1aw, 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 part
of the report of an
Advisory Board which
is confidential.
(2) It shall
be an offence punishable with
imprisonment for a 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 the contents of any such communication or repre
sentation
as is referred to in sub-section (I) :
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."
The point which has been pressed before us is
that the Act is invalid, as it takes away or abridges
certain fundamental rights conferred
by Part III of
the Constitution
of India, and in support of this
general proposition, reliance
is placed on article 13 (2)
which runs
as follows:-
"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."
The rights guaranteed under Part III of the
Constitution
are classified under seven broad heads,
as follows
:--,.
(I) Right to equality ;
(2) Right
to
freedom·;
(3) Right against exploitation ;
(
4) Right to freedom of religion ;
(5) Cultural and educational rights ;
( 6) Right
to property ; and
(7) Right to constitutional remedies.
1950
,4.
K,. Gopaltfl!
v,
TheSlaY
Fad.Ali J~·
1950
A. K. Gopd...,.
v.
T/,, Stat<
Fazl Ali J.
136 SUPREME COURT REPORTS [19501
Most of the articles which are said to have been
disregarded occur under the heading "Right to
freedom," these articles being articles 19 ( 1) ( d), 21
and 22. Another article which is also said to have
been violated
is article 32, under which the present
application for a writ
of habeas corpus purports to
have been made.
Article
19 ( 1) is divided into seven sub-clauses
and runs
as follows :-
"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 ;
( d) to move freely throughout the territory of
India ;
( e)
to reside and settle in any part of the
territory of India ;
( f) to acquire,
hold and dispose of property ; and
(g) to practise any profession, or to carry on
any occupation, trade or business."
Clauses (2), (3), ( 4), (5) and (6) of this article
provide that nothing in clause ( 1) shall affect the
operation
of any existing law in regard to the rights
under that clause, under certain conditions which are
mentioned therein.
Clause (5), with which we are
directly concerned and which will
serve as a specimen
to show the nature of these provisions,
is to the
following effect
:-
'"Nothing in ;ub-clauses (d), (e) and (f) of the
said clause shall affect the operation of any existing
law in
so far as it imposes, or prevent the State from
making any law imposing, reasonable restrictions on
the exercise of any of the rights conferred by the said
sub-clauses either in the interests of the general public
or for the protection of the interests of any Sched
uled
Tribe."
The contentions acivanced on behalf of the peti
tioner with reference
to this article are :-(1) that the
Act under which
he 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)
/
S.C.R· SUPREME COURT REPOltTS 137
that under clause_ (5) of article 19, it is open to this
Cou1 t to judge whether the restrictions imposed by the
Act on the exercise of the right conferred by article
19 (1) (d) are reasonable or otherwise. Before dealing
with this argument, it
is necessary to understand the
meaning
of the words used in article 19 ( 1) ( d), and
to have a clear comprehension
as to the true nature
of the right conferred thereunder.
The contention
put forward on behalf of the petitioner
is that freedom
of movement
is the essence of personal liberty and
any restraint on freedom
of movement must be held
to amount to abridgment or deprivation of personal
liberty,
as the case may be, according to
the nature
of the restraint. After
very careful consideration, I
have come to the conclusion that this
contention is
well-founded in law. Blackstone in his "Commen
taries on the Laws of England" (4th Edition, volume
1, page 134) states that "personal liberty consists in
the power of locomotion, of changing situation or
moving one's person to whatsoever place one's own
inclination may direct, without imprisonment or
restraint unless
by due course of
law". The autho
rity ·of this statement has never been questioned, and
it has been bodily incorporated by H. J. Stephen in
his "Commentaries on the Laws
of
England" and has
been reproduced by Cooley in his well-known treatise
on "Constitutional Limitations" (8th Edition, volume
1, page 710), which was extensively quoted by both
parties in the course
of their arguments. The view
that freedom
of movement is the essence of personal
liberty will also be confirmed
by reference to any
book on the criminal law of England dealing with the
offence of
false imprisonment or any commentary on
the Indian Penal Code dealing with the offences of
wrongful restraint or confinement. Russell in his book
on
"Crimes and Misdemeanours" (8th Edition, volume
1, page 861), dealing with the offence of false impri
sonment states
as follows :-"False imprisonment is unlawful and total
restraint of the personal liberty
of another, whether
by constraining him or compelling him to go to a
particular place or
by confining him in a prison or
1950
A. K. Gopalan
v.
Till ;,'fall
Fa.:! Ali J.
1950
A. K. Gopalan
. v.
The State
Fa</ Ali J.
138 SUPREME COURT REPORTS [1950]
police station or private place, or by detaining him
against
his will in a public place ........ the essential
element in the offence
is the unlawful detention of the
person or the unlawful restraint on his liberty.
Such
interference with the liberty of another's movements
is unlawful, unless it may be justified ......... "
Again, Dr. Gour in dealing
wrongful restraint in his book
British India" (5th Edition,
as follows :-
with the offence of
on ''The Penal Law of
page
1144) observes "Following the principle that every man's person
is sacred and that it is free, law visits with its penal
ties those who abridge his personal liberty, though he
may have no design upon his person. But the fact
that he controls
its movements for ever so short a time
is an offence against the King's peace, for no one has
the right
to molest another in his free
movements." ·
Dealing with the offence of wrongful confinement,
the same learned author observ~s as follows at page
1148 of his book :-
" 'Wrongful confinement' is a species of 'wrongful
restraint'
as defined in the last section. In wrongful
restraint, there
is only a partial suspension of one's
liberty of locomotion, while in wrongful confinement
there
is a total suspension of liberty 'beyond certain
circumscribing
limits'."
Both these authors speak of restraint on personal
liberty and interference with the liberty of one's move
ments or suspension of liberty or locomotion as inter
changeable terms. In Bird v. Jones (
1
), Coleridge J.
said that "it is one part of the definition of freedom to
be able t0-go whithersoever one pleases". A similar
opinion has been expressed
by several authors
includ
ing Sir Alfred Denning in his book entitled. "Freedom
under the Law." There can therefore be no doubt that
freedom of movement
is in the last analysis the essence
of personal liberty, and just as a man's wealth is
generally measured in this country in terms of rupees,
annas and pies, one's personal liberty depends upon
the extent of his freedom of movement. But it
is
con
tended on behalf of the State that freedom of move-
(1) 7 Q.B. 742.
S.C.R. SUPREME COURT REPORTS 139
ment to which reference has been made. in art!cle 19 ( 1)
(d) is not the freedom of movement to which Black
stone and other authors have referred, but is a different
species of freedom which is qualified by the words
"throughout the territory of India." How the u~e of
the expression "throughout the territory of India"
can qualify the meaning of the rest of the words used
in the article
is a matter beyond my comprehension.
In
my opinion, the words "throughout the territory
of India" were used to stretch the ambit of the free
dom of movement to the utmost extent to which it
could
be guaranteed by our Constitution. The
Con
stitution could not guarantee f~eedom of movement
outside the territorial limits
of India, and so has used
those words to show that a citizen was entitled to
move from one corner of the country to
another freely
and without
any obstruction.
"Throughout!' is an
amplifying and not a limiting expression, and I
am surprised
to find that the expression
"throughout
the territory of India," which was used to give the
widest
possible scope to
th~ freedom of movement, is
sought to be construed as an expression limiting the
scope and nature of the freedom. In my opinion, the
words "throughout the territory of India;'' having
regard to the context in which they
have been used
here, have the
same force and meaning as the
expression "to whatsoever place one's own inclination
may direct" used by Blackstone, or the expression
"freedom to be able to go whithersoever one pleases"
used by Coleridge J. in Bird v. Jones (l ). I am
certain that neither
of these authorities
. contemplated
that the freedom of movement which
is vouchsafed to
a British citizen,
is guaranteed bevond the territorial
limits
of British territories.
·
The question as to wh,ether preventive detention
is an encroachment on the right guaranteed by article
19 (1) (d) has been considered by the Nagpur, Patna
and Calcutta High Courts. The view which has been
ultimately adopted by these High . · Courts is . that
preventive detention is not a violation of the right
guaranteed
by article 19 (1) (d), but, in the Calcutta (! 7 Q.B. 742.
1950
A .• K. Gopal~
~
T~S~
Fri.ti ~li_J.
1950
A. K. Gopalan
v.
The State
Fa.r:l Ali J.
140 SUPREME COURT REPORTS [1950]
High Court, where the matter has been elaborately
discussed, at least
five Judges have held that it does,
and in the ultimate analysis the number of Judges
who have held the contrary view appears to
be the
same. Having regard to the fact that the view
ex
pressed by so many learned Judges is opposed to the
view I am inclined to take, I consider it necessary to
deal
briefly with the main objections which have been
raised in support of the narrow meaning sought to be
attached to the
Words in article 19 ( 1) ( d). I
have already dealt with one of them which
is
based on the expression
"throughout the territory of
India." And I shall now proceed to deal with the
other
seriatim.
I. It will be recalled that clause (5) of article 19,
which I have already quoted in full provides among
other things that nothing in clause (
1) ( d) shall affect
the operation of any law, present or future, imposing
reasonable restrictions on the
exercise of the right of
freedom
of movement either in the interests of the
general public or for the protection of the interests
of
any Scheduled Tribe. It has been argued that the use of
the words
"interests of any Scheduled Tribe" in this
clause shows that the right guaranteed
by article 19 ( 1)
( d) is a limited right of movement, such as the right to
visit different localities and to go from one place to
another and
is different
from the expression "freedom
of movement" which has been stated by Blackstone
to be another name for personal liberty. It
is pointed
out that the restrictions in contemplation here are
mainly restrictions preventing undesirable outsiders
from visiting Scheduled Areas and exploiting Scheduled
Tribes, and
if the words
"freedom of movement" had
been used in the larger
sense, such a small matter
would not have found a place in clause (5) of article
19.
I must frankly confess that I am unable to appre
ciate this argument and to hold that a mere reference
to Scheduled Tribes affects the plain meaning of the
words used in clause (1)
(d) of article 19. The words
used in article
19 ( 1) ( d) are very wide and mean that
a person can go at his will in any direction to any
locality and to any distance. Restraint on a freedom
S.C.R. SUPREME COURT REPORTS 141
so wide in scope and extent may assume a variety of
forms and may include internment or externment of a
person,
his confinement to a particular locality or
with
in the walls of a prison, his being prevented from visit
ing or staying in any particular area, etc. The framers
of the Constitution wanted to
save all restrictive
legis
lation affecting freedom of movement made in the
interests
of the general public (which
expression· means
the
same thing as
"public interests") and I think
that the law in regard to preventive detention
is fully
covered by the expression
"restrictions imposed in the
public interests." But they
also remembered that
there
were restrictive laws made in the interests of an
important community and that similar
laws may have
to
be made in future and hence they added the words
"for the protection of ·the interests of any Scheduled
Tribe." A reference to the Fifth Schedule of the
Constitution and the corresponding provisions of the
Government
of India: Act, 1935, as well as to certain
laws made for Chota Nagpur, Santhal Parganas and
other localities will show that great importance
has
been attached in this country to the protection and
preservation of the members
of the scheduled tribes
and maintenance of order in tribal
areas, and. this, in
my opinion, is sufficient to account for the special
mention of the scheduled tribes in clause (5). It may,
at first sight, appear to
be a relatively small matter, but
in
their anxiety to cover the whole field of restrictive
laws made whether in the public interest or in the
interests of a particular community and not
to leave
the smallest loophole, the framers of the
Constjtution
apparently decided to draft the clause in the present
form. · As far as I am aware, there are no restrictive
laws made in the interests of any community other
than the scheduled tribes, and I think
clause (5) is
sufficiently comprehensive to include the smallest as
well as the most complete restrictions on freedom of
movement. I
am also satisfied that the mere mention
of scheduled tribes in clause (5)
eannot change the
plain meaning ot the words of the main provision
which
we find in article 19(1) (d) and confine it to
some kind of peculiar and truncated freedom of
1950
A. K. Gopalan
v.
The Stall
F~l Ali J.
l95o
A.. /[, Gopalan
v.
Thi SlaU
Fad A.II J.
142 SUPREME COURT REPORTS [1950)
movement which is unconnected with personal liberty
and which
is unknown to any Constitution witb which
we are familiar.
It will perhaps
be not out of place to refer in this
connection
to Ordinance XIV of 1943, which is one of
tbe ordinances
by whicb the Defence of India Act,
1939, was partly amended. This ordinance provides
for-
"the apprehension and detention in custody of
any person whom the authority empowered by the
rules to apprehend or detain
as tbe case may be su5pects, on · grounds appearing to such autbority to
be reasonable, of being of hostile origin, or of having
acted, acting, being about
to act, or being likely to act
in a manner prejudicial
to the public safety or interest,
the defence
of British India, . the maintenance of public
order, His
Majesty's relations with foreign powers or
Indian States, tbe maintenance of peaceful conditions
in tribal areas or tbe
efficient prosecution of the war, o~ wiJ;li respect to whom ouch autbority is satisfied
that liis apprehension and detention are necessary for
tbe purpose . of preventing him from acting in any sucb
prejudicial manner,
the prohibition
of such person
from entering or residing or remaining in any area,
and the compelling of sucb person to reside and remain
in anY area, or to do or abstain from doing anything."
The points to
be noted in connection witb the
ordinance are :-
( l) that it is an ordinance specifically providing
for apprehension and detention ;
(Z) that notwitbstanding the fact that there is a
general reference in it
to acts prejudicial to public
safe
ty ot interests and maintenance of public order there
is also a ·specific reference to maiii.tenance of peaceful
ainditicins in tribal areas ;
(3)
that
.tribal areas and scheduled tribes are
kfudriid' . subjects as · would appear from the Fifth
SchcdillC appended to the Constitution ; and
(4) ·that maintenance of peaceful conditions in
tribal areas may be as much in the public interest as
in the hitercsts of. persons living in those areas. •
S.C.R. SUPREME COURT REPORTS 143
This ordinance shows at least this much that some
times the law of preventive detention can also be made
in the interests of scheduled tribes or scheduled areas
and consequently the mere mention of scheduled tribes
in
clause (5) does not necessarily exclude laws relat
ing to preventive detention from the
scope of article 19
(5). The same remarks apply to the ordinance called
"The Restriction and Detention Ordinance, 1944"
(Ordinance No. III of 1944) which empowered the
Central Government or the Provincial Government to
detain and make orders restricting the movements of
certain persons in the interest of public
safety, main
tenance
of public order as well as maintenance of peaceful
conditions in tribal
areas, etc.
II. It
is· also argued that since preventive deten
tion 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). This argument also does not appeal to me.
There are really two questions which fall to be decided
in this case, viz., (a) Does preventive detention take
away the right guaranteed by article 19 (1) (d) ? ; and
(b) if
so, what are the consequences, if any ?
It seems obvious to me that preventive detention
amounts to a complete deprivation
of the right guaran
teed
by article ( 19) ( d). The meaning of the word
"restriction" is to be considered with reference to the
second question and I think that it will be highly
technical
to argue
that deprivation of a right cannot
be said to involve restriction on the exercise of the
right. In
my opinion, having regard to the context in
which the word
"restriction" has been used, there is no
antithesis between that word and the word "depri
vation." As I have already stated, restraint on the
right to
move can assume a variety of forms and restric
tion would
be the most appropriate expression to be
used in clause (5) so as to cover all those forms. ranging
from total to
various kinds of partial deprivation of
freedom
of movement. I will however have to advert
to this subject later and will try to
show that the
1950
.A. •• K. Gopalil/I
v.
T/14.Slak
Fa1:.I .dli J,
1930
A.
Ir. Gopalon
v.
TheStau
Fa<! Ali J.
144 SUPREME COURT REPORTS [1950]
construction I have suggested is supported by good
authority.
III. It appears that
some of the Judges who had
to deal with the question which
we have before us
were greatly influenced by the argument that if the
deprivation of personal liberty amounts
to deprivation
of the right granted under article
19 (!) (d);any con
viction for an offence under the Indian
Penal Code
involving a sentence
of imprisonment will be subject
to judicial review on the ground of reasonableness of
the provisions of the Code under which tlle conviction
is recorded. Meredith C. J. of the
Patna High Court
has given expression
to his concern for the situation
which will thereby arise, in these words
:-
"It will be seen that the claim made is very
sweeping indeed. It would mean that eyery law under
which a person
may be imprisoned, including all the
provisions of the
Penal Code, is open to examination
by the Courts on the ground of reasonableness. It
makes the Courts supreme arbiters in regard to any
such legislation, and they
can reject it or accept it in
accordance with their
ideas of whether it appeals to
their reason.
Bu't ideas of reasonableness or otherwise
are apt
to vary
widely. Take for example, laws relat
ing to prohibition or take such a matter
as adultery
which the Indian law regards
as a crime punishable
with imprisonment but the English law
does not. It
is difficult to believe the framers of the Constitution
ever intended to place
so enormous a power in the
hands of the Courts
........
" [Rattan Roy v. The State
of Bihar].
The obviqus and strictly legal reply to this argu
ment
is that the consideration, which has
so greatly
weighed with the learned Chief Justice,
is not enough
to cut down the plain meaning of the general words used in article 19 (5) of the Constitution. As has been
pointed out in a number of
cases,
"in construing
enacted words,
we are not concerned with the policy
involved or with the results injurious or otherwise
which may follow
bv
~ving effect to the lmguage
S.C.R. SUPREME COURT REPORTS 145
used" [King Emperor v. Benoari Lal Sharma and
others. (1) ].
Apart from this aspect of -the matter, I agree with
one
of the learned Judges of the Calcutta High Court in
his remark that
"no calamitous or untoward result
will follow even if the provisions of the Penal Code be
come justiciable." I am certain that no Court would
interfere with a
Code which has been the law of the
land for nearly a century and the provisions of which
are not in
conflict with the basic principles of any
sys
tem of law. It seems to me that this Court should not
be deterred from giving effect to a fundamental right
granted under the Constitution, merely
because of a
vague and unfounded fear that something catastrophic
may happen.
I have
so far proceeded on the
assutnption that the
basis of the objection raised by Meredith C. J. is
correct in law, but, in my opinion, it is not. Crime
has been defined to consist in those acts or omissions
volving breach of a duty to which a sanction is
attached by law by way of punishment or pecuniary
penalty in the public interests. (See Russell's "Crimes
and Misderneanours".) Section 2 of the Indian Penal
Code, 1860, provides that "every person shall be liable
to punishment under this
Code and not otherwise for
every act or omission contrary to the provisions
thereof,
of which he shall be guilty within British India." The
Indian Penal Code does not primarily or necessarily
impose restrictions on the freedom
of movement, and it
is not correct to say that it is a law imposing
restric
tions on the right to move freely. Its primary object
is to punish crime and not to restrict movement. The
punishment may consist in imprisonment or a pecuni
ary penalty. If it consists in a pecuniary · penalty, it
obviously involves no restriction on movement ; but if
it consists in imprisonment, there
is a restriction on
movement. This restraint
is imposed not under a law
imposing restrictions on movement but under a law
defining crime and making it punishable. The
punish
ment is correlated directly with the violation of some
other person's ri~ht and not with the right of
(I) (19!5) F.C.R. 161 at p. 177.
1950
A. K. Gopalan
v.
The Statt
Fad Ali].
19.0
A~ K. Gopalan
v.
The Stale
Fat! Ali J.
146 SUPREME COURT REPORTS [1950)
movement possessed by the offender himself. In my
opm10n, therefore, the Indian Penal Code does not
come within the ambit of the words "law imposing
restriction
on the right to move
freely".
In the course of the arguments, the expression
"punitive detention" was frequent! y used and the
tendency
was to put it on the same footing as
preven
tive detention for the purpose of certain arguments.
Punitive detention is however essential! y different
from preventive detention. A person
is punitively
de
tained only after a trial for committing a crime and
after his guilt
has been established in a competent
Court of justice. A person
so convicted can take his
case to the
State High Court and sometimes bring it to
this Court
also ; and he can in the course of the
pro
ceedings connected with his trial take all pleas available
to him including the plea of want of jurisdiction of the
Court of trial and the invalidity
of tbe . law under
which
h~ has been prosecuted. The final judgment in
the criminal trial will tbus constitute" a serious obstacle
in his wav if be chooses to assert even after his con
viction that his right under article 19 (!) (d) has been 1
violated. But a person who is preventively detained
has not to
face such an obstacle whatever other
ob
stacle may be in his way.
IV. It was pointed out tbat article 19 being con-
fined
to citizens, the anomalous situation will follow
that in
cases of preventive detention, a citizen will be
placed in a better position than a non-citizen, because
if a citizen
is detained his detention will be open to
some kind of judicial review under article 19 (5), but
if a non-citizen
has been detained his case will not be
open to such review. In this view, it
is said that the
whole Act relating
to preventive detention may
be
declared to be void if it is unreasonable, though it
concerns citizens
as well as persons other than citizens.
I must frankly state
th?t I am not at all perturbed by
this argument. It is a patent fact that the Consti
tution has confined all the rights mentioned in article
19 ( 1) to citizens. It is equally clear that restrictions
on those rights are to a limited extent
at least open
to judicial review. The very
same question which is
S.C.R. SUPREME COURT REPORTS 147
raised m regard to article 19 (1) (d) will arise with
regard
to most of the other sub-clauses. A citizen
has the right to assemble peaceably and without
arms, to form associations or unions and
so on. If
there
is any law imposing
u1ireasonable restrictions
on any of these rights, that law will not
be
good law so far as citizens are concerned,' but
it may
be good law so far as non-citizens are con
cerned. I do not
see why a similar situation arising
with regard
to the right granted under sub-clause ( d)
should be stated to be anomalous.
So far as the right
of free movement
is concerned, a non-citizen has been
granted certain
p£.otections in articles 21 and 22. If a
citizen
has been granted certain
other· additional pro
tections under article 19 (1) (d), there is no anomaly
involved in the discrimination. I think that it
is con
ceivable that a certain law may be declared' to be void
as
ag~inst a citizen but not against a non-citizen.
Such a result however should not affect our mind if it
is found to have been clearly within the contemplation
o! the framers of the Constitution.
V. 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 circum
stances 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. After giving my fullest con
sideration
to· this argument, I have not been able to
appreciate how it arises in this case. There is nothing
in article
19 to suggest that it
. applies only to those
cases which do not fall under articles 20, 21 and 22.
Confining ourselves to preventive detention, it is enough
to point out that a person who is preventively detained
must
have been, before he lost his liberty, a free man.
Why can't he
say to those who detained him:
"As a
citizen I have the right to move freely and
you cannot
curtail or take away my right beyond the limits im
posed
by clause (5) of article
19." This is the only
question which
arises in the case and it should not be
obscured by any abstruse or metaphysical
considera
tions. It is true that if you put a man under detention,
he cannot move and therefore he is not in a position to
5-3 S. C. India/58
1950
A. K. Gopa/an
v.
The State
Faz/ Ali].
1950
A. /(. Gopalon
v.
The Sta11
Fa<I Ali].
148 SUPREME COURT REPORTS [1950]
exercise the right guaranteed under article 19 (1) (d),
but this is only the physical aspect of the matter and
a person who
is bed-ridden on account of disease
suffers from a similar disability. In law, however,
physical duress
does not deprive a person of the right
to freedom of movement. If he has been detained
under
some provision of law imposing restrictions on
the freedom
of movement, then the question will arise
whether the restrictions are reasonable. If he has
been detained under no provisien of law or under
some
law which is invalid. he must be set at liberty.
To
my mind. the scheme of the Chapter dealing
with the fundamental rights
does not contemplate
what
is attributed to it. namely, that each article is
a code by itself and is independent of the others. In
my opinion, it cannot be
s~id that articles 19, 20, 21
and 22 do not to some extent overlap each other. The
case of a person who is convicted of an offence will
come under articles 20 and 21 and also under article 22
so far as his arrest and detention in custody before
trial are concerned. Preventive detention, which is
dealt with in article 22, also amounts to deprivation of
personal liberty which is referred to in article 21, and
is a violation of the right of freedom of movement
dealt with in article
19 (1) (d). That there arc other
instances
of overlapping of articles in the Constitution
may be illustrated by reference to article 19 ( 1) ( £) and
article
31 both of which deal with the right to property
and
to some extent overlap each
other. It appears
that
some learned High Court Judges, who
had· to deal
with the
very question before us, were greatly impressed
by the statement in the report of the Drafting
Com
mittee of the Constituent Assemblv on article 15 ( cor
responding to the present article · 21 ), that the word
"liberty" should be qualified by the insertion of the
word "personal" before it for otherwise it may be
construed
very widely so as to include the freedoms
dealt with in article
13 (corresponding to the present
article 19). I am not however preparded to hold that
this statement
is decisive on the question of the
con
struction nf the words used in article 19 ( 1) ( d) which
are quite plain and can be construed without any
S.C.R. SUPREME COURT REPORTS 149
extraneous help. Whether the report of the Drafting
Committee and the debates on the
floor of the House
should
be used at all in construing the words of a
sta
tute, which are words of ordinary and common use
and are not used in any technical or peculiar sense, is
a debatable question ; and whether they can be used
in aid
of a construction which is a strain upon the
language
used in the clause to be)nterpreted is a
·still
more doubtful matter. But, apart from these legal
considerations, it
is, I think, open to us to analyse the
statement and
see whether it goes beyond adding a
somewhat plausible
reason-a superficially plausible
reason-for a slight verbal change in article
21. It
seems clear that the addition of the word
· "personal"
before "liberty" in article 21 cannot change the mean
ing of the words used in article 19; nor can it put a
matter which
is inseparably bound up with personal
liberty beyond its place. Personal liberty and personal
freedom, in spite of the
use of the word
"personal,"
are, as we find in several books, sometimes used in a
wide
sense and embrace freedom of speech, freedom of
association,
etc. These rights are some of the most
valuable
phases or elements of liberty and they do not
cease to be so by the addition of the word
"personal."
A general . statement by the Drafting Committee refer
ring to freedom in plural cannot take the place of an
authoritative exposition of the meaning
of the words
used in article
19 (1) (d), which has not been specifically
referred
to and cannot be such an overriding
con
sideration as to compel us to put a meaning opposed
to reason and authority. The words used in article
19
(1) ( d) must be construed as they stand, and we have
to decide upon the words themselves whether in the
case of preventive
. detention the right under article 19
( 1) ( d) is or is not infiinged. But, as I shall point out
later, however, literally
we may construe the words used
in article 19 (1) (d) and however restricted may be the
meaning
we may attribute to those words, there can be
no escape 'from the conclusion that preventive detention
is a <lirect infringement of the right guaranteed in
arti
cle 19 (1) (d).
1950
A. K. Gopalan
v.
TheStlJU
Fazl Ali].
1950
A. K. Gopalan
v.
The State
Fa</ Ali].
150 SUPREME COURT REPORTS [1950]
Having dealt with the principal objections, I. wish
to revert
once again to the main topic. The expressions "personal liberty" and "personal freedom" have, as
we find in several books, a wider meaning and also a
narrower meaning. In the wider
sense, they include
not only immunity from arrest and detention but
also
freedom of speech, freedom of association, etc. In the
narrower
sense, they mean immunity from arrest
and
detention. I have shown that the juristic conception
of "personal liberty," when these words are used in
the
sense of immunity from arrest, is that it
consis~
in freedom of movement and -locomotion. I have also
pointed out that this conception is at the root of the
criminal
law of England and of this country, so far as
the offences of false imprisonment and wrongful
confine
ment are concerned. The gravamen of these offences
is restraint on freedom of movement. With these facts
in view, I have tried to find out whether there is any
freedom of movement known in England apart from
personal liberty
used in the sense of immunity from
arrest
and detention, but I find no trace of any such
freedom.
In Halsbury's Laws
·of England (2nd Edi
tion, volume 6, page 391), the freedoms mentioned are
the right
to personal freedom (or immunity from
deten
tion or confinement), the right to property, the right
to freedom of speech, the right of public meeting, the
right
of association, etc.
Similar classifications will be
found in Dicey's "Introduction to the Study of the
Law
of the
Constitution" and Keith's "Constitutional
Law" and other books on constitutional subjects, but
there
is no reference anywhere to any freedom or right
of movement in the
sense in which we are asked to
construe the words used in article l9 (1) (d)
.. In the
Constitutions
of America, Ireland. and many other
countries
when: freedom is prized, there is no reference
to freedom or right of movement as something distinct
from personal liberty
used in the sense of immunity
from arrest and confinement. The
obvious explanation
is that in
lep;al conception no freedom or right of move
ment exists apart from what personal liberty connotes
and therefore a separate treatment
of this freedom was
not necessary. It is only in the Constitution of the Free
S.C.R. SUPREME COURT REPORTS 151
City of Danzig, which covers an area of 791 square
miles, that
we find these words in article
75:-"All
nationals shall enjoy freedom of movement within the
City." There is however no authoritative opinion
available
to support the view that this freedom is
any
thing different from what is otherwise called personal
liberty. The problem of construction in regard
to this
particular right in the Constitution of Danzig
is the
same
as in our Constitution.
Such being the general
position, I am confirmed in
my view that the juristic
conception that personal liberty and freedom
of,
move
ment connote the same thing is the correct and true
conception, and the words
used in article 19 ( 1) ( d)
must be construed according to this universally
accep
ted legal concepuon.
This conclusion
is further supported by reference
to the
war legislation in England and in India, upon
which the law of preventive detention, which
has been
in force in this country
since the war, is based. In the
first world war, the British Parliament
passed the
Defence
of the Realm Consolidation Act, in 1914, an<l
a number of regulations were made under it including
regulation
14-B, which permitted the Secretary
of
State to subject any person "to such obligations
and
restrictions as hereinafter mentioned in view of
his hostile origin or associations." Lord Atkin in
re
ferring to this regulation said in Liversidge v. Sir John
Anderson e ), "that the regulation undisputedly gave
to a Secretary of State unrestricted power to detain a
suspected person." Apparently, Lord Atkin meant
that the restriction referred to in the Act included pre~
ventive detention. Under this regulation, one Arthur
Zadig was interned, and he applied to the King's
Bench for a writ of habeas corpus which was refused.
The matter ultimately came up before the House of
Lords in Rex v. Halliday (
2
) ,
and the noble Lords in
dealing with
~he case proceeded on the assumption that
there was no difference between internment and incar
ceration or imprisonment. Lord Shaw in narrating -::he
facts of th case stated:-
(I) [19~2] A. C. 238. (2) [1917] A. C. 260.
1950
A. K. Gopalan
v.
The Stau
Faz! Ali J.
f930
A. K. Copa/an
v.
The Stat<
Faz/ Ali ].
152 SUPREME COURT REPORTS [1950]
"His person was seized, he has been interned ... .
The appellant lost
his liberty and was interned ......
"
He then proceeded to state that there was no
difference between internment and imprisonment and
quoted the following passage from Blackstone:-
"The confinement of the person, in any wise, is an
imprisonment. So that the keeping a man against his
will in a private house, putting him in the stocks,
arresting or forcibly detaining him in the street,
is an
imprisonment.''
Proceeding on-this footing (which I find to be the
common
basis in all other speeches delivered in the case,
though Lord
Shaw had given a dissenting judgment},
Lord Finlay while dealing with the provisions of the
regwations observed :-
"One of the most obvious means of taking pre
cautions against dangers such
as are enumerated is to
impose some restriction on the freedom of movement
of persons whom there
may be any reason to suspect of
being disposed
to help the
enemy" (' ).
Again, Lord Atkinson while dealing with the mer
its of the case made the following observation :-
"If the legislature chooses to enact that he can be
deprived of his liberty and incarcerated or interned for
certain things for· which he could not have been hereto
fore incarcerated or interned, that enactment and the
orders made under it
if
intra vires do not in~ringe up
on the Habeas Corpus Acts or take away any · right
conferred
by Magna Charta ......
" ( • )
This passage read with the previous passage
quoted
by me will show that both internment and
incarceration were regarded
as
"restrictions on the
freedom of movement" and that deprivation of liberty
and restriction on freedom
of movement were used as
alternative expressions bearing the
same· meaning.
The same conclusion is to be drawn by· referente
to the regulations made in the last world war under the
Emergency Powers (Defence) Act,
l939. The regulation
which directly dealt with detention orders was
18-B.
This regulation and a number of other regulations have
been placed in Part I under the heading "Restrictiom
(I) [!917] A. C. 269. (2) [1917] A. C. 272.
S.C.R. SUPREME COURT REPORTS 153
on movements and activitie~ of persons.'' The . classi
fication is important, because it meets tWo . principal
arguments advanced in this
case. It shows firstly
that detention
is a form of restriction and secondly
that it is a restriction on movement. I have noticed
that
"movement" is used in plural, and the heading
also refers to restncttons on activities, b1,1t, having
regard t<f the subjects classified under this head, move-.
ment undoubtedly refers to physical movement and
includes
such movements
as entering a particular loca
lity, going from one place to another, etc., i.e., the
very things to which article 19 (1) (d~ is said to have
reference.
In Liversidge's case, in construing the
provi
sions of the Act . of 1939, Viscount Maugham observed
as follows:-
"The language o£ the Act of 1939 (above cited)
shows beyond doubt that Defence Regulations may be
made which must deprive the subject "whose detention
appears
to the
Secretary of State to be expedient in the
interests
of public
safety" · of all his liberty of move"
ment while the regulations remain in force" (
1
).
Thus Viscount Maugham .also ·considered detention
to be synonymous with deprivation of liberty of
movement.
'.The classification that we find in the Defence of
the Realm Regulations
was with a little verbal
modi
fication adopted in the Defence of India Rules, and we
.find that here also rule 26, which dealt with
preventive detention,
has been placed under the
heading
"Restriction of movements and activities of
persons." A somewhat similar classification has also
been adopted in a series of Provincial Acts and Ordi
nances relating ·to maintenance of order [see section 2
of the Bihar Maintenance of Public Order Act, 1949,
section l6 of the West Bengal Security Act, 1948,
section 4 of the East ~unjab Public Safety Act, 1949,
section 2 of the Madras Maintenance of Public Order
Act, 1947, section 3 of the U:P. Maintenance of Public
Order Temporary Act, 1947, and section 2 of the Bom
bay Public Security Measures Act, 1947]. In these
Acts and Ordinances, preventive detention and certain
(1) [194-2] A. C. 219.
1950
..f. K. Copa/an
v.
'1"111 StaU
Ftul Ali J.
1950
A. K. Gopalan
v.
T"6 StaU
-<-
Fad Alij
154 SUPREME COURT REPORTS [1950]
other forms of restriction ·~n, movement such as intern
ment, externment, ·etc.. have been classed together and
dealt wi~ more or less on the same footing, and some
times they have been dealt with in different clauses of
the
same section. In one of the Acts, the same advisory
board is to deal with the case of a dctenue as well as
that of an· externed person, and there are also similar
provisions giving them the right
to represent their case
to the Government.
I
will now assume for the sake of argument that
the freedom
of movement to which reference is made
in article
19 ( 1) ( d) has nothing to do with personal
liberty
and that the words which occur in the ·article
bear the restricted meaning attributed
to them by the
learned Attorney-General and
some of my colleagues.
It seems to me that even on this assumption, it is
difficult to arrive at
an} conclusion other than what
I
have already anived at. There can be no doubt that
preventive detention
does take away even this limited
freedom
of movement directly and substantially, and,
if so, I
d6 not see how it can be argued that the right
under article
19 ( 1) (
J) is not infringed if the alterna
tive interpretation is accepted. We have only to ask .
ourselves : Does a person who is detained retain even
a fraction of his freedom of movement in howsoever
restricted sense· the term may be used and does he not
lose )lls right to move freely from one place to another
or
visit any locality he likes as a necessary result of
his
detentipn ? I think'. I should refer here once more to
the
fact that in the Defence of the Realm Regulations
and
Defence of India Rules, preventive detention is
classed · under ·the heading
"Restriction of movements
and activities," "Movement" is here used in plural
and refers to that
very type of movement which is said
to be protected by article 19 ( 1) ( d), moving from one State or place to another, visiting different localities,
etc. One of the objects . of preventive detention is to
restrain the 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,
S.C.R. SUPREME COURT REPORTS 155
internment and certain other forms of re~triction 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
other. It
is difficult to hold that ·the case of
extem
ment can possibly be dealt with on a different footing
from the
case of preventive detention. I am however
interested to find
that the Patna and Bombay Righ
Courts have held that a person who is externed can
successfully assert that the right granted to him under
article
19 (1) (d) has been violated. This view has
not
been seriously challenged before us, ai:id, if it is correct,
I really do not
see how it can be held that preventive
detention
is also not a direct
· invasion of the right
guaranteed in article
19 ( 1) ( d). Perhaps, one may
pause here to ask
wh~t kind of laws were in contempla
tion of the framers .of the Constitution when they
referred to
laws imposing restrictions in the public
interest in article
19 (5).
l think the war laws and the
Provincial Ac!s and Ordinances to which I have already
referred must
have been among them, these being laws
which
expressly purport to impose restrictions on
movements.
If so, we should not overlook the fact that
preventive detention
was an inseparable part of these
laws and was treated as a form of restriction on
move
ment and classified as such. It seems to me that when
the matter
is seriously considered, it would be found
that the interpretation
of the learned Attorney-General
attracts the operation of article
13 (2) no less strongly
and directly than the interpretation I
have suggested,
and I prefer the latter only
because I consider that it
is legally unsound to treat what is inseparably bound
up with and
is the essential element in the legal concept
of personal liberty as a wholly separate and
unconnec
ted entity. But as I have already indicated, it will be
enough for the purpose of this case if we forget all
about personal liberty and remember only that deten
tion is, as is self-evident and as has been pointed /)ut
by Viscount Maugham and other eminent judges,
another name for depriving a person
of all his
"liberty
of movement." •
It was pointed out in the course of the arguments
1950
A. K. Goj1alan
• v.
TlllSllJU
Faz/ Ali J,
1950
A. /(. C.J>alan
v.
Tt.. SJau
Fa1:ol Ali ].
156 SUPREME COURT REPORTS [1950]
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. Where
exactly this argument is intended to lead us to, I
cannot fully understand, but
it. seems to me that it
involves an obvious fallacy, because it overlooks the
difference in
the modes in which preventive detention
operates on the right referred
to in sub-clause ( d) and
other
sub-clauses of article 19 ( l). The difference is
that while preventive detention operates on freedom of
movement directly and inevitably,
its operation on
the other rights
is indirect and consequential and is
often only notional. One who is preventively detained
is straightaway deprived of his right of
movement as
a direct result of his detention, but he foses the other
rights only in
consequence of his losing freedom of
movement.
Besides, while freedom of movement is
lost by him in all reality and substance, some of the
other rights
may not be lost until he wishes to
exercise:
them or is interested in exercising them. A person
who is detained may not be interested in freedom of
association or may not pursue any profession, OCC\lpa
tion, tr;ide or business. In such a case, the rights
referred
to are lost only in theory and not as a matter
of substance. I
wish only to add that when I said
that l
was not able to understand the full force of the
argument which 11 have tried to deal with, what I had
in mind
was that if preventive detention sweeps away
or affects almost all the rights guaranteed in article
(
19) ( l), the matter deserves very serious consideration
and
we cannot lightly lay down that article l3 (2) docs
not come into operation.
Being fully alive to the fact that it is a serious
matter to be asked to declare a law enacted by
Parlia
ment to be unconstitutional, I have again and again
asl_ted myself the question : What are we to put in
the
scales against the construction which I am inclined
to adopt and
1n favour of the view that preventive
detention
does not take away the freedom of movement
guaranteed in article
19 (1) (d) ? 'The inevitable
answer
has always been that while in one of
the scales
S.C.R. SUPREME COURT REPORTS 157
we have plain and unambiguous language, the opinion
of eminent jurists, judicial dicta of high authority,
constitutional practice in the
sense that no Constitution
refers to any freedom of movement apart from personal
liberty, and the manner
in which preventive detention
has been treated in the
very laws on which
.our law on
this subject
is based, all that we can put in the
· oppo
site scale is a vague and ill-founded apprehension that
some fearful object .. such as the revision of the Penal
Code is looming obscurely in the distant • horizon, the
peculiar objection that the mere mention of the sche
duled tribes will alter the meaning of certain plain
words, the highly technical and unreal distinction · bet
ween restriction and deprivation and the assumption
not warranted
by any express provision that a person
who
is preventively detained cannot claim the right of
freedom of movement
because he is not a free man and
certain other things which, whether taken singly or
collectively,
are too unsubstantial to carry any· weight.
In these circumstances, I am strongly of the .view that
article
19 (1) (d) guarantees the
right of freedom of
movement in its widest sense, that freedom of move
ment being the essence of personal liberty, the right
guaranteed under the article
is really a right to
per
sonal liberty and that preventive detention is a depri
vation of that right. I am
also of the view that even
on the interpretation suggested by the learned Attor
ney-General, preventive detention cannot but
be held
to
be a violation of the
ri,ght conferred by article 19
(1) (d). In either view, therefore, the law of preven
tive detention is subject to such limited judicial review
as is permitted under article 19 (5). The scope of the
review
is simply to see whether any particular law im
poses any unreasonable restrictions. Considering that
the restrictions are imposed on a most valuable right,
there
is nothing revolutionary in the legislature trust
ing the Supreme Court
to examine whether an Act
which infringes upon that right
is within the limits of
reason.
I will now
pass on to the consideration of article
21, which runs as foilows :-
"No person shall be deprived of his life or personal
1950
.A. K. Gopaloa
·v,..
The.SIJIU
Fad .Ali].
1950
A. E. Gopalan
Y.
Ti.. SlaU
Fazl Ali].
158 SUPREME COURT REPORTS [1950]
liberty except according to procedure established
by law."
Here again, our first step must be to arrive at· a
clear meaning
of the provision. The only words which
cause some difficulty in the proper construction of the
article are
"procedure established by law,"
The learned Attorney-General contended ~e
us that the word "law" which is used in article 21
means State-made law or law enacted by the State.
On the other hand, the learned counsel for the
peaaoner 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 and, if
that is so, it means exact! y what some of the American
writers mean to
convey by the expression
"procedural
due process."
In the course of the arguments, the learned
Attorney-General referred
us to the proceedings in the
Constituent
Assembly for the purpose of showing that
the article
as originally drafted contained
the words
"without due process of law" but these words were
subsequently replaced
by the words
"except according
to procedure established by law." In my opinion,
though the proceedings or
discussions in the Assembly
are not relevant for the purpose of construing the
meaning
of the expressions used in
article 21, especially
when they are plain and unambiguous, they . are
relevant to
show that the Assembly intended to avoid
the use of the expression
"without due process of
law." That expression had its roots in the expression
"per legem .terrae" (law of the land) used in Magna
Charta in 1215. In the reign of Edward III, how~ver,
the words "due process of law" were used in a statute
guaranteeing that
no person will be
deprived of his
property or imprisoned or indicted or put to death
without being brought in
to answer by due process of
law (28, Edward III,
Ch. III) .. The expression was
afterwards adopted in the American Constitution and
also in the Constitutions of some of the constituent
States, though some of the States preferred to U5e the
...
S.C.R. SUPREME COURT REPORTS-== 159
words " in due course of law". or "according to the
law of the land." .[See· Cooley on "Constitutional
Limitations," 8th Edu.Vol. II, pages 734-5].· Jri the
earlie~t times, the American Supreme Court construed
"due process of law"· to· cover matters of procedure
only,
but gradually the meaning of the expression was
widened so
as to cover substantive law also, by laying
emphasis. on the word
"due." The expression ·was
used in such a wide sense that" the judges found it
difficult to define· it and in o::e of the cases it was
observed
as follows
:- .
" It would be difficult and perhaps impossible to ··
give to those words a definition, at once accurate, and
broad enough to cover every case. This _difficulty and
perhaps impossibility was referred. to by Mr. Justice
11Iiller in Davidson v. New Orleans, where the opinion
was expressed
that it is wiser to ascertairi their intent
and application by the_' gradual process of judicial in
clusion. and exclusion,' as the cases presented.for deci
sion shall require,
with the reasoning on which such
-
decisions may be founded:" · l.fissouri Pacific Railway
Co. v. Hitmes ('). . . . · . · . _
It ~eems plain that the Constituent Assembly did
not adopt this expression on account of the very elastic
meaning gtven to
it, but preferred . to use the
words
''according to procedure. established by law" which
occur
in the Japanese Constitution framed in 1946.
. It will not be out of place to state here in a few
words how the Japanese
Constitution came into exis
tence.
It. appears that on the I Ith October, 1945,
General l\IcArthur. directed the Japanese
Cabinet to
initiate measures for the preparation of the Japanese·
Constitution, but, , as no. progress was made, it was
decided in February, 1946, that the problem of consti
tutional reform should be taken over by the Govern
ment Section of. the Supreme Commander's Head
quarters. Subsequently the Chief of this Section and
the staff drafted the Constitution with the help of
American constitutional lawyers who . were called to ·
assist the Government Section in-the task. This
~onstitution, as a learned writer Ii.as remarked,. bore .
(1) 115 U.S. 512 at page 518 •
u
1950
A. K. Gopa!a,t.
v.
The State
Fazl Ali J-.
160 SUPREME COURT REPORTS [1950)
1950
on almost every page evidences of its essentially
· · \Vestern origin,. and _this characteristic was especially
~l. K. Gopalan ,
v.
The State
Fazl A!i J.
evident in the preamble•-" particularly reminiscent of
the American Declaration of Independence, a preamble
which,
it has been observed, no Japanese could possibly have conceived or written and which few
could
even-
understand." [See Ogg and Zink's "Modern
Foreign _Governments"]. One of the characteristics
of · the· Constitution which undoubtedly bespeaks· -
of direct American influence is to be found in a
lengthy chapter, consisting of 31 articles, entitled
" Rights and Duties of the People," which provided
for
the first time an effective
"Bill of Rights" for the
Japanese _people. · The usual .safeguards ·have been
provided there against apprehension· without a warrant
and against arrest or detention without being informed
of the charges
or without adequate
cause (articles 33
and 34). ·
Now there are two matters which deserve to be
noticed :-(1) that the Japanese . Constitution was
framed wholly
under American influence; and (2) that
at the time it was framed the trend of judicial opinion
in_America was
in favour of confining the meaning. of
-• theexpression "due process of law " to wb-at is ex
, •pressed· by certain American writers by the somewhat
quaint but useful expression "procedural due process."
That there was such a trend would be clear from the
following passage which I· quote from. Carl Brent
Swisher's" The Growth of Constitutional Power in the
United States" (page 107) :-_ · · ·
" The American history of its interj>retation falls
into three periods. During the first period, covering
roughly the first century of government
under
·the
Constitution, due process was interpreted principally
as a restriction upon procedure-_ and largely the judicial
·procedure-by which the government exercised its -
-powers. During the second period, which, again roughly
speaking, extended through 1936, due process was ex
panded to serve as a restriction not merely upoµ
procedur~ but upon the substance of the activities in
which the government might engage. During the third
period, extending from 1936 to date, the use of due
S.C.R. SUPREME COURT REPORTS 161
process as a substantive restriction has been largely
suspended or abandoned, leaving it principally in. its
original status
as a restriction upon
procedure."
In the circumstances mentioned, it seems permis
sible to surmise that the expression "procedure esta
blished by law" as used in the Japanese Constitution
represented the current trend . of American judicial
opinion with regard to "due process of law," and, if
that is so, the expression as used in our Constitution
means
all that the American writers have read into
the
words · "procedural due process." But I do not
wish
to base any conclusions upon mere surmise and
will try to examine the whole question on its merits.
The word
"law" may be used in an abstract or
concrete
sense. Sometimes it is preceded by an article
such
as
"a" or "the" or by such words as "any"
"all," etc., and sometimes it is used without any such
prefix. But, generally, the word "law" has a wider
meaning when used in the abstract
sense without being preceded by an article. The question to be
decided is whether the word "law" means nothing
more than statute law.
Now whatever may
be the meaning of the
ex
pression "due process of law," · the word "law" is
common to that expression as well as "procedure
established by law" and though we are not bound to
adopt the construction put on "law" or "due process
of law" in America, yet since a number of eminent
American Judges have devoted much thought to the
subject, I am not prepared to hold that we can derive
no help ·from their opinions and we should completely
ignore them. I will therefore in the first instance
set
out certain
·quotations from a few of the decisions of
the American Supreme Court construing the word
"law as used in the expression "due process of law,"
in so far as it bears on the question of legal procedure.
( 1) "Although the legislature may at its pleasure
provide
new remedies or change
old ·ones, the power is
nevertheless subject to the condition that it cannot
remove certain ancient land-marks, or take
away
certain fundamental rights
,which have been always
1950
A. K. Gopalan
v.
Tiu State
Fazl Ali:J.
1950
.d. K. Gopalan
v.
Tlie Stai.
Fat:I Ali].
162 SUPREME COURT REPORTS [1950]
recognized and observed in judicial procedures :" Bard
well v. Collin (
1
) •
(2) "By the law of the land is most clearly intend
ed the general law : a law which hears before it
condemns, which
proceeds upon inquiry and renders
judgments
only after trial. The meaning is that every
citizen shall hold his life, liberty and property, and
immunities under the protection
of the general rules
which govern
society:" Dartmouth College Case(')
(3) "Can it be doubted that due process of law
signifies a right
to be heard in one's defence ? If the
legislative department
of the government were to enact
a statute conferring the right
to condemn the citizen
without
any opportunity .whatever
of being heard,
would it.
be pretended that such an enactment would
not
be violative of the Constitution ?
If this be true,
as it undoubtedly is, how can it be said that the judicial
department, the
source and fountain of justice itself,
has yet the authority ro render lawful that which if
done under express legislative sanction would be violative
of
tb,e Constitution? If such power obtains; then the
judicial department
of the government sitting to uphold
and enforce the Constitution
is the only one possessing
a power to disregard it. If such authority
exists then
in consequence
of their establishment, to compel
obedience
to law and enforce justice, Courts possess the
right
to inflict the very wrongs which they
were created
to prevent:" Hovey v. Elliott(•).
(4) "It is a rule as old as the law, and never more
to ~ respected than now, that no one shall be personally
bound until
he has had his say in Court, by which is meant, until he has been duly cited to appear, and has
been afforded an opportunity to be heard. Judgment
without ·.such citation and opportunity wants all the
attributes of a judicial determination ; it is judicial
usurpation and oppression, and
can
never be upheld
where justice
is justly administered:
"Gatpin v. Page ( • ).
Thus, · in America, the word "law" does not mean
merely State-made law or law enacted by the State
and does not exclude certain fundamental principles of
(
1
) 44 Minn.117; 9L.ll.A. 152. (
1
) 167 u. s. 409 .. _ 417.
(
1
) 17 U.S. 4. (') 85 U.S. 18.
S.C.R. SUPREME COURT REPORTS 163
justice which inhere in every civilized system of law
and which are at the root of it. The result of the
numerou.s decisions in America has been summed up
by ·Professor Willis in his book on "Constitutional
Law" at page 662, in the statement that the essentials
of due
process are: (1) notice, (2) opportunity to be
heard, (3) an impartial tribunal, and (4) orderly
course of procedure.
It is pointed out by the learned
author that
these essentials may assume different
forms in different circumstances, and
so long as they
are
conceded in principle, the requirement of law will
be fulfilled. For example, a person cannot require any
particular form or method of hearing, but all that
he
can require is a reasonable opportunity to be heard.
Similarly,
an impartial tribunal does not necessarily
mean a judicial tribunal in every case. So far as
orderly· course of procedure is concerned, he explains
that it does· not require a Court to strictly weigh the
evidence but it does require it to examine the entire
record to ascertain the
issues, to discover whether there
are
facts not reported and to see whether or not the
law
has been
, correctly applied to facts. The view
expressed by other writers is practically the same as
that expressed . by Professor Willis, though some of
them do not
expressly refer to the fourth element, viz.,
orderly course of procedure. The real point however
is that these four elements are really different aspects
of the same right,
viz .. the right to be heard before one
is condemned.
So far as this right is concerned, judicial opinion
in England appears to
be the same as that in America.
In England, it would shock one to be told that a man
can
be deprived of his personal liberty without a fair
trial or hearing. Such a
case can happen only if the
Parliament
expressly takes away the right in question
in an emergency
as the British Parliament did during
the last two world wars in a limited number of
cases.
I will refer here to a few cases which
show that the
fuf!damental principle that a person whose right is
affected must be heard has been observed not onlv in
cases involving personal liberty but also in proceedings
affecting other rights,
even though they
· may have
&-3 S. C. lndia/58
1950
A. K. Gopalan
v.
Th. Stat.
F~l Ali].
1950
A. 1'. Gopaian
v.
The Stak
Fa.cl Ali].
164 SUPREME COURT REPORTS [1950}
come before administrative or quasi-judicial tribunals.
Cooper
v. The Wadsworth Board of Works (
1
)
was a
case under an Act which empowered the District Board
to alter or demolish a house where the builder had
neglected to
give notice of his intention seven days
be
fore proceeding to lay or dig the foundation. Acting
upon
th.is power, the Board directed the demolition of
a building without notice to the builder, but this was
held to be illegal. Byles J. in dealing with the
matter
observed as follows :-
"I conceive they acted judicially because they
had to determine the offence. and they had to appor
tion the punishment as well as the remedy. That being
so, a long course of decisions, beginning with Dr.
Bentley's
case, and ending with some very recent
cases, establish that although there are no positive
words in a statute requiring that the party
shall be
heard, yet the justice of the common law will supply
the omission of the legislature. The judgment of
Mr. Justice Fortescue, in Dr. Bentlev's
case, is
some
what quaint, but it is very ·applicable, and has been
the law from that time
to the present. He says,
"The
objection for want of notice can never be got over
The laws
of God and man both give the party an
opportunity to
make his defence, .if he has any."
In the same case Erle C. J. observed :-
"It has been said that the principle that no man
shall
be deprived of his property without an
opportu
nity of being heard, is limited to a judicial proceeding
...... I do not quite agree with that ; ...... the law, I
think, has been applied to many exercises of power
which in common understanding would not
be at all
more a judicial proceeding than would
be the act
of the District Board in ordering a house to be pulled
down."
The observations made bv Erle C. J. were quoted
and applied by Sir Robert Collier in Smith v. The
Queen('), and the observations of Lord Campbell in
Regina
v.
The Archbishop of Canterbury (
1
) were to the
same effect.
(
1
) 14 C.B. (N.S.)
180. (') 3 A.G. 614.
(') I E. & E. 559.
S.C.R. SUPREME COURT REPORTS 165
A similar opinion was expressed by Sir George
Jessel in Fisher v. Keane (1), Labouchere v. Earl of
W harncliffe, (
2
) and Russel v. Russel (
8
) • In the
last mentioned
case, he observed as follows:-
"It [Wood v. Woad(')] contains a verv valuable
statement
by the Lord Chief Baron as to his view of
the mode of administering justice
by persons other
than
Judge~ who have judicial functions to perform
which I should
have been very glad to have had before
me on both
those club cases that I recently heard,
namely, the
case of Fisher
v. Keane and the case of
Labouchere v. Earl of W harncliffe. The passage I
mean
is this, referring to a committee :
"They are
bound
in the exercise of their functions by the rule
expressed in the maxim
"audi alteram partem", that
no man should
be condemned to conseauences without
having the opportunity of making
his defence. This
rule
is not confined to the conduct of strictly legal
tribunals, but
is applicable to every tribunal or body
of persons invested with authority to adiudicate
upon matters involving
.civil consequences to indivi
duals'."
This opinion was quoted with approval by Lord
Macnaghten in
Lapointe v. L'Association etc.
de
Montreal (
5
). In that case, on an application for
pension
by the appellant, who had been obliged
to resign, the Board of Directors, without
any judicial
inquiry into the circumstances, resolved to refuse the
claim on the ground that he
was obliged to tender
his resignation. This procedure
was condemned
by Lord Macnaghten as being
"contrary to rules of
society and above all contrary to the elementary
principles of justice." These observations of ·Lord
Macnaghten were referred to and relied on in The King
v. Tribunal of Appeal under the Housing Act, 1919 (
6
).
In that case, a company proposed to build a picture
house and the
local authority having prohibited the
building, the company appealed under the Housing
l') 11
Ch. D. 1.5:;, (
4
) [1874] L. R. 9 Ex. 190.
(
1
1 13 Ch. D. 3-IU. {') [1906] A. C. 535.
(') 14 Ch. D. 471. (' [1920] T. B. 334.
1950·
A. K. Gopalan
TheSlaU
Fozl Ali].
• 1950
A. Ir. Gopal•n
v.
The Stall
Faz;/ Ali].
166 SUPREME COURT REPORTS [1950]
(Additional Powers) Act, 1919, which contained a
provision that an appeal could in certain
cases be
properly determined without a hearing and that the
appellate Court could dispense with the hearing and
determine the appeal summarily. It
was held that .
the meaning
of rule 7 was that the tribunal on appeal
might dispense with
an oral hearing, not that they
might dispense with a hearing of any kind, and that
they were bound to
give the appellants a hearing in
the
sense of an opportunity to make
<lut a case. The
Earl of Reading in delivering the judgment observed :
"The principle of law applicable to such a case is
well stated · by Kelly C.B. in Wood v. Woad in a
passage which
is cited with approval by Lord
Macnaghten in
Lapointe v. L' Association etc. de
Montreal
......
"
In Local Government Board v. Arlidge ('), the Local
Government dismissed an appeal
by a person against
whom a closing order had been made under
Housing,
Town Planning, &c. Act, without an oral hearing and
without being allowed to
see the report made by the
Board's Inspector upon public
local inquiry. The
House of Lords did not interfere with the order on the
ground that the appeal had been dealt with
by an
administrative authority whose duty was
to enforce
obligations on the individual in the interests of
th~
community and whose character was that of an orga
nization with executive functions. The principle
however
was conceded and lucidly set forth that when
the duty
of
·deciding an appeal is il\lposed, those
whose duty it
is to decide it must act
judicially, and
they must deal with the question referred to them
without bias and must give to each of the
parties an opportunity of presenting its
case, and that
the decision must
be come to in the spirit and with
the
sense of responsibility of a tribunal whose duty it is
to mete out justice. Commenting upon this case, which
is
generally regarded as an extreme case, Mr. Gavin
Simonds, who afterwards became a member of the
House of Lords observes
:-
(')
[19U) A. C. 120.
. -
S.C.R. SUPREME COURT REPORTS 167
"I think you would agree that if the subject
matter of such proceedings as are here indicated was
the liberty of the subject, or 'indeed his life, you would
regard such a judicial procedure ·as outrageous." (See
C K. Allen's "Law and Orders," page 167).
I have particularly referred to
cases which were
before administrative tribunals, because I have to
deal
in this case with preventive detention which is
said to be an executive act and because I wish to
point out that even before executive authorities and
administrative tribunals an
· order cannot generally be
passed affecting one's rights without giving one such
hearing
as
f?ay be appropriate to the circumstances of
the case. ·I have only to add that Halsbury .after
enumerating the most important liberties which are
recognized ' in England, such as right of personal
freedom, right
to freedom of speech, right of public
meeting, etc.,· adds
:-
"It seems to me that there should be added to
this list the following rights which appear to have
become well-established-the right of the subject to
have
any case affecting him tried in accordance with
the principles
of natural justice, particularly the
principles that a man
may not be a judge in his own
cause, and that no party ought to be condemned
unheard, or
to have a decision given against hi1Il
unless he has been given a reasonable opportunity of
putting forward
his case ......
" (Halsbury's Laws of
England, 2nd Edition, volume 6, page 392).
The question
is whether the principle that no
person can
be condemned without a hearing by an
impartial tribunal
,which is well-recognized in all
modern civilized
systems of law and which Halsbury
puts on a par with well-recognized fundamental
rights cannot
be regarded as part of the law of
this
country. I must confess that I ·find it difficult to
give a negative answer to this question. The prin
ciple being part of the British system of law and
procedure which
we have inherited, has been observed
in this country for a
very long time and is also deeply
rooted
in our ancient history, being the basis of the
1950
A. K. Gopalan
v.
TluStilU
F"l Ali].
1950
A. K. Gopalan
v.
The State
Faz/ Ali J.
168 SUPREME COURT REPORTS [1950]
panchayat system from the earliest times. The
whole of the Criminal Procedure Code, whether it deals
with trial of offences or with preventive or quasi
administrative measures such
as are contemplated in
sections
107, 108, 109, 110 and 145, is based upon
the foundation
of this principle, and it is difficult to
see that it has not become part of the
"law of the
land" and does not inhere in our system of law.
If that is so, then "procedure established by law"
must include this principle, whatever else it may or
may not include.
That the word
"law" used in article
21 does not mean only State-made law is clear from
the
fact that though there is no statute laying down the complete procedure to be adopted in contempt of
Court
cases, when the contempt
is not within the view
of the Court, yet such procedure
as now prevails in
these
cases is part of our law. The statute-law which
regulates the procedure
of trials and enquiries in cri
minal
cases does not specifically provide for arguments
in certain
cases, but it has always been held that no
decision should
be pronounced without hearing argu
ments. In a number
of cases, it has been held that
though there may
be no specific provision for notice in
the statute, the provision must
be read into the law.
I am aware that
some Judges have expressed a strong
dislike for the expression
"natural justice" on the
ground that it
is too vague and elastic, but where there
are well-known principles with no vagueness about
them, which all systems of law have respected and
re
cognized, they cannot be discarded merely because
they are in the ultimate analysis found to
be based on
natural justice. That the expression
"natural justice"
is not unknown to our la:w is apparent· from the fact
that the Privy Council has in many criminal appeals
from this country laid · down that it shall exercise its
power of interference with the course of criminal justice
in this country when there has been a breach
of prin
ciples of natural justice or departure from the require
ments of justice.
[See In re Abraham Mallory Di/let (
1
),
Taha .~ingh v. King Emperor '), George Gfeller v. The
{') 12 A. C. 459. (
1
) I. L. R. 46 Bom. 515.
S.C.R. SUPREME COURT REPORTS 169
King (
1
), and Bugga and others v. Emperor (
2
)]. In
the present case, there is no vagueness about the right
claimed which
is the right to have one's guilt or in
nocence considered
by an impartial body and that right
must
be read into the words of article 21. Article 21
purports to protect life and personal liberty, and it
would
be a precarious
· protection and a protection not
worth having, if the elementary principle of law under
discussion which, according
to Halsbury is on a par with
fundamental rights,
is to be ignored
and excluded. In
the course of his arguments, the learned counsel for the
petitioner repeatedly asked whether the Constitution
would permit a law being enacted, abolishing the mode
of trial permitted
by the existing law and establishing
the procedure
of trial by battle or trial by ordeal which
was in vogue in olden times in England. The question
envisages something which
is not likely to happen, but
it
does raise a legal problem which can perhaps be met
only in
thi~ way that if the expression "procedure
established by law" simply means any procedure esta
blished or enacted by statute it will be difficult to
give a negative answer to the question, but if the word
"law" include~ what I have endeavoured to show it
does, such an answer may be justified. It seems to me
that there
is nothing revolutionary in the doctrine that
the words
"procedure established by law" must
include the four principles
set out in Professor Willis'
book, which,
as I have already stated, are different
aspects
of the same principle and which have no
vagueness or
uncertainty about them. These principles,
as the learned author points out and as the authorities
show,
are not absolutely rigid principles but are adapt
able
to the circumstances of each case within certain
limits. I have only to add that it
has not been seriously
controverted that
"law" in this article means valid
law and "procedure" means certain definite rules of
proceeding and not something which
is a mere pretence
for procedure.
I will now proceed
to examine article 22 of the
Constitution which specifically deals with the subject
(1) A. I. R. 1943, P. C. 21 J. (
1
) A. I. R. 1919 P. C. 108.
1950
A. K. Gopalan
v.
Thi S1au
F<U:l Ali J.
19SO
A. K. Gopalon
v.
The State
Fa</ A/; J.
170 SUPREME COURT REPORTS [1950]
of preventive detention. The first point to be noted in
regard to this article
is that it does not exclude the
operation of articles
19 and 21, and it must be read
subject to those two articles, in the same way
as
articles 19 and 21 must be read subject to article 22.
The correct position is that article 22 must prevail in
so far as there are specific provisions therein regarding
preventive
detentio1f, but, where there are no such
provisions in that'a{_ticle, the operation of articles 19
and 21 cannot be , exclllded. The mere fact that differ
ent aspects of the same right have been dealt with in
three different articles will not make them mutually
exclusive except to the extent I have indicated.
I will now proceed to analyse the article and deal
with its main provisions. In
my opinion, the main
provisions of this article
are:-( l) that no person can
be detained beyond three months without the report of
an advisory board [clause 4
(a)] ; (2) that the
Parlia
ment may prescribe the circumstances and the class or
classes of cases in which a person may be detained for
more than three months without obtaining the opinion
of an advisory board [clause 7
(a)] ; (3) that when a
person
is preventively detained, the authority making
the order of detention shall communicate to such person
the grounds on which the order
is made and shall
afford him the earliest opportunity of making a
repre
sentation against the order [clause (5)] ; and ( 4) that
the Parliament may prescribe the maximum period for
which any person may in any
class or classes of cases
be detained under any law providing for preventive
detention [clause 7
(b)]. The last point does not
re
quire any consideration in this case, but the first three
points
do require consideration.
In connection with the first point, the. question
arises
as to the exact meaning of the words
"such de
tention" occurring in the end of clause 4 (a). Two
alternative interpretations were put forward : (1) "such
detention" means preventive detention ; (2) "such de
tention" means detention for a period longer than
three months.
If the first interpretation is correct,
then the function of the advisory board would
be to go
into the merits of the
case of each person and simply
S.C.R. SUPREME COURT REPORTS 171
report whether there was sufiicient cause for his deten
tion. According to the other interpretation, the func
tion of the advisory board will be to report to the
government whether there
is sufficient cause for the
person being detained for more than three months.
On
the whole, I am inclined to agree with the second
interpretation. Prima facie, it is a serious matter. to
detain a person for a long period (more than three
months) without
any
enqmry or trial. But article 22
(4) (a) provides that such detention may be ordered on
the report
of the advisory board.
Since the report
must
be directly connected with the object for which
it
is required, the safeguard provided by the article,
viz., calling for a report from the advisory board, loses
its value, if the advisory board is not to apply its i:nin,d
to the vital question before the government, namely,
whether prolonged detention (detention for more than
three months)
is justified or not.
. Under article 22 (4)
(a), the
advisory board has to submit its report before
the
expiry of three months and may therefore do so on
the eighty-ninth
day. It would be somewhat farcical
to provide, that after
a. man has
been · detained for
eighty-nine days, an advisory board is to say whether
his initial detention was. justified. On the other hand,
the determination of the question ·whether prolonged
detention (detention
for more than three motnhs) is
justified must
necessarily involve the determination of
the question whether ·the detention Wl!~ justified at all,
and
such an interpretation only can give real meaning
and
effectiveness to the provision. The provision being
in the nature
, of a protection or safegi:iard, I must
naturally lean towards the interpretation which is
favourable to the subject and which is also in accord
with the object in
view.
The next question which
·we have to discuss _re
lates to the meaning and scope of article 22 (7) (a)
which runs
as follows :-"Parliament may by law prescribe-
(a)
the circumstances under which, and the
,cla~s
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
19:0
A-K. Gopalt111
v.
Tire State
Far.I Ali J.
1950
A. /(. Gopalan
v.
Tl.1 State
Ftu::l Ali :J.
172 SUPREME COURT REPORTS [1950]
the opinion of an Advisory Board in accordance with
the provisions of
sub-clause (a) of clause (
4)."
The question is what is meant by "circumstances"
and "class or classes of cases" used in this provision.
This question has arisen
because of the way in which
these expressions appear
to have been interpreted and
applied in the Act of Parliament with which
we are
concerned. As the matter is important and somewhat
complicated, I shall
try to express my meaning as
clearly as possible even at the risk of some repetition,
and, in doing
so, I must necessarily refer to the im
pugned Act
as well as Lists I and III of the
Seventh
Schedule of the Constitution, under which Parliament
had jurisdiction
to enact it. Item 9
of· List I-Union
List-shows that the Parliament has power to legis
late on preventive detention for reasons connected
with (1) defence, (2) foreign affairs, and (3) security
of India. Under List III-Concurrent List-the
appropriate item is item 3 which shows that law
as to preventive detention can be made for reasons
connected with (1) the security
of the
State, (2)
the maintenance of public order, and (3) the main
tenance of supplies and
services essential to the
community. The impugned Act refers to
all the
subjects mentioned in Lists I and III in regard to
which law of preventive detention
can be made.
Section 3 (1) of the Act, the substance of which has
already been mentioned,
is important, and I shall
reproduce it verbatim. "The Central Government or the State Govern
ment may-
( a) if satisfied wit!}. 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
with foreign powers, or the security of India, or
(ii) the security of the State or the main
tenance of public order, or
(iii) the maintenance of supplies and
services
essential to the community, or
S.C.R. SUPREME COURT REPORTS 173
(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."
It will be noticed that all the subjects of legisla
tion concerning preventive detention occurring in item
9 of List I are grouped in sub-clause (1) of clause (a).
The
subjects in this group are three in number and,
for
convenience of reference, I shall hereafter refer to
them as A, B and
C. In sub-clause (ii), we find
grouped two of the matters referred to in item 3
of
List III, these being security of the
State and the
maintenance
of public order. These two subjects, I
shall refer to as D and
E. In sub-clause (iii), reference
has been made to the third matter in item 3 of List
Ill, anci I shall refer to this subject as F. With this
classification, let us now turn to the Constitution
itself.
On reading articles 22 ( 4) and 22 (7) together, it
would
be clear that so long as article 22 ( 4) (a) holds
the field and Parliament
.does not act under clause (7)
(a) of article
22, there must be an advisory board in
every case, i.e., if the legislation relates to groups A to
F,
as it does here,. there must be an advisory board for
all
these groups.
Article
22 .(7) however practically engrafts an
exception. It
states in substance that the Parliament
may
by an Act provide for preventive detention for
more than three months without reference
to an
advi
sory board, but in such cases it shall be incumbent on
the Parliament
to prescribe ( 1) the circumstances and
(2) the
class or classes of cases in which such course is
found to be necessary. If the case contemplated in
clause ( 4) (a) is the rule and that contemplated in
clause (7) (a) is the exception, then the circumstances
and the
class or classes of cases must be of a special or
extraordianry nature, so as to take the
case out of the
rule and bring it within the excef>tion. It is always
1950
A. K. Gopalan
v.
The State
Fazl Ali J.
1950
A. K. Gopalan
v.
The State
Fa<I Ali J.
174 SUPREME COURT REPORTS [1950)
possible to draw the line between the normal or ordi
nary and the abnormal or extraordinary
cases,
and this is what, in my opinion, the Parliament
was expected to do under clause (7)
(a). I do
not tlunk that it
was ever intended that Parliament
could at its will treat the normal
as the abnormal or
the rule
as the exception. But this is precisely what
has been done in this
case. All the items on which
preventive legislation
is possible excepting one,
i.e.,
A to E, have been put within the exception, and only
one, F, which relates to maintenance
of supplies and
services essential
to the community, has been allowed
co remain under the rule. In other words, it is provided
that there shall
be an advisory board only for the last
category, F, but no provision having been made for the
other categories, A
to E, it may be assumed that the
advisory board has been dispensed with in those
cases.
The learned Attorney-General maintained that it would
have been open
to the Parliament to dispense with the
advisory board even for the category F, and if such a
course had been adopted it would not have
affected
the V'alidity of the Act. This is undoubtedly a logical
position in the
sense that it was necessary for him to
go
as far as this to justify his stand ; but, in my
opinion, the course adopted
by the Parliament in
enacting section
12 of the impugned Act is not
what
is contemplated under article 22 (7) (a)
or is permitted by it. The circumstances to be
prescribed must be special and extraordinary circum
stances and the
class or classes of cases must be of the
same nature. In my opinion, the Constitution never
contemplated that the Parliament should mechanically
reproduce all or most of the categories A to F almost
verbatim and
not. apply
its mind to decide in what
circumstances and in what class or classes of cases the
sateguard of an advisory board is to be dispensed with.
I may state here that two
views are put forward
before
us as to how clauses (4) (a) and 7 (a) of article
22 are to be read:-(1) that clause (4) (a) lays down
the rule that in all
cases where detention for more
than three months
is ordered, it should be done in
consultation with and on the report of the advisory
S.C.R. SUPREME COURT REPORTS 175
board, and ~tause (7) (a) lays down an exception to
this rule h¥ . providing that Parliament may pass an
Act permitting detention . for more than three months
without reference to an
advisory board ; (2) that
clauses (4) (a) and (7) (a) are independent clauses
' making two separate and alternative provisions
regar
ding detention for · more than three months, in one
case on the report of an advisory board and in other
case without reference to an advisory board. Looking
at the
substance and not merely at the wordsJ I am
inclined
to
·hold that clause (7) (a) practically engrafts
an
exception on the rule that preventive detention for
. more than three months can be ordered only on the report of an advisory board, and so far I have
proceeded on that footing. But it seems to me that it
will
make no difference to the ultimate conclusion,
whichever of the two
views we may adopt. Even on
the latter
view, it must be recognized that the law
which the Constitution enables the
Parliament to
. make under article 22 (7) (a) would be an excep
tionally drastic law, and, on the principle that an
exceptionally drastic
law must be intended
for-an
exceptional situation,
every word of what I have said
so far must stand. Clause (7) (a) is only an enabling
provision, and it takes care to provide that the
Parlia
ment cannot go · to the extreme limit to which it is
permitted to go without prescribing the class or classes
of cases and the circumstances to which the extreme
law would be applicable. It follows that the class or
classes of cases and the circumstances must be of a
special nature to require such legislation.
It
was urged that the word
"and" which occurs
between "circumstances" and "class or classes of
cases" is used in a disjunctive sense and should be
read as "or", and by way of illustration it was men
tioned that when it is said that a person may do this
and that; it
means that he is at liberty to do either
this or that. I do not think that this argument is
sound. I think that clause (7) (a) can be accurately
paraphrased somewhat
as follows
:-"Parliament may
dispense with an advisory board, but in that case it
shall prescribe the circumstances and the class or
1950
A. K. Gopalan
v.
The State
F!Jl{.l Ali J.
1950
A. K. Gopolan ·
v.
1"he State
Faz/ Ali].
176 SUPREME COURT REPORTS [1950]
classes of cases .... " If this is the meaning, then "and"
must be read as ''and" and not as "or"; and "may"
must be read as "'shall" Supposing it was said that
Parliament may prescribe the time and place for the
doing of a thing, then
can it be suggested that both
time and place should not
be prescribed? It seems
obvious to me that the class or classes of cases must
have some reference
to the persons to be detained or
to their activities and movements or to both.
"Circum
stances" on the other hand refer to something extra
neous, such as surroundings, background, prevailing
conditions, etc., which might prove a fertile field for
the dangerous activities of dangerous persons. There
fore the provision clearly means that both. the circum
stances and the class or classes of cases (which are two
different expressions with different meanings and con
notations and cannot_ be regarded as synonymous)
should
be prescribed, and prescription of one without
prescribing
the other will not be enough. As T have
already stated, such law
as can be enacted under article
22 (7) (a) must involve, by reason of the extreme limit
to which it can go, serious consequences to the
persons
detained. It will mean (1) prolonged detention, i.e.,
detention for a period longer than three months, and (2)
deprivation of the safeguard of an advisory board.
Hence article
22 (7) (a) which purports to be a
protec
tive provision will cease to serve its object unless it is
given a reasonable interpretation. To my mind, what it
contemplates
is that the law in question must not be too
general but its scope should be limited by prescribing
both the
class or classes of cases and the circumstances.
It was contended that the expression
"class or
classes of cases" is wide enough to enable the Parlia
ment to treat any of the categories mentioned in Lists
I and III, items 9 and 3 respectively,
(i.e., any of the
categories A to
F) as constituting a class. At first
sight, it seemed to
me to be a plausible
ari;tument, but
the more I think about it the more unsound it appears
to me.
The chief thing to be remembered is what
I
have already emphasized more than once,. viz., that
a special or extreme type of law must
be limited to
special classes of cases and circumstances.
Under the
S.C.R. SUPREME COURT REPORTS 177
Constitution, the Parliament has to prescribe "the
class or classes", acting within the limits of the power
granted to it under
Lists I and III. The class or
·
classes must be its own prescription and must be so
conceived as to justify by their contents the xemoval
of an important safeguard provided by the Constitution.
Prescribing is more than a mere mechanical process.
It involves a me11tal effort to select and adapt the
thing prescribed·
to the object for which it has.
·to be
prescribed. We find here that what is to be prescribed
is "class or classes" (and also "circumstances"). We
also find that what the law intends to provide is pro
longed detention · (by which words I shall hereafter
mean detention for more than three months) and eli
mination of the advisory board. The class or classes
to be prescribed must therefore have a direct bearing
on these matters and must be so selected and stated
that
any one by looking at them may
say:-"That is
the reason why the law has prescribed prolonged deten
tion without reference to an advisory board." In other
words, there must
be something to make the class or
classes prescribed fit in
· with an extreme type of legis
lation-some element of exceptional gravity or menace
which cannot
be easily and immediately overcome and
therefore
necessitates prolonged detention; and there
must
be something to show that
re~rence. to an ad
visory board would be an undesiral;>le and cumbersome
process and wholly unsuitable for . the exceptional
sit9ation to which the law applies. Perhaps a simple
.illustration may make the position still clearer.
Under the Lists, one of the subjects on which
Parliament
may make a law of preventive detention
is
·"matter connected with. the maintenance of
puolic order.'~ The Act simply repeats · this phra
seology and states. in .section 3: "with a view to
preventing him (the person to be detained) from
acting in a manner prejudicial to the maintenance of
public order." This may be all right for section 3,
but section 12 must go further. An act prejudicial ·to
the maintenance of public order
may.
be an ordinary
act or it may be an act of special gravity. l think
that article
22 (7) (a) contemplates that. the graver
and
1950
A. K. Gopalan
-.v.
Tll4StaU
Fiu:l Ali].
1950
A. K. Copa/an
v.
Tl:.t State
Fad Ali J.
178 SUPREME COURT REPORTS [1950]
more heinous types of acts falling within the category
of
acts prejudicial to the maintenance of public order
(or other heads) should
be prescribed so as to define
and circumscribe the area
of an exceptional piece of
legislation.
That
some kind of sub-classification (if I may be
permitted to use this word) of the
categories A to F
was possible can be . illustrated by reference to regula
tion
18-B of the British Defence of the Realm Regula
tions. This regulation
was made under an Act of 1939
which authorized
"the making of regulations for the
detention of persons whose detention appears to the
Secretary of State to
be expedient in the interests of
public safety or the defence of the
realm." The two
matters "public safety" and "defence of the realm"
are analogous to some of the heads stated in Lists I
and III. It will
be instructive to note that under these
two heads, regulation
18-B has set forth several sub
heads or
class or classes of cases in which preventive
detention could
be ordered. These classes are much
more specific than what
we find in section 3 of the
impugned Act and therefore there
is less chance of
misuse
by the executive of the power to order preven
tive detention. The
classes set out are these:-(1) If
the Secretary of
State has reasonable cause to believe
any person
to be of hostile origin or associations, (2) if
the Secretary of
Sta.te has reasonable cause to believe
any person
to have been recently concerned in
acts
prejudicial to the public safety or the defence of the
realm or in the preparation or instigation of such acts,
(3)
if the Secretary of
State has reasonable cause to
believe any person
to have been or to be a member of
or
to have been or to be active in the furtherance of
the objects
of, any such organization as is hereinafter
mentioned
.... (a) the organization is subject to foreign
influence or control (b) the persons in control of the
organization have or have had associations with
persons concerned in the government
of, or sympathies
with the system of government
of, any
Power with
which His Majesty
is at war, and in either case there is
danger of the utilization of the organization for purposes
prejudicial
to the public safety, etc., (4) if the Secretary
•
S.C.R. SUPREME COURT REPORTS 179
of State has reasonable cadse to believe that the recent
conduct
of any person for the
·time being in an area or
any words recently wri~ten or spoken by such a person
expressing sympathy with the enemy, indicates or
indicate that that person
is likely to assist the enemy.
I have only
to point out that the scope within which
preventive detention can
be legislated upon in this
country
is much larger than the scope indicated in the
British Act under which Regulation
18-B was framed,
and therefore there
is more scope for specification of
the circumstances
as well as the class or classes of
cases under the impugned Act. But all that has been
done
is that words which occur in the legislative Lists
have been taken and transferred into the Act.
What I have stated with regard to
class or classes
of cases also applies to the circumstances which are
also
to be prescribed under article 22 (7) (a). These
circumstances are intended
to supply the background
or setting
in which the dangerous activities of
dan
gerous persons might prove specially harmful.· They
must
be special circumstances which demand a special
ly drastic measure and under which reference to an
advisory board might defeat the
very object of preven
tive action. The evident meaning of article 22 (7) (a)
seems to be. that the pic_ture will not be complete with
out mentioning both the
classes and the circumstances.
There
was some discussion at the Bar as to what kind
of circumstances might
·haV(;... _been specified. It is not
for me
to answer this question, but I apprehend that
an impending rebellion or war, serious disorder in a
particular area such
as has induced the
Puniab
Government to declare certain areas as "disturbed
areas,'.' tense communal situation, prevalence of sabo
tage or widespread yolitical dacoities and a -variety of
other matters might answer the purpose the Constitu
tion had in
view.
I will now try to sum up
th~ result of a somewhat
protracted discussion into which I had
to enter
merely
to clarify .the meaning of a very important provision
of the Constitution which has. in mv opinion, been
completely misunderstood
by the framers of the
7-1 S. C. Ind'af58 .
19·.o
A. K. GopalM
v.
The Stat•
F~l Ali].
1950 '
A. K.-Gopalan
"·
The Stat~
Fazl Ali J.
ISO SUPREME COURT REPORTS (1950}
impugned Act. It appears. to .me that article 22 deals.
with three classes of preventive detention :-
(I) prev_entive detention ·for. three months ;
·· · (2) preventive . detention for more than three
months on the report of the advisory board ; and
· · (3fpre~entive detention for .more than three
I months without reference to the advisory board. ·
If one has to find some kind of a label for these
classes for a clear understanding of the subject, one
may label them as "dangerous," "more dangerous"
and "most dangerous." . Now so far as the first two
classes are concerned, there is not)ling to be prescribed .
.
under the Constitution. Apparently.the authors of the
Constitution were not much
concerned.about class No.
(I), and they thought that in so far as class No. (2}
was concerned the provision that· a reference to the
advisory board was necessary coupled with the provi
sion
that detention was not to exceed the maximum. period which may be fixed by the . Parliament was .
enough. · But they did take· care to. make a special.
provision for class No. (3),
and it is extermly important for the liberty of the subject as well as for the
smooth working of the Constitution that this provision ·
should not be lightly treated but should receive a well
considered and reasonable construction. It js ele-·
mentary that the rigour of a law should correspond to·
or fit the gravity of the evil or danger it aims at.com-·
bating, and ,it is also evident that the law which the·
Parliament has been permitted to enact under article·
22 (7) (a) can, so far as rigour is concerned, go to the
farthest limit. It follows that the law must have been
intended for exceptionally grave situations
and exigen
cies. Hence
the authors of the
Constitution have made·
it necessary that the Parliament should put certain
specifications into
the Act which it is empowered to.
pass under article 22 (7) (a), so that by
means of these
specifications
the necessity for enacting so drastic a law
should be apparent on the face of it, and its application.
should
be confined to the classes and circumstances.
specified. The Act
must prescribe (I)
" ch:.ss or classes
of cases" which are to have reference to· the persons~
'
-r
S.C.R. SUPREME COURT REPORTS 181
against whom the law is to operate and their activities
and movements and (2) "circumstances" which would
bring into prominence the conditions and the
back
grounds against which dangerous activities shoul,d call
for
special measures. By means
<!f such two.fold
prescription, the sphere for the application
of the law
will
be confined only to a special type of cases-it
will
be less vague, less
open to abuse and enable those
who have to administer it to determine objectively
when a condition has arisen to justify the use of the
power
vested in them by the law. This, in my
opinion, is the true meaning and significance of article
22 (7) (a) and any attempt to whittle it down will lead
to deplorable results.
Having stated my
views as to the construction of
article 22 (7) (a), I propose to consider at once whether
section 12 of the impugned Act conforms to the
requirements
of that provision. In my opm1on, it
does not, because it fails to prescribe' either
-the circum
stances or the class or classes of cases in the manner
-required by the Constitution. It does not prescribe
circumstances at all, and, though it purports
to pres
cribe the
class or classes, it does so in a manner
showing that the. true meaning
of the provision from
which
the Parliament derived its power has
not been
grasped. I have sufficiently dwelt on this part of the
case and shall not repeat what I have already said.
But I must point out that even if it be assumed that
the
view advanced by the learned Attorney-General is
correct and it was within the competence of Parliament
to treat
any of the categories mentioned in items 9 and 3
of Lists I and III
as constituting a class
:ind to include
it without
any qualification or
cha?ge, the impugned
section cannot
be saved on account of a two-fold error :
(1) the word
"and" which links "class or classes"
with "circumstances" in article 22 (7) (a) has been
w.rongly construed to mean "or;" and-(2) the distinc
tion between "circumstances" and "class or classes"
has been completely ignored and they are used as
interchangeable terms. The first error appears to
me to be quite a serious one, because though the
Constitution
lays down two requirements and 'insists
A. K. Gopolan
v.
The State
Far.I Ali J.
1950
A. K. Gopalan
v.
The State
Fazl Ali].
182 SUPREME COURT REPORTS [ 1950]
on the prescnption of circumstances as well as
class or classes, it has been assumed m enacting
section
12 that prescription of
· one of them only
will
be enough. The other error is still more serious
and goes to the root
of the matter. There can be
no doubt that circumstances and dass or classes
are two different expressions and have different mean
ings, but the Act proceeds on the assumption that
circumstances are identical with
class or classes, as will
appear from the words
"any person detained in any
of the following classe~ of cases or under any of the
following circumstances" used in the section. I have
already shown how important the specification of
circumstances
is in legislation of such an extreme and
drastic character. Therefore,
to confuse
"classes" with
0
circumstances" and to omit to mention "circum
stances" at all are in my opinion grave errors. There
can, in
my opinion, be no escape from the conclusion
that section
12 of the Act by which a most important
protection or safeguard conferred on the subject
by the
Constitution has been taken away,
is not a valid
provmon,
since it
contravenes the very provmon in
the Constitution under which the Parliament derived
its competence to enact it.
I will now briefly deal with article
22 (5) which
makes it incumbent on the authority ordering
preventive detention to communicate to the person
detained the grounds on which the order
has been
made and to give him the earliest opportunity of
making a representation against the order. It must
be
remembered that this provision is intended to afford
protection to and
be a safeguard in favour of a
detained person, and it cannot
be read as limiting
any rights which
he has under the law or any other
provisions of the Constitution.
If article 21 guarantees
that before a person
is deprived of his liberty he must
be allowed an opportunity of establishing his
innoceQce
before an impartial tribunal, that right still remains.
In point of fact, there
is no express exclusion of that
right in the Constitution and no prohibition against
·
constituting an impartial tribunal. On the other
hand, the right to make a representation which has
S.C.R SUPREME COURT REPORTS 183
been granted under the Constitution, must carry with
it the right to the representation being properly
oonsidered by an impartial person or persons. There
mtist therefore be· some machinery for properly
cx:uhining the qses of the detenus and coming to the .
conclusion that · they have not been detained without
reason. · If this right had been expressly taken away
by the Constitution, there would have been an end gf
the· matter, but it has not been expressly taken away,
. and I am· not prepared to read any implicit depriva
tion 'Of. such a valuable right. The mere reference to
an advisory board in article 22 ( 4) (a) does_ not, if my
interpretation of the provision is correct, exclude the
oonstitUtion of ·a proper machinery for the piirpose of
examining the cases of detenus on merits. The
constitutio1' of an advisory board for the purpose of
reporting whether a person should be detained for more
than three months or not is a very different thing from
constituting a board for the purpose
of reporting whe
ther a man ·should be detained for a single day. In
the view I take, all that Parliament could do under
clause (7) (a) of article 22 was to dispense with an ad
visory board for
die purpose contemplated in clause ( 4)
(a)
of that article and not to dispense with the proper
machinery,
by
, whichever · name it may. be called, for
the purpose of examining the merits of the
case of a
detained person.
.
It was argued · that article 22 is a code by itself
and the whole
law of preventive detention is to be
found within its
four corners: I cannot however easily
,subscribe to this sweeping statement. ' The article does
provide for some ~ers of procedure, but it does not
exhaustively provide· for them.. It is, said that it prcr
vides for notice, an opportunity to the det<;nu to repre
sent
his
ca5e, an advisory board which may deal . with
his
.case, and for the maximum period beyond which · a ~):"son. cannot be detained. These points have un-·
doubtcdly been . touched, but it cannot be said that
they. have been exhaustively treated. The right to
represent
is given, but it is left to the
legislature to
provide the machinery for dealing with the represen
tation. The advisory board
has been .··mentioned, but
1950
A. K. G1;palan
v.
The Stau
Fazl Ali].
1950
A. K. Gopalan
v.
The Stat•
Fa<l Ali].
184 SUPREME COURT REPORTS (1950)
it is only to safeguard detention for a period longer
than three months. There
is ample latitude still left
to the Parliament, and if the Parliament makes use of
that latitude unreasonably, article
19 (5) may enable
the
Court to see whether it has transgressed the limits
of reasonableness.
I will now proceed to deal with the Act in the
light of the conclusions I have arrived at. So far as
section 3 of the Act is concerned, it was contended
that it
is most unreasonable, because it throws a
citi
zen at the mercy of certain authorities, who may at
their own will order his detention and into whose minds
we cannot probe to
see whether there is any foundation
for the subjective satisfaction upon which their action
is to rest. I am however unable to accept this
argu
ment. The administrative authorities who have to
discharge their responsibilities have to come to quick
decisions and must necessarily
be left to act on their
own judgment. This principle is by no means
unreason
able -and it underlies all the preventive or quasi
administrative measures which are to be found in the
Criminat Procedure Code. Under section 107 of that
code, it
is left to
the discretion. of the magistrate con
cerned to determine whether in his opinion there is
sufficient ·ground for proceeding against any person
who
is likely to occasion a breach of the peace.
Under
section 145 also, his initial action depends upon his
personal satisfaction. Therefore I do not find anything
wrong or unconstitutional in section 3 of the Act. But
I must point out that it
is a
n:asonable 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 exa
mining the grounds on which the order of detention is
made and considering the representations of the per
sons detained in relation to those grounds.
I do not also find anything radically wrong in
section 7 of the Act, which makes it incumbent on the
authority concerned to communicate to a detenu the
grounds on which the order has been made and to
S.C.R. SUPREME COURT REPORTS 185
afford him the · earliest opportunity of making a repre
sentation against the order. Section 10 which provides
that the advisory board shall make its report within
ten weeks from the date of the detention order
is in
conformity with article
22 ( 4) (a) of the Constitution,
and the only comment which one can make
is that
Parliament
was not obliged to fix
sue~ a long period
for the submission of a report and · could have made it
shorter in ordinary
cases.
. The real sections which
appear to
me to offend the Constitution are sections 12
and 14. I have already dealt with the principle objec
tion to section 12, while .discussing the provisions of
article
22 (7) (a) and I am of the opinion that section
12 does not conform to the provisions of the Constitu
tion
.and is therefore· ultra vires. I also think that
even if it
be held that it technically complies with the
requirements of article
22 (7) (a), Parliament has acted
unreasonably in exercising its discretionary
. po'wer
without applying its mind to essential matters and
thus depdving the detenus of the safeguard of an
advisory board which the Constitution has provided in
normal
cases.
So far as section 14 is concerned, all
my colleagues have held it to
be ultra vires, and, as
I agree with the .views expresse.d by them, I do not
wish to encumber my judgment
by repeating in my
own words what has been
said so clearly and so
well by them. Section 14 may be severable from
the other provisions of the Act and it may not
be
possible to grant any relief to the petitioner on the
ground
tM.t section 14 is invalid. But I think that
section
12 goes to the very root of the legislation
inasmuch
as it deprives a detenu of an essential
safeguard, and in my opinion the petitioner
is entitled
to a writ of
habeas corpus on the ground that an
essential provision of the Constitution
has not been
complied with. This writ will of
course be without
prejudice
to any action which the authorities may
have taken or may hereafter take against the petitioner
under the penal law. I have
to add this qualification
because there were allegations of his being involved in
some criminal cases ·but the actual facts were not
clearly brought out before
us.
1950
A. K. Gopal1J11
v.
The Stau
FazlAli J.
1950
A. K. Gopalan
v.
Tiu Stal<
Fad Ali J.
186 SUPREME COURT REPORTS [1950]
I have only to add a few concluding' remarks to
my judgment. In studying the provisions of the
impugned
Act, I could not help instituting a compar
ison in my own mind between it and similar legislation
in England. during the
last two world wars. I could
not
also help noticing that the impugned
Act purports
to be a peacetime Act, whereas the legislation to
which I have referred was enacted during the war.
During the first war
as well as the second, a number
of persons were detained and a number of
cases were
brought
to Court in connection with their detention, btit the two leading-eases which will be quoted again
and again are Rex v. Halliday (
1
)
and Liversidge v.
Sir
John Anderson ( • ). We are aware that in America
certain standards which
do not conform to ordinary
and normal
law have been
· applied by the Judges
during
the period of the war
~nd sometimes they are
compendiously referred
to as being included
,in "war
power." The two English cases to ~Qich I ha".e
referred also illustrate the same principle, as will
appear from two short extracts which I wish to
reproduce. In Rex v. Halliday (' ), Lord Atkinson
observed as follows:-"However precious .the personal
liberty .
of the
· subject may be, there is something for
which it may well be, to some extent, sacrified by
legal enactment, namely, national success in the war,
or
escape from national plunder or
enslavement."
In Liversidge v. Sir John Anderson ( '), Lord
Macmillan struck the
same note in these
words:~
"The liberty whlch we so justly extol is itself the
gift of the
law and as Magna Charta recognizes may by
the law be
·forfeited or abridged. At a time when it is
the undoubted law of the land that a citizen may by
conscription or requisition be compelled to give up his
life and all that he
possesses for his country's cause it
may well be no matter
for surprise that there should be
confided to the Secretary of State a discretionary power
of enforcing the relatively mild precaution of
detention."
(1) (1917] A: C. 260.
(•) [194Z] A. C. 206.
· (3) [1917] A. C. 260 at p. 271.
(4) [1942] A. C. 206 at p. 257.
S.C.R. SUPREME COURT REPORTS 187
These passages represent the majority view in the
two
cases, but the very elaborate judgments of Lord Shaw in Rex v. Halliday and that of Lord Atkin in Liver
sidge v. Sir fohn Anderson show that there was room
for difference
of opinion as well as for a more
dis
passionate treatment of the case and the points in
volved in it. It is difficult to say that there is not a
good substratum
of sound law in the celebrated dictum
of Lord Atkin that
even amidst the clash of arms the
laws are not silent and that they speak the
same
lan
guage in war as in peace. However that may be, what
I find
is that in the regulations made in England
during the first war
as well as the second war
there
was an elaborate provision for an advisory
board in all
cases without any exception, which
provided a wartime safeguard for persons deprived
of
their liberty. There was also a provision in the Act of
1939 that the Secretary of
State should report at least
once in
every month as to the action taken under the
regulation including the number
of persons detained
under orders made thereunder. I find that these reports
were printed and made available
to the public. I also
find that the Secretary of
State stated in the House of
Commons on the 28th January, 1943, that the general
order would
be to allow British subjects detained
under the Regulation
to have consultations with their
legal advisers out of the hearing of an
officer. This
order applied
to consultations with barristers and
solicitors but not
to cases where solicitors sent to inter-
. view a detained person a clerk who was not an officer
of the High Court. The impugned Act suffers in com
parison, on account of want of such provisions, though,
so far as I can see, no great harm was likely to have
been caused
by setting up a machinery composed of
either administrative or judicial authorities for
exam
ining the cases of detained persons so as to satisfy
the essentials of fairness and justice. The Act also
suffers in comparison with some of the later Provincial
Acts in which the safeguard of an advisory board is
expressly provided for. I_ find that there is a provision
in section
12 (2) of the Act for the review of the cases
of detenus after six months, but this is quite different
1950
A. IC GojJala
v.
T/rt f;au
Fazl Ali_}.
•
1950
A. I(. Gopalan
v.
TJ,. 811111
'.-jail Sann].
188 SUPREME COURT REPORTS [1950]
from examining the merits of the case. The object of
such a review
is obviously to find out whether by
rea
son of any change in the circumstances, a review of
the original order is required.
I hope that in pointing out the shortcomings of the
Act I will not
be misunderstood. I am aware that
both in England and
jn America and also in many
other countR<:s, there has been a reorientation of the old
notions
of individual freedom which is gradually
yield
ing to· social control in many matters. I also realize
that
those who run the
State have very onerous res
ponsibilities, and it is not correct to say that emergent
conditions
have altogether disappeared from this
country. Granting
th.en that private rights must often
be subordinated to the public good, is it not essential
in a
free community to strike a just balance in the
matter
? That a person should be deprived of his
pe~sonal liberty without a trial is a serious matter, but
the needs of
society may demand it and the individual
may often have to yield to those needs.
Still the
balance between the maintenance
of individual rights
and public
good can be struck only if the person who
is deprived 6f his liberty is allowed
~ fair chance to
establish
his innocence. and I do not see how the
esta
blishment of ;m appropriate machinery giving him such
a chance can
be an impediment to good and just
government
PATANJALI S11STRI J.-This is an application
under article
32 of the
C',onstitution of India for
rckasing the pettt10ncr from detention jn jail
without trial under directions purporting
to be
issued by the Government of Madras under the
Preventive Detention Act,
1950, and it has the
distinction of being the first application invoking the
p;uaranteed protection of this Court as the guardian of
Fundamental Rights against alleged infringement of the
petitioner's right
to freedom of movement. As the case
involved issues of
great public importance and break
ing of new ground it was argued with thoroughness
and ability on both
sides, reference
being made to more
or
less analogous provisions of the Constitutions of
S.C.R. SUPREME COURT REPORTS 189
other countries and in particular the Constitution of
the United States of America.
The pet1t1oner ha<l been under detention previ
ous! y un<ler orders passed by the said Government
under the Madras Maintenance of Public Order Act,
1947, but as the validity of that Act and all other
similar
local public safety enactments had been
questioned in some of the High
Courts in India after
the new Constitution came into force, the Parliament
enacted a comprehensive measure called the Preventive
Detention Act, 1950, (hereinafter referred to as the
impugned Act) extending to the whole of India with a
certain exception not material he~e.
The Act came into force on 25th February 1950,
and, on the 27th February, the Government of Madras,
in purported exercise of the powers conferred by the
impugned Act and in supersession of earlier orders,
directed the detention
of the petitioner, and - the'
Qrder
was served on him on 1st March. The petitioner
contends that the impugned Act and in particular
sections
3, 7,
10, 11, 12, 13 and 14 thereof take away
or abridge the fundamental right to freedom of move
ment in contravention of article 13 (2) of the Consti
tution and is, therefore, void as declared therein.
Article
13 is one of a fasciculus of articles which
are comprised in part III of the Indian Constitution
headed
"Fundamental Rights." This Part forms a
new feature of the Constitution and
is the Indian "Bill of Rights." It is modelled on the first ten
Amendments of the American Constitution which
declare the fundamental rights of the American
citizen~ Article 12, which is the first article in this
Part, defines "the State" as including the Govern
ments and Legislatures of the Union and the States as
well as all local and other authorities against which
the fundamental rights are enforceable, and article
13
( 1) declares that all existing laws inconsistent with the
provisions of
Part III shall, to the extent of the
inconsistency,
be void. Clause (2) of the article, on
which the petitioner's contention
is primarily founded
reads as follows :
1950
A. K. Gopalan
v.
The State
Palanja/i Sastri }.
1950
A., K. G.pa!an
v.
Th•S<au
PatlJl!iali Sastri ].
190 SUPREME COURT REPORTS [1950]
"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."
As the constitutional inhibition against depriva
tion or abridgement relates only to "the rights con
ferred by this Part," it is necessary first to ascertain
the nature and extent
of the right which, according to
the petitioner, Part III
has conferred on him, and,
second
I y, to determine whether the right so ascertained
has been taken away or abridged by the impugned Act
or
by any of its provisions. The first question turns
on the proper interpretation of the relevant articles of
the Constitution,
;md the second involves the consider
ation of the provisions of the impugned Act.
Mr. Nambiar appearing for the petitioner advan
ced three main lines of argument. In the first place,
the right to move
freely throughout the territory of
India referred to in article
19 ( 1) ( d) is
of the very
essence of personal liberty, and inasmuch as the deten
tion authorised by the impugned Act was not a
"reasonable restriction" which Parliament could vali
dly impose on such right under \Clause (5) of the
article, the impugned Act
is void. Alternatively, 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. And. lastly, the
provi
sions . of the impugned Act alreadv 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).
Accordingly, the first question for consideration
is
whether article 19 (1) (d)
and (5) is applicable to the
present
case :
"Liberty," says John Stuart Mill,
"consists in doing what tine desires. But the liberty
of the individual must
be thus far limited-he must · not make himself a nuisance to others." Man, as a
rational being, desires to do many things, but in a
civil
society his desires have to be controlled, regulated
S.C.R. SUPREME COURT REPORTS 191
and reconciled with the exercise of similar desires by
other individuals. Liberty has, therefore, to be
limited in order to be effectively possessed. Accord
ingly, article 19, while guaranteeing some of the most
valued phases or elements of liberty to
every citizen
as civil rights, provides for their regulation for
the common good by the State imposing certain "restrictions" on their exercise. The power of loco
motion is no doubt an essential element of personal
liberty which means freedom from bodily restraint,
and detention in jail
is a drastic invasion of that
liberty. But the question
is : Does article 19, in its
setting in
Part III of the Constitution, deal with the
deprivation
of personal liberty in the sense of
incar
ceration ? Sub-clause ( d) of clause ( 1) does not refer to
freedom of movement simpliciter but guarantees the
right
to move freely
"throughout the territory of
India." Sub-clause ( e) similarly guarantees the right
to reside and settle in any part of the territory of
India. And
clause (5) authorises the imposition of "reasonable restrictions" on these rights in the
interests of the general public or for the protection of
the interests of any Scheduled Tribe. Reading these
provisions together, it
is reasonably clear that they
were designed primarily
to emphasise the factual unity
of the territory
of India
and to secure the right of a
free citizen to
move from one place in India to another
and to reside and settle in any part of India
un
hampered by any barriers which narrow-minded
provincialism
may seek to interpose. The use of the
word
"restrictions" in the . various sub-clauses seems
to imply, in the context, that the rights guaranteed
by the article are still capable of being exercised, and
to exclude the idea of incarceration though the words
"restriction!' and "deprivation" are sometimes used
as interchangeable terms, as restriction may reach a
point where it
may well amount to deprivation. Read
as a whole and viewed in its setting among the group
of provisions (articles 19-22) relating to
"Right to
Freedom," article 19 seems to my mind t.o pre-suppose
that the citizen to whom the
possession of these
fundamental rights
is secured retains the substratum
1950
A. K. Gopalan
v:
The State
Patanjali Sastri ].
1950
A. Jr. Goj>alan
"· T/,.S•ate
PattnfialiSa>lri j.
192 [1950] SUPREME COURT REPORTS
I
of personal freedom on which alone the enjoyment of
these rights necessarily
rests. lt was said that
sub
clause (f) would militate against this view, as the
enjoyment of the right "to acquire, hold and dispose
of propsrty" does not depend upon the owner retaining
his personal freedom. This assumption
is obviously
wrong as regards moveable properties , and even
as regards immoveables he could not
acquire· or
dispose of them from behind the prison bars ; nor
could
he
"hold" them in the sense of exercising rights
of
possession and control over them which is what the
word
seems to 'mean in the context. But where, as
a penalty for committing a crime or otherwise, the
citizen
is lawfully deprived of his freedom, there could
no longer be any q
uc:stion of his exercising or enforcing
the rights referr:d to in clause (1). Deprivation of
personal liberty
in such a situation is not, in my
opinion, within the purview of article 19 at all but is
dealt with by the succeeding articles
20 and 21. In
other words, article 19 guarantees to the citizens the
enjoyment of certain civil liberties
while
they are free,
while articles 20-22 secure to all persons-citizens and
non-citizens-certain constitutional guarantees in re
gard to punishment and prevention of crime. Different
criteria are provided
by which to measure
legislative
judgments in the two fields, and a construction which
would bring within article 19 imprisonment· in punish
ment of a crime committed ·or in prevention of a crime
threatened would, as it seems to me, make a reductio
ad absurdum of that rrovision. If imprisonment were
to
be regarded as a
"restriction" of the right men
tioned in article 19 (1) (d), it would equally be a
restriction on the rights mentioned
by the other
sub
clauses. of clause ( l), with the result that ·all penal laws
providing for imprisonment
as a mode of punishment
would have to run the gauntlet of
clauses (2) to ( 6)
be
fore their validity could be accepted. For instance,
the law which imprisons for theft would, on that view,
fall to
be justified under clause (2) as a law sanctioning
restriction of freedom of speech and expression.
In
deed, a Division Bench of the Allahabad High Court,
in a recent unreported decision brought to our notice,
S.C.R· SUPREME COURT REPORTS 193
applied the test of undermining the security of the
State or tending to overthrow it in determining the
validity or other
wise of the impugned Act. The
learn
ed Judges construed article 19 as covering cases of
deprivation of pers_onal · liberty and lJ.eld, logically
enough, that inasmuch
as the impugned Act, by author
ising preventive detention, infringed the right to
free
dom of speech and expression, its validity should be
judged by the reservations in clause (2), and as it
failed to stand that
test, it was unconstitutional· and void.
Mr. Nambiar did not seek to
g0 so far. He drew
a distinction between the right conferred
by sub-clause
(d) and those conferred by the other
-sub-clauses. He
urged, referring to Blackstone's Commentaries, that
personal liberty consisted "in moving one's person
to whatever
place one's inclination might
direct,"
and -that any law which deprived a person of
such power of locomotion was a direct invasion of the
right mentioned in
sub-clause (d), whereas it inter
fered only indirectly and consequentially with the rights mentioned in the other sub-clauses. There is
no substance in the distinction suggested. It would be
illogical, in construing article 19, to attribute. to one of
the sub-clauses a scop~ and effect totally different from
the
scope and effect of the others or to draw a distinc
tion between
one right and another in the group. All
the rights mentioned in
clause (1) are equally essential
elements in the liberty
of the individual in any
civilised and democratic community, and imprison
ment operates
as an extinction of all of them alike. It
cannot therefore,
be said that deprivation of personal
liberty
is an infringement of the right conferred by
sub-clause (d) alone but not of the others. The learned
Judges
of the Allahabad High Court realised this and
were perfectly logical in holding that the constitutional
validity
of a law providing for deprivation of personal
liberty or imprisonment must
be judged by the tests laid
down not only in
clause (5) of-article 19 but also in the
other clauses including clause (2), though their major
premise that deprivation of personal liberty
was a "restriction" within the meaning of •article 19 is, in
my judgment, erroneous.
1950
A. K. Gopalan
v.
The State
Patanjali Sastri ].
A. K.Gopalan
V,
Tlw Stau
Patatifali Sastri ].
194 SUPREME COURT REPORTS [1950]
It was said that preventive detention being a dras
tic restriction of the right to move fredy was, in its
"pith and substance'', within article 19 (1) (cl) read
with
clause. (5) and not within article 21 which deals
with crime
anp its punishment and prevention. There
is no room here, in my opinion, for the application of
the rule
of
"pith and substance." As pointed out by
the Privy Council in Prafulla Kumar Mukherjee v. The
Bank of Commerce Ltd., Khulna (
1
), approving the
observations of the Federal Court in Subrahmanyan
Chettiar v. Muttuswamy Goundan {
1
), the rule was
evolved by the Board for determining whether an impu
gned statute was, in its true character, legislation with
respect to matters within the jurisdiction of one legis
lature or another in a scheme of divided legislative
power. No such question arises here. What the Court
has to ascertain is the true scope and meaning of
article
19 in the context of Part Ill of the Constitution,
in order to
decide whether deprivation
of° personal
liberty falls within that article, and the pith and
substance rule will be more misleading than helpful in
the
decision of that issue. Article 19, as I have already
indicated, guarantees protection for the
more
import
ant civil · liberties of citizens who are in the enjoyment
of their. freedom, while
at the same time laying down
the restrictions which the legislature
may properly
impose on the exercise of such rights, and it has
nothipg to do with deprivation of personal liberty or
imprisonment which
is dealt with by the succeeding
three articles.
There
is also another consideration which points
to the same conclusion. The Drafting Committee of
the Constituent Assembly, to whose Report reference
was freely made by both sides during the argument,
recommended
"that the word liberty should be quali
fied by the insertion of the word 'personal' before it,
for otherwise it might
be construed very widely so as to
include
even the freedoms already dealt with in
artirl~
13" (now article 19). The acceptance of this suggestion
shows · that whatever may be the generally accepted
11) 74 I.A. •3· (•) [J940J F.C.R. 188.
S.C.R. SUPREME COURT REPORTS 195
connotation of the expression "personal liberty'', it
was used in article
21 in a sense which excludes the
freedoms dealt with in article
19, that is to say,
personal liberty in the context of
Part III of the
Constitution
is something distinct from the freedom to
move freely throughout the territory of India.
It was further submitted that article 19 declared .
the substantive rights of personal liberty while article
21 provided the procedural safeguard against their
deprivation. This
view of the correlation between the
two articles has found favour with some of the Judges
in the High Courts which have had occasion to
consider the constitutional validity of the impugned
Act. It
is,
however, to be observed that article 19
confers the rights therein specified only on the citizens
of India, while article
21 extends the protection of life
and personal liberty to all persons-citizens and
non
citizens alike. Thus, the two articles do not operate in
a conterminous field, and this
is one reason for rejecting
the correlation suggested. Again, if article
21 is to be
understood as
prnviding only procedural safeguards,
· where is the substantive right to personal liberty of
non-citizens to be found in the Constitution ? Are they
denied such right altogether
? If they are to
have no right of personal liberty, why
is the
procedural safeguard in article
21 exended to them ?
And where
is that most fundamental right of all, the
right to life, provided for in the Constitution
? The
truth is that article 21, like its American prototype in
the Fifth and
Fourceenth Amendments of the Consti
tution of the United States, presents an example of the
fusion of procedural and substantive rights in the same
provision. The right to live, though the most funda
mental of all, is al so one of the most difficult to define
and its protection generally takes the form of a decla
ration that no per~:on shall be deprived of it save by
due process of law or by authority of law. "Process"
or "procedure" in this context connotes both the act
and the manner of proceeding to take away a man's
life or personal liberty. And the first and essential
step in a procedure established by law for such depri
vation must be a law made by a competent legislature
8-3 S .C. India/SP
1950
A. K. Copa/an
v.
The Stale
Patanjali Sastri J.
1950
A. K. Gopalan
v.
The State
Patmefali Sastri J.
1% SUPREME COURT REPORTS [1950]
authorising such deprivation. This brings me to the
consideration of articles
21 and 22 to which was de
voted the greater part of the debate at the Bar.
These articles run
as follows :
"21. No person shall be deprived of his life or
personal liberty except according to procedure establi
shed
by law.
22. (1) No person who is arrested shall
be de
tained 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.
'(2) 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.
(3) Nothing in
clauses (1) and (2) shall apply-
( a) to any person who for the time bemg is an
enemy alien ; or
(b) to
any person who is arrested or detained
under any law providing for preventive detention.
( 4)
No law providing for preventive detention
shall authorise
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 expira
tion of the said period of three months that there
is
in its opinion sufficient cause for such detention :
Provided that nothing ~n this sub-Clause shall
authorise 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).
S.C.R. SUPREME COURT REPORTS 197
(5) 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.
( 6) Nothing in clause (5) shall require the authority
making any such order
as is referred to in that clause
to disclose facts which such authoritv considers to
be
against the public interest to disclose. .
(7) Parliament may
by law prescribe-
( a) 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) :
(b)
t.he maximum period for which any person
may in any
class
or classes of cases be detained under
any law providing for 'preventive detention ; and
(c) the procedure to
be followed by an Advisory
Board in an inquiry under sub-clause
(a) of clause
(4)."
Mr. Nambiar urged that the word "law" in
article
21 should be understood, not in the sense of an
enactment but
as signifying the immutable and univer
sal principles
· of natural justice-the jus naturale of
the civil law-artd that the expression "procedure
established by law" meant the same thing as
that famous phrase "due prncess of law" in
the American Constitution in
its procedural aspect.
Numerous American decisions were cited to show that
the phrase implied the basic requirements of (1) an
objective and
a!certainable standard of conduct to
which it
is possible to conform, (2) notice to the party
of the accusation
against him, (3) a reasonable opportu
nitv for him to establish his innocence, and ( 4) an
impartial tribunal capable of giving an unbiased judg
ment. Mr. Nambiar conceded that these reauirements
might have to
be modified or adapted to suit the nature
of the particular proceeding and the object
it had in
1950
A. K Gopalti.n
v.
TM State
Patanjali Sastri J.
1950
d. K. Gopalan
v.
TJt, Stat•
P atatliali S4"'i ].
198 SUPREME COURT REPORTS [1950]
view, as for instance, in a case of preventive detention,
previous notice, which might result in the person con
cerned going underground might
be dispensed with.
Learned counsel insisted that these requirements, being
the
very core of the principles of natural justice which
transcended
all State-made laws, must be substantially
complied with
by any law governing the process of
deprivation of
life or personal liberty, subject, of
course, to
any express provision in the Constitution
sanctioning their relaxation or dispensation in any
case or class of cases. He also appealed to the
Pream
ble of the Constitution as the guiding star in its inter
pretation
to support his thesis that, in view of the
democratic Constitution which the people
of India have
purported to give themselves guaranteeing to the citi
zens certain fundamental rights which are justiciable,
the provisions of
Part III must be construed as being
paramount to the legislative will,
as otherwise the
so
called fundamental right to life and personal liberty
would
have no protection against legislative action, and
article 13(2) would
be rendered nugatory.
There can
be no doubt that the people of India
have, in
exercise of their sovereign will as expressed in
the Preamble, adopted the democratic ideal which
assures to the citizen the dignity of the individual and
other cherished human values
as a means to the full
evolution and expression of
his personality, and in
delegating to the legislature, the executive and the
judiciary their respective powers in
-the Constitution,
reserved to themselves certain fundamental rights, s<>
called, I apprehend, because thev have been retained
by the people and made paramount to the delegated
powers,
as in the American model. Madison (who played
a prominent part in framing the First Amendment of
the American Constitution) pointing out the distinc
tion, due to historical reasons, between the American
and the British ways of securing
"the great and ~sscn
tial rights of the people," observed "Here they arc
secured not
by laws paramount to prerogative but by
Constitutions paramount
· to laws" : Report on the
Virginia Resolutions, quoted in Near v. Minnesota (
1
).
(') 283 U.S. 697.
S.C.R. SUPREME COURT REPORTS 199
This has been translated into positive law in Part III
of the Indian Constitution, and I agree that
in
cons
truing these provisions the high purpose and spirit of
the Preamble as well as the constitutional significance
of a Declaration
of Fundamental Rights should be
borne in mind. This, however, is not to say that the
language of the provisions should
be stretched to
square with this or that constitutional theory in
dis
regard of the cardinal rule of interpretation of any
enactment, constitutional or other, that its spirit, no
less than its intendment should be collected primarily
from the natural meaning of the words used.
Giving full
effect to these principles, however, I
am unable
to agree that the term
"law" in article 21
means the immutable and universal principles of natu
ral justice. "Procedure established by law" must ·be
taken to refer to a procedure which has a statutory
origin, for no procedure
is known or can be said
to
have been established by such vague and uncertain
concepts
as
"the immutable and universal principles
of natural justice." In my opinion, "law" in article
21 means "positive or State-made law."
No doubt, the American Judges have adopted the
other connotation in their interpretation of the due
process clause in the Fifth and Fourteenth Amend
ments of the American Con.stitution
("Nor shall any
person
be deprived of life. liberty or property without
due
process of
law"). But that clause has an evolu
tionary history behind it. The phrase has been traced
back to
28 Edw. III
Ch. 3, and Coke in his Institutes
identified the term with the expression "the law of the
land" in the great Charter of John. Even in England
where the legislative omnipotence of Parliament is
now firmly established. Coke understood these terms
as implying an .inherent limitation on all legislation,
and ruled in
Dr. Bonham's
Case (1) that "the common
law will control Acts of Parliament and sometimes
adjudge them to
be utterly void when they are against
common right and
reason." Though this doctrine
was later discarded in England as being "a warning
(
1
) 8 Rep. 118 (a).
1950
A. K. Goj>lllt111
v.
The Stat•
Pala,Yali Sastri J.
1950
A. K. Gopalan
v.
The Staie
Patanja{i Sastri ].
200 SUPREME COURT REPORTS [1950]
rather than an authority to be followed" [per Willes
}. in Lee v. Dude and Torrington Ry. (
1
)] it gained
ground in America, at first
as a weapon in the hands
of the Revolutionists with which to resist the laws of
Parliament, and later
as
an instrument in the hands of
the Judges for establishing the supremacy of the judi
ciary [see Calder v. Bull ( ') ]. In the latter half of the
19th century, this doctrine of a transcendental common
law or natural justice
was absorbed in the connotation
af·the phrase "due process of law" occurring i1_1 the
Fifth and Fourteenth Amendments;
By
laying' em
phasis on the word "due'', interpreting "law" as the
fundamental principles of natural justice and giving
the words "liberty" and "property" their widest
meaning, the Judges have made the due process clause
into a general restriction on all legislative power. And
when that power was threatened with prostration by
the
excesses of due process, the equally vague and
expansive doctrine
of
"police power", i.r:., the power
of Government
to regulate private rights in public
interest,
was evolved
t-0 counteract such excesses. All
this has been criticised as introducing great uncer
tainty in tH,e state of the law in that country, for no
one could he sure how due process of law would affect
a particular enactment. A century after the phrase
had been the subject
of judicial interpretation one
learned Judge observed in
1877 that it was incapable
of precise definition and that its intent and application
could only
be ascertained by
"the gradual process of
inclusion and exclusion" [Davidson v. New Orleans (•)]
and, as recently as 1948, another Judge referred to the
difficulty of "giving definiteness to the vague contours
of due process" and "of spinning judgment upon
State action out of that gossamer concept:" Haley v·.
State of Ohio ( ').
It is not a matter for surprise, therefore, that the
Drafting Committee appointed
by the Constituent
Assembly of India recommended the substitution
of the expression
• "except according to procedure
(') (1871) L.R. 6 C.P. 576. 582.
t'l (1798) 3 Dalhas ·as.
('1 96 U.S. 97.
(') 332 U.S.596.
S.C.R. SUPREME COURT REPORTS 201
established by law" taken from the Japanese Con
stitution, 1946, for the words "without due process
of law" which occurred in the original draft, "as
the former is more specific." In their Report the
Committee added that they have "attempted to
make these rights (fundamental rights) and the
limitations to which they must
necessarily be subject
as definite as possible, since the
Courts may have to
pronounce upon them" (para. 5). In the face of all
these considerations, it is difficult to accept the sugges
tion tha,t "law" in article 21 stands for the jus naturale
of the civil law, and that the phrase "according to pro
cedure established by law" is equivalent to due process
of law in its procedural aspect, for that would have the
effect of i~troducing into our Constitution those "subtle
and elusive criteria" implied in that phrase which it
was the deliberate purpose of the framers of our Con
stitution to avoid.
On the other hand, the interpretation · suggested
by the Attorney-General on behalf of the intervener
that the expression means nothing more than
procedure.
prescribed by any law made by a competent legislature
is hardly more acceptable.
"Established" according
to him, means prescribed, and if Parliament or the
Legislature
of a
State enacted a procedure, however,
novel and ineffective for affording the accused person
a fair opportunity
of defending himself, it would be
sufficient for
depriving a person of his life or personal
liberty. He submitted that the Constituent
Assembly
definitely rejected the doctrine of judicial supremacy
when it rejected the phrase
"due process of law" and
made
the legislative will unchallengeable, provided
only
"some procedure" was laid down. The Indian
Constitution having thus preferred the English
doctrine
of Parliamentary supremacy, the phrase
"procedure established
by
law" must be construed in
accordance with the English view of due process of
law, that
is to say, any procedure which Parliament
ma:y
. choose to prescribe. Learned counsel drew
attention to the
speeches made by several members of
the Assembly on the floor of the House for explaining, _ as he put it, the "historical background." A speech
1950
A. K. Gopl'11111
v.
TlllStaU
Patanjali So.slri J.
1950
A. IC. Gopalan
v.
Tlw Stat•
Patan;ali Sastri J.
202 SUPREME COURT REPORTS (1950]
made in the course of the debate on a bill could at
best
be indicative of the subjective intent of the
speaker, but it could not
.reflect the inarticulate mental
processes I ying behind the majority vote which carried
the bill. Nor
is it reasonable to assume that the
minds of all
those legislators were in accord. The
Court could only search for the objective intent
of the
legislature primarily
in the words used in the
enact
ment, aided by such historical material as reports of
statutory committees, preambles etc. I attach no im
portance, therefore, to the speeches made by some of
the members
of the Constituent Assembly in the course
of the debate on article
15 (now article 21).
The main difficulty I
feel in accepting the
con
struction suggested by the Attorney-General is that it
completely stultifies article 13(2) and, indeed, the very
conception
of a fundamental right. It is of the essence
of that conception that it is protected by the
funda
mental law of the Constitution against infringement
by ordinary legislation. It is not correct to say that
the Constitution
has adopted the doctrine of
Parlia
mentary supremacy. So far, at any rate, as Part III
is concerned, the Constitution, as I have already obser
ved, has accepted the American view of fundamental
rights. The provisions of articles
13 and 32 make this
reasonably clear. Could it then have been the
inten
tion of the framers of the Constitution that the most
important fundamental rights to life and personal
liberty should
be at the mercy of legislative majorities
as, in effect, they would be if
"established" were to
mean merely "prescribed?". In other words, as an
American Judge said in a similar context, does the
constitutional prohibition in article
13 (2) · amount to
no more than
"You shall not take away life or personal
freedom unless
you choose to take it'
away," which is
mere verbiage. It is no sound answer to say that, if
article 21 conferred no right immune from legislative
invasion, there would
be no question of contravening
article
13 (2). The argument seems, to my
mind, to
beg the question, for it assumes that the article affords
no such immunity. It
is said that article 21 affords
no protection against competent legislative action in
,,
· S.C.R. SUPREME COURT REPORTS 203
the field of substantive criminal law, for there is no
provision fQr judicial review, on the ground of reason
ableness or otherwise, of such laws, as in the case of
the rights enuinerated in article
19. Even assuming
it to
be so the construction of the learned
Attorney
General would have the effect of rendering wholly
ineffective and illusory even the procedural protection
which the article
was undoubtedly designed to afford.
It was argued that ..
law" in article 31 which provides
that no person shall be deprived of his property ''save
by authority of law" must mean enacted law and that
if a person's prqperty could be taken away by legis
lative action, his right to life and personal liberty need
not enjoy any greater immunity. The analogy
is
misleading.
Clause (2) of article 31 provides for pay
ment of compenSiation and that right is justiciable
except in the two
cases mentioned in clauses ( 4) and
(6) which are of a transitory
character· The constitu
tional safeguard of . the right to property in the said
article
is, therefore, not so illusory or ineffective as
clause (1) by itself might make it appear, even
assum
ing that "law" there means ordinary legislation.
Much reliance
was placed on the Irish case
The
King v. The Military Governor of Hare Park Camp (
1
)
where the
Court held that the term "law" in article 6
of the Irish Constitution of
1922 which provides that· "the liberty of the person is inviolable and no person
shall
be
deprived of his liberty except in accordance
with law" meant a law enacted by the Parliament,
and that therefore the Public Safety Act of 1924 did
not contravene the Constitution. The Court followed
The King v. Halliday (
2
) where the House of Lords by
a majority held that the Defence of the Realm. (Con
solidation) Act, 1914, and the Regulations framed
theretinder did not infringe upon the Habeas Corpus
Acts and. the~Magna Carta "for the simple reason that
the Act and the Orders become part of the law of the
land.'; But that
was because, as Lord Dunedin
pointed out
"the British Constitution has entrusted
to the two Houses of Parliament subject to the assent
(') [1924) 2 I.R; 104. (
1
) (1917) A.C. 260.
1950
A. IC Gopalan
, ..
Tiu Stau
Patanjali Saslri ].
1950
A. K. Gopalan
v.
The Stl.tt
PatanjaJi SastriJ.
204 SUPREME COURT REPORTS [1950]
of the King, an absolute power untrammelled by any
written instrument obedience to which may
be com
pelled
by some judicial
body," whereas the Irish
Constitution restricted the legislative powers of the
Irish Parliament
by a formal declaration of funda
mental rights and
by providing for a judicial review
of legislation in contravention of the Constitution
(article 65). This radical distinction
was overlooked.
The Attorney-General further submitted that, even
on
his interpretation, article 21 would be 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. There
is no substance in the suggestion. As pointed out in
Eshugbayi Eleko
v. Government of Nigeria (Officer
Administering) (
1
), the executive could only act in
pursuance of the powers given
by law and no consti
tutional protection against such action
is really needed.
Even in monarchical Britain the struggle between
prerogative and law
has long since ended in favour of
the latter. "In accordance with British jurisprudence"
said Lord Atkin in the
case cited above,
"no member
of the executive can interfere with the liberty or
property of a British subject except on the condition
that he can support the legality of
his action before a
Court of
justice." As for protection against indivi
duals, it
is
a misconception to think that constitutional
safeguards are directed against individuals. They are
as a rule directed against the
State and its organs.
Protection against violation of the rights
by individuals
must
be sought in the ordinary law. It is therefore
difficult to accept the suggestion that article
21 was
designed to afford protection
on! y against infringements
by the executive or individuals.
On the other hand,
the insertion of a declaration
of .Fundamental Rights in
the forefront of the Constitution, coupled with an
express prohibition against legislative interference with
these rights (article
13) and the provision of a consti
tutional sanction for the enforcement of such prohibition
by means
of a judicial review (article 32) is, in my
(') [1931] A.O. 662.
S.C.R. SUPREME COURT REPORTS 205
opm1on, a clear and emphatic indication that these
rights are to be paramount to ordinary State-made
laws.
After giving the matter
my most careful and
anxious consideration, I have come to the conclusion
that there are only two
possible solutions of the
problem.
In the first place, a satisfactory
via media
between the rwo extreme positions contended for on
either. side may be found by stressing the word "esta
blislied" which implies some degree of firmness,
permanence and general acceptance, while it
does not
exclude origination
by statute.
"Procedure established
by law" may well be taken to mean what the Privy
Council referred to in King Emperor v. Benoari Lal
Sharma (
1
)
as
"the ordinary and well-established
criminal procedure," that is to say, those settled usages
and normal modes of . proceeding sanctioned by the
Criminal Procedure Code which is the general law of
criminal procedure in the country. Their Lordships
were referring to the distinction between trial
by
special Courts provided by an Ordinance of the
Gover
nor-General and trial by ordinary Courts under the
Criminal Procedure Code. It can
be no objection
. to
this view that the Code prescribes no single and uni
form procedure for all types of cases but provides
varying procedures for different
classes of cases.
Certain basic principles emerge as the constant factors
common to all those procedures, and
· they form the
core of the procedure established by law. I realise that
even on this
view, the life and liberty of the individual
will not
be immune from legislative interference, for
a competent legislature may change the procedure
so
as to whittle down the protection if so minded. But,
in the
view I have indicated, it must not be a change
ad hoc for any special purpose or occasion, but a
change in the general law of procedure embodied in the
Code. So long as such a change is not effected. The
protection under article
21 would be available. The
different measures of constitutional protection which
the fundamental right to life and personal liberty will
enjoy under article
21 as interpreted in the three ways
(1)
[1945] F.C.R. 161, 175.
11150
A. K. Gopa/an
v.
The State
Patanja/i Sastri J.
1950
A. K. Copa/an
v.
The Stale
Patmiia/i Sastri ].
206 SUPREME COURT REPORTS [1950]
referred to above will perhaps be best illustrated by a
concrete example. Suppose that article
22 ( 1) was not
there and Parliament passed an Act,
as a temporary
measure, taking
away in certain cases the right of an
accused person to be defended by a legal practitioner.
According to the petitioner's learned counsel the Act
would
be void as being contrary to the immutable
principles of natural justice embodied in article
21,
whereas on the construction contended for by the
Attorney-General, the Act would
be perfectly valid,
while, on
the view I have indicated above, the Act
would
be bad, but if the denial of such right of defence
is made a normal feature of the ordinary law of
criminal procedure
by abrogating section
340 ( 1) of
the
Code, article 21 would be powerless to protect
against such
·legislative action. But in a free
democratic republic such a drastic change in the
normal law
of procedure, though theoretically possible,
would
be difficult to bring about, and that practical
difficulty will be the measure of the protection
afforded
by article 21.
It was said that the safeguards provided in
clauses (1) and (2) of article 22 are more or less covered
by the provisions of the Criminal Procedure
Code, and this overlapping would have
been
avoided if. article 21 were intended to bear the
construction
as indicated above. The argument over
looks that, while the provisions
of the
Code would be
liable to alteration by competent legislative action, the
safeguards in
clauses ( 1) and (2) of article 22, being
constitutional, could not
be similarly dealt with and
this sufficiently explains
why those safeguards find a
place in the Constitution.
The only alternative to the construction I have
indicated
above, if a constitutional transgression is to
be avoided, would be 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 (article
368) that could modify or
override a fundamental right without contravening
article
13 (2).
S.C.R. SUPREME COURT REPORTS 207
The question next arises as to how far the protec
tion under article
21, such .as it has been
found to be,
is available to persons under. preventive detention. 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 constitu
tional 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. I am unable to agree with
this
view. The language of article 21 is perfectly general
and
covers deprivation of personal liberty or incarcer
ation, both for punitive and preventive
reasons. If it was
really the intention of the framers of the Constitution
to exclude the application
of article 21 to cases of pre
ventive detention, nothing would
have been
easier than
to add a reference to article
21 in clause (3) of article
22 which provides that clauses (1) and (2) of the latter
shall not apply
to any person who is arrested or detai
ned under
any law providing for preventive detention.
Nor
is there anything in the language of clauses (4) to
(7) of article
22 leading necessarily to the inference that
article
21 is inapplicable to preventive dentention.
These
clauses deal only with certain aspects of preven
tive detention such as the duration of such detention,
the constitution
of an advisory board for reviewing the
order of detention in certain
cases, the communication
of the grounds
of detention to the person detained and
the provision
of an opportunity to him of making a
representation against the order.
It cannot be said that
these provisions form an exhaustive code dealing with
all matters relating
to preventive detention and cover
the entire ·area of protection which article 21, inter
preted in the
sense I have indicated above, would
afford to the person detained. I
am,
. therefore, of
opinion that article
21
is applicable to preventive
detention
as well.
I will now proceed to
examme whether the
impugned Act or
any of its provisions under which
the petitioner
has been ordered to be detained, takes
away any of
·the rights conferred by articles 2~ and 22
or infringes thei protection afforded thereby. The
1950·
A. K. Gopalan
v.
Tiu State
PaJQl/jali Sastri J.
1950
A. K. Gopalan
v.
The State
Patanjali Sastri ].
208 SUPREME COURT REPORTS [1950]
outstanding fact to be borne in mind in this connec
tion is that preventive detention has been given a
constitutional status. This sinister-looking feature.
so strangely out of place in a democratic constitution.
which invests personal liberty with the sacrosanctity
of a fundamental right and
so incompatible with the
promises of
its preamble is doubtless designed to
prevent an abuse of freedom
by anti-social and
sub
versive elements which might imperil the national
welfare of the infant Republic. It
is in this spirit that
clauses (3) to (7) of article 22 should, in my opinion,
be construed and harmonised as far as possible with
article
21
so as not to diminish unnecessarily the
protection afforded for the legitimate exercise of
personal liberty.
In the first place, as already stated,
clause (3) of article
22 exclurles a person detained
under any law providing for preventive detention from
the benefit
of the safeguards provided in clauses (1)
and (2).
No doubt clause (5) of the same article
makes
some amends for the deprivation of these
safeguards in that it provides for the communication
to the person detained the grounds on which the order
has been made and for an opportunity being afforded
to him of making a representation against the order,
but the important right
to consult and to be defended
by a legal practitioner of his choice is gone. Similarly,
the prohibition against detention in custody beyond a
period of
24 hours without the authority of a
magistrate
has also been taken away in cases of
preventive detention. It was not disputed
that, to
the extent
to which the express provisions of clauses
( 4)
to (7) authorised the abrogation or abridgement of
the safeguards
providec'.l under other articles or sub
stitution of other safeguards in a modified form,
those express provisions must rule. Of the four
essentials of the due process on which Mr. Nambiar
insisted, (which also form part
of the ordinary and
established procedure under the Criminal Procedure
Code, though I cannot agree that they are immutable
and beyond legislative change) the requirements
of notice and an opportunity to establish his
innocence must,
as already stated, be taken to have
S.C.R. SUPREME COURT REPORTS 209
been provided for by clause (5) of article 22. As
for an ascertainable standard of conduct to which it
is possible to conform, article 22 makes no specific
provision in
cases of preventive detention, and if
such a safeguard can
be said to be implicit in the
procedure established
by law in the sense explained
above in preventive detention cases, it could no doubt
be invoked. This point will be considered presently
in dealing with provisions of the impugned Act.
The
only other essential requirements, and the most
essential of all,
is an impartial tribunal capable of
giving an unbiassed verdict. This, Mr. Nambiar
submitted, was left unprovided for
by article 22, the
advisory board referred
to in clause ( 4) (a) being,
according to him, intended to deal
solely with the
question of duration of
-the detention, that is to say,
whether or not there was sufficient cause for
detain
ing the person concerned for more than three months,
and not with judging whether the person detained
was innocent. A tribunal which could give an
unbiassed judgment on that
issue was an essential part
<>f the protection afforded by article 21 in whichever
way it may be interpreted, and reference was . made
in this connection to the preventive provisions
of the
Criminal Procedure
Code (Ch. VIII). The impugned
Act, not having provided for such a tribunal contra
vened article 21 and was -therefore void. It will be
seen that the whole of this argument is based on the
major premise that the advisory· board mentioned in
clause (4)
(a) of article 22 is not a tribunal intended
to deal with the
issue of justification of detention. Is
that view correct ?
It was argued that the words
"sufficient cause
for such detention" in sub-clause (a) of clause ( 4) had
reference to the detention beyond three months men
tioned in clause · (4) and that this view was supported
by the language of sub-clause (a) of clause (7) whereby
Parliament
is authorised to prescribe the
circum
stances under which and the class or classe, of cases
in which a person may be detained for a period. longer
than three months ·without the opinion of an advisory
board. In other words; learned counsel s1:1bmitted,
1950
A. K. Gopalan
v.
The State
Patanjali Sastri ].
•
I
1950
A. K. Gopalan
v.
The Stale
· Patanjali Sastri J.
210 SUPREME COURT REPORTS (1950]
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. Thus, these
two
clauses were concerned solely with the duration
of the preventive detention, and
so was the advisory
board which those
clauses provided for that purpose.
I am unable to accept this view. I am inclined to
think that the words
"such detention" in sub-clause
(a) refer back to the preventive detention mentioned in
clause ( 4) and not to detenuon for a longer period than
three months. An advisory board, composed
as it has
to
be of Judges or lawyers, would hardly be in a posi
tion to judge how long a person under preventive de
tention,
say for reasons connected with defence, should
be detained. That must be a matter for the executive
authorities, the Department
of Defence, to determine,
as they alone are responsible for the defence of the
country and
have the necessary data for taking a deci
sion on the point. All that an advisory board can
reasonably
be asked to do, as a safeguard against the
misuse
of the power, is to judge whether the detention
is justified and not arbitrary or mala fide. The fact
that the advisory board
is required to make its report
before the expiry of three months and
so could submit
it only a
day or two earlier cannot legitimately lead
to an inference that the board was
solely concerned
with the
issue whether or not the detention should
continue beyond that period. Before any such tribu
nal could send in
its report a reasonable time must
elapse,
as the grounds have to be communicated to the
person detained,
·he has to make his r<;presentation to
the detaining authority which has got to be placed be
fore the board through the appropriate departmental
channel. Each of these
steps may, in the course of
official routine, take some time, and three months'
period might well have been thought a reasonable
period to allow before the board could be required to
submit its report.
S.C.R. SUPREME COURT REPORTS 211
Assuming, however, that the words "such deten
tion'.'. had reference to the period of detention, there is
no apparent reason for confining the enquiry by the
advisory board to the
sole issue of duration beyond
three months without reference to the question
as to
whether the detention was justified or not. Indeed, it
is difficult to conceive how a tribunal could fairly judge
whether a person should
be detained for more than
three months without at the
same time considering
whether there
was sufficient cause for the detention at
all. I am of opinion that the advisory board referred
to in
clause ( 4) is the machinery devised by the
Consti
tution for reviewing orders for preventive detention in
certain
cases on a consideration of the representations
made
by the persons detained. This is the view on
which Parliament
has proceeded in enacting the
impugned Act
as will be seen from sections 9 and
10
thereof, and I think it is the correct view. It follows
that the petitioner cannot claim
to have his case judged
by any other impartial tribunal by virtue of article 21
or otherwise.
Mr. Nambiar, however, objected that, on this view,
a law could authorise preventive detention for three
months without providing
for review by any tribunal,
and for even
long~r periods if Parliament passed an
Act such
as is contemplated in sub-clause (a) of clause
(7).
That may be so, but, however deplorable such a
result may
be from the point of view of the person
detained, there could
be no remedy if, on a proper
construction of
clauses ( 4) and (7), the Constitution is
found to afford no higher protection for the personal
liberty of the individual.
Turning next to the provisions. of the impugned
Act, whose constitutional validity was challenged, it
will
be necessary to consider only those provisions
which affect the
. petitioner before us. In the first
place, it w::i~ contended that section 3, which empowers
the Central Gov&nment or the State Government to
detain any person if it is "satisfied" that it is neces
sary to do so with a view to preventing him from
acting in any manner prejudicial to (among other
9-3
S. C. India/58
1950
A. K. Gojialan
v.
The Slat•
Patanjali Sa.riri ].
1950
A. K. Gopa/an
v,
Tire State
Patmija/i Sastri J.
212 SUPREME COURT REPORTS [1950]
things) the security of the State or the maintenance of
public order, cannot be said to comply with the proce
dure established by law, as the section prescribes no
objective and ascertainable standard of conduct to
which it will be possible to conform, but leaves it to
the will and pleasure
of the Government concerned to
make an order of detention.
.The argument proceeds
on the assumption that the procedure established by
law is equivalent to the due process of law. I have
already endeavoured to show that it is not. Apart
from this, the argument overlooks that for the purposes
of preventive detention it would be difficult, if not
impossible to lay down objective rules of conduct
failure
to conform to which should lead to such
detention.
As the very term implies, the detention in
such cases is effected with a view to prevent the person
concerned from acting prejudicially to certain
objects
which the legislation providing for such
detention· has
in view. Nor would it be practicable to indicate m
enumerate in advanc~ · what acts or classes of acts
would be regarded as prejudicial.· The responsibility ·
for the security
of the State and the maintenance of
public order
etc. having been laid on the executive
Government ·it must naturally be
left to that Govern
ment to exercise the power of preventive detention
whenever they think the
occasion demands it. '
Section 12 came in for a good deal of criticism.
That
section, which governs the duration of the
petitioner's detention
reads as follows :-
"Duration of detention in· certain cases.-Any
person detained in any of th.! following classes of cases
or under any 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
orie year from the date of his detention,
namely, where such person
has been detained with
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
securit}r of a State or the maintenance
of public order.
l
S.C.R. SUPREME COURT REPORTS 213
(2) The case of every person detained under a
detention order to which the provisions of sub-section
( 1) apply shall, within a period of
six months from the
date
of his detention, be reviewed where the order was
made by the Central Government or
a State Govern
ment,
by such Government, and where the order was
made by any officer specified in sub-section (2) of
section 3, by the
State Government to which such
officer is subordinate, in consultation with a person
who
is,
or has been, or is qualified to be appointed as a
Judge of a High Court nominated in that behalf
by the
, Central Government or the
State Government, as the
case may be."
It was urged that this did not comply with the
requirements
of clause (7) of
article. 22 as it merely
repeated the "matters" or legislative topics mentioned
in Entry 9 of List I and Entry 3 of List III
of the Seventh Schedule
to the Constitution. What
Parliament has to do under clause (7) of article
22 is to 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 ·without obtaining the opinion
of an advisory board. It
was said that clause
( 4) (a) provided for ordinary
!ases of preventive
detention where such detention could not continue
beyond three months without obtaining the opinion
of
an advisory board, whereas clause (7) (a) made
provision
for special cases of detention for more than
three months without the safeguard of the advisory
board':; opinion, for aggravated forms of prejudicial
conduct.
In other words, clause ( 4) (a) laid down the
rule and clause (7) (a) enacted an exception. It was
therefore necessary for Parliament to indicate to the
detaining authority for
its guidance the more aggra
vated forms
of prejudicial activity, and mere mention
of the subjects in respect
of which Parliament is
authorised under the legislative lists to make laws in
respect of preventive detention could hardly afford
any guidance to such authority and should not
be
regarded as sufficient compliance with the require
ments of clause (7). There
is a two-fold fallacy in
1950
A. K. Gopalan
v.
Tiu Stall
PatanJaJi Sastri J.
1950
A.. K. Gopcla•
••
Tlw S'°"
Patatrjali SasJri "].
214 SUPREME COURT REPORTS [1950]
this argument. In the first place, the suggested
correlation between clause (4) (a) and clause (7) (a) as
enacting a rule and an exception is, as a matter of
construction, without foundation. Reading
clauses ( 4)
and (7) together it
is reasonably clear that
preventiv.t
detention could last longer in two cases : ( 1) where
the opinion
of an advisory board is obtained, subject
however
to a prescribed period [sub-clause (a) of
clause ( 4)] and (2) where a person is detained under a
law made
by Parliament under sub-clauses (a) and (b)
of clause (7) [sub-clause (b) of clause (4)]. These are
two distinct and independent
provisions. It is
significant that sub-clause (b) of clause ( 4) is not
worded
as a proviso or an exception to sub-clause (a)
of the
same clause as it would have been if it was
intended to operate as such. The attempt to correlate
clause (4) (a) and clause (7) (a) as
.a rule and an
exception respectively is· opposed both to the language
and the structure
of those clauses.
Secondly, the
argume,nt loses sight of the fact
that
clause (7) deals with
preventive detention which
is a purely precautionary measure which "must neces
sarily proceed in all cases, to some extent, on suspicion
or anticipation as .distinct from proof" [per Lord
Atkinson in Re:r v. Halliday (' ']. The remarks I have
already made with reference to the absence of any
objective rules of conduct in section 3 of the impugned
Act apply
also to this criticism of section 12. It would
be difficult, if not impracticable, to mention the
v;irious
circumstances, or to enumerate the various classes of
cases exhaustively in which a person should be detained
for more than three months for preventive purposes,
except in broad outline. Suppose a person belongs to
an organization pledged to violent and subversive
activity as its polil:;y. Beyond his membership of the
party the person might
have done nothing until he
was
arrest;ed and detained. But if released he might
indulge in anything from the mildest form of _prejudi
cial activity, like sticking an objectionable handbill on
a hoarding, to the
most outrageous acts of sabotage.
('} L. R. 1917 A. C. 260, 275.
..
S.C.R. SUPREME COURT REPORTS 215
How could the insertion in section 12 of a long series of
categories of aggravated forms
of prejudicial activities,
or the enumeration of the various circumstances in
which such activities are likely to
be indulged in, be of
any
assistance to the detaining authority in
determin
ing whether the person concerned should be detained
for three months or for a longer period
? All that
would
be necessary and sufficient for him to know for
coming to a decision on the point
is that the person is
a member of such an organisation and will probably
engage in subversive activities prejudicial to the
secu
rity of the State or the maintenance of public order
or, in other words, he belongs to
class (b) in section
12. While enumeration and classification in detail
would undoubtedly help in grading punishment for
offences committed, they would not be of much use in
fixing the duration of
preventive detention. Sufficient
g!lidance in such cases could be given by broadly indi
cating the general nature of the prejudicial activity
which a person
is likely to indulge in, and that in effect
is what Parliament has done in
-section 12. Reference
was made in this connection to Rule 34 of the Defence
of India
Rules framed under the Defence of India Act,
1939, where
"prejudicial act" is defined by enumer
ation. But it was also for the purpose of prohibiting
such
acts [Rule 38 sub-rule (I)] and making them
offences (sub-rule 5). And even there, the definition had
to end in a residuary
clause sweeping in acts likely
"to
prejudice the efficient prosecution of the war, the de
fence of British India or the public safety or interest."
In Lists I and III of the Seventh Schedule _to the
Constitution six topics are mentioned in respect of
which Parliament could make laws providing for
preventive detention, and section
12 of the impugned
Act mentions
five
of· them as being the classes of cases
or the circumstances in which longer detention is
authorised. I fail to see why this could not be
regarded as a broad classification of cases or a broad
description of circumstances where Parliament considers
longer detention to
be justifiable. A class can well be
designated with reference to the end which one desires
to secure, and the matters referred to as classes (a)
19.~0
A. K. Gopa/1J11
v.
Till State
Pa11J11jali Saslri ].
1950
.4. Ir. Gop.Ian
v.
TJ..Sta11
Patmijali Sastri ].
216 SUPREME COURT REPORTS [1950]
and (b) of sub-section ( 1) of section 12 being clearly
the objects which Parliament desired to
secure by
enacting
the section, it seems to me that the
classifi
cation with reference to such general aims does not
contravene article
22
(7)·
It was argued that Parliament did not, in enact
ing section 12, perform its duty of prescribing both
the
circumstances and the class or classes of cases
where detention without obtaining the advisory
board's opinion could
be for a period longer than three
months. The use of the. disjunctive
"or" between the
word "circumstances" and the words "class or classes
of cases" showed, it was said, that Parliament
proceeded on the view that it need
not prescribe both.
This was in contravention of article
22 (7) which
used
the conjunctive.
"and" between those words.
There
is no substance in this objection.
As
I read article 22 (7) it means that Parliament may
prescribe either
the
circumstances or the classes
of cases or both, and in enacting section 12
Parliament evidently regarded the matters mentioned
in clause (a) and
(b) of sub-section ( 1) as sufficiently
indicative both
of the circumstances under which
and
the classes in which a person could be detained
for
the longer period. To say, for instance, that
persons who are likely
to act prejudicially to the
defence of India may be detained beyond
three
months is at once to
"prescribe a class of persons
in which and the circumstances under which" a
persnn may be detained for the longer period. In other
words, -the classification itself may be such
as to
amount to a sufficient description of the circumstances
for purposes of clause (7).
The circumstances which
would justify precautionary detention beyond three
months without recourse to an advisory board must be
far too numerous for anything approaching an
exhaus
tive enumeration, and it can, in my judgment, be no
objection to the validity of section 12 that no circums
tances arc mentioned apart from the matters 11Cferred
to in clauses (a) and (b) of sub-section (1). It would
ind~ed be singular for the Court to strike down a
parliamentary enactment because in its opinion a
-
S.C.R. SUPREME COURT REPORTS 217
certain classification therein made is imperfect or the
mention of certain circumstances
is unspecific or
in
adequate.
Lastly,
Mr. Nambiar turned his attack on section
14 which prohibits the disclosure of the grounds of
detention communicated to the person detained and of
the representation made
by him against the order of
detention, and debars the Court from allowing such
disclosure to
be made except for purposes of a
prosecu
tion punishable under sub-section (2) which makes it
an offence for any person to disclose or publish such
grounds or representation without the previous
authorisation of the Central Government or the State
Government as the case may be. The petitioner com
plains 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.
If the grounds arc too vague to
enable him to make any such representation,
or if they
are altogether irrelevant to the object of his detention,
or are such
as to show that his detention is not
bona
fide, he has the further right 6f moving this Couri and
this remedy
is
also guaranteed to him under article 32.
These . rights and remedies, the petitioner submits, can
not be effectively exercised, if he is prevented on pain
of prosecution, from disclosing the grounds to the
Court. There is great force
in this contention. All
that
·the Attorney-General could say in an$Wer was
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 neces
sary, as laid down in Machindar Sliivap Mahar v. The
King (
1
), 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. The argument
overlooks that it was recognised in the decision referred
to above that it would be open to the Court to examine
the grounds of detention in order to. sec whether they
were relevant to the object which the legislature had
(') [1949] F. C.R. 827.
1950
..t. K. Gopa/41.•
v.
TluSUU
P""'11jali Sa.dri ].
1950
A. K. Gopalan
v.
TM State
Ma/w.jan].
218 SUPREME COURT REPORTS [1950]
in view, such as, for instance, the prevention of acts
prejudicial to public safety and tranquillity, or were
such
as to show that the detention was not bona fide.
An examination of the grounds for these purposes is
made impossible by section 14, and the protection
afforded
by article 22 (5) and article 32 is thereby
rendered nugatory.
It follows that section 14 contra
venes the provisions of article 22 (5) and article 32 in
so far as it prohibits the person detained from disclos
ing to the Court the grounds of his detention communi
cated to him
by the detaining authority or the repre
sentation made
by him against the order of detention,
and prevents the Court from examining them for the
purposes aforesaid, and to that extent it must
be held
under article
13 (2) to be void. This however, does
not affect the rest of the Act which is severable. As
the petitioner did not disclose the grounds of his de
tention pending our decision on this point, he will now
be free to seek his remedy, if so advised, on the basis
of those grounds.
In the result, the application
fails and is dismissed.
MAHAJAN J.-The people of India having solemnly
resolved to constitute India into a Sovereign Democra
tic Republic on the 26th
day of November 1949 gave
to themselves a Constitution which came into force on
the 26th January
1950. This is the first case in which
this Court has been called upon to determine how far
the Constitution has secured personal liberty to the
citizens of this country.
A. K. Gopalan, the petitioner, who was already
under the custody of the Superintendent, Central Jail,
Cuddalore,
was served with an order of detention
under section 3 (
l) of the Preventive Detention
A~~,
1950 (Act IV of 1950) on the 27th February 1950. 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.
On 20th March 1950 a
petition
was presented to this Court under article 32
S.C.R. SUPREME COURT REPORTS 219
of the Constitution praying for the issue of a writ of
habeas corpus directing the State of Madras to
produce him before the Court and to
set him at
liberty. A writ
was accordingly issued. The return
to the writ is that the detention is legal under Act
IV of 1950, enacted by Parliament. The petitioner
contends that the Act abridges and infringes certain
provisions
of
Part III of the Constitution and is thus
outside the constitutional limits of the legislature
and therefore void and unenforceable.
The matter
is one of great importance both
be
cause the legislative power expressly conferred by
the 7th Schedule has been impugned and because
the liberty
of the citizen is seriously
affected· The
· decision of the question whether Act IV of 1950.
takes away or abridges the rights conferred by Part
!J III of the Constitution depends on a consideration of
J two points :
(1) In what measure
has the Constitution secured
personal liberty
to a citizen of India, and
(2)
has the impugned legislation in any way taken
away or abridged the rights so secured and if so, to
what extent ?
Act
IV of 1950 provides for preventive deten
tion in certain cases and it has been enacted as a
temporary measure. It will
cease to have
effect on
1st April 1951. It empowers the Central Govern
ment and the State Governments to make an order
directing a person
to be detained with a view to
preventing him from acting in
any manner
prejudi
cial to the defence of India, the relations of India
with foreign powers or the security
of India. It also
gives power to
detain a person who acts in any manner
prejudicial to the security of the State or the main
tenance of public order or the maintenance of supplies
and
services essential to the community. It came
into
force on 26th February
1950 and was enacted
by virtue of the powers conferred on Parliament by
article 22 clause (7) of Part III of the Constitution
read with the entries in the 7th Schedule. There can
be no doubt that the legislative will expressed herein
1950
A. K. (' ,paian
v.
TM State
Mahqian].
1950
A. K. Gopalan
v.
T/reStau
Mahajan].
220 SUPREME COURT REPORTS [1950]
would be enforceable unless the legislature has failed
to keep within its constitutional limits. It is quite
obvious that the Court cannot declare a statute uncon
stitutional and void simply on the ground of unjust
and oppressive provisions or
because it is
sup
posed to violate natural, social or political rights
of citizens unless it can be shown that such
injustice
is prohibited or such rights are guaranteed or
protected
by the Constitution. It may also be
obser
ved that an Act cannot be declared void because in the
opinion
of the Court it is opposed to the spirit
sup
posed to pervade the Constitution but not so expressed
in words. It is difficult on any generaf principles to
limit the omnipotence of the sovereign legislative
power
by judicial interposition except in so far as the
express words of a written Constitution give that
authority. Article 13(2)
of our Constitution gives such
an authority and to the extent stated therein. It says
that 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.
Preventive detention laws are repugnant to
democ
ratic constitutions and they cannot be found to exist
in
any of the democratic countries of the world. It
was stated at the Bar that no such law was in
force in the
United States of America. In England
for the first time during the first world war certain
regulations framed under the Defence
of the Realm
Act provided for preventive detention at the
satis
faction of the Home Secretary as a war measure
and they
ceased to have effect at the conclusion
of hostilities. The
same thing happened during the
seco~d world war. Similar regulations were intro
duced during the period of the war in India under the
Defence of India Act. The Government of India Act,
1935, conferred authority on the Central and Provincial
Legislatures
to enact laws on this subject for the first
time and
since then laws on this subject have taken
firm root here and
have become a permanent part of
the statute book of this country. Curiously enough
this subject
has found place
irl the Constitution in the
S.C.R. SUPREME COURT REPORTS 221
chapter on Fundamental Rights. Entry 9 of the Union
List and Entry 3 of the Concurrent List of the 7th
Schedule mention the scope of legislative power of
Parliament in respect of this topic.
The jurisdiction,
however, to. enact these laws
is subject to the
provi
sions of Part III of the Constitution Article 22 in
this Part provides
:-" ( 1) No person who is arrested shal~ 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 ~is choice.
(2) Every person who is arrested and detained
in cust9<iy shall be produced before the nearest
magistrate within a period of twenty-four hours of
such arrest · excluding the time necessary for the jour
ney from the place of arrest to the Court of the magi
strate and no such person shall be detained in custody
beyond the said period without the authority of a
IQagistrate.
(3) 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.
( 4} . No law · providing for preventive detention
shall authorise 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 arc 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 deten
tion:
Provided that nothing in this sub-clause shall
authorise 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).
1950
A. K. Gopalan
v.
TheStak
Mahajan].
1950
A. K. Gopalan
v.
Th<Statt
Mahajan].
222 SUPREME COURT REPORTS (1950]
(5) When any person is detained in pursuance
of an order made under
any law providing for
preven
tive 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
repre
sentation against the order.
( 6) 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
con
siders to be against the public interest to disclose.
(7) Parliament may by law prescribe-
( a) 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
obtain
ing the opinion of an Advisory Board in accordance
with the provisions of sub-clause
(a) of clause ( 4) ;
(b) 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
( c) the procedure to
be followed by an Advisory
Board in an inquiry under sub-clause (a) of clause
(4)."
The question of the constitutional validity of the
impugned statute has to
be approached with great
caution in view of these provisions of the Constitution
and
has to be considered with patient attention. The
benefit of reasonable doubt has to be resolved in
favour of legislative action, though such a presumption
is not conclusive. It seems that the subject of
preventive detention became the particular concern of
the Constitution
because of its intimate connection
with deprivation of personal liberty to protect which
certain provisions were introduced in the
Chapter on
Fundamental Rights and because of the conditions
prevailing in the newly born Republic. Preventive
detention means a complete negation of freedom
of movement and of personal liberty and
1s
incompatible with both those subjects and yet it is
placed in the same compartment with them in
Part III
of the Constitution.
S.<:R. SUPREME COURT REPORTS 223
Though the Constitution has recognised the
necessity of laws
as to preventive detention it has also
provided certain safeguards to mitigate their harshness
by
placing_ fetters on legislative power conferred on
this subject. These
are-
( 1) That no law can provide for detention
for a
· period of more than three months unless the
sufficiency for the
cause of the detention is investigated
by an advisory board within the said period of three
months. This provision limits legislative power in the
matter of duration of the period of detention. A law
of preventive detention would
be void if it permits
detention for a longer period than three months
with
out the intervention of an advisory board.
(2)
That a State law cannot authorize detention
beyond the maximum period prescribed
by Parliament
under the powers given to it in clause (7). This
is a
limitation on the legislative power of the State
legislature. They cannot make a law authorizing
preventive detention for a longer period than that fixed
by Parliament.
(3)
That Parliament also cannot make a law
authorizing detention for a period beyond three months
without the intervention of an advisory board unless
the law conforms to the conditions laid down in clause
(7) of article
22. Provision
also has been made to
enable Parliament to make laws for procedure to
be
followed by advisory boards. This is a safeguard
against any arbitrary form of procedure that may
otherwise find place in
State laws.
Apart from these enabling and disabling provisions
certain procedural rights have been expressly safeguar
ded by clause (5) of article 22. A person detained
under a law of preventive. detention has a right to
obtain information
as to the grounds of his detention
and has also the right
to make a representation
protest
il}g against an order of preventive detention. This
right
has been guaranteed independently of the
dura
tion of the period of detention and irrespective of the
. existence or non-existence of an advisory board. No
machinery, however, has been provided or expressly
1950
A. K. Copa/an
v.
The Stat1
Mahajan].
1950
A.E.GarJ•
v.
TlwSt"'6
Mahqjan].
224 SUPREME COURT REPORTS [1950]
mentioned for dealing with this representation. It
seems to me that when a constitutional right has been
conferred
as a necessary consequence, a constitutional
remedy for obtaining redress in
case
1of infringement of
the right must
be presumed to have been contemplated
and it could not have been intended that the right
was
merely illusory and that a representation made may
well find place in cold storage. Consideration of the
representation made
by virtue of clause (5) by an
unbiassed authority
is, in my opinion, a necessary
consequence of the guaranteed right contained herein.
The right has been conferred to enable a detained
person
to establish his. innocence and to secure justice,
and no justice
can be said to be secured unless· the
representation
is considered by some impartial person.
The interpretation that I am inclined to
place on clause
(5) of article
22 is justified by "the solemn words of the declaratl'on contained in the Preamble to the Constitu
tion. It is this declaration that makes our Constitution
sublime and it
is the guarantees mentioned in the
chapter on Fundametal Rights that, make it one of the
greatest charters of liberty and of which the people of
this country may well
be . proud. This charter
has not been forced out of unwilling hands of
a sovereign like the Magna
Carta but it has been
given to themselves
by the people of the counrty
through their Constituent Assembly. Any
interpreta
tion of the provisions of Part III of the Constitution
without reference to this solemn declaration
is apt to
lead one into error.
If the right of representation
given to a
<\etained person by clause (5) of article 22 is
a guaranteed right and has. been given for the purpose
of securing justice, then it follows that no justice can
be held secured to him unless an unbiassed person
considers the merits of the representation and
gives
his opinion on the guilt or the innocence of the persons
detained.
In my view, the right cannot be defeated
or made elusive
by presuming that the detaining
authority itself will consider the representation with
an unbiassed mind and will render justice. That
would· in a way make the prosecutor a judge in the
case and such a procedure is repugnant to all notions
S.C.R. SUPREME COURT REPORTS 225
of justice. The Constitution has further curtailed the
rights given in clause (5)
by providing in clause (6) a
privilege on the detaining authority of withholding facts
which the said authority considers not in public
interests to disclose. This privilege has been conferred
for the security of the
State and possibly for the
security of the Constitution itself, but in view of these
stringent provisions no additional clogs can
be put on
the proper consideration of the representation of the
detained person
by presuming that the detaining
authority itself will properly consider the representa
tion.
It has also to be remembered in this context
that a person subjected
to the law of preventive deten
tion has been deprived of the rights conferred on
persons who become subject to the law of punitive
detention [
vide clauses (1) and (2) of article 22]. He
has been denied the right to consult a lawyer or be
defended
by him and he
cap be kept in detention with
out being produced before a magistrate.
Having examined the provisions of article
22, I
now proceed to consider the first question that
was
canvassed before us by the learned Attorney-General;
i.e., that article 22 of the Constitution read with the
entries in the 7th
Schedule was a complete Code on the
subject of preventive detention, and rhat being so, the
other articles of Part III could .oot be invoked in
the consideration of the · v.alidity of the impugned
statute.
It was conceded by the learned counsel for the
petitioner that to the extent that express provisions
exist in article
22 on the topic of preventive detention
those provisions would prevail and could not
be con
trolled
by, the other provisions of Part III. It was,
however, urged that on matters on which this article
had made no special provision on this topic the other
provisions ·of Part III of the Constitution had applica
tion, namely, articles
19 and 21 and to that extent
laws made on this subject were justiciable. In order
to draw the inference that the framers of the Constitu
tion intended the provisions
as regards preventive
· detention in article 22 to be self-contained a clear
indication of such an intention has to
be gathered.
If the provisions embodied in this article have dealt
1950
A. K. Gopalan
v.
TheStau
Mahajan].
1950
A. IC Gopalan
v.
The Stalt
Mahajan].
226 SUPREME COURT REPORTS [19501
with all the principal questions that are likely to arise
in matters
of procedure or on questions of the reason
ableness
of the period of detention, the inference of
such an indication would be irresistible. Ordinarily
when a subject
is expressly dealt with in
a constitu
tion in
some detail, it has to be assumed that the
intention
was to exclude the application of the general
provisions contained therein elsewhere. Express
mention of one thing
is an exclusion of the other.
Expressio unius
est exclusio alterius. I am. satisfied
on a review of the whole scheme
of the Constitution
that the intention
was to make article 22 self-contained
in respect
of the laws on the subject of preventive
detention.
It was contended
that all the articles in
the Constitution should
be read in an
·harmonious
manner and one article should not be read as standing
by itself and as having no connection with the other
articles in the same part. It
was said that they were
all supplementary
to one another. In this connection
it
was argued that a law made under article 22 would
not
be valid unless it was in accord with the provisions
<>f article 21 of the Constitution. This article provides
that no person shall
be deprived of life or liberty
except according
to procedure established by law. It
was contended that in substance the article laid down
that no person will
be deprived of life or liberty with
out having been given a
f~ir trial or a fair hearing and
that unless a law of preventive detention provided such
a hearing that law would
be in contravention of this
article and thus void. Conceding for the sake of
argument (but without expressing any opinion
on it) that this contention of the learned
counsel
is correct, the question arises whether
there
is anything in article 22 which negatives the
application of article
21 as above construed to a law
on preventive detention. In
my opinion, sub-clause
(5) of article
22 read with clauses (1) and (2) leads to
the inference that the contention raised
by the learned
counsel
is unsound. Clause (5), as
already stated,
provides that notice has to
be given to a detenu of
the grounds
of his detention. It also provides a limited
hearing inasmuch
as it gives him an opportunity to
S.C.R. SUPREME COURT REPORTS 227
establish his innocence. As, in my .opinion. the con
sideration of a representation made
by a detained per
son
by an unbiassed authority is implicit in clause (5),
it gives to the detained person all that he is entitled to
under the principles of natural justice.
The right to
consult and to be represented by a counsel of his own
choice has been denied in express terms to such a per
son
by the Constitution. He is also denied an oppor
tunity of appearing before a magistrate. When the
Constitution has taken away certain rights that ordina
rily will
be possessed by a detained person and in sub
stitution thereof certain other rights have been conferred
on him even in the matter of procedure, the inference
is clear that the intention was to deprive such a person
of the right of an elaborate procedure usually provided
for in judicial proceedings.
Ola use ( 6) of article 22
very strongly supports this conclusion. There would
have been
no point in laying <lown such detailed rules
of procedure in respect of a law of preventive detention
if the intention was that such a law would
be subject
tJ the provisions of article 21 of the Constitution. In
its ultimate. analysis the argument of the learned coun
sel for the ·petitioner resolves itself to this : that the
impugned statute does not provide for an impartial tri
bunal for a consideration of the representation of the
detained person and to this extent it contravenes
article
21 of the Constitution. As discussed above, in
my opinion, such a provision
is imolicit within article
22 itself and that being
so, the application of article 21
to a law made under article 22 is excluded.
It was next contended that a law of preventive
detention encroaches on the right of freedom of move
ment withiri the territory of India guaranteed to a
citizen under article 19 ( 1) ( d) and that being so, by
reason of the provisions of sub-clause (5) of article 19
it was justiciable on the ground of reasonableness. It
is true, as already pointed out, that a law of preventive
detention
is wholly incompatible with the right of free
dom of movement of a citizen. Preventive detention in
substance
is a negation of the freedom of locomotion
guaranteed under article
19 (l) ( d) but it cannot be
said that it merely restricts it.
Be that as it may, the
10-3 S. C. India/58
1950
A. K. Copa/an
v,
ThtState
Mahajan].
1950
A.. Jr. Gopalan
v.
TheStau
Mahajan j.
228 SUPREME COURT REPORTS [1950]
question for consideration is whether it was intend~d
that article 19 would govern a law made under the
provisions of article
22. Article 19 (5) is a saving and
an enabling provision. It empowers Parliament to
make a law imposing reasonable restriction on the
right of freedom of movement while article
22 (7) is
another enabling provision empowering
P.arliament to
make a law on the subject of preventive detention in
certain circumstances.
If a law conforms to the
con
ditions laid down in article 22(7), it would be a good
law and it could not have been intended that that law
validly made should also conform itself
to the
provi
sions of article 19 (5). One enabling provision cannot
be considered as a safeguard against another enabling
provision. Article
13 (2) has absolutely no application
in such a situation.
If the intention of the
constitu
tion was that a law made on the subject of preventive
detention had to
be tested on the touchstone of
reason
ableness, then it would not have troubled itself by ex
pressly making provision in article 22 about the precise
scope of the limitation subject to which such a law
could
be made and by mentioning the
procedure that
the law dealing with that subject had
to provide. Some of the provisions of article 22 would then have
been redundant, for instance, the provision that
no
detention can last longer than three months without
the necessity of such detention being examined
· by an
advisory board. This provision negatives the idea
that the deprivation of liberty
for a period of three
months without the consultation of the advisory board
would
be justiciable on the ground of reasonableness.
Again article
22 has provided a safeguard that if an
advisory board has
to be dispensed with, it can only be
so dispensed with under a law made by Parliament and
that Parliament also in enacting such a law has
to
con
form to certain conditions. This provision would have
been unnecessary in article 22 if a law on this subject
was justiciable. In sub-clause (b) of clause (7)
of article
22 prov1S1on has been made
ena-
bling Parliament to fix the maximum period
for which a person can
be detained under
a law on the subject
of preventive detention.
Under
S.C.R. SUPREME COURT REPORTS 229
this express provision it is open to Parliament to fix
any period, say, even a period of five to ten yeJ.rs as
the maximum period of detention of a person. Can it
. be said that in view of this express provision of the
Constitution such a law was intended to be justicfablc
by reason of article 19 (5) ? Dui:ation of detention is
the principal matter in preventive detention laws which
possibly could
be examined on the touchstone
of rea
sonableness under article 19(5), but this has been
ex
pressly excluded by express provisions in article 22.
In my judgment, therefore, an examination of the
pro
visions of article 22 ckarly suggests that the intention
was to -make it self-contained as regards the law of
preventive detention and that the validity of a law on
the subject of preventive detention cannot
be examined
or controlled either
by the provisions of article 21 or
by the provisions of article 19 (5) because article 13 (2)
has no application to such a situation and article
22
is
not subject to the provisions of these two articles. The
Constitution in article 22 has gone to the extent of
even providing that Parliament may by law lay down
the procedure to
be followed bv an advisory board. On all important points that could arise in connection
with the subject of preventive detention provision has
been made in article
22 and that being so, the only
correct approach
in examining the validity of a law on
the subject of preventive detention
is by considering
whether the law made satisfied the requirements
of
article 22 or in any way abridges or contravenes them
and
if the answer is in the affirmative, then the law
will
be· valid, but if the answer is in the negative, the
law would be void.
In expressing the view that article 22 is in a sense
• self-contained on the · law of preventive detention I
should not however
be understood as laying down that
the framers of the article in any way overlooked the
safeguards laid down in article
21. Article 21 in my
opinion, lays down substantive law
as
giving pwtec
tion to life and liberty inasmuch as it says that ;:hey
cannot be deprived except according to the procedure
established
by law; in other words, it means that
before a person can
be deprived of his
life or liberty
1950
A. K. Copa/an
v .
The State
Mahejan J.
1950
A. K. Gopalan
v.
The State
Mahajan].
230 SUPREME COURT REPORTS [1950]
as a condition precedent there should exist some
substantive law conferring authority for doing so and
the law should further provide for a mode
of procedure
for such deprivation. This article
gives complete
immunity against
the exercise of despotic-power by
the executive. It further gives immunity against
invalid laws which contravene the Constitution. It
gives also further guarantee that in its true concept
there should
be some form of proceeding before a
person can
be condemned either in respect of his life
or his liberty. It negatives the idea
of fantastic,
arbitrary and oppressive forms of proceedings. The
principles therefore underlying article
21 liave been
kept in
view in drafting article 22. A law properly
ma(ie under article 22 and which is valid in all respects
under that article and
lays down substantive as well
as adjective law on this subject
woulcl fully satisfy the
requirements of article
21, and that being so, there is.
no
cpnflict between these two articles.
The next question that aris~ for decision is
whether there is anything in Act IV of 1950 which
offends against the provisions of article
22 of
Part III
of the Constitution. The learned counsel for the
petitioner contended that section 3 of the Act
was bad
inasmuch
as it made "satisfaction of the Government"
as the criterion for detaining a person. It was said
that
as section 3 laid
dqwn no objective rule of conduct
for a person and
as people were not told as to what
behaviour
was expected of them, the result was that
it could not
be known what acts a person was expected
to avoid and what conduct on
his part was prejudicial
to the security of the State or the maintenance
of
public order ; in other words, it was argued that
section 3 left the determination of the prejudicial act
of a person to the arbitrary judgment of the
Govern
ment and that even the officer who was to administer
this law had been furnished no guide and no standard
of conduct in arriving at his own satisfaction whether
the conduct was prejudicial to the security of the
State etc. This criticism of the learned counsel,
in my opinion,
is not valid. It is no
do!!bt true that
a detention order depends on the satisfaction of the
S.C.R. SUPREME COURT REPORTS 231
Government but this provmon is in accordance
with article
22 of the Constitution which to my
mind contemplates detention on the satisfaction of
the executive authority.
By its very nature the sub
ject
is such that it implies detention on the judgment
of the authority entrusted with the making of the
order. The whole intent and purpose of the law of
preventive detention would
be defeated if
satisfaction of
the authority concerned
was subject to such an
objective standard and
was also subject to conditions
as to legal proof and procedure. In the 7th Schedule
jurisdiction
to make
thi.:. law on this subject has been
given for reasons connected with defence etc. and the
maintenance of public order. These are subjects which
concern the life and the very existence of the State.
Every citizen
is presumed to know what behaviour is '
prejudicial
to the life
Qf the State or to its existence as
an ordered State. Considering that the State is
presumed to have a government that conducts itself in
a reasonable way and also presuming that its officers
usually wilf be reasonable men, it cannot be said that
in making "satisfaction of the government" as the
standard for judging prejudicial acts of persons who
are subject
to the law of preventive detention section 3
in any way contravenes article
22 of the consti
tution.
Section 7 of the impugned Act gives full effect
to the provisions of article
22 sub-clause (5) and enacts
that representation has to
be made to the Central or
State Government as the case may be. It was im
peached on the ground that no machinery has been
provided herein to consider and adjudicate on the
merits of the representation.
To this extent, as already
indicated, the law
is
defective. In the absence of a
machinery for the investigation of the contentions
raised in the representation it may be open to the de
tenu to move this Court under article
32 for a proper
relief. It
is, however, unnecessary to express any
opinion
as to the precise remedy open to a detained
person in this respect.
The
absence of a provision of
this nature in the statute however would not make the
law wholly . void. Section 9 of the Act makes reference
1950
A. K. Gopalan
'·
TheStau
Mahajan].
1950
A. K. Gopalan
v.
The Statt
232 SUPREME COURT REPORTS [1950]
to . the advisory board obligatory in cases falling under
sub-clause (iii) of clause (a) or clause
(b) of sub-section
( 1)
of section 3 within six weeks of the order. The
procedure to be followed by the advisory board is laid
down in section
· 10. Parliament has been authorized
to lay down such a procedure to be followed by an
advisory board in sub-clause (c) of clause (7).
It
was contended that the law had not provided a
personal hearing
to the detenu before an advisory
board. nor had it given him a right
to lead evidence
to establish his innocence. In my opinion, this
cnt1c1Sm is not sound and does not in any way
invalidate the law. The advisory board has been given
the power
to call for such information as it requires
even from the person detained. It
has also been
empowered to
examine the material placed before
it in the light of the facts and arguments contained
in the representation. The opportunity afforded
is
not as full as a person gets under normal judicial
procedure but when the Constitution . itself contem
plates a special procedure being prescribed
for
pre
ventive detention cases, then the validity of the law
on that subject cannot be impugned on the grounds
contended for.
Section 11 of the Act was also impugned on the
ground that it offended against the Constitution
inasmuch
as it provided for preventive
detentiaTt·
for an indefinite. period. This section in my opinion
has to
be read in
lhe background of the provision in
sub-clause (3) of section 1 of the Act which says that
the Act will
cease to have effect on 1st April, 1951.
Besides, the words
"for such period as it thinks fit"
do not in any way offend against the provisions of
article
22 wherein Parliament has been given the
power
to make a law
fixing the maximum period for
preventive detention. It
has to be noted that
Parlia
ment has fixed a period of one year as the maximum
period for the duration
of detention where detention
has
to be without reference to an advisory board. In
my opinion, there is nothing in section 11 which is
outside the constitutional limits of the powers of the
supreme legislature.
S.C.R. SUPREME COURT REPORTS 233
It is section 12 of the Act which was assailed bv
the learned counsel for the petitioner rather vehe
mently. This section is of a very controversial charac
ter. It has been enacted on· the authority of clause
(7)
of article 22 and runs thus :-
" {1) Any person detained in any of the following
classes of cases or under any of the following circum
stances 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 with a view to preventing him from
acting in any manner
prcVudicial 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.
(2)
The case of every person detained under a
detention order to which the provisions of sub-section
(1) apply shall, within a period of six months from the
date of his detention,
be reviewed where the order was
made
by the Central Government or a
State Govern
ment, by such Government, and where the order was
made
by any officer specified in sub-section (2) of
section
3, by the
State Government to which such
officer is subordinate, in consultation with a person
who
is, or has been, or is qualified to be appointed as,
a Judge of a High Court nominated in that behalf by
the Central Government or the
State Government, as
the case may be."
The section purports to comply with the condi
tions laid down in clause (7) of article 22. It was, how
ever, argued that in substance and reality it has failed
to comply with any of the conditions laid down there
in ; that it neither mentions the circumstances under
which nor the
classes of cases in which preventive
detention without recourse to the machinery of an
advisory board could
be permitted.
The cruciaf ques
tion for consideration is whether section 12 mentions
any circumstances under which or defined the classes
of
cases in which authority was conferred by clause (7)
1950
A. K. Gopalan
.. ,
Tiu State
Mahajan].
1950
A. K. Copa/an
v.
The State
Mahajan J.
234 SUPREME COURT REPORTS [1950]
to dispense with an advisory board. So far as I have
been able to gather from opinions
of text-book writers
on the subject of classification, the rule
seems clear that
in making classification of
cases there has to be some
relationship
to the classification to the objects sought
to be accomplished. The question for consideration
therefore
is what object was sought to be accomplish
ed when the Constitution included clause (7) in article
22. It seems clear that the real purpose of clause (7)
was to provide for a contingency where compulsory
requirement of an advisory board may defeat the
object of the law of preventive detention. In my
opinion, it
was incorporated ;n the Constitution to
meet abnormal and exceptional
cases, the cases being
of a kind where an advisory board could not
he taken
into confidence. The authority to make such drasnc
legislation
was entrusted to the supreme legislature but
with the further safeguard that it can only enact a law
of such a drastic nature provided it prescribed the
circumstances under which such power had to
be used
or in the alternative it prescribed the classes of cases
or stated a determinable group of cases in which
this could
be done. The intention was to lay down
some objective standard for the guidance of the detain
ing authority on the
basis of which without consulta
tion of an advisory board detention could
be ordered
beyond the period of three months. In this connection
it has
to be remembered that the Constitution
must
have thought of really some abnormal situation and
of some dangerous groups of persons when it found it
necessary
to dispense with a tribunal like an advisory
board which functions
in camera and which is not
bound even
to give a personal hearing to the detenu
and whose proceedings are privileged.
The law on the
subject of preventive detention in order to avoid even
such an innocuous institution could only
be justified
on the
basis of peculiar circumstances and peculiar
situations which had
to be objectively laid down and
that
fvas what in my opinion was intended by clause
(7).
If the peculiarity
lies in a situation outside the
control or view
of a detained person, then it may be
said that the description of
such a situation would
S.C.R .. SUPREME COURT REPORTS 235
amount to a prescription of the circumstances justify
ing the detention for a longer period than three months
by a law without the intervention of an advisory board.
If, however, the abnormality relates to the conduct
and character of the activities of a certain determin
able group of persons, then that would amount to a
class of cases which was contemplated to be dealt with
under clause (7). In such
cases alone arbitrary detention
could
be held justifiable by law beyond a period of
three months .
. It was argued
by the learned counsel for the
peti
tioner that the phrase "circumstances under which,
and the
classes of cases in
which" used in clause (7) had
to be construed in a cumulative sense ; on the other
hand, the learned Attorney-General contended that the
word "and" had been used in this clause in the same
sense as "or." He further argued that even if the word
"and" is not given that meaning the true construc
tion of the phrase was that Parliament could prescribe
either the circumstances
or the classes .of cases
.for
making a law on the subject of preventive detention
authorizing detention for a longer period than three
months without the machinery of an • advisory board.
In Full Bench Reference No. 1 of 1950, Das Gupta J.
of the Calcutta High Court held that the intention of the
legislature in enacting the clause was t\lat the law of
preventive detention authorizing detetion for a longer
period than three months without the intervention of
an advisory board had to fulfil both the requirements
laid down in clause (7) and not only one of the require
ments in the alternative. The same view has been ex
pressed by my brother Sir Faz! Ali. I share this view
with him. I would, however, like to consider this
matter from a different aspect on the assumption that
the contention raised
by the learned Attorney-General
is right.
Dealing first with the question whether section
12 mentions any circumstances, so far as I have been
able to see, it does not prescribe any circumstances
unless it can be said that the prejudicial acts for rea
sons connected with the security of State, maintenance
of public order, etc. are both the circumstances
as well as
1950
A. K. Gopal1111
v.
The Stale
Mahajan].
1950
.d. IC Gopalan
v.
T"4 Stal<
Malzqjon J.
236 SD~REME COURT REPORTS ' (1950]
the classes of cases. In my opinion, this line of
approach cannot
be held to be correct in the
construc
tion of clause (7) of article 22. I am inclined to agree
with the learned Attorney-General that the phrase
"circumstances under which" means some situation
extraneous to the detenu's own
acts, in other words,
it means
some happening in the country with which
the detenu is not concerned, such as a situation of
tense communal feelings, an apprehended internal
rebellion pr disorder, the crisis of an impending war or
apprehended war, etc. In such a situation the machi
nery of an advisory board could be dispensed with
because it may become cumbersome or it may hamper
the exercise
of necessary powers. In this view .of the
matter I have no hesitation
in holding that no
circum
stances have been stated . in section 12, though the
section ostensibly
says so. If it was permissible to
conjecture, it
seems that the draftsman of section 12
repeated the words of clause (7) of article 22 without an.
application of his mind to the meaning of those words
and
as the legislation was passed in haste to meet an
emergent situation, it suffers from the defects which all
hasty legislation suffer from.
I now proceed
to consider whether section 12 has
classified the
cases
in• which detenti011 for a longer
period beyond three months could be suffered by ~
citizen without ,the benefit of the machinery of an
advisory board. The section has placed five subjects
out of the legislative list within
its ambit and these
arc described
as the classes of cases. The question is
whether it can be
said that a mere selection of all or any
of the categories of the subjects for reasons connected
, with which a law of preventive detention could be
made under the 7th Schedule amounts to a classifica
tion of eases as contemplated in clause (7) of article 22.
Entry 9 of the UniOn List and Entry 3 of the Concur
rent List of the 7th Schedule lay down the ambit of
legislative power of Parliament on the subject of pre
ventive detention on the following six subjects :-
( l) Defence of India, (2) Foreign Affairs, (3) Se
curity of India, ( 4) Security of the State, (5) Mainten-
S.C.R. SUPREME COURT REPORTS 237
ance of public order, ( 6) Maintenance of supplies and
services essential to the community.
Clause ( 4) of article
22 enjoins in respect of all the
six subjects that no law can provide for preventive
detention for a longer period than three months with
out
reference to an advisory board. Clause (7) gives
permission to make a law for dispensing with an ad
visory board by a prescription of the circumstances
and
by a prescription of the classes of cases in which
such a dispensation can
be made. The legislative
authority under clauses ( 4) and (7) in my opinion,
extends to all these
six subjects. The normal proce
dure
to be followed when detention is intended to be
beyond a period of three months in respect of the
six
subjects is provided in sub-clause ( 4). The extraordi
nary and unusual procedure
was intended to be adop
ted in certain abnormal
cases for which provision could
be made by a parliamentary statute under clause (7).
ft seems to me, however, that section 12 of Act
IV of
1950 has reversed this process quite contrary to the
intention of the Constitution.
By this section Act
IV
of 1950 has dispensed with the advisory board in five
out of the six subjects above mentioned and the com
pulsory procedure of an advisory board laid down
in
clause (4) of article 22 has been relegated to one out of
these six subjects. This has been achieved
by giving
a construction to the phrase
"circumstances under
which and the
classes of cases in
which" so as to make .
it co-extensive and coterminous with the "subjects
of legislation. In my opinion, this construction of
clause (7)
is in contravention of the clear. provisions of
article
22, and makes clause ( 4) of article 22 to all in
tents and purposes nugatory.
Such a construction of
the clause would amount to the Constitution saying
in
one breath that a law of
preventive detention cannot
provide for detention for a longer period than three
months without reference to an advisory board and at
the same breath and moment saying that Parliament,
if it so chooses, can do so in respect of all or any of
the subjects mentioned in the legislative field. If that
was
so, it would have been wholly unnecessary to
pro
vide such a safeguard in the Constitution on a matter
1950
A. K. Gopalan
v.
The Swe
Mahajan].
1950
A. /(. Bopa/an
v.
Thi State
Mahajan].
238 SUPREME COURT REPORTS [1950]
which very seriously affects personal -liberty. On the
other hand, it would be a reasonable construction of
the clause to hold that the Constitution authorized
Parliament that in serious
classes of cases or in cases
of those groups of persons who are incorrigible or
whose activities are secret the procedure
of an advisory
board may well
be dispensed with, that being necessary
in the interests of the State.
On the other construction
as adopted by the framers of section 12, the Constitu
tion need not have troubled itself by conferring an
authority oi: Parliament for making such a law.
Moreover, if that was the intention, it would have
in very clear words indicated this
by drafting article
22 clause (4) thus:-"Unless otherwise provided by Parliament no
law providing for preventive detention shall authoriu
detention for a longer period than three months unless
an Advisory Board
has investigated the sufficiency of
the cause
of such
detention."
The .words "Unless otherwise provided for by
Parliament" would have been in accord with the con
struction which the framers of section 12 have placed
on article
22 clause (7).
I am further of the opinion that the construction
placed
by the learned Attorney-General on
clause (7) of
article
22 and adopted by the framers of Act IV of 1950 creates a verv anomalous situation. The matter
may
be examined
from the point of view of the law
of preventive detention for reasons connected with
supplies and
services essential
to the life of the com
munity. This subject has been put under section 9 in
Act IV of 1950. Suppose a tense situation arises and
there
is a danger of
the railway system being sabotafed
and it becomes necessary co pass detention orders
against certain persons. According to Act IV
of
1950
in such a serious state of affairs the procedure of au
advisory board is compulsory, while on the other hand,
if there
is an apprehension of disturbance of public order
by reason of a wrong decision of an umpire at a cricker
match or on account of conduct of persons celebrating
the festival of Holi, then detention beyond three
S.C.R. SUPREME COURT REPORTS 239
months can be ordered without reference to an advisory
board. Could such an anomalous result
be in the con
templation of the framers of the Constitution
? The
construction that I am inclined to place on the section
is in accord with the scheme of the law of punitive
detention.
Hurt is an offence under the Indian
Penal
Code and this is one of the subiects of punitive deten
tion. The cases on the subject have been classified in
different groups, namely, simple hurt, grievous hurt,
grievous hurt with dangerous weapons, grievous hurt
to extort a confession, grievous hurt to restrain a
public
officer from doing his duty, grievous hurt by a
rash act,
and grievous hurt on provocation. Even sim
ple hurt ha"s been classified in different categories. The
subject
of assault has also been similarly dealt with.
Sections
352 to 356 deal with cases classified according
to the gravity of the offence,
i.e., cases of simple
assault, assault on a public servant, assault on women,
assault in attempt to commit theft, assault for wrong
fully confining a person and assault on
grave provoca
tion have been separately grouped. Another illustration
is furnished by the Criminal Procedure Code in the pre
ventive sections
107 to 110. These deal with different
groups of persons; vagrants are in one
class, habitual
offenders in another, bad characters in the third and
disturbers of peace in the fourth.
It seems that it is
on lines similar to these that it must have been con
templated
by the Constitution that classes of cases
would be prescribed by Parliament, but this has not
been done.
The Constitution has recognised varying
scales of duration of
detention with the idea that this
will vary with the nature of the apprehended act, deten
tion for a period of three months in ordinary
cases, de
tention for a longer period than three months with the
intervention of an advisory board
in more serious
cases, while detention for a longer period than three
months without the intercession of an advisory board
for a still more dangerous
class and for acts committed
in grave situations.
It can hardly be said that all
cases of preventive
detention for reasons connected
with the maintenance of public order stand on the same
footing in the degree of gravity and deserve the same
1950
A. K. Copa/an
v.
The State
lvlahajan J.
1950
A. K. Gopalon
v.
TM State
Mahqjan ].
240 SUPREME COURT REPORTS [1950]
duration of detention and all cases connected with the
maintenance
of supplies and services essential to the
life of the community stand in the matter of their
gravity on such a footing
as to require a lenient
treatment. It
is true that in a sense all persons who
act prejudicially to the
defence of India may be
comprehensively said to form ~ne group and similarly
persons who act prejudicially
to the maintenance of
supplies and
services essential to the life of the
community may form another
class but the question
is, whether it was in this comprehensive sense that
classification
was intended by the Constitution in
clause (7) or
was it intended in a narrower and restricted
sense ? It has to be remembered that the law under
clause (7)
was intended to provide detention for a longer
period and such a law
very seriously abridges personal
liberty and in this situation giving a narrower
and restricted meaning to this expression will
be in
accordance with well established canons of construction
of statutes.
The
wide construction of clause (7) of article 22
brings within the ambit of the clause all the subjects
in the legislative list and
very seriously abridges the
personal liberty
of a citizen. This could never have
been the intention of the framers of the Constitution.
The narrow and restricted interpretation is in accord
with the scheme of the
ar_!icle and it also operates on
the whole field
of the legislative list and within that
field it operates
by demarcating certain portions out of
each subject which requires
severe treatment. If I
may
say so in
• conclusion, section 12 treats the lamb
and the leopard in the same
class because they happen
to
be
quadruj5eds. Such a classification could not
have been in the thoughts
of the Constitutions-makers
when clause (7)
was introduced in article 22. For the
reasons given above, I am of the opinion that section
12 of Act
IV of 1950 does not fulfil the requirements
of ciause (7) of article
22 of the Constitution and is not
a law which
falls within the ambit of that clause.
That being so, this section of Act
IV of 1950 is void
and
by reason of it the detention of the petitioner
cannot
be justified. There is no other provision in
S.C.R. SUPREME COURT REPORTS 241
this law · under which he can be detained for. any period
whatsoever.
It
was
argus;d that it was neither practicable nor
possible to make a classification on any definite basis
in the case of apprehended acts of persons '"'.hose
activities are of a prejudicial character to the mainten
ance of public -order or to the security of the State or
to the defence of India. This contention to my mind
is not sound. Such a classification was made in the
rules under the Defence of India Act
by defining "a prejudicial act" in regulation 34. Mere difficulty in
precisely ascertaining the groups or in defining objecti
vely the conduct of such groups is no ground for not
complying with the clear provisions of the statute or
for disobeying it. I
see no difficulty whatsoever if a
serious effort was made to comply with the provisions
of clause (7). I cannot
see that the compulsory rtquire
ment of an advisory board is likely to lead to such
disastrous or calamitous results that in all cases or at
least in
five out of the six . subjects of legislation it becomes necessary to dispense with this requirement.
The requirement
of an advisory board is in
accor
dance with the preamble of the Constitution and is the
barest minimum that can make a · law of preventive
detention to
some little degree tolerable to a
deme>
cratic Constitution. Such a law also may have some
justification even without the requirement of an
advisory board to meet certain defined dangerous
situations or
to deal with a class of people who are a
.danger
to the State but without such limitation the
law would be destructive of all notions of
personal,,
liberty. The Constitution must be taken to have-,
furnished an adequate safeguard to its citizens when it
laid down certain conditions in clause (7) and_ it could
not
be considered that it provided no safeguard to
them at all and that the words used
in clause (7) were
merely illusory and had no real meaning.
Section 14 of Act IV of 1950 has been impugned
on the ground that it contravenes ruid abridges the
provisions of articles
22 (5) and 32 of the
Consti
tution. This section is in these terms :-
1950
A. K. Gopalan
v.
The Stau
Mahaj"" J.
1950
A. K. G•polan
v.
The Stale
MaliDjan :J.
242 SUPREME COURT REPORTS [1950)
" ( 1) No Court shall except for the purposes ot
a prosecution for an offence punishable under sub
section (2), allow any statement 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 11otwithstanding anything con
tained 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
advi
sory board or that part of the report of an advisory
board which is confidential.
(2) It shall
be an offence punishable with
im
prisonment for a terru 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
ccmtents or matter purporting to be
contents of any such communication or representation
as is referred to in sub-section ( l):
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."
This section is in the nature of an iron curtain
around the
acts of the authority making the order of
preventive detention. The Constitution has
guaranteed
to the detained person the right to, be told the grounds
{/of detention. He has been given a right to make a
representation [ vide article . 22 (5) ], yet section 14
prohibits the disclosure of the ground~ furnished to him
or the coptents
of the representation made
by him in a
Court
of law and makes a breach of this injunction
punishable with imprisonment.
Article
32 ( 1) of the Constitution
if. in these
terms:-
'
"The right to move the Supreme Court by appro-
priate proceedings
for the enforcement of the rights
conferred
by this
Part is ·guaranteed."
S.C.R. SUPREME. COURT REPORTS 243
Sub-sectien (4) says:-
"The right guaranteed by this article shall not be
suspended except as otherwise provided for by this
Constitution."
Now it
is quite clear that if an authority passes an
order
of preventive detention for reasons not connected
with
any of the six subjects mentioned in the 7th
Schedule, this Court can always declare the detention
illegal and
release the detenu, but it is not possible
for ' this Court to function if there is a prohibition
against disclosing the grounds which
have been
~erved
upon him. It is only by an examination of the grounds
that it
is possible to say whether the grounds fall with
in the ambit
of the legislative power contained
· in the
Constitution or
are outside its scope. Again something
may be served on the detenus as
being grounds which
are not grounds at all. In this contingency it is the
right of the detained person under article
32 to move
this Court for enforcing the right under article 22(5)
that he
be given the real grounds on which the deten
tion order
is based. This Court would be. disabled
from
exercisil).g its functions under article 32 and ad
judicating on the p9int that the ·. grounds given satisfy
the requirements· of the sub-clause if it is not open to
it to see the grounds that have been furnished. It is
a guaranteed right of the person detained to have the
very grounds which are the basis of the order of deten
tion. This Court would
be entitled to examine the
matter and
to see whether the grounds furnished are
the
grounds on the basis of which he his been detained
or
they contain some other vague or irrelevant material.
The
whole purpose of furnishing a detained person with
the grounds
is to enable him to make a representation
refuting these grounds and of proving his innocence.
In order that
this Court may be able to safeguard this
fundamental righc and to grant him relief it is absolu
tely essential that the detenu is not prohibited under
penalty of punishment to
disclose the grounds to the
Court and
no injunction by law can be issued to this
Co1 rt disabling it from having a look at the grounds.
Section 14 creates a substantive offence if the irrounds
are disclosed and it also lays a duty on the Court not
11-3 S. C. India/58
1950
A. K. Gol'Jl1J11
v.
Tire State
Mahajan].
1950
A. 1(. G•palan
v.
T 1" Siok
Mahajan]. -
Mu/c"'1;iea].
244 SUPREME COURT REPORTS [19301
to permit the disclosure of such grounds. It virtually
amounts to a suspension of a guaranteed right provided
by the Constitution inasmuch as it indirectly by a
stringent provision makes administration of the law
by this Court impossible and at the same time it de
prives a detained person from obtaining justice from
this Court. In
my opinion, therefore, this section when
it prohibits the disclosure of the grounds contravenes
or abridges the rights given
by
Part III to citizen
and
is ultra
vires the powers of Parliament to that
extent.
The result of the
above discussion is that, in my
<,>pinion, sections 12 and 14 of Act IV of 1950 as above
indicated are void and the decision of the detenu's
case has to be made by keeping out of sight these two
provisions in the 'l'\ct. If sections 12 and 14 are deleted
from 'the impugned legislation, then the result
is that
the detention of the petitioner
is not legal. The statute
has not provided for detention for a period of three
months or
less in such cases as it could have done
under article 22(4) of the Constitution and that
being
so, the petitioner cannot be justifiably detained
even for a period of three months. I would accordingly
order
his release.
In view of the decision above arrived at I do not
consider it necessary to
express any opinion on the
other points that were argued at great length before
us, namely, (1) what is the scope and true meaning
of the expression
"procedure established by law" in
article
21 of the Constitution, and , (2) what is the
precise
scope of articles 19(1) (d) and 19(5) of the
Constitution.
MuKHERJEA J.-This is an application under
article
32 of the Constitution praying for a writ of
habeas corpus upon the respondents with a view to
release the petitioner who, it
is alleged, is being
unlawfully detained in the Central Jail, Cuddalore,
within the State of Madras.
The petitioner, it is said, was initially arrested in
Malabar on 17th of December,
1947, and prosecution
was started against him on various charges for having
J
S,C.R. ~UPREME COURT REPORTS 245
delivered certaiq violent speeches. While these criminal
case~ were going on, he was served with an order of
detention under the
Madr.as Maintenance of Public Order Act on 22nd April, 1948. This order of deten
tion was held to be illegal by the Madras High Court,
but 011 the same day that the judgment was pronounced,
a second order of detention
was served upon him.
On
his moving the High Court again for a writ of habeas
corpus
in 1espect to the subsequent order, his
appli
cation was dismissed on the ground that as he was riot
granted bail in one of the three criminal cases that
were pending against him, the detention could not
be said to be unlawful. Liberty,. however, was given to him to renew his application if and when his deten
tion under the criminal proceedings ceased. In two
out of the three criminal
cases the trial before the
magistrate ended on February
23, 1949, and the
peti
tioner was sentenced to rigorous imprisonment for 6
months in each of the
cases. These sentences however,
were
set aside in appeal on 26th September, 1949. As
regards the third case he was tried by the Sessions
Judge of North Malabar and sentenced to rigorous
im
prisonment for 5 years but this sentence was redi1ced to
6 months' imprisonment
by the Madras High Court on
appeal. The petitioner made a fresh application to the
High Court praying for a writ of
habeas corpus in
respect of
·his detention under the Madras Maintenance
.of Public
Order Act and this application, which was
heard after he had served out his sente11-ces of imprison
ment referred to above, was dismissed in January, 1950.
On 25th February, 1950, the Preventive Detention Act
wa:s passed by the Parliament and on the 1st of March
following, the detention of 'the applicant under the
Madras Maintenance of Public Order Act was cancell
ed and he was served with a fresh order of detention
under section 3(1)
of the Preventive Detention Act 1950. On behalf of ~he resp~ndents the detention of
the petitioner
is sought to be justified on the strength
of the Preventive Detention Act of
1950. The position
taken up on behalf of the petitioner on the other hand
is that the said Act is invalid and ultra vires the
con
stitution by reason of its being in conflict with certain
19.'iO
.d. K. GoJa!IJn
v.
Tiu S1a11
Mukherjea ].
1950
A. K. Gopalan
v.
The State
MukherjeaJ.
246 SUPREME COURT REPORTS
(1950]
fundamental rights which are guaranteed
by the
Con
stitution. It is argued, therefore, that the detention
of the petitioner is invalid and that he should be set
at liberty.
The contentions that have beel put forward by
Mr. Nambiar who appeared in support
of the petition,
may
be classified under four heads. His first
conten
tion is that as preventive detention is, in substance, a
restriction on the free movements
of a person
through
out the Indian territory, it comes within the purview
of article 19(1) (d) of Part III of the Constitution
which
lays down the fundamental rights.
Under clause
(5) of the article,
any restriction imposed upon this
right of free movement must
be reasonable an<l should
be prescribed in the interests
of the general public.
The question as to whether it is reasonable or not is a .
justiciable matter which
is to be determined by the
Court. This being the legal position the
learned Counsel
invites
us to hold that the main provisions of the
impugned Act, particularly those which are contained
in sections
3, 7,
10, 11, 12, 13 and 14 are wholly un
reasonable and should be invalidated on that ground.
The second contention advanced by the learned
Counsel
is that the impugned legislation is in
con
flict with the provision of article 21 of the Constitution
inasmuch
as it provides for deprivation of the
per
sonal liberty of a man not in accordance with a proce
dure established by law. It is argued that the word
'law' here
does not mean or refer to any particular
legi
slative enactment but it means the general law of the
land, embodying those principles
of natural justice
with regard
to procedure which are regarded as
funda
mental, in all systems of civilised jurisprudence.
It
is conceded by the learned
·counsel that the
procedure,
if any, with regard to preventive detention
as has been. prescribed by article 22 of the Constitution
which itself finds a place in the chapter on
Funda
mental Rights must override those general rules of
procedure which are cnntemplated
by article 21 but
with regard
to matters for which no provision is made
in article
22, the general provision made in article 21
,
.
S.C.R. SUPREME COURT REPORTS 247
must apply. He has indicated in course of his argu
ments what . the essentials of such procedure are and
the other point
specifically raised in this connection is . that the provision of section 12 of . the Preventive
Detention
Act is in conflict with article 22(7) of the
Constitution.
The last argument in support
of this application is
that the provisions of sections 3 and 14 of the
Preven
tive Detention Act are invalid as they take away and
render completely· nugatory the fundamental right to
constitutional remedies
as is provided for in article 32
of the Constitution.
In discussing these points it should be well to
keep in mind
.the
general scheme of the Indian Consti
tution relating to the protection of the fundamental
rights .
of the citizens and the limitations imposed in
this
respect upon the. legislative powers of the Govern
ment. The Constitution of India is a written Consti
t9tion and though it has adopted many of the
principles of the English Parliamentary system, it has
not accepted the English doctrine of · the absolute
Supremacy
of Parliament in matters of legislation.
In this respect it has followed the American
Constini
tion and other systems modelled on it. Notwith
standing the representative character of their political
.institutions, the Americans regard the limitations
imposed
by their Constitution upon the action of the
Government, both legislative and
executive,
as -essential
to the preservation of public and private rights. They
serve as a check upon what has been described :\s the
despotism of the majority; and
as was observed in
the
case of Hurtado v. The People of California (
1
)
"a government which holds the lives, the liberty apd
the property . of its citizens, subject at all times to
the absolute disposition and unlimited control
of even
the most democratic depository of power, is after all
but a despotism." In India it
is the Constitution that
is supreme and Parliament as well as the
State Legis
latures must not only act within the limits of their
respective legislative spheres as demarcated in the three
(IJ 110 U.S. 516.
1950
A. K. Copola11
v.
T/,. Stall
Mukherj1a J.
1950
A. K. Gopalan
v.
The Staie
M11kherJea J.
248 SUPREME COURT REPORTS [1950]
lists occuring in the Seventh Schedule to the Constitu
tion, but Part
Ill of the Constitution guarantees to the
citizens certain fundamental rights which the legisla
tive authority can on no account transgress.
· A statute
law to
be valid must, in all cases, be in conformity
with the constitutional requirements and it
is for the
judiciary to decide whether any enactment
is unconsti
tutional or not. Article 13(2)
is imperative on this
. point and provides expressly that the State shall not
make any law which takes away or abridges the right
conferred
by this
Par~ and any law made in contraven
tion of this clause shall to the extent
of the contraven
tion,
be void. Clause (!) of the article similarly in
validates all existing laws which are inconsistent with
the provisions of this Part of the Constitution.
The fundamental rights guaranteed by the Consti
tution have been classified under seven heads or cate
gories. They are:
(
l) Right to equality;
(2) Right to freedom;
(3) Right against exploitation;
(4) Right to freedom of religion;
(5) Cultural and educational rights;
(6) Right
to property; and
(7) Right to constitutional remedy.
The arrangement differs in many respects from
that adopted in the American Constitution and bears
a likeness on certain points to similar declarations in
the
<:;onstitutions of other countries.
Of the different classes of fundamental rights
spoken of above, we are concerned here primarily with
right to freedom which
is dealt with in four articles
beginning from article
19 and also with the right to
constitutional remedy which
ts embodied m
article
32.
Article l(J enumerates certain forms of liberty or
freedom, the
· ·otection of which is guaranteed by the
Constitution.
Jn article
20, certain protections are
given in
cases of persons accused of criminal offences.
Article
21 lays down in general terms that no person
shall
be deprived of his life or personal liberty, except
S.C.R. SUPREME CdURT REPORTS 249
according to procedure established by law. Article
22 provides for certain additional safeguards in respect
to arrest and detention and by way of exception to the
rules so made, makes certain special provisions for the
particular form of detention known
as Preventive
Detention.
The first contention advanced
by Mr. Nambiar
involves a consideration of the question as to whether
Preventive Detention, which is the subject matter of
the impugned legislative enactment,
comes within the
purview
of article 19(1) (d) of the Constitution, accord
ing to which a right to move freely throughout the
territory
of India is one of the fundamental rights
guaranteed to all citizens.
If it comes within that
sub-clause, it is not disputed that clause (5) of article 19
would be attracted to it and it would be for the courts
to decide whether the restrictions imposed upon this
right by the Parliament are reasonable restrictions and
· are within the permissible limits prescribed by clause
(5) of the article.
There
is no authoritative definition of the term
'Preventive Detention'
. in Indian law, though as
description of a topic of legislation it occurred in the
Legislative Lists of the Government of India . Act, 1935,
and has been used in Item 9 of List I and Item
3
of List III in the Seventh
Schedule to the Consti
tution. The expression
has its origin in the language
used by Judges or the law Lords in England
while
explaining the nature of detention under Regulation
14 (B) of the Defence of Realm Consolidation Act, 1914,
passed on the outbreak of the First World War; and
the same language was repeated in connection with the
emergency regulations made during the last World
War. The word 'preventive' is used in contradistinc
tion. to the word 'punitive.' To quote the words
of
Lord Finlay in
Rex v. Halliday (
1
), it is not a
punitive but a precautionary measure." The object is
not to punish a man for having done something but to
intercept him
before he does it and to prevent him from
doing it. No
offence is proved, nor any charge formula
ted; and the justification of such detention is suspicion
(') [1917] A. c. 260 at p. 269.
1950
A.K. G~an
••
Tlw St"'4
MuklwrJla J.
1950
A. IC Gopalon
v.
The Stott
Mukheefea ].
250 SUPREME COURT REPORTS [1950]
or reasonable probabi1ity and not criminal conv1ctton
which can only be warranted by legal evidence (
1
).
Detention in such form is unknown in America. It was
resorted
to in England only during war. time but no
country in the world that I am aware
of.. has made this
an integral part of their Constitution as has been done
in India. This
is undoubtedly unfortunate, but it is
not our business to speculate on questions of
· policy or
to attempt to explore the reasons which led the repre
sentatives of our people to make such a drastic provision
in the Constitution itself, which cannot but
be
:regarded
as a most unwholesome encroachment upon the liber
ties of the people.
The detention of a man even , as a precautionary
measure certainly deprives him of
his personal 1ibcrty,
and
as article 21 gtiarantees to every man, be he a
citizen or a foreigner, that he shall not
be deprived of
his
life and personal liberty, except in accordance with
the procedure established
by law, the requirements of
article.
21
woula certainly have to be fomplied with,
to make preventive detention valid in law. What these
requirements are I will discuss later on. Article 22
comes immediate~ after article 21. It secures to all
persons certain fundamental rights in relation to arrest
and detention, and
as already said, by way of
excep
tion to the rights thus declare, makes certain specific
provisions relating
to preventive detention. The subject
of preventive
detention is specified in and constitutes
Item No. 9 in the Union Legislative List and it also
forms Item No. 3 in the Concurrent List. Under
article 246 of the Constitution, the Parliament and. the
State Legislatures are empowered to legislate on this
subject within the ambit of their respective authorities.
Clause (3) of article
22 expressly enjoins
_that the
protective provisions of
clauses ( 1) and (2) of the article
would not
be available tQ persons detained under any
law providing for preventive detention. The only
fundamental rights which are guaranteed
by the
Constitution in the matter of preventive detention
and which to that extent impose restraints upon the
exercise of legislative powers in that respect are
(') Vide Lord
Macmillan in LiwsiM v. Antl,,.,on (1912] A.C. 206 at p.2~.
S.C.R. SUPREME COURT REPORTS 251
contained in clauses ( 4) to (7) of article 22. Clause
(4) lays· down that no law of preventive detention
shall authorise the detention
of a person for a period
longer than three months,
unless an advisory board
constituted in the manner laid down in
sub-clause (a)
of the clause has reported before the expiration of the
period that there
is sufficient cause for such detention.
The period
of detention cannot, in any event, exceed
the maximum· which the Parliament is entitled to
pres
cribe under clause (7) (b). The Parliament is also given
the authority to prescribe the circumstances and
the
class of cases under which a person can be detained
for a period longer than three months under any law of
preventive detention without obtaining the opinion of
the advisory board. There is one
. safeguard provided
for all
cases which is contained in clause (5) and which
lays
down that the authority making the order of
detention shall; as soon as possible communicate to
such person the grounds on which . the order has been
made and shall afford him the .earliest opportunity of
making a represtntation against the order. But even
here, the authority while giving the grounds
of detention need not disclose such facts which it considers
against public interest to
disclose.
The question that we have to consider is whether
a law relating to preventive detention
is justiciable in
a Court of law
on the ground of reasonableness
under·
article 19 (5) of the Constitution inasmuch as it takes
away or abridges the right to free movement in the
territory
of India guaranteed . by clause ( 1) ( d) of the
article.
It will be seen from what has been said above
that article 22 deals specifically with the subject of
preventive detention and expressly takes away the
fundamental rights relating to arrest and detention
enumerated in
clauses (1) and (2) of the article from
persons who are detained under
any law which may be
passed by the
Parliam~nt or State Legislatures acting
under article 246 of the Constitution read with the
relevant items in
the legislative lists. I will leave
aside for the moment the question as to how far the
court can examine the
reasonableness or otherwise of
the procedure . that is prescribed by any law relating
1950
.d. K, Gopalan
v.
TJwSJ:iu
Mukhnjea J.
l950
A. I(, G.,,.i...
v.
nt.lld
MakJr,,jra J.
252 SUPREME COURT REPORTS [1950]
to preventive detention. for that would involve a
consideration of the precise scope and meaning of article
21; but this much is beyond controversy that so far as
substantive law is concerned, article 22 of the Constitu
tion gives a dear authority to the legislature to take
away the fundamental rights relating to arrest and de
tention, which are secured by the first two clauses of the
article.
Any legislation on the subject would only have
to conform to the requirements of clauses ( 4) to (7) and
provided that
is done, there is nothing in the language
employed nor in the context in which it
appears which
affords any ground for suggestion that such law must
be reasonable in its character and that it would be
reviewable by the Court on that ground.. Both articles
19 and 22 occur in the same Part of the Constitution
and both
of them purport to lay down the fundamental
rights which
the Constitution guarantees. It is well
settled that
the Constitution must be interpreted in a
broad and liberal manner giving effect to all its parts,
and the presumption .should , be that no conflict or
repugnancy
was intended by its framers. In
inter
preting the words of a Constitution, the same principles
undoubtedly apply which are applicable in construing
a statute,
but as was observed by Lord Wright in /11mes v. Commonwealth of Australia(
1
), · "the ultimate
result must be determined upon the actual words used
not in·· vacuo but as occurring in a single complex
instrument in which one part may throw light on the
other." "The Constitution," his Lordship went on
saying, "has been described as the federal compact
and the construction must hold a balance between all
its
parts."
It seems to me that there is no conflict or repug
nancy between the two provisions of the Constitution
and· an examination of the scheme and language of
the r.atena cl articles which deal with the rights to
freedom would be sufficient to show that what clause
(1) (d) of article 19 contemplates is not freedom from
&tention, either punitive or preventive; it relates to
and speaks of a different aspect or phase of civil
liberty. '
(') {19,361 A. c. 57,8 at p. 613.
S.C.R. SUPREME COURT REPORTS
Article 19, which is the first of this series of
articles, enumerates
seven varieties or forms of freedom
beginning with liberty of speech and expression and
ending with free right
to practise any trade, profession
or business. The rights declared in articles
19 to 22
do not certainly exhaust the whole list of liberties
which people
possess under law. The object of the
framers of the Constitµtion
obviously is to
enu~erate
and guarantee those forms of liberty which come under
well-known categories recognised
by constitutional
writers and are considered
to be fundamental and of
vital importance to the community.
There cannot
be any such thing as absolute or
uncontrolled liberty wholly freed from restraint, for that
would lead
to anarchy and disorder. The possession
and enjoyment of all rights, as was observed by. the
Supreme Cour,t of America in Jacobson v. Massachusetts
(
1 ), are subject to such reasonable conditions as may
be deemed by the governing authority of the country
essential
to the safety, health, peace, general order
and·
morals of the community. The question, therefore
arises in each case of adjusting the conflicting interests
of the individual and of the
society. In some cases,
restrictions have to be placed upon free exercise of
individual rights to safeguard the interests of the
society; on the other hand,
social control which exists
for public good has got to be restrained, lest it should
be misused to the detriment of individual rights and
liberties. Ordinarily,
every man has the liberty to
order
his life as he pleases, to say what he will, to go
where
he will, to follow any trade, occupation or calling
at
his pleasure and to do any
Qther thing which he can
lawfully do without let or hindrance
by any other
person.
On the other hand for the very protection of'
these liberties the
society must arm itself with certain
powers. No man's liberty would
be worth its name
if
it' can be violated with impunity by any wrong-doer
and
if his property or possessions could be preyed
upon
by a thief or a marauder. The society, therefore,
has got to exercise certain powers for the protection
of these liberties and to arrest, search imprison and
(
1
) 197
U.S. 11.
1950
A. K. Gopalllll
v.
The Stale
Mukhtrjea J.
1950
A. K. Copa/an
v.
The State
Mukhnjta].
254 SUPREME COURT REPORTS [1950]
punish those who break the law. If these powers are
properly exercised, they
themselves are the safeguards
of freedom, but they can certainly be abused. The
police
may arrest any man and throw him into prison
without assigning any reasons; they
may search his
belongings on the slightest pretext;
he may be
sub
jected to a sham trial and even punished for crimes
unkonwn to law. What the <;onstitution, therefore,
attempts to do in declaring the rights
of the people is
to strike a balance between individual liberty and
social control.
To me it seems that article 19 of the Constitution
gives a list
of individual liberties and prescribes
in the various clauses the restraints that may be placed
upon them
by law so that they may not conflict with
public welfare or general morality.
On the other hand,
articles 20, 21 and 22 are primarily c.oncerned with
penal enactments or other
laws under which personal
safety or liberty
of persons could be taken away in the
interests
of the society and they set down the limits
within which the
State control should be exercised.
Article
19 uses the expression
"freedom" and mentions
the
several forms and aspects of it which are secured
to individuals, together with the limitations that could
be placed upon them in the general interests of the
society. Articles
20, 21 and 22 on the other hand do
not make
use of the expression
"freedom" and they
lay down the restrictions that are to be placed <in
State control where an individual is sought to be de
prived of his life or personal liberty. The right to the
safety
of one's life and limbs and to enjoyment of
per
sonal liberty in the senae of freedom from physical re
straint ll!ld coercion of any sort, are the inherent birth
rights of a man. The essence of these rights consists
in restraining others from ·interfering with them and
hence they cannot
be described in terms of
"free<!<>m"
to do particular things. There is also no question of im
posing limits on the activities of ihdividuals so far as
the exercise of these rights is concerned. For these
reasons, I think, these rights have not been mentioned
in article
19 of the Constitution. An individual can be
deprived of his life or personal liberty only by action
S.C.R. SUPREME COURT REPORTS 255
of the State, either under the provisions of any penal
enactment or in the
exercise of any other coercive
process vested in it under law. What the Constitution dqes therefore is to put restrictions upon the powers
of the State for protecting the rights of the indivi
duals. The restraints on State authority operate as
guarantees of individual freedom and secure to the
people the enjoyment
of life and personal liberty which
are thus declared to
be inviolable except in the manner
indicated in
these articles. In my opinion, the group
of articles
20 to 22 embody the entire protection
guaranteed
by the Constitution in relation to depriva
tion
of life and personal liberty both with regard to
substantive as well as to procedural
law~--I! is not
correct to
say,. as I shall show more fully
later on, that
article ..21 is confined to matters of procedure only.
There must
be a substantive law, under which the State is empowered -to deprive a man of his life and
personal liberty and such law must
be a valid law
which the legislature
is competent to enact within the
limits
of the powers assigned to it and which does not
transgress any of the fundamental rights that the
Constitution
lays down. Thus a person cannot be
convicted or punished under an
ex post facto law, or a
law which compels the accused to incriminate himself
in a crimin.al trial or punishes him for the same offence
more than
once. These are the protections provided
for
by. article 20. Again a law providing for arrest and
detention must conform to the limitations prescribed
by clauses (1) and (2) or article 22. These provisions
indeed
have been withdrawn expressly in case of
preventive detention and protections of much more
feeble and attenuated character have been substituted
in their place; but this
is a question of the policy
adopted by the Constitution which
does not concern us
at all. The position, therefore, is that with regard to
life and personal liberty, the Constitution guarantees
protection to this extent that no man could
be deprived
of
these rights except under
a valid law passed by a
competent legislature within the limits mentioned
above and in accordance with the procedure which
such law
lays down. Article 19, on the other hand,
19~0
A. K. Gopalan
v.
The State
Mukherjea J,
1950
A. K. Gopalan
v.
The State
Mukhtl}aa J.
256 SUPREME COURT REPORTS (1950]
enunciates certain particular forms of civil liberty quite
independently of the rights dealt with under article
21. Most of them may be connected with or dependent
upon personal liberty but are not identical with it ;
and the purpose of article
19 is to indicate the limits
within which the
State could,. by legislation, impose
restrictions on the
exercise of these rights by the
individuals. The reasonableness or otherwise or such
legislation
can indeed be determined by the Court to
the extent laid down in the several clauses or
article
19, though no such review is permissible with regard
to laws relating to deprivation
of life and personal
liberty.
Th.is may be due to the fact that life and
personal freedom constitute the most vital and essential
rights which people
enjoy under any
State and in
such matters rhe precise and definite expression
of • the intention of the legislature has been
preferred by the Constitution to the variable standards
which the judiciary might lay down. We find
the rights relating
to personal liberty being
de
clared almost in the same terms in the Irish
Constitution article 40 (1) (4) (1) of which lays down
that "no citizen shall be deprived of his personal
liberty
save in accordance with
law." In the Constitu
tion of the Free City of Danzig, "the liberty of the
person has been declared to
be inviolable and no
limit
ation or deprivation of personal liberty may be imposed
by public authority except by virtue of a law" ( vide
article 74). Article 31 of the Japanese Constitution
is the closest parallel to article 21 of the Indian Consti
tution and the language is almost identical. This is
the scheme adopted by the Constitution in dealing
with the rights to freedom described in the chapter on
fundamental rights and fo my opinion, therefore, the
proper t~st for delermining the validity of an enact
ment llnder which a person is sought to be deprived of
his life and personal liberty has to be found not in
article
19, but in the three following articles of the
Constitution. Article
20 of course has no application
so far as the law relating to preventive detention is
concerned.
Mr. Nambiar's endeavour throughout
has been to
S.C.R. SUPREME COURT REPORTS 257
establish that article 19 ( 1) ( d) of the Constitution read
with article
19 (5) enunciates the fundamental rights
of the citizens regarding· the substantive law of personal
liberty, while article
21 embodies the protection as re
gards procedural
!_aw. This, in my opinion, would be
looking at these; provisions from a wrong angle alto
gether, Article 19 cannot be S,flid to deal with subst
antive law merely, nor article
21 with mere matters of
procedure. It cannot
also be said that the provisions
of article 19(1) (d) read with clause (5) and article 21
are complementary to each other. The contents and
subject matter
of the two provisions are not indentical
and they proceed on totally different principles.
There
is no mention of any
"right to life" in article 19,
although that is the primary and the most important
thing for which provision
is made in article 21. If
the contention of the learned counsel is correct, we
would
have to hold
/that no protection is guaranteed
by the Constitution as regards right to life so far as
substantive law is concerned. In the second place; even
if freedom of movement may be regarded
as one of
the
ingredients of personal liberty, surely there are
other elements included in the concept and admittedly
no provision for other forms
of personal liberty are to
be found in article 19(5) of the Constitution. Further
more article
19 is applicable to citizens only, while
the rights guaranteed
by article 21 are for all persons,
citizens
as well as aliens. The only proper way of
avoi~ing these anomalies is to interpret the two provi
sions as applying to different subjects and this would
. be the right conclusion if we have in mind the scheme
which underlies this group
of articles.
I will now turn to the language
of article 19(1) (d)
and see whether preventive detention really comes
within its purview. Article 19(1) (d) provides that all
citizens shall have the
i;ight to move freely throughout
the territory of India. The two sub-clauses which
come immediately after sub-clause
(d) and are intimate
ly
conn\!cted with it, are in these terms:
"(e) To reside and settle in any part. of the
territory of India;
1950
A. K. Copa/an
v.
Thi State
Mukhe~jea ].
1950
A. IC Gopalan
v.
Tire si.11
Mul<i..efea J.
258 SUPREME COURT REPORTS [1950)
( f) to acquire, hold and dispose of property."
Clause (5) relates to all these three sub-clauses and
lays down that nothing in them shall affect the opera
tion
of any existing law in so far as it imposes, or
prevent the
State from making any law imposing,
reasonable restrictions on the
exercise of any of the
rights conferred
by the . said sub-clause either in the
interests of the general public
or for the protection of
the interests of any scheduled tribe.
I
agree with the learned Attorney-General that in
construing article
19 (1) (d) stress is to be laid upon
the
expression
"throughout the territory of India,"
and it is a particular and special kind of right, viz.,
that of free movement throughout the Indian territory,
that
is the aim and object of the Constitution to
secure. In the next sub-clause, right to reside and
settle
"in any part of the territory of India" is given
and here again the material thing
is not the right of
residence or settlement but the right
to reside or settle
in
any part of the Indian territory. For an analogous
provision,
we may refer to article
301 which says that
subject
to the other provisions of this
Part, commerce
and intercourse throughout the territory
of India shall
be free. The meaning of sub-clause (d) of article 19 (1)
will
be clear if we take it along with
sub-clauses ( e) and
(f), all of which have been lumped together in clause
(5) and to all of which the same restrictions inclu
ding
.those relating to protection of the interest of any
scheduled tribe
have been made applicable. It
wjll be
remembered that these rights are available otily to
citizens. To
an alien or foreigner, no guarantee of
such rights has been given. Normally all citizens
would
have the free right to move from one part of the
Indian territory to another. They
can shift their
residence from one
place to any other place of their
choice and settle anywhere they like. The right of free
trade, commerce and intercourse throughout the
·
territory of India is also secured. What the Constitu
tion emphasises upon
by guarariteeing these rights is
that the whole of Indian
Union in spite of its being
divided into a number
of States is really one unit so
far as the citizens of the
Union are concerned. All the
S.C.R. SUPREME COURT REPORTS 259
citizens would have the same privileges and the same
facilities for moving into any part of the territory and
they can reside or carry on business anywhere they
like; and
no restrictions either inter-State or otherwise
would
be allowed to set up ·in these respects
qetween
one part of India and another.
So far as free movement throughout the territory
is concerned, the right. is subject to the provision of
clause (5), under which reasonable limitation may be
imposed upon these liberties in the interests of the
general public or protection of any scheduled tribe.
The interests of the public which necessitates such
restnct1ons may be of various kinds. They may be
connected with the avoidance of pestilence ot spread
ing of contagious disea~es; certain places again may be
kept closed for military purposes and' there . may be
prohibition of entry into areas which are actual or
potential war zones or where ciisturbances of some
kind or other prevail. Whatever the reasons might be,
it is necessary that these restrictions must be reason
able, that
is to say, commensurate with the purpose
for which they are laid down. In addition to general
interest, the Constitution
has specified the protection
of the interests
of the scheduled tribes as one of the
factors which has got
to be taken into consideration
in the framing
of these
· restrictions. The scheduled
tribes,
as is well known, are a backward and unsophisti
cated
class of people who are liable to be imposed upon
be shrewed and designing persons. Hence there
are_,
various provisions disaDiing · them from alienating even
their own properties except under
special conditions.
In their interest and for their benefit.
laws may be
·
made restricting the ordinary right of citizens to go oi
settle in particular areas or acquire property in them.
The reference to the interest of scheduled tribe makes
it quite clear-that the free movement spoken of in' the
clause relates not to general rights·
of locomotion but
to the particular right of shifting or moving from one
part of the Indian territory to another, without
:my
sort of discriminatory barriers.
This
.view
will receive further support .. if we look
to some analogous provisions in the Constitution of
12-s S. C. India/ 8
1950
A. E. Gopalan
v.
The Stau
Muklrlrj•tt].
1950
A. E. c.,.J ..
v.
TlvS-
'>fuk/rerfaa J.
Z60 SUPREME COURT REPORTS [1950]
other countries. It will be seen that sub-clauses (d),
( e) and ( f) of article 19 ( 1) are embodied in almost
identical language in one single article viz., article 75
of the Constitution of the Free City of Danzig. The
article runs
as follows : "All nationals shall enjoy freedom of movement
within the free
city and shall have the right to stay
and to settle at
any place they
.may choose, to acquire
real property and
to earn their living in any wav.
This right shall not
be curtailed without legal
sanctions."
The several rights are thus mentioned together as
being included in the same category, while they are
differentiated from the "liberty of the person" which
is "described to be inviolable except by virtue of a
law" in article 74 which appears just previous to this
article. An analogous provisions in slightly altered
language occurs in article
111 of the Constitution of
the German Reich which
is worded in the following
manner:
"All Germans enjoy the right of change of .domicile
within the whole Reich. Every one
has the right to
stay in any part of the Realm that he chooses, to settle
there, acquire landed property and pursue any means
of livelihood." Here again the right to personal liberty
has been dealt with
serarately in article 114. A
suggestion
was made in course of our discussions that
the expression
"throughout the territory of India" oc
curring in article 19 ( 1) ( d) might have been used with
a view to
save Passport Regulations or to emphasise
that no rights of
free emigration are guaranteed by the
Constitution. The suggestion does not
seem to me to
be proper. No
State can guarantee to its citizens the
free right to do anything outside
its own territory.
This
is true of all
the fundamental rights mentioned
in article
19 and not merely of the right of free
move
ment. Further it seems to me that the words "through
out the territory of India" have nothing to do with
rights of emigration. We find that both in the
Danzing
as well as in the German Constitution, where
similar words have
been used with regard to the
exer
cise of the ri~ht of free movement throughout the
S.C.R. SUPREME COURT REPORTS 261
territory, there are specific provisions which guarantet
to all nationals the free right of emigration to othe•
countries ( vide article 76 of the Danzing Constitution
and article
112 of the Constitution of the German
Reich).
In my opinion, therefore, preventive
detention
does not come either within the express language ·01
within the spirit and intendment of clause ( 1) ( d) of
article 19 of the Constitution which deals with a
totally different aspect or form of civil liberty.
It
is true that by reason of preventive detention,
a man
may be prevented from exercising the right of
free movement within the territory of India as contem
plated
by article 19(1) (d) of the Constitution, but
that
is merely incidental to or consequential upon loss
of liberty resulting from the order of detention. Not
merely the right under
clause ( 1) ( d), but many of the
other rights which are enumerated under the other
sub-clauses of article 19 (1) may be lost or suspended
so long as preventive detention continues. Thus a
detenu
so long as he is
under detention may not be
able to practise any profession, or carry on any trade
or business which he might like
to do; but this would
not make the law providing for preventive detention a
legislation taking away or abridging the rights under
article
19
(1)' (g) of the Constitution and it would be.
absurd to suggest that in such cases the validity of the
legislation should
be tested in accordance with the re
quirement of clause (6) of article 19 and that the only
restrictions that could
be placed upon the person's free
exercise of trade and profession are those specified in
that
clause. Mr. Nambiar concedes that in such cases we
must look to the substance of the particular legislation
and the mere fact that it incidentally trenches
upon
some other right to which it does not directly
relate· is not material. He argues, however, that the
essence or substance of a legislation which provides
for preventive detention
is to take away. or curtail the
right
of free movements and
in fact, "pr.rsonal
liberty" according to him, connotes nothing else but
unrestricted right of locomotion.. ·'The learned counsel
refers in this connection to certain
passages in 13lack
stone's Commentaries on the Laws of England, where
19:;0
A. K. Gopalan
v.
Tlte Stat1
Mukherjea J.
A. Ir. Gopalan
v.
Tire State
Mukherjta J.
262 SUPREME COURT REPORTS [1950]
the author discusses what he calls the three absolute
rights inherent in
every Engiishman, namely, rights
of personal security, personal liberty and property. "Personal security'', according to Blackstone, consists
in a person's legal and uninterrupted enjoyment of his
life, his limb, his body,
his health and his reputation;
whereas
"personal liberty" consists in the power of
locomotion, of changing
of situation or moving one's
person
to whatsoever place one's own inclination may
direct without imprisonment or restraint unless
by due
course of law (
1
). It will be seen that Blackstone
uses the expression
"personal liberty" in a somewhat
narrow and restricted
sense. A much wider and larger
connotation .
is given to it by later writers on constitu
tional documents, particularly in America. In ordinary
language
"personal liberty" means liberty relating to
or concerning the person or body of the individual;
and "persooal liberty" in this .sense is the antithesis
of
physical restraint or coercion. According to Dicey,
who
is an acknowledged authority on the subject
"perso
nal liberty" means a personal right not to be subjected
to imprisonment, arrest or other physical coercion in
anv
manner that does not admit of legal justification (
1
).
It is, in my opinion, this negative right of not being
subjected
to any form of physical restraint or coercion
that constitutes the
essence of personal liberty and not
mere freedom to move
to any part of the Indian
territory.
ln this connection, it may not be irrelevant to
point out that it
was in accordance with the
recom·
mendation of the Drafting Committee that the word
"personal" was inserted before "liberty" in article 15
of the Constitution which now stands as article 21.
In the report of the Drafting Committee it is stated
that the word "liberty" should be qualified by the in
sertion of the word "personal" before it; otherwise,
it might be construed very widely
so as to include even
the freedoms already dealt with in article
13. Article
13, it should be noted, is the present article 19. If the
views of the Drafting Committee were accepted
by
th~
(1) Vide Chase's Blackstone, "th Edn .. pp. 68, 73.
(2) Vide Dicey on Constitutional Law, 9th Edn. pp. 207 208.
....
S.C.R .. SUPREME COURT REPORTS 263
Cons~ituent Assembly, the intention obviously was to
exclude the contents of article
19 from the concept of "personal liberty" as used in article 21. To what
extent the meaning of words
used in the Constitution
could
be discovered from reports of Drafting
Com
mittee or debates on the floor of the House is a matter
not quite
free from doubt and I may have to take up this
matter later on when discussing the meaning of the
material clause in article
21 of the Constitution. It
is enough to say at this stage that if the report of the
Drafting Committee
is an appropriate material. upon
which the interpretation of the words of the Constitu
tion could
be based, it certainly goes against the conten
tion
of the applicant and it shows that the words used
in article 19 ( 1) ( d) of the
Con~titution do not mean
the
same thing as the expression
"personal liberty"
in article 21 does. It is well known that the word
"liberty" standing by itself has been given a very
wide meaning
by the
Supreme Court of the United
States of America. It includes not only personal free
dom from physical restraint but the right to the free
.
use of one's own property and to enter into free con
tractual relations. In the Indian Constitution, on the
other hand, the expression
"personal liberty" has been
deliberately used to restrict it to freedom from physi
cal restraint of person
by incarceration or otherwise.
Apart from the report of the Drafting Committee, that
is the plain grammatical meaning of the expression as
I have
already explained. ·
It may not, I think, be quite accurate to state
that the operation of article
19 of the Constitution
is
limited to free citizens only and that the rights have
been described in ·that article on the presupposition
that the citizens are at liberty: The deprivation of
personal liberty may entail
as a consequence the loss
or abridgement of many of the rights described in
article 19, but that is because the nature
· of these rights
is such that free exercise of them is not possible in the
. absence of personal liberty. On the other hand _the
right to hold and dispose of property which is in sub
clause (£) of article 19 (1) and wbich is not dependent
on full
possession of
person:)! liberty_ by the owner may
1950
A. K. Gopalan
v.
TluStau
-Muklurjea ].
1950
A. K. Gopalan
v.
The State
Muk"4rjea J.
264 SUPREME COURT REPORTS [1950]
not be affected if the owner is imprisoned or detained.
Anyway, the point
is not of much importance for
pur
poses of the present discussion. The result is that, in
my opinion, the first contention raised by Mr. Nambiar
cannot succeed and it must
be held that we are not
entitled to examine the reasonableness or otherwise of
the Preventive Detention Act and
see whether it is
within the permissible bounds specified in clause (5)
of article
19.
I now come to the second point raised by Mr.
N"ambiar in support of the application; and upon this
point
we had arguments of a most elaborate nature
addressed to
us by the learned counsel on both sides,
displaying a considerable amount of learning and
re
search. The point, however, is a short one and turns
upon the interpretation
to be put upon article 21 of
the Constitution, which
lays down that
"no person
shall
be deprived
o_f his ........ personal liberty, except
according
to procedure established by
law." On a
plain reading
of the article the meaning seems to be
that
you cannot deprive a man of his personal liberty,
unless
you follow and act according to the law which
provides for deprivation
of such liberty. The
expres
sion "procedure" means the manner and form of enfor
cing the law. In my opinion, it cannot be disputed
that ,in order that there may be a legally established
proced~re, the law which establishes it must be a valid
and lawful law which the legislature
is competent to
enact in accordance with article
245 of the
Constitu
tion and the particular items in the legislative lists
which it relates to. It
is also not disputed that such
law must not offend against the fundamental rights
which are declared in
Part III of the Constitution.
The position taken up
by the learned Attorney-General
is that as in the present case there is no doubt about
the competency of that Parliament to enact the law
relating to preventive detention which
is fully covered
by Item 9 of List I, and Item 3 of List III, and as no
question
of the law being reasonable or otherwise arises
for consideration
by reason of the fact that article 19
( 1) ( d) is not attracted to this case, the law must be held
to
be a valid piece of legislation and if the procedure
S.C.R. SUP.REME COURT REPORTS 265
laid down by it has been adhered to, the validity
of the detention cannot possibly be challenged. His
further argument
is that article 22 specifically
pro
vides for preventive detention and lays down fully
what the requirements
of a legislation on the subject
should
be. As the impugned Act conforms to the
requirements
of article 22, no further question of its
validity
under article 21 of the Constitution at all arises.
The latter aspect of his arguments, I will deal with
later
on.
So far as the main argument is concerned,
the position taken up
bv Mr. Nambiar is that article 21
refers to procedure only and not to substantive
law; the procedure, however, must
be one which 1s
established by law. The expression
"law" m
this context
does not mean or signify, according to
the learned counsel, any particular law enacted
by the legislature
in conformity with the re
quirements of the Constitution or otherwise
possessing a binding authority. It referes to law in the
abstract
or general sense-in the sense of jus and not
lex-and meaning thereby the legal principles or
fundamental
rules that lie at the root of every system
of positive law including our own, and the authority
of which is acknowledged in the jurisprudence of all
civilised countries. It is argued that if the word
"law" is interpreted in the seme of any State-made
law, article
21 could not rank as a fundamental right
imposing a check or limitation on the legislative
authority
of the Government. It will be always com
petent to the legislature to pass a law laying down
a thoroughly arbitrary and irrational procedure
op
posed to all elementary principles of justice and fair
ness and the people would have no protection
whatso
ever, provided such procedure was scrupulously ad
hered
to. In support of this argument the learned
counsel has relied upon a large number of American
cases, where-the
Supreme Court of America applied
the doctrine
of
"due process of law" as it appears in
the American Constitution for the purpose of invalidat
ing various legislative enactments which appeared to
that Court to be capricious and arbitrary and opposed
to the 'fundamental principles of law.
1950
A. K. Gopalat1
v.
The Stale
Mukherjea J.
1950
.4. K. Gopalan
.v.
The State
Mukherjea J.
266 SUPREME COURT REPORTS (1950)
It may be noted here that in the original draft of
the Indian Constitution the words used in article 15
(which now stands as article 21) were "in accordance
with due process of law". The Drafting Committee
recommended that in place of the "due process"
clause, the. expression "according to procedure estab
lished by law" should be substituted. The present
article
21 seems to have been modelled on article 31 ot
the
Japanese Constitution, where the language
emplo
yed is "no person shall be deprived of life or liberty,
nor shall
any other criminal penalty be imposed,
excep<
according to procedure established by law" Mr.
N ambiar argues that the expression "procedure
established by law" in article 21 of the Constitution·
bears the same meaning as the "due process" clause
does in America, restricted only to this extent, viz.,
that it is limited to matters of procedure and does
not extend to questions of substantive law. To appre
ciate the arguments that have been advanced for and
against this
view and to fix the precise meaning that
is to be given to this clause in article 21, it would be
necessary to discuss briefly the conception of the
doctrine
of
"due process of law" as it appears in the
American Constitution and the
wav in which it has
been developed and applied
by the
· Supreme Court of
America.
In the history of Anglo-American law, the
concept
of
"due process of law" or what is . considered
to
be its equivalent
"law of the land" traces its lineage
far back into
the beginning of the 13th Century
A.O.
The famous 39th chapter of· the Magna Charta provides
that "no free man shall be taken or imprisoned or
di;seized,
or outlawed or exiled or in any way
des
troyed; nor shall we go upon him nor send upon him
but
by the lawful judgment of his peers and by the
law of the
land." Magna Charta as a charter of English
liberty
was confirmcJ by successive
Engiist1 monarchs
and it is in one of these confirmations (28 Ed. III,
Chap. 3) · known as "Statute of Westminster of the
liberties
of
London", that the expression "due process
of l~w" for the first time appears. Neither of these
phrases was explained or d~fined in any of the
S.C.R. SUPREME COURT REPORTS 267
documents, but on the authority of Sir Edward Coke it
may
be said that both the expressions have the same
meaning. In substance, they guaranteed 'that persons
should not
be imprisoned without proper
indict
ment and trial by peers, and that property should not
be seized except in proceedings conducted in due form
in which the owner or the persons in
possession should
have an opportunity to show cause why seizure should
not
be made (' ). These concepts came into America
as part of the rights of Englishmen claimed by the
colonists. The expression in one form or other
appear
ed in some of the earlier State Constitutions and
the exact phrase "due process of law" came to be a
part
of the Federal Constitution by
the Fifth Amend
ment which was adopted in 1791 and which provided
that "no person shall. . . . be deprived of life, liberty or
property without due process of law." It was imposed
upon the State Constitution in almost identieal lang
uage by the Fourteenth Amendment in the year 1868.
What "due process of law" exactly means 1s
difficult to define even at the present day. The Con
stitution contains no description of what is "dur.
process of law" nor does it declare the principles by
application of which it could be ascertained. In
Twining v. New Jersey ( ~) the Court observed:
"Few phrases in the law are so elusive of exact
apprehension
as this. This Court has always declined
to give a comprehensive
<lefinition of it and has
preferred that its
foil meaning should be gradually
ascertained
by the process of inclusion and exclusion
in the course of the decisions of
cases as they
arise."
It is clear, however, that the requirement of "due
process of law" in the United States Constitution
imposes a limitation upon all the powers of Govern
ment, legislative as well as executive and judicial.
Applied in England only
as protection against
execu
tive usurpation and royal tyranny, in America it
became a bulwark against arbitrary legislation
(a ). (1) Vide Willoughby on the Constitution of the United States,Vol.IP, p.1087.
(2) 2 ll u. s. 79.
(3) Vide Hurtado v. People of California,' 110 U.S. 516 at p. 532.
1950
.it. K. GoJialan
v.
T"4Stau
Mukhnjea J.
19~0
A. X. Gopalan
v.
The Staie
Mukhnjea J.
268 SUPREME COURT REPORTS [1950]
As it is a restraint upon the legislative power and the
obje~t. is to protect citizens against arbitrary and
capnc10us legislation, it is not within the competence
of the Congress to make
any process a
"due process of
law" by its mere will; for that would make the
limitation quite nugatory.
As laid down in the case
cited above,
"it is not any act legislative in form that
is law; law is something more than mere will exerted
as an act of power." It means and signifies the
general law of the land, the settled and abiding
principles which inhere in the Constitution and
lie at
the root of the entire legal
system. To quote the
words
of Daniel Webster in a famous argument before
_ the Supreme Court (
1
) :
"By the law of the land is most clearly intended
the general
law-a
faw which hears before it condemns,
which proceeds upon enquiry and renders judgment
only after trial. The meaning is that every citizen
shall hold his life, liberty, property and immunities
under the protection of the general rules which govern society." ·
What these principles of general law are nobody
has ever attempted to enumerate.
To a large extent
they are the principles of English common law and
modes of judicial proceedings obtaining in England, the
traditions
of which came along with the settlers in
America.
Some Judges seem to have alluded to the
principles of natural justice in ·~xplaining what is meant
by general law or "law of the lanti", though the
doctrine of a law of nature did not obtain a firm footing
at any time.
In Wynehamer v. New
York.(' ), Justice
Hubbard declared himself opposed
to the judiciary
attempting to
set bounds to the legislative authority or
declaring a statute invalid upon
any fanciful theory of
higher law or first principles of natural right outside
of the Constitution. Coke's dictum
of a supreme
fundamental law which obviously referred to principles
of English common law certainly did
exercise consider
able influence upon the minds of the American
Judges ( ') -and there are observations in some cases
( 1) DartTWuth College case, 4 Wheaton p. S 1 R. (2) 13 N. Y. 379.
(3) Willis on Constitutional Law, p. 647.
S.C.R. SUPREME COURT REPORTS 269
which go to suggest that the principles of natural
justice were regarded
as identical with those of common
law, except where the rules of common law were
not considered to
be of fundamental character or were
not acted upon
as being unsuited to the progress of
time or conditions of the American
Society (
1
). In
the case of Loan Association v. Topeka(
9
), it was ob
served that there are limitations upon powers of Go
vernment which grow out of the essential nature of
free Governments-implied reservations of individual
rights without which the
social compact could not
exist and which are respected
by all Governments
en
titled to the name. What is hinted at, is undoubtedly
the old idea of a
social compact under which political
institutions were supposed
to come into being; and
the suggestion
is that when the Americans formed
themsdves into a
State by surrendering a portion of
their rights which they possessed at that time and
which presumably they inherited from their English
ancestors, there were certain rights of a fundamental
character still reserved
by them which no
State could
possibly take away.
As has been said already,
"due process of law"
has never been defined by Judges or Jurists in A!11erica.
The best description of the expression would be to say
that it means in each particular case such an exercise of
the powers of Government as the settled maxims of
law permit and sanction, and under such safeguards for
the protection of individual rights
as those maxims
prescribe for the
class of cases to which the one in
question belongs (
8
).
In the actual application of the clause relating
to
"due process of law" to particular cases the decisions
of the Supreme Court of America present certain
peculiar and unusual features and there
is total lack
of uniformity and consistency in them. Ever
since
the appearance of the clause in the Fifth Amendment
and down to the middle of the 19th century, it
was
interpreted as a restriction on procedure, and
particu
larly the judicial procedure; by which the Government
(1) Cooley's Constitutional Limitations, Vol. II, pp. 739.40.
(2) 20 Wall, p. 655. (') Co.lley's Constitutional Limitations, Vol. 11, p,741.
19~0
A. K. Gop:dan
v.
Tiu State
Mul.herjea J,
1950
A.. K. Gopaian
v.
Tiil Stau
Mukhnj1aJ.
270 SUPREME COURT REPORTS [1950]
exercises its powers. Principally it related to the
procedure
by which
person:; were tried for crimes
and guaranteed to accused persons the right
to have
a fair trial in compliance with well established criminal
proceedings. The same principle applied to the
machinery or proceeding
hy which property rights
were adjudicated and
by
which the powers of eminent
domain and taxation were exercised. During this
period it
was not considered to have any bearing on
.
substantial law at all.
Change, however, came
in and the period that
followed witnessed a growing recognition of the
doctrine that substantive rights of life, liberty and
property are protected
by the requirement of due
process of law against any deprivation attempted
at
by legislative authority; and the political and
economic conditions of
the country-accounted to a
great extent for this change iin judicial outlook. The
close of the civil war brought in a new period of
industrial development leading to accumulation of
large capital in the hands of industrialists and the emer
gence of a definite labouring class. New and import
ant problems arose which the States attempted to
deal with by various laws and regulations. Some of
them
seem to have been ill-advised and arbitrary and
there
was a clamour
amon,gst businessmen against
what they described
as legisla.tive encroachments upon
their vested private rights. The Supreme
Court now
began to
use the rule of due process of law
as a direct
restrain upon substantial legislation. and
any
. statute
or administrative
act, which imposed a limitation
upon rights
of private property or free contractual
relations between the
employe.rs and employed, was
invalidated
as not being in accordance with due
pro
cess of law (
1
). What constituted a legitimate exercise
of the powers of legislation now came to be a judicial
question and• no statute was valid unless it was
reasonable in the opinion of the Court. The question
of reasonableness obviously depends largely upon the
ideas of particular individuals and the Courts or
r4ther
the majority of Judges thus marshalled their own
(1) Vidc Encyclopaedia of the Social Sciences, Vol. V, pp. 265-67.
-
<
S.C.R. SUPREME COURT REPORTS 271
views of social and economic policy in deciding the
reasonableness or otherwise of the statutes.
In the
language
of a well-known writer, the Courts became a
kind of negative third chamber both to the State
Legislatures and the Congress(
1
). To what extent the
Courts laid stress upon the doctrine of freedom of
contract
is illustrated in tht case of Lochner v. New
York( t ). In that case the question arose as to the
validity of a labour legislation which prohibited the
employ!llent of persons in certain fields of activity for
more than 60 hours a week. Lochner was indicated for
violating this law by employing a man in his Biscuit
and Cake Factory who
was to work more than
60
hours in a week. The Court by a majority of 5 to 4
held the statute to
be invalid on the ground that the "right to· purchase or sell labour is part of the liberty
protected
by the Amendment unless there are circum
stances which excluded the
right." That decision has
been criticized not merely on the ground that it rested
upon an economic theory which
to quote the
language
of Holmes J., who was one of the dissentient Judges
"was not entertained by a large part of the country;"
but it ignored that such regulation was necessary for
protecting the health of the employees, that
is to say,
it was in substance an exercise of police powers with
a view to accomplish
some object of public interest(
3
).
It may be mentioned here that while the due
process doctrine
was being extended by judicial
pronouncements, the doctrine of police power which
operates to some extent
as a check upon the
"due"
process" clause was simultan~ously gaining impor
tance. Roughly speaking, police power may be defined
as
"a right of a Government to regulate the conduct
of its people in the interests of public safety, health,
morals anJ convenience. Under this authority, a
Government may make regulations concerning the
safety of building, the regulation of traffic, the report
ing of incurable diseases, the inspection of markets,
the sanitation of factories, the hours of work for women
(1) Vi de Kelley and Harbinson on the American Constitution, p. 539.
(2) 198 u s. 45.
(3) Vide Willoughby on the Constitution ·or th~ U.S., Vol. Ill, p, 171.
1950
A. K. Gopalan
v.
The State
Mukhtrjea J.
•
1950
A. K. Gopalan
v. '
T/1• Stol8
Mu!Wrjea ].
272 SUPREME COURT REPORTS [1950]
and children, the sale of intoxicants and such other
matters"( '). Here again, the· extent to which the
Court can interfere with exercise
of police powers by
the
State has not been clearly defined by judicial
pronouncements. The doctrine generally accepted
is
that although any enactment by legislature under the
guise. of exercise of police powers would not necessarily
be constitutional, yet if the regulation has a direct
relation
to its proposed object which is the
accomplish
ment of some legitimate public purpose, the wisdom
or policy of the legislation should not
be examined by
the Courts. The rule is not without its exceptions but
it
is not necessary to elaborate them for our
p~esent
purpose( • ). The later decisions, though not quite
uniform, reveal the growing influence of the police
power doctrine. It may
be said that since 1936 there
has been a definite swing of the judicial pendulum in
the other direction. In the
case of West
Coast Hotel
Company v. Parrish (3 ) which related to the legality
of a Statute
for regulating the minimum wages of
women, Chief Justice Hughes, who delivered the
opinion of the Court, observed
as follows :
"In each case the violation alleged by those
attacking minimum wage regulation for women
is
deprivation of freedom of contract .. , What is the
free
dom? The Constitution does not speak of freedom of
contract. It speaks of liberty and prohibits the
deprivation of liberty without due process of· law. In
prohibiting that deprivation the Constitution• does not
recognise an absolute and uncontrollable liberty.
Liberty in each of its phases has its history and conno
tation. But the liberty safeguarded is liberty in a
social organisation which requires the protection of law
against tfi.e evils which menace the health, safety,
morals and welfare of the people."
In the succeeding ·years the indications certainly
are that the requirement of due process of law
as a
sub
stantial restriction on Government control is becoming
a thing of the past and the rule is being restricted more
(I) Vide Munroe_:The Government of the U.S., p. 522.
(2) Vidc Willoughby on the Constitution of the U.S., Vol. I.II, pp. 1709-70.
(3) 300 u. s. 379·
'
...
S.C.R. SUPREME COURT REPORTS 273
and more to its original procedural meaning. What
will happen in future cannot certainly
be predicted at
this stage (
1
. ) •
Thus it will be seen that the "due process" clause
in the American Constitution came to be used as
a potent instrument in the hands of the judiciary
for exercising control over social legislation. The judi
cial pronouncements
are not guided by any uniform
principle, and the economic and
social ideas of the
Judges, who form the majority in the
Supreme Court
for the time being, constitute, so to say, the yard-stick
for measuring the · reasonableness or otherwise of any
enactment passed during that period. No writer of
American Constitutional Law
has
been. able uptil now
to
evolve anything like a definite and consistent set of
principles out of the large
mass of cases, where the
doctrine of
"due process of law" has been invoked or
applied.
It
is against this background that we must consi
der how the constitution-makers in India dealt with
and gave finat shape to the provisions, on an analogous
subject in the Indian Constitution. In the Draft Con
stitution, article 15 (which now stands as article 21)
was apparently framed on the basis of the 5th and 14th
Amendments in the American Constitution. The
article
was worded as follows.: "No person shall be deprived of his life or liberty
without due process of law."
The Drafting Committee in their report recom
mended a change in the language of this article. The
first suggestion
was that the word
"personal" shall
be inserted before the word "liberty'.' and· the seco11d
was that the expression "in accordance with procedtite
established
by
law" shall be substituted for "due p.ro
c~ss of law", the reason given being that the former
expression was more specific.
The learned AttorneycGeneral has placed before
us the debates in the Constituent Assembly centering
round the adoption of this recommendation of the
Drafting Committee and he has referred
us to the
(I) Swisher-The Growth of Conatitutionat power in the United States,
pp. 123-25.
1950
A. K. Copa/an
v.
Thi Stat1
Muklrerjea J.
19:i0
A. K. Gopalan
v.
TM S
1
at1
274 SUPREME COURT REPORTS [1950]
speeches of several members of the Assembly who
played
an important part in the shaping of the Con
st1tut1on. As an aid to discover the meaning of the
words in a Constitution, these debates are of doubtful value. "Resort can be had to them", says Willoughby,
"with great caution and only when latent ambiguities
are
to be solved. The
pr~ceedings may be of some
value when they clearly point out the purpose of the
provmon. But when the question
is of abstract mean
ing, it will
be difficult to derive from this source
much material assistance in interpretation" (
1
)
•
The learned Attorney-General concedes that these
debates are not admissible
to
. explain the meaning of
the words used and he wanted
to use them only for
the purpose
of showing that the Constituent Assembly
when they finally adopted the recommendation of the
Drafting Committee, were fully · aware of the implica
tions of the differences between the old form
of express
ion and the new. In
my opinion, in interpreting the
Constitution, it will
be better
· if such extdnsic evidence
is left out of account. In matters like this, different
members act upon different impulses and from different
motives and it
is quite possible that some members
accepted certain words in a particular
sense, while
others took them in a different light.
The report of the
Dra'fting Committee, however,
has been relied upon by both 1X1rties and there are
decided authorities in which a higher value
has been
attached
to such reports than the debates on the floor
of the House. In Caminetti v.
United States(' ), it is
said that reports to Congress accompanying the in
troduction of proposed law may aid the Courts in
reaching the true meaning of the legislation in
case of
doubtful interpretation. The report
is extremely short.
It simply
says that the reason for the suggested change
is
t~ make the thing more specific.
I have no doubt in my· mind that if the "due
process" clause which appeared in the original draft
was finally retained by the Constituent Assembly, it
could
be safely
prc<umed that the framers of the Indian
(1) Vide Willou~hby·on tbt' Constitution of the United States, p. 64.
(2) 242 u. s. 470.
S.C.R. SUPREME COURT REPORTS 275
Constitution wanted that expression to bear the· same
sense as it does in America. But when that form· was
abandoned and another was deliberately substituted m
its. place, it is not possible to say that in spite of the
difference in the language and expression, they should
mean the same thing and convey the same idea. Mr.
Nambiar's-contention
is that in view of the somewhat
uncertain and fluidic state
of law as prevails in
America on the subject, the Drafting Committee
recommended an alteration for the purpose of
making the language more specific
· and he would
have us. hold that it was made specific in this
way, namely, that instead of being extended over
the whole ·sphere of law, substantive as well as
adjective, it was limited to procedural law
merely. That
is the reason, he says, why instead of
the
word "process" the expression "procedure" was
adopted, but the world "law" means the same thing as
it does in the "due process" clause in America and
refers not to any State-t;nade law but to the fundament
:i.l principles which are inherent in the legal system
and are based upon the immutable doctrines
of natur
al justice.
Attractive though this argument might at first
sight appear, I
_do not think that it would be possible
to aci,:ept it as sound. In the first place, it is quite
clear that the framers of the Indi:)n Constitution did
not desire to introduce into our svstem the elements of un
certainty, vagueness and changeability that
have grown
round the
"due process" doctrine in America. They
wanted to make the provision dear. definite and precise
and deliberately chost:: the words "procedure established
by law", as in their opinion no doubts would ordinarily
arise about the meaning of this expression. The indefi
niteness in the application of the "due process"
doctrine in America has nothing to do with the distinc
tion between substantive and procedural law. The
uncertainty and elasticity are in the doctrine itself
which
is a sort of hidden mine, the contents of which
nobody knows and
is merely revealed from time to
time
. to the judicial conscience of the Judges. This
theory,
the
· Indian Consdtution deliberately discarded
13-3 S. C. Jndia/58 ·
1950
A. K.Gopal""
v.
The State
Mukheijea J
1950
A. K. Gopalan
v.
Tht State
276 SUPREME COURT REPORTS [1950]
and that is why they substituted a different form in its
place which, according to them, was more specific. In
the second place, it appears to me that when the same
words are not used, it will
be against the ordinary
canons
of construction to interpret a provision in our
Constitution in accordance with the interpretation put
upon a somewhat analogous provision in the
Constitu
tion of another country, where not only the language is
different, but the entire political conditions and consti
tutional set-up are dissimilar. · In the Supreme Court
of America stress has been laid uniformly upon the
word "due" which occurs before and qualifies the
expression "process of law". "Due" means "what
is iust and proper" according to the circumstances of
a particular
case. It is this word which introduces the
variable element in the application of the doctrine; for
what
is reasonable in one set of circumstances may not
be so in another and a different set. In the Indian
Constitution the word
"due'" has been deliber
ately omitted and this shows clearly thn the Comtitu
tion-makers of India had no in-.ention of introducing
the American doctrine. The word "established"
ordinarily means "fixed or laid down" and if ·"law"
means, as Mr. Nambiar contends, not any particular
piece of law but the indefinite and indefinable prin
ciples of natural justice which underlie positive systems
of law, it would qot at all be appropriate to use the
expressi.an "established", for natural law or natural
justice cannot establish anything like a definite proce
dure.
It
does not appear that in any part of the
Consti
tution the word "law" has been used in the sense of
"general law" connoting what has been described as
the principles of natural justice outside the realm of
positive law. On the other hand, the provision of
article 31 of the Constitution, which appears in the
chapter on Fundamental Rights, makes it clear that
the word "law" is equivalent to State-ma. le law and
to deprive a person of
his property, the authority
rot
sanction of such law is necessary. As has been said
already, the provision of article
21 ot the Indian
Constitution reproduces,
save in one particular, the
S.C.R. · SUPREME COURT REPORTS
language of article 31 of the Japanese Constitution and
it
is quite clear from the scheme and provisions of the
Japanese Constitution that in speaking of law it refers
to law
passed or recognised as such by the
State. In
the Irish Constitution also, there is provision in almost
similar language which convi:ys the same idea. Article
40 (4) (1) provides that "no citizen shall be deprived
of
his personal liberty save in accordance with
law,"
and by law is certainly meant the law of the State.
Possibly the strongest_ argument in support of
Mr. Nambiar's contention is that if law is taken to
mean State-made law, then article 21 would not be a
restriction on legislation at all. No question of passing
any law abridging the right conferred
by this article
could
possibly arise and article 13(2) of the Constitu
tion would
have no operation so far as this provision
is concerned. To quote the words of an American
Judge it would sound
very much like the Constitution
speaking to the legislature that the later could not
infringe the right created
by these articles unless it
chose to do
so(1 ) .
Apparently this
is a plausible argument but it
must
be admitted that we are not concerned with the
policy of the Cbnstitution. The fundamental rights
not merely impose limitations upon the legislature,
but they
serve as checks on the exercise of execunve
powers
as well, and in the matter of depriving a man
of his personal liberty, checks on the high-handedness
of the executive in the shape of preventing them from
taking any step, which
is not in accordance with law,
could certainly rank
as fundamental rights. In the
Constitutions of
various· other countries, the provisions
relating
to protection of personal liberty are couched
very .much in the same language as in article 21. It is
all a question of policy as to whether the legislature or
the
judiciary would have the final say in such matters
and the Constitution-makers of India deliberately
decided
to place these powers in the hands of the
legis
lature. Article 31 of the Japanese Constitution, upon
which article 21 'of our Constitution is modelled, also
(I) Vide per Bronson]. in Taylorv. Poru 4Hill 140.
1950.
..4. K. Gopalan
v.
The Stall
Mu/c/wrfa11 J.
1950
A. K. Gopalan
v.
The Statt
Mukherjea J_.
278 SUPREME COURT REPORTS (1950]
proceeds upon the same principle. The Japanese
Constitution, it
is to be noted, guarantees at the same
time other rights in regard
to arrest, detention and
access to Court which might serve as checks on legisla
tive
authority as well. Thus article 32 provides :
"No person shall be denied the right of access
to the Courts."
Article
34 lays down : "No person shall be arrested or detained without
being at once informed of the charges against him or
without the immediate privilege
of counsel, nor shall
-he be detained without adequate cause; and upon
demand of any person, such
cause must be immediate
ly shown in open Court in his presence and in the
presence of
his
counsel."
It was probably on the analogy of article 3.4 of the
Japanese Constitution that the first two clauses. of
article
22 of the Indian Constitution were framed.
Article
22 was not in the original Draft Constitution at
all; and after the
"due process" clause was discarded
by the Constituent Assembly and the present form was
substituted in its place in article 21, article 22 was
introduced with a
view to provide for some sort of
clieck in matters of arrest and detention and the
protection it affords places limitations upon the
autho
rity of the legislature as well. These protections indeed
have been denied to
cases of preventive detention but
that again
is a question of policy which does not con
cern us as a Court. My conclusion, therefore, is that in
article
21
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 princi
ples of natural justice. The
articl~ presupposes that
the law is a valid and binding law under the provisions
of the Constitution having regard to the competency
.of the legislature and the !"tbject it relates to and does
not infringe any of the fundamental rights which the
Constitution provides for.
In the view tha~ I have taken, the question raised
by Mr. Nambiar that the Preventive Detention Act
is
invalid, bv reason of the fact that the procedure it lays
._
(
•
S.C.R. SUPREME COURT REPORTS 279
down is not in conformity with the rules of natural
justice, does not fall for consideration.
It is enough.
in my opinion, if the law
is a valid law which the
legislature
is competent to pass and which does not
transgress any of the fundamental rights declared m
Part III of the Constitution.
It is also unnecessary to
enter into a discussion on the question raised
by the
learned Attorney-General
as to whether article 22 by
itself
is
a self-containe<,l Code with regard to the law of
P.reventive Detention and whether or not the procedure
it
lays down is exhaustive. Even if the procedure is
not exhaustive,
,it is not permissible to supplement it
by application of the rules of natural justice. On the
third point raised
by Mr. Nambiar, the only question,
therefore, which requires consideration
is whether sec
tion 12 of the Preventive Detention Act is ultra vires of
the Constitution
by reason of its being not in conformity
with the provision of article
22 (7) (a). Article 22 (7) (a) of
the Constitution empowers the Parliament
to prescribe
the circumstances under which, and the
class or classes
of cases in which, a person may be detained for a period
lo
·1ger 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). Section
12 of the
Pre
ventive Detention Act which purports to be an enact
ment in pursuance of article
22(7) (a) of the Constitu
tion provides
as follows :
" ( 1) Any person detained in any of the fol.lowing
class·~s of cases or under any of the following circum
stances 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
<late
of Iris detention, namely, where such person has
been detained with 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."
It will be noticed that there are altogether six
1950
A. K. Gopalan
v.
The State
Mukhtrjea ].
1950
A. IC Gopalan
v.
Thi Stale
Mukhldta J.
280 SUPREME COURT REPORTS [1950]
heads or subjects in the two Items in the legislative
lists, namely, item No.
9 of List I and Item No. 3 of
List III which deal with preventive detention. Item
No. 9 of List I mentions reasons connected with defence,
foreign affairs and security of India, while Item No.
3
of List III speaks of reasons connected with
security·
of a State, the maintenance of public order and the
maintenance of supplies and
services essential to the co!!lmunity. With the exception of the last head, all
the remaining
five have been listed in section 12 of
the Preventive Detention Act and they have
been
mentioned both as cir.cumstances and classes of cases
in which detention for more than three months would be
permissible without the opinion of any advisory board.
Mr. Nambiar's argument
is that the mentioning
of
five out of the six legislative heads in section 12 does
not amount to prescribing the circumstances under
which, or the
classes of cases in which, a person could
be
detained· for more than three months as contem
plated
by article 22(7) (a). It is also contended that
in view
of the fact that the two items
"circumstances"
and "classes" are separated by the conjunction
"and", what the Constitution really contemplated
was that both these items should be specified and a
statement or specification of any one of them would
not
be a proper compliance with the provisions of the
clause. It
is further pointed out that the mentioning
of the same matters as
"circumstances" or "classes"
is not warranted by article 22(7) of the Constitution
and
is altogether illogical and unsound.
I must
say that section 12 has been drafted in a
rather clumsy manner and certainly it could have been
framed in a better and more proper way.
Under
article 22(7) (a), the Parliament may specify the
circumstances under which, and the
classes of cases in
which, the necessity of placing the
cases of detention
for examination
by the advisory board could be
dispensed with. By
"classes of cases" we mean
certain determinable group, the ifi\lividlials comprised
in each group being related to one another in a parti
cular way which constitutes the determining factor of
that group. "Circumstances'· on the other hand
S.C.R. SUPREME COURT REPORTS 281
connote situations or conditions which are external to
the persons <;oncerned. Preventive detention can be
provided for by law for reasons connected with six
different matters specified in the relevant items in the
legislative lists, apd whatever the reasons might be,
there is a provision s:ontained in article 22 ( 4) (a) which
lays down that detention for 11).ore than three months
could not
be permitted except with the sanction of the
advisory board. An alternative however has been
provided for
by clause (b) and Parliament has been
given the option to take
away the protection given by
clause (a) and specify the circumstances and the cases
when this rule will not apply. I am extremely
doubt
ful whether the classification of cases made by Parlia
ment in section 12 of the Act really fulfils the object
which the Constitution had in
view. The basis of
classification has been the apprehended
acts of the
persons detained described with reference
.to the
general heads mentioned ih the items in the legislative
lists as said above. Five out of the six heads have
been taken out and labelled as classes of cases to which
the protection
of clause ( 4) (a) of the article would not
be available. It is against common sense that
ali
forms of activities connected with these five items are
equally dangerous and merit the same drastic treat
ment. The descriptions are very general and there
may
be acts
· of various degrees of intensity and
danger under each
one of these heads.
Although I do not think that section
12 has been
framed with due regard
to the object which the
Consti
tution had in view. ·I am unable to say that the sec
tion is invalid as being ultra vires the Constitution.
The Constitution
has given unfettered powers to
Parliament in the matter of making the classifications
and it
is open to the Parliament to adopt any method
or principle
as it likes. If it chose the principle
implied in the enumeration of subjects under
·the rele
vant legislative heads, it cannot be said that Parlia
ment has exceeded its powers.
I am
also unable to hold that both
"circumst:mi:es"
as well as "clas1es" have to be prescribed in order to
1950
A. K. Gopalan
v.
Thi Stale
Mukhnjea J.
1950
A. K. Gopalan
v.
The St.u
Mukherjea ].
282 SUPREME COURT REPORTS [1950]
comply with the requirement of sub-clause (a) of article
22(7).
The sub-clause (a) of the article lays down a
purely enabling provision and Parliament,
if it so
chooses, may pass any legislation in terms of the same.
Where an optional power
is conferred on certain
authority
to perform two separate acts, ordinarily it
would not
be obligatory upon it to perform both; it
may do either if it so likes. Here the classes have been
specified and the
classes apparently are composed of
persons who are detained for the purpose of preventing
them from committing certain apprehended acts. I am
extremely doubtful whether
the classes themselves
could
be described as
"circumstances" as they purport
to have been done in the section. "Circumstances"
would ordinarily refer to conditions like war, rebellion,
communal disturbances and things like that, under
which extra precaution might
be necessary and the
detention
of suspected persons beyond the period
·of
three months without the sanction of the advisory
board might
be justified. It is said that the likelihood
of these persons committing the particular
acts which
are specified might constitute
"circumstances." In my
opinion, that
is not a plain and sensible interpretation.
But whatver that
may be, as I am of opinion that it
is not obligatory on Parliament to prescribe both the
circumstances and the
classes of cases, I am unable
to hold that section
12 is ultra vires the Constitution
because the circumstances are not mentioned. As I
have said at the beginning, the draft
is rather clumsy
and I do not know why Parliament
used the word
"or"
when in the Constitution itself the word "and" has
been used.
In the fourth and last point raised
by Mr. Nambiar
the principal question for consideration
is the validity
of section
14 of the Preventive Detention Act.
Sub
section (1) of section 14 prohibits any Court from
allowing
ariy statement to be made or any evidence
to be given before it of the substance of any communi
cation made under section 7
of the grounds on which
, detention order has been made against any person
or
anv representation made by him against such order." It further provides that no Court shall be
s.c.R. SUPREME COURT REPORTS 283
entitled to require any public officer to produce before
it or
to disclose the substance of any such
communica
tion or representation made or the proceedings of an
advisory board or that part Qf the report of an
advisory board which is confidential. SUb-section (2)
further provides that .
"It shall' be an offence punishable with imprison
ment for a 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 ihatter 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."
The provisions of this section are obviously of a
most drastic character. It imposes a ban on the
Court and prevents it from allowing any statement to
be made or any evidence produced before it of the
substance of any communication made to the detenu
apprising him of the grounds upon which the detention
order
was made. The Court is also incompetent to
look into the proceedings before the advisory board or
the report of the latter which
is confidential. Further
the disclosure of such materials has been made a
criminal offence punishable with imprisonment for a
term which
may extend
to one year. Mr. Nambiar's
contention· is that these restrictions render utterly
nugatory the provisions of article
32 of the
Constitu
tion v.:hich guarantees to every person the right to
move this Court by appropriate proceedings for the
enforcement of the rights conferred
by
Part III of the
Constitution. It
is not disputed that the petitioner
has the right of moving this Court for a
writ of habeas
.corpus, and unless the Court is in a position to look
into and examine the groun9s upon which the
detention order has been made, it
is impossible for
it
to come to any decision on the point and pass a
proprr judgment. Though th-: right to move this
1950
A. K. Gopalan
v.
The Su•
Mukbtrjea ].
1950
A. K. Gopalan
v.
TM Stal4
Mu/Wrjeo J.
284 SUPREME COURT REPORTS [1950]
Court is not formally taken away, the entire proceed
ings are rendered ineffective and altogether illusory.
On behalf of the respondent, it is pointed out that
article
32 guarantees only the right to constitutional
remedy for enforcement of the rights which are
declared
by the Constitution. If there are no rights
under the Constitution, guaranteed to a person
who
is detained under any law of preventive deten
tion, no question of enforcing such rights
by
an approach to this
Court at all arises. I do not
think that this argument proceeds on a sound
basis; and in
my opinion, section 14 does . take
away and materially curtails
some
of the fundamental
rights which are guaranteed
by the
Constitution itself.
Article
22, clause (5), of the Constitution lays down
as
a fundamental right that when a person is detained
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.
Under clause (6),
the authority need not
disclose such facts as it con
siders
to be against public interest to disclose. But so
far as the grounds are concerned, the disclosure is not
prohibited under any circumstance.
It is also incum
bent upon the detaining authority
to afford a detenu the
earliest opportunity
of making a representation against
the detention order. It has been held in several
cases,
and in my opinion quite rightly, that if the grounds
supplied
to a detained
person are of such a vague and
indefinite character that · no proper and adeq,uatr.
representation could be made in reply to the same,
that itself would
be an infraction of the right which
has been given to the detenu under law. In my opi
nion, it would not
be possible for the Court to decide
whether the provisions of article
22, clause (5), have
been duly complied with and the fundamental right
guaranteed
by it has been made available to the
detenu unless the grounds communicated to him under
the provisions of this article arc actually produced
before the Court. Apart from this, it
is also open to
the person detained to contend that the detention
S.C.R. SUPREME COURT REPORTS 285
order has been a mala fide exercise of power by the
detaining authority and that the grounds upon which
it
is based, are not proper or relevant grounds which
would justify detention under
the· provisions of the
law itself. These rights
of the detenu would for all
practical purposes
be rendered unenforceable if the
Court
is precluded from looking into the grounds which
have been supplied to him
und~r section 7 of the
Preventive Detention Act. In my opinion, section 14
of the Preventive Detention Act does materially affect
the fundamental rights declared under Part III of the
Constitution and for this reason it must
be held to be
illegal and ultra vires. It is not disputed, however,
that this section can
be severed from the rest of the
Act without affecting the other provisions of the Act
in
any way. The whole Act cannot, therefore, be held
to be ultra vires.
Mr. Nambiar has further argued that section 3
of the Act also contravenes the provisions of article 32
of the Constitution, for it makes satisfaction of the
particular authorities final in matters of preventive
detention and thereby prevents this Court .from
satisfying itself
as to the propriety of the detention
order. This contention cannot
succeed as no infraction
of any fundamental right
is involved in it. As has
been pointed out already, this Court cannot interfere
unless it
is proved that the power has been exercised
by the authorities in a mala fide manner or that
the grounds are not proper or relevant grounds which
justify detention. The provisions are undoubtedly
harsh, but
as they do not take away the rights under
articles
21 and 22 of the Constitution, they cannot be
held
to be illegal or ultra vires.
The result, therfore, is that, in my op1mon, the
Preventive Detentibn Act must
be declared to be intra
vires
the Constitution with the exception of section 14
which is held to be illegal and ultra vires. The
·
present petition, however, must stand disinised, though
it may
be open to the petitioner
~o make a fresh
application
if he so chooses and if the grounds that have
been supplied
to hiin under section 7 of the Act do
furnish adequate reasons for
making such application.
1950
A. K. Gopalan
v.
The S1ate
Mu!rherjea ].
1950
A. K. Gopalan
v.
Tiu StaU
Do.].
286 SUPREME COURT REPORTS [1950]
Das J.-I am likewise of opinion that this appli
cation should be dismissed.
The contention of learned counsel appearing in
support
of this application is that the provisions of
the
Preventive Detention Act, !950 (Act IV at 1950),
are extremely drastic and wholly unreasonable and
take
away or, in any event, considerably abridge the
fundamental rights conferred on the citizens
by the
provisions of
Part Ill of the Constitution and that
this Court should declare the Act wholly
void under
article 13(2) of the Constitution and
set the petitioner
at liberty.
It
is necessary to bear in mind the scope and
ambit
of the powers of the Court under the
Constitu
tion. The powers of the Court are not the same under
all Constitution~. In England Parliament is supreme
and there
is no limitation upon its legislative powers.
Therefore, a law duly made
by Parliament, cannot
be challenged in any Court. The English Courts have
to interpret and apply the law; they have no authority
to declare such a law illegal or unconstitutional.
By
the American Constitution the legislative power of
the
Union is vested in the Congress and in a sense the
Congress
is the supreme legislative power. But the
written Constitution of the
United States is supreme
above all the three limbs of Government and, there
fore, the law made by the Congress, in order to be valid,
must
be in conformity with the provisions of the
Constitution.
If it is not, the
Supreme Court will
intervene and declare that law to
be unconstitutional
and
void. As will be seen more fully
hereaf1er, the
Supreme Court of the United States, under the leader
ship of Chief Justice Marshall, assumed the power to
declare
any law unconstitutional on the ground of its
not being in
"due process of law'', an expression tp be
found in the Fifth . Amendment (1791) of the United
States Constitution and the Fourteenth Amendment
(
1868) which related to the
State Constitutions. It is
thus that the Supreme Court established its own
supremacy over the executive and the Congress.
[n
India the position
of the Judiciary is somewhere in
•
I
S.C.R. SUPREME COURT REPORTS 2S7
between the Courts in England and the United States.
While in the main leaving our Parliament and the
State Legislatures supreme in their respective legisla
tive fields, our Constitution has, by some of the articles,
put upon the Legislatures certain specified limitations
some of which will have to be discussed hereafter.
The point to be noted. however, is that in so far as
there is anv limitation on the legislative power, the
Court must, on a complaint being made to it, scrutinise
and ascertain whether such limitation has been trans
gressed and if there has been any transgression the
Court will courageously declare the law unconstitu
tional, for the Court is bound by its oath to uphold the
Constitution. But outside the limitations imposed on
the legislative powers our Parliament and the State
Legislatures are supreme in their respective legislative
fields and the Court has no authority to question the
wisdom or policy
of the law
duly made by the appro
prl!ite legislature. Our Constitution. unlike the English
Constitution, recognises the Court's supremacy over
the legislative authority, but such supremacy
is a very
limited one, for· it
is confined to the field where the
legislative power
is circumscribed by limitations put
upon it by the Constitution itself. Within this
restricted field the Court may, on a scrutiny of the
la,w
made by the Legislature, declare it void if it is found
to have transgressed the constitutional limitations. But
our Constitution, unlike the American Constitution,
does not recognise the absolute supremacy of the
Court
over the legislative authority in all respects, for outside
the restricted field of constitutional limitations
our
Parliament and the
State Legislatures are supreme in
their respective legislative fields and in that wider field
there
is no scope for the Court in India to play the role
of the
Supreme Court of the United States. It is well
for
us to constantly remember this basic limitation on
our own powers.
The impugned Act has been passed by Parliament
after the Constitution came into force. Article
246
gives exclusive power to Parliament
to· make laws with
respect to any of the matters enumerated in List I
in
the
Seventh Schedule and it gives exclusive power to
1950
A. K. Gopalan
v.
The State
Das].
1950
A. K. Gopalan
V,
The State
Das].
288 SUPREME COURT REPORTS [1950]
the State Legislatures to make laws with respect to
any of the matters specified in List II of that Schedule.
Ii also gives concurrent power to Parliament as well as
to the State Legislatures to make laws with respect to
any of the matters enumerated in List III in the
Seventh Schedule. Residuary powers of legislation are
vested in Parliament under article
248.
The first thing to note is that under Entry 9 of
List I the Parliament and under Entry 3 in List III
both, Parliament and the
State Legislatures are em
powered to make laws for preventive detention for
reasons connected with the several matters specified in
the respective entries. This legislation
is not
condi
tioned upon the existence of any war with a foreign
power or upon the proclamation
of emergency under Part XVIII of the Constitution. Our Constitution has,
therefore, accepted preventive detention
as the
subject
matter of peace-time legislation as distinct from emer
gency legislation. It is a novel feature to provide "for
preventive detention in the Constitution. There is no
such provision in
the Constitution of any other country
that I know
of.
·Be that as it may, for reasons good
or bad, our Constitution
has deliberately and plainly
given power to Parliament and the
State Legislatures
to enact preventive detention laws
even
in· peace
time. To many of us a preventive detention law is
odious at all times but what I desire to emphasise is
that it is not for the Court to question the wisdom and
policy
of the Constitution which the people have given
unto themselves. This
is another basic fact which the
Court must not overlook.
The next thing to bear in mind
is that, if there
were nothing
else in the
Constituti1>n, the legislative
powers of Parliament and the State Legislatures in
their respective fields would have been absolute. In
such circumstances the Court would have been entitled
only
to scrutinise whether Parliament or the
State
Legislature had, in making a particular law, over
stepped its legislative field and encroached upon the
legislative field
of the other legislative power, but
could not have otherwise questioned
the validity
of any
law made
by the Parliament or the
State Legislatures.
S.C.R. SUPREME COURT REPORTS 289
Thus under Entry 9 of List I the Parliament and under
Entry 3 of List III the Parliament and the State
Legislature could make as drastic a preventive deten
tion law
as it pleased.
Such a law might have author
ised a policeman, not
to speak of
a, District Magistrate
or Sub-Divisional Magistrate or the Commissioner
of Police, to take a man, citizen or non-ci:izen, into
custody and keep him
in detention for as
lot 1g as he
pleased. This law might not have made any provision
for supp
1
ying to the detenu the grounds of
l11s deten
tion or affording any opportunity
to him to
m1ke any
representation to anybody or for setting up any
advisory board at all. Likewise, under Entries 1 and
2 in List III the Parliament or the State Legislature
might have added
as many new and novel offences as it~ fancy might have dictated and provided for any
cruel penalty ranging from the maiming
of the limbs
to
bciling to death in oil or repealed the whole of the
Codt of Criminal Procedure and provided for trial
by
battle or ordeal or for conviction by the verdict of a
sorcerer or a soothsayer.
Such law might have forbid
den any speech criticising the Government, however
mildly, or banned all public meetings or prohibited
formation
of all associations under penalty of law.
Under Entry 33 ·of List I the Parliament might have
made a law for acquiring anybody's properties for the
purposes of the Union without any compensation and
under Entry
36 in List III the
State Legislature could
do the same subject to the provisions of Entry
42 in
List III which empowers the making of a law laying
down principles for payment of compensation which
might
be anything
above nothing. Under Entry 81
Parliament could have made any law restricting or
even 'prohibiting inter-State migration
so that a Bengali
would not be able to
move into and settle in Bihar or
vice versa. It is needless to mqltiply instances of
atrocious laws which Parliament or the State Legis
lature might have made under article
246 read with the
different lists if there were nothing
else in the Constitu
tion.
Our Legislatures, subject to the limitation of
distribution of legislative powers, would have been as
..,. --supreme in their respective legislative fields as the
1950
A. K. Copa/an
v.
The State
DasJ.
1950
A. K. Gopalan
v.
The State
Das].
290 SUPREME COURT REPORTS [1950]
English Parliament is and has been. The Court in
India, in such event, would have had to take the law
duly made, interpret it and apply it. It would not
have been entitled
to utter a word as to the propriety
of the particular law, although it might have shuddered
at the monstrous atrocities
of such law.
Our Constitution, however has not accepted this
abso.lute supremacy of our Parliament or the State
Legislature. Thus by article 245 (1) the legislative
power
is definitely made
"subject to the provisions of
this Constitution." Turning to the Constitution;
article 13(2) provides as follows:
"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."
This clearly puts a definite limitation on the wide
legislative powers given
by article 246. It is certainly
within the competency
of the
Court to judge and
declare whether there has been any contravention of
this limitation. In this respect again the Court has
supremacy over the Legislature.
From the provisions
so far referred to, it clearly
follows that there are
two principal limitation to the
legislative power of Parliament,
namely,-
(i) that the law must be within the legislative
competence of Parliament
as prescribed by article
246; and
(ii) that such law must
be subject to the
pro
visions of the Constitution and must not take away or
abridge the rights conferred
by
Part III.
There can
be no qu.estion-and, indeed, ihe learned
Attorney-General does not .contend otherwise-that
both these matters are justiciable and it
is open to the
Courts
to decide whether
Parliament has transgressed
either of the limitations upon its legislative power.
Learned counsel for the petitioner does nor
say
that the impugned Act is ultra
vires the legislative
powers
of
Parliament as prescribed by article 246.
His contention is that the impugned Act is VQid
-.l
S.C.R. SUPREME COURT REPORTS 291
because it takes away or abridges the fundamental
rights of citizens conferreq
by
Part III of the Consti
tution. It is, therefore. necessary to ascertain first the
exact nature, extent and scope of the particular funda
mental right insisted upon and then to see whether the
impugned Act has taken away or, in any way, abridg
ed the fundamental right so ascertained.
Civil riglits of a person are generally divided into
two
classes, namely, the rights attached to the person
(jus personarum) and the rights to things,
i.e.,
pro
perty (jus. rerum). Of the rights attached to the
person, the first and foremost
is
_ the freedom of life,
which me:i,ns the right to live, i.e., the right that one's
life shall not
be taken away except under authority of
law. Next
to the freedom of life comes the freedom of
the person; which means that
~ne's body shall not be
touched, violated, arrested or imprisoned and one's
. limbs shall not be injured or maimed except under
authority of law. The truth
of the matter is that the
right
to live and the freedom of the person are the
primary rights attached to the person. If a man's
person
is free. it is then and then only that he can
exercise a
variety of other auxiliary rights, that is to
say, he can, within certain limits, speak what he likes,
assemble where he likes, form. any associations or
unions, move about freely
as his
"own inclination may
direct," reside and settle apywhere he likes and practise
any profession or carry on any occupation, trade or
business. These are attributes of the freedom
of the
per
son and are consequently rights attached to the person.
It should
be clearly borne in
mind· that these are not al.J
the rights attached to the person. Besides them there
are varieties
of other rights which are also the
attribu
tes of the freedom of the person. All rights attached to
the person are usually called personal liberties and
they are too numerous
to be enumerated. Some of these
auxiliary rights
are so important and fundamental
that
they are regarded and valued as separate and
in
dependent rights apart from the freedom of the person.
Personal liberties may be compendiously summed
up
as the. right to do as one
pleases within the law. I
14-3 S. C. India/58
1950
A.K. Copa/an
v.
The Statt
Das].
1950
A. K. Gopalan
v.
Tire State
292 SUPREME COURT REPORTS [1950]
say within the law because liberty is not unbridled
licence. It is what Edmund Burke called "regulated
freedom."
Said
Montesquieu ~n Book III, Ch. 3, of
his Spirit of the-Laws :
Dos J. "In Governments, that is, in societies directed by
laws, liberty can consist only in the power or doing
what
we ought t.o will, and in not being constrained to
do what we ought not to will. We must have
con
tinually present to our minds the difference between
independence and liberty. Liberty
is a right of doing
whatever the
laws permit, and if a citizen could do
what they forbid, he would no longer be possessed of
liberty, because all his
fellow-{;itizens would enjoy the
same power."
To the same effect arc the following observations
of Webster in his Works ·vol. II, p. 393:
"Liberty is the creation of law, essentially
different from that authorised
licentiousness that
trespasses on right. It is a legal and refined idea, the
offspring
of high civilization, which the savage never
understands, and never can understand. Liberty
exists in proportion to wholesome restraint; the more
restraint on others
to keep off from us, the more liberty
we have. It is an error to suppose that liberty consists
in a paucity of laws .... The working of our complex
system, full of checks and restraints on legislative,
executive and judicial power is favourable to liberty
and justice. These checks and restraints
arc so many
safeguards
set around individual rights and interests.
That man
is free who is protected from
injury."
Therefore, putting restraint . on the freedom of
w10ng doing of one person is really securing the liberty
of the intended victims. To curb the freedom of the
saboteur or surreptitiously removing the fish plates
from
·the railway lines is to ensure the safety and liberty
of movement of the numerously innocent
and unsuspect
ing passengers. Therefore, restraints on liberty should
be judged not only subjectively as applied to a few
individuals who come within their operations but also
objectively as securing the libetry of a far greater
number of individuals.
Social interest in individual
:s.C.R. SUPREME COURT REPORTS 293
liberty may well have to be subordinated to other
greater social interests.
If a law ensures
· and protects
the greater
social interests then such law will be a
wholesome and beneficent law although it may infringe
the liberty
of some individuals, for it will ensure for
the greater liberty
of the rest of the members of the
society. At the same time, our liberty has also to be
guarded against executive, legislative as well as
judici
al usurpation of powers and prerogatives. Subject to
certain restraints on individuais and reasonable checks
on the State every person has a variety of personal
liberties too numerous
to be catalogued. As will be
seen more fully hereafter, our Constitution has
recog
nised personal liberties as fundamental rights. It has
guaranteed
some of them under article 19(1) but put
restraints on them
by clauses (2) to (6). It has put
' checks on the State's legislative powers by articles 21
and 22. It has by providing for preventive detention,
recognised that individual liberty may
be subordinated
to the larger social interests.
Turning now
to the Constitution I find that
Part
lll is headed and deals with "Fundamental Rights"
under seven heads, besides "General" provisions
(articles
12 and 13), namely
"Right to Equality"
(articles 14 to 18), "Right to Freedom" (articles 19 to
22), "Right against Exploitation" (articles 23 and 24),
"Right to Freedom of Religion" (articles 25 to 28),
"Cultural and Educational Rights" (articles 29 and
30), "Right to Property" (article 31),. "Right to Con
stitutional Remedies" (articles 32 to 35). Under the
heading "Right to Freedom" are grouped four articles,
19 to 22. Article 19(1) is in the following terms:-
"(!) 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;
(d) to move freely throughout the territory of
India ;
( e) to reside and settle in any part of the territory
of
India;
·
(£) to acquire, hold and dispose of property;. and
1950
A.K. Gop:uar.
v.
Th4 StaJt
Das J.
1930
A..K. GofJalan
v.
Thi StoU
Das].
294 SUPREME COURT REPORTS [1950]
(g) to practise any profession, or to carry on
any occupation, trade or business."
It will be noticed that of the seven rights protect
ed
by clause (1) of article 19, six of them, namely, (a),
(b), (c), (d), (e) and (g) are what are said to be rights
attached
to the person (ius personarum). The remain
ing item, namely, (f)
is the right to property (jus re
rum ). If there were nothing else in article 19 these
rights would have been absolute rights and the protec
tion given
to them would
have completely debarred
Parliament or any
of the
State Legislatures from mak
ing any law taking away or abridging any of those
rights. But a perusal
of article .19 makes it abund
antly clear that none of the
seven rights enumerated in
clause (1)
is an absolute
right, for each of these rig_hts
is liable to be curtailed by laws made or to be made
by the State to the extent mentioned in the several
clauses (2) to (6) of that article. Those clauses
save
the
p0wer of the State to make laws imposing certain
specified restrictions on the several rights.
The nett result is that the unlimited legislative power given by
article
246 read with the different legislative lists in
the
Seventh Scpedule is cut down by the provisions of
article
19 and all laws made by the
State with respect
to these rights must. in order to be valid, observe these
limitations. Whether any law has in fact transgressed
these limitations
is to be ascertained by the Court and
if in its view the restrictions imposed
by the
law are
greater than what
is permitted by clauses (2) to (6)
whichever
is applicable the Court will declare the
same
to be unconstitutional and, therefore, void under
article
13. Here again there is scope for the application
of the
"intellectual yardstick" of the Court. If, how
ever, the Court finds,
on scrutiny, that the law has not
overstepped the constitutional limitations. the Court
will have to uphold the law, whether it likes the law
or not.
The first part of the argument
is put broadly,
namely, that personal liberty
is generally guaranteed
by the Constitution by article 19(1) and that the
Pre
ventive Detention Act, 1950 has imposed unreasonable
.....
S.C.R. SUPREME COURT REPORTS 295
restrictions thereon in violation of the provisions of
clauses (2)
to
( 6) ot that article. The very first ques
tion that arises, therefore, is as to whether the freedom
of the person which
is primarily and directly suspended
or destroyed
by
preventive detention is at all governed
by article 19(1). If personal liberty as such is guaran
teed
by any of the sub-clauses of article 19(1) then why
has it
also been protected by article 21
? The answer
suggested by learned counsel for the petitioner is that
personal liberty
as a substantive right is protected by
article 19(1) and article 21 gives only an additional
protection
by prescribing the procedure according
to which that right may
be taken away. I am un
able
to accept this contention. If this argument were
correct, then it would follow that our Constitution
does
not guarantee to any person, citizen or non-citizen, the
freedom of
his life as a substantive right at all, for the
substantive right
to life does not fall within any of the
sub-clauses
of clause ( 1) of article 19. It is retorted in
reply that no constitution or human laws can guarantee
life which
is the gift of God who alone can guarantee
and protect it.
On a parity of reasoning no Constitu
tion or human
laws
· can in that sense guarantee free
dom of speech or free movement, for one may be struck
dumb
by disease or may lose the use of his legs by
paralysis or as a result of amputation. Further, what
has been called the procedural protection of article
21
would be an act
of supererogation, for when God takes
away one's life whatever opportunity He may have had
giyen to Adam to explain his conduct before sending
him down,
He is not likely in these degenerate days to
observe the requirements of notice or fair trial before ::.ny human tribunal said to be · required by article 21.
The fifth Amendment and the Fourteenth Amendment
of the American Constitution give
specific protection
to life as a substantive right. So does article 31 of
the
japanese Constitution of 1946. There is no reason
why our Constitution should not do the same.
The
truth is that article 21 has given that protection to life
as a substantive right and that as will be seen here
after, that article properly understood
does not pur
port
to prescribe any particular
proced~re at all. The
1950
A.K. Copa/an
v.
The Stare
Das].
19!i0
A. IC. Gopalan
v.
The State
Das].
296 SUPREME COURT REPORTS [1950]
further astounding result of the argument of counsel
for the petitioner will
be that the citizen of India
will have only the rights enumerated in article
19
clause ( 1) and no other right attached to his person.
As I have already stated, besides the several rights
mentioned in the several sub-clauses of article 19(1)
there are many other personal liberties which a
free man,
i.e., a man who has the freedom of his
person, may exercise.
Some of those other rights have
been referred to by Harries C. J. of Calcutta in his un
reported judgment in Miscellaneous Case No. 166 of 1950
(Kshitindra v. The Chief Secretary of West Bengal)
while referring the case to a Full Bench in the follow-
ing
words:-
·
"It must be remembered that a free man has far
more and wider rights than those stated in article
19
(1) of the Constitution. For example, a free man can
eat what
he likes subject to rationing laws, work as
much as he likes or idle
as much as he likes. He can
drink anything he likes subject to the licensing laws
and smoke ;ind do a hundered and one things which are
not included in article
19. If freedom of person was
the result or article
19, then a free man would only
have the
seven rights mentioned in that article. But
obviously the free man in India has far greater
rights."
I find myself in complete agreement with the learned
Chief Justice on this point.
If it were otherwise, the
citizen's right to eat what he likes will
be liable to
be taken away by the excutive fiat of the
Civil Supply
Department ·without the necessity of any rationing
laws. The Government may enforce prohibition with
out any prohibition laws or licensing laws ·and so on.
I cannot accept that our Constitution intended to give
no protection to _the bundle of rights which, together
with the rights mentioned in sub-clauses (a)
to ( e) and
(g) make up personal liberaty. Indeed, I regard it
as a
merit of our Constitution that it
does not attempt
t-0
enumerate exhaustively and the personal rights but
uses the compendious expression 'personal liberty" m
article
21, and protects all of them.
It
is pointed out that in the original draft the
word
"liberty'' only wa. used as in the American
S.C.R. SUPREME COURT REPORTS 297
Constitution but the Drafting Committee added the
word "personal" to make it clear that what was
being protected by what is now article 21 was not
what had already
been protected by what is
now article
19. If it were permissible to refer to the Drafting
Committee's report, it would
be another answer to the
contentions of learned counsel
for the petitioner that
personal liberty
as a substantive right was protected
by article 19. I do not, however, desire to base
my judgment on the Drafting Committee's report 'and
I express no opinion
as to its admissibility.
Wh:tt
ever the intentions of the Drafting Committee might
have been, the Constitution as finally passed has in
article 21 used the words "personal-: liberty" which
have a definite connotation in law
as I have explained.
It
does not mean only liberty of the person but it
means liberty or the rights attached to the person
(ius
personarum ). The expressions "freedom of life" or
"personal liberty" are not to be found in article 19
and it is straining the language of article 19 to squeeze
, in personal liberty into that article.
In any case the
right to life cannot
be read into article 19.
Article 19 being confined, in its operation, to citi
zens only, a non-citizen will
have no protection for his
life and personal liberty except what has been called
the procedural protection of article
21. If there be no
substantive, right what will the procedure protect?
I recognise that it
is not imperative
.that a foreigner
should have the
same priviieges as are given to a citi
zen, but
if article 21 is construed in the way I have
suggested
even a foreigner will have equal protection
for his life and ,pt!rsonal liberty before the laws of our
country under our Constitution. I am unable, there
fore, for all the
reasons given above, to agree that
personal liberties are the result of article
19 or that
that article purports to protect all
of them.
It is next urged that the expression
"personal
liberty" is synonymous · 'with the right to move freely
and, therefore,
comes directly under article 19(1) (d).
Reference is made
, to the unreported dissenting judg
ment of Sen J. of Calcutta in Miscellaneous Case No.
166 of 1950 while referring that case to a Full Bench.
1950
A.K. Gopalan
v.
Tlw State
Das J.
1950
A.K. Gopalan
v.
The State
Das].
298 SUPREME COURT REPORTS [ 1\150]
In his judgment Sen J. quoted the following passage
from Blackstone's Commentaries:-
"Next to personal security the law of England
regards,
asserts and preserves, the personal liberty of
individuals. This personal libertv consists in the
power of locomotion, of changing situation, or moving
one's person to whatsoever place one's own inclination
may direct, without imprisonment or restraint, unless
by due course of
law." [Page 73 of George Chase's
Edition (4th Edition) of Blackstone, Book I, chapter I.]
On the authority of the above passage the learned
Judge concluded that personal liberty came within
article 19(1)(d). I am unable to.agree with the learned
Judge's conclusion. On a perusal of Chapter I of Book
I
of Blackstone's Commentaries it will appear that the
learned
comm~mator divided the rights attached to
the person
(jus personarum) into two classes, namely, "personal security" and "personal liberty." Under
the head "personal security" Blackstone included sev
eral rights, namely, the rights to life, limb, body,
health and reputation, and under the head "personal
liberty" he placed only the right of free movement.
He first dealt with the
several rights, classified by him
under the head
"personal security" and then proceeded
to
say that next to those rights came personal liberty
which according to his classification consisted only
in
the right of free locomotion. There is no reason to
sup
pose that in article 21 of our Constitution the expres
sion "personal liberty" has been used in the restricted
sense in which Blackstone used it in his Commentaries.
If "personal liberty" in article 21 were synonymous
with the tight to move
freely
which• is mentioned in
article 19(1) (d}, then the astounding result will
be
that only the last mentioned right
has~ what has been
called the procedural protection of article 21 but none of
the other rights in the other sub-clauses of article
19
( 1) has any procedural protection at all. According
to learned counsel for the petitioner the procedure
re
quired by article 21 consists of notice and a right of
hearing before an impartial tribunal. Therefore, ac
cording to him, a man's right of movement cannot be
taken away without giving him notice and a fair trial
S.C.R. SUPREME COURT REPORTS
before an impartial tribunal but he may be deprived
of
his freedom of speech or his property or any of his
other rights
Without the formality of any procedure at
all.
The proposition has only to be stated to be rejected.
In my judgment, article
19 protects some of the
import
ant attributes of personal liberty as independent rights
and the expression "personal liberty" has been used
in article
21 as a compendious term including within
its meaning all the varieties of rights which go to
make
up the penonal liberties of men.
Learned counsel
for. the petitioner next contends
that personal liberty undoubtedly means or
includes
the freedom of the person and the pith and sub
stance of the freedom of the person is right w move
about freely and consequently a pr.eventive detention
law which destroys or suspends the freedom of the
pe~on must inevitably destroy or suspend the right of
free movement and must necessarily offend against the
protection given to the citizen by article 19 ( 1) ( d)
unless it -satisfies the test of reasonableness laid clown
in clause (5). The argument is attractive and requires
serious consideration
as to the exact purpose and
sc"pe
of sub-clause (d) of article 19(1).
There
are indications in the very language of
article 19 ( 1) ( d) itself that its .purpose is to protect not
the general right
•of ·free movement ~hich emanares
from the freedom of the person but only a specific and
limited aspect of it, namely, the special right
of a free
citizen of Indian to move freely throughout the Indian
territory,
i.e., from one
State to another within the
Union. In other words, it guatantees, for exampie,
that a
free Indian citizen ordinarily residing in the State of West Bengal will be free to move from West
Bengal
to Bihar or to reside and settle in Madras or
. the Punjab without anv let or hindrance other than
as
provided in clause (5). It is this special right of
move
ment of the Indian citizen in this specific sense and
for this particular purpose which
is protected by
article 19( 1)
( d). It is argued on the authority of a
decision
of a
Special Bench of . the Calcutta High Courc
presided over. by Sen J. in Sunil Kumar v. The Chief
1950
A. K. Gopalan
v.
The Stau
Das].
1950
A. K. G•p.Jan
v.
T/,. Stau
Das].
300 SUPREME COURT REPORTS [1950]
Secretary of West Bengal (
1
) that the words "through
out the territory of India" occurring in that sub-clause
only indicate that our Constitution does not guarantee
to its citizens the right of free movement in or into
foreign territory and that those words have been added .
to
save passport restrictions. I
·am unable to accept
this interpretation. Our Constitution cannot possibly
give
to any of its citizens any right of free movement
in a foreign
q:mntry and it was wholly superfluous to
specifically indicate this in the Constitution, for that
would have gone without saying. The words "through
out the territory of India" are not used in connection
witli most
of the other sub-clauses of clause (1) of
article 19. Does such omission indicate that our
Con
stitution guarante~s to its citizens freedom. of speech
and expression,
say, in Pakistan? Does it guarantee to
its citizens a right to assemble or to form associations
or unions in a foreign territory? Clearly not. Therefore,
it
was not necessary to use those words in
sub-clause ( d)
to indicate that free movement in fqreign countries
was not being guaranteed. It is said .. that by the use
of those words the Constitution makes it clear that no
guarantee was being given to any citizen with regard
to emigration from India without a passport and that
the freedom of movement was restricted within the
territory of India. Does ·the omission of those words
from article 19(1) (a) indicate that the citizen of India
has been guaranteed such freedom of speech and
ex
pression as will enable him to set up a broadcasting
station and broadcast his
views
artd expressions ·. to
foreign lands without a licences? Clearly not. Dropping
this line of argument · and adopting a totally . new line
of argument it
is said that by the
use of the words
"throughout the territory of India" the Constitution in
dicates that the widest right of free movement that it
could possibly give to its citizens has been given. Does,
then, the omission of those words from the other sub
clauses indicate that the Constitution has kept back .
some parts of those rights even beyond the limits of
the qualifying clauses that follow? Do not those
other rights prevail through.out the Indian territory?
{1)54 C. W. N. 394.
S.C.R. SUPREME COURT REPORTS 301
Clearly they do, even without those words. Therefore,
those words must have been used in sub-clause (d) for
some other purpose. That oth~r purpose, as far as I
can apprehend it,
is to indicate that free movement
from
one
State to another within the Union is protect
ed so that Parliament may not by a law made under
Entry
81 in List I curtail it beyond the limits
prescrib
ed by clause (5) of article 19. Its purpose, as I read
it,
is not to provide protection for the general right of
free movement but to secure a specific and special right
of the Indian citizen to
move freely throughout the
territories
of
India regarded as an independent addi
tional right apart from the general right of locomotion
emanating from the freedom
of the person. It is a
guarantee against unfair discrimination in the matter
of free movement of the Indian citizen throughout the
Indian
Union. In short, it is a protection against
provincialism. It
has nothing to do with the freedom
of the person as such. That is guaranteed to every
person, citizen or otherwise, in the manner and to the
extent formulated
by article 21.
Clause (5) of article 19 qualifies sub-clause (d) of
clause (1) which should, therefore, be read in the light
of clause (5). The last mentioned clause permits the
State
to impose reasonable restrictions on the exercise of the
right of free movement throughout the territory of India
as explained above. Imposition of reasonable restric
tions clearly implies that the right of free movement is
not entirely destroyed but that parts of the right remain.
This reasonable restriction
can be imposed either in
the interest
of the general public or for the protection
of the interests of any
Scheduled Tribe. The Scheduled
Tribes usually
reside in what are called the
Scheduled
Areas. The provision for imposing restri~tion Qn the
citizens' right
of free movement in the interests of the Scheduled Tribes clearly indicates that the restriction is
really on his right of free movement into or within the
Scheduled Areas. It means that if it· be found necessary
for the protection of the Scheduled Tribes the citizens
may be restrained from entering into or moving about
in the Scheduled Areas although they are left quite free
to move about elsewhere. This restraint may well be
1950
A. K. Gopalan
v.
Th8Sta1e
Das].
1950
d. K. Gopalan
v.
The State
Das].
302 SUPREME COURT REPORTS [1950]
necessary for the protection of the members of the
Scheduled Tribes who
are
generally impecunious and
constitute a backward
class. They may need protec
tion against
money-lender~ or others whu may be out
to exploit them. They may have to be protected
against their own impecunious habits which may result
in their selling or mortgaging their hearths and homes.
Likewise, the free movemen, of citizens may have to
b.e restricted in the interest of · the general public. A
person suffering from an mfectious
disease may be pre
vented from moving
awut and spreading the disease
and regulations for
his segregation
· in the nature of
quarantine may have to be introduced. Likewise,
healthy people may
be prevented, in the interests of
the general public. from entering a plague-infected
area. There may
be protected places,
e.g., forts or
other strategic place>, access whereto may have to be
regulated or even prohibited in the interests of the
general public. The point to be noted, however, is
that when free movement is thus restricted, whether· in
the interest of the general public or for the protection
of the Scheduled Tribes, such restriction has reference
generally to a certain
local area which becomes the
prohibited area but the right
of free movement in all
other areas in the
Union is left unimpaired. The
circumstance that clause (5) contemplates only the
taking away
of a specified area and thereby restricting
the field of the exercise of the right conferred
by
sub
clause ( d) of clause (I) indicates to my mind that sub
clause ( d) is concerned, not with the freedom of the
person· or the general right of free movement but with
a specific aspect of it regarded
as an independent right
apart from the freedom of the person. In other words,
in
sub-clause (d) the real emphasis is on the words
''throughout ihe terr~tory of India." The purpose of
·article 19(1) (d) is to guarantee that there shall be no
State barrier. It gives protection against provincialism.
It has nothing to do with the freedom of the person as
such.
Finally, the ambit and
scope of the rights
protcv
ted by article 19(1) have to be considered. Does it
protect the right of
free movement and the other
S.C.R. SUPREME COURT REPORTS 303
personal rights therein mentioned in all circumstances
irrespective of any other comideration? Does it not
postulate a capacity
to exercise the rights? Does its
protection continue even though the citizen lawfully
loses his capacity, for exercising those rights? How can
the continuance of those personal rights
be compatible
with the lawful detention of the person?
These. per
sonal rights and lawful detention cannot go together.
Take the
case of a person who has been properly
con·
victed of an offence punishable under a section of the
[ndian Penal Code as to the reasonableness of which
there
is no dispute. His right to freedom of speech is
certainly impaired.
Under clause (2) the State may make
a law relating
to libel, slander, defamation, contempt
of Court or any matter which offends against decency
or morality or which undermines the security of, or
tends to overthrow, the
State. Any law on any of
these matters contemplated
by this clause certainly
must have some direct reference
to speech and expres
sion. It means that the law may directly curtail the
freedom of speech
so that the citizen may not talk
libel or speak contemrtuously of the Court
·or express
indecent or immoral sentiments by speech or other
forms of expression
or utter seditious words. To say
that every crime undermines the security of the
State
and, therefore, every section of the Indian Penal Code,
irrespective of whether it has any reference . to speech
or expression,
is a law within the meaning of this
clause
is wholly unconvincing and betrays only a vain
and forlorn attempt to find an explanation for meeting
the
argumeqt that any conviction by a Court of law
must necessarily infringe article 19(1)
(a). There can be
no getting away from the fact that a detention as
a result of a conviction impairs the freedom of
speech far beyond what
is permissible under clause (2)
of article
19. Likewise a detention on lawful con
viction impairs each of the other personal rights men
tioned
in sub-clauses (b) to
( e) and (g) far beyond the
limits of clauses (3)
to (6). The argument that every
section of the Indian
Penal Code irrespective of whether
it has any reference to any of the rights referred
to in sub-clauses (b) to ( e) and
(g) is a law imposing
1950
A. K. Gopalan
v.
The State
Das].
1950
A. K. Gopalan
v.
Tiii Stal•
Das].
304 SUPREME COURT REPORTS [1950]
reasonable restriction on those several rights has
not even the merit of plausibility. There can be
no doubt that a detention as a result of lawful convic
tion must necessarily impair the fundamental personal
rights guaranteed
by article 19 ( 1) far beyond
what
is permissible under clauses (2) to (6) of that
article•' ·and yet nobody can think of questioning the
validity of the detention or
of the section of the
Indian
Penal Code under which the sentence was
·passed. Why? Because the freedom of his person hav
ing
been lawfully taken away, the convict ceases to be
entitled to exercise the
freedom of speech and expres
sion or any of the other personal rights protected by
clause (1) of article 19. On a parity of reasoning he can
not, while the detention
lasts, exercise any other personal
right,
e.g., he cannot eat what he likes or when he likes
but has
to eat what the Jail Code provides for him
and at the time when he is by Jail regulations required
to eat. Therefore, the conclusion
is irresistible that
the rights protected
by article (19) (1), in so far as
they relate to
rights attached to the person, i.e., the
rights referred to in sub-clauses (a) to (e) and (g), are
rights which only a
free citizen, who has the freedom
of his person unimpaired, can exercise. It
is pointed
out,
as a counter to the above reasonings, that
detention
as a result of a lawful conviction does
not deprive a person of his right to acquire or hold
or
dispose of his property mentioned in sub-clause (f).
The answer is simple, namely, that that right is not
a right attached to the person,
(ius personarum) and
its existence
is not dependent on the freedom of
the person.
Loss of freedom of the persorr, there
fore, aoes not suspend the right to property. But
1
suppose a person loses his property by reason of
its having been compulsorily acquired under article
31
he loses his right to hold that property and cannot
complain that
his fundamental right under sub-clause
(f) of clause (1) of article
19 hM been infringed. I~
follows that the rights enumerated in article 19 (J
subsist while the citizen has the legal capacity to excr·
cise them. If his capacity to exercise them is gone, by
reason of a lawful conviction with respect to the rights
S.C.R. SUPREME COURT REPORTS 305
in sub-clauses (a) to (c) a11d (g), or by reason of a law
ful compulsory acquisition with respect
to the right in
sub-clause (f), he
ceases to have those rights while his
incapacity lasts.
It further follows that if a citizen's
freedom of the person
is lawfully taken away otherwise
than
as a result of a lawful conviction for an
offence,
that citizen,· for precisely the same reason, cannot exer-.
cise any of the rights attached to his person including
those enumerated in
sub-clauses (a) to (e) and (g) of
article
19 (1). In my judgment a lawful detention,
whether punitive or preventive,
does not
offend against
the protection conferred
by article 19(1) (a) to (e) and
(g), for those rights must necessarily cease when the
freedom
of the person is lawfully taken away. In
short,
those rights end where the lawful detention begins. So
construed, article 19 and article 21 may, therefore,
easily
go together and there is, in reality, no conflict
betwen them. It follows, therefore, that the validity
or otherwise of preventive detention
does not depend
on, and
is not dealt with by, article 19.
To summarise, the freedom of. the person is not
the result of article
19. Article 19 only deals with
certain particular rights which, in their origin and
inception, are attributes
of the freedom or the person
but being of great importance· are regarded
as specific
and independent rights. It does not deal with the
freedom, of the person
as such. Article 19(1) (d)
pro
tects a specific aspect of the right of free locomotion,
namely, the right to move freely throughout the terri
tory of India which
is regarded as a special privilege or
right of an Indian citizen and
is protected as such.
The protection of article
19 is co-terminous with
the
legal capacity of . a citizen to exercise the rights protec
ted thereby, for sub-clauses (a) to ( e) and (g) of· article
19 (0 postulate the freedom of the -person which
alone can ensure the capacity to exercise 'the rights
protected
by those sub-clauses. A citizen who loses die.freedom of his person by being lawfully detained,
whether.
as a
result· of a conviction for an offence or as
a result of preventive detention loses his capacity to
exercise those rights and, therefore
has none of the
rights which sub-clauses (a)
to (e) and (g) may protect.
1950
A. K. Gopalan
v.
The Stale
Dos].
I
1950
A. K. Copa/an
...
Tht State
Das],
306 SUPREME COURT REPORTS [1950)
In my judgment article 19 has no bearing on the
question
of the validity or otherwise of preventive
detention and, that being
so clause (5) which
pres
cribes a test of reasonableness to be defined and
applied
by the Court has no application at all.
Article
19 being thus out of the way. I come to
article
20 which is concemed with providing protec
tion against what are well known as ex post facto laws,
double jeopardy and self-incrimination. This artkle
constitutes a limitation on the absolute legislative
power which would, but
for this article be exercisable
by Parliament or the
State Legislatures under article
246 read with the legislative lists. If the Legislature
disobeys this limitation the Court will certainly
prevent it. Article 20 has no bearing on preventive
detention
laws and I pass
or1.
Article 21 runs thus:
"21. No person shall be deprived of his life
or personal liberty except according
to procedure
established
by
law."
The contention of learned counsel for the peti
tioner is that by this article the Constitution offers to
every person, citizen or non-citizen, only a procedural
protection. According to the argument, this article
does not purport to give any protection to life or
per
sonal liberty as a substantive right . but only prescribes
a procedure that must
be followed before a person may
be deprived of his life or personal liberty. I am
unable
to accept this contention. Article 21, as the
marginal note states, guarantees
to every_ person
"pro
tection of life, and personal liberty." As 1 read it, it
defines the substantive fundamental right
to which
protection
is given and does not p,urport to prescribe
any particular procedure at all. That a person shall
not
be deprived of his life or personal liberty except
according to procedure established
by law is the
sub
stantive fundamental right to which protection is given
by the Constitution. The avowed object of the
article,
as I apprehend it, is to define the ambit of the
nght to life and personal liberty which is to be
pro
tected as a fundamental right. The right to life and
' -
S.C.R. SUPREME COURT REPORTS 307
personal liberty protected by article 21 is not an
absolute right but
is a qualified right-a right
circumscribed
by the possibility or risk of being lost
according to procedure established by law. Liability
to depriva'tion according to-procedure established by
law is in the nature of words
Of limitation. The article
delimits the ·right by a reference to its liability to
deprivation according to procedure established by law
and by this very definition throws a corresponding
obliiption .on the State to follow a procedure before
depriving a: man of his life and personal liberty. What
that procedure
is to be is not within the purpose or
purview of this article to prescribe or indicate.
The claim of learned counsel for the petitioner
is
that article 21 prescribes a procedure. This procedure,
according
to learned counsel, means those fundamental
immutable rules of procedure which are sanctioned or
well established
·by principles of natural justice accept
ed
in all climes and countries and at all times. Apart
from the question whether any rule of natural proced•Jte exists which conforms to the notions of justice
and fair
play of all mankind at all times, it has to be
ascertained whether the language of article 21 will per
mit its introduction into our Constitution. The question
then
arises as to what is the meaning of the expression
"procedure established by law." The word "proce
dure" in article 21 must be taken to signify some step
or method or manner of proceeding leading up to the
deprivation of life or personal liberty. According
to
the language used in the article, this procedure has to
be
"established by law." The word "establish"
according to the Oxford English Dictionary, Vol. III,
p: 197, means, amongst other things, "to render stable
or firm; to strengthen
by material support; to fix,
settle, institute or ordain permanently by enactment or agreement." Ac;cording to Dr. Annandale's edition of
the _N~w Gresham Dictionary the word "establish,"
means, amongst other things, "to found permanently;
to institute; to enact or decree; to ordain ; to ratify;
to make firm." It follows that the word "established"
in its ordinary natural sense means, amongst other
things, "enacted." "Established by law" will,
15-3 S. C. India/.58
1950
A. K. Gqpa/.,,
v.
The Stale
Das].
1950•
A. K. Gopalan
...
The State
Das 7.
308 SUPREME COURT REPORTS [1950]
therefore, mean "enacted by law." If this sense of the
word "established" is accepted, then the word "law"
must mean State-made law and cannot possibly m,ean
the principles of natural justice, for no procedure can
be said to have ever been "enacted" by those principles.
When section 124-A of the Indian Penal Code speaks
of "Government established by law," surely it does
not mean "Government set up by natural justice."
Therefore, procedure established by law must, I
apprehend,
be procedure enacted by the State which,
by its 'definition in
article. 12, includes P'lfliament.
There is no escape from this position if the cardinal
rule
of con_struction, namely, to give the words used
in a statute their ordinary natural meaning, is applied.
And this construction introduces no
n<'velty or innova
tion, for at the date or the Constitution the law of
procedure in this country, both
civil and criminal,
was mainly if not wholly, the creature of statute. The
Hindu or Muhammadan
laws of procedure were
abrogated and replaced
by the Code of Civil
Procedure
or the Code of Criminal Procedure. Therefore, pro
cedure established by law is quite compatible with
procedure enacted
by law. If,
-however, the word "esta
blished"
is,
taken to mean "sanctioned" or "settled"
or "made firm" then the question will arise as to the
meaning of the word "law" in that context. Refer
ence is made to Salmond's Jurisprudence, 10th Edi
tion, p. 37, showing that the term "law" is used in
two
senses and it is suggested that the word
"law" in
the expression "established by law" means law in its
abstract sense of the principles of natural justice. It is
"jus" and not "lex", says learned counsel for the
petitioner. It
is pointed out that both the English
and the Indian law in many
cases, some of which have
been cited before
us, have recognised and applied the
principles
of natural justice and that this Court should
do the same in interpreting the provisions of our
con
stitution. I find it difficult to let in rrinc,tples. of natu
ral justice as being within the meaning of the word
"law," having regard to the obvious meaning of that
word in the other articles. Article
14 certainly
em
bodies a principle of natural justice which ensures to
S.C.R. SUPREME COURT REPORTS 309
every person equality before the law. When natural
justice speaks of and enjoins equality before the iaw,
that law must refer to something outside natural
justice, and must mean the State-made . laws. It is
only when the State law gives equality to every person
that that law
is said to be in accordance with natural
justice. There can
be no doubt that the words
"in
accordance with law" in article 17 have reference to
State law. Likewise, the word "law" in article 20
(1) can mean nothing but law made by the State. The
same remark applies to the words "in accordance
with law" in articles 23, 31 and 32. Natural justice
docs not impose any tax and, therefore, the word
"law" in articles 265 and 286 must mean State-made
law. If this be the correct meaning of the word "law"
then there is no scope for introducing the principles oi
natural justice in article
21 and
"procedure established
by law" must mean procedure established by law
made
by the
State which, as defined, . includes Parlia
ment and the Legislatures of the States.
We have been referred to a number of text books
and decisions showing the development of the American
doctre of "due process of law" and we have been
urged
to adopt those principles in. our Constitution.
The matter has
to be considered against its historical
background. The English settlers in different parts
of
Ami;rica had carried with them the English common
law
as a sort of personal law regulating their rights
and liberties
inter se as well as between them and
the
State. After the War of Independence the Consti
tutions of the United States were drawn up in writing.
Thi; majority of those who framed the Constitution
were lawyers and
l1ad closely studied the Comment
aries
of the great English jurist Blackstone, who in his
famous commentaries had advocated the separation of
the three limbs of the
State, namely, the executive, the
legislature and the judiciary. Montesquieu's Spirit of
Laws had already been published wherein he gave a
broader and more emphatic expression to the Aristote
lain doctrine
of separation of powers. The experience
of the repressive laws of Parliament had impressed
upon the framers of the American Constitution the
•1950
A. K. Gopalan
v.
The State
Das}.
1950
A. Ir. C.palan
•.
Tlw 811111
Das].
310 SUPREME COURT REPORTS [1950]
belief that it was the habit of all legislative bodies to
grasp and exercise powers that did not belong to them.
The interference of ,the colonial Governors with legis
lation and the judiciary was also real. This sad
experience coupled with the political philosophy of the
time induced the framers or the American Constitutions
to adopt safeguards not only against the executive but
also against the legislature. (See Munro on the
Govern
ment of the United States, 5th Edition, Chapter IV,
p. 53 et seq.). Says Judge Cooley in his Constitutional
Limitations, 6th Edition, Vol. II, Chapter XI,
p. 755:
"The people of the American States, holding
the sovereignty· in tJ:ieir own hands, have no occasion to
exact
any pledges from any one for a due observation
of individual rights; but the aggressive tendency of
power
is such that they have deemed it of no small
importance, that, in framing the instruments under
which their governments are to
be administered by their
agents, they should repeat and re-enact this guarantee,
and thereby adopt it
as a principle of constitutional
protection."
There can
be little doubt that the people of the
different States in America intended not to take
anv
risk as to their life, liberty or property even from
the
legislature. As Munro puts it at pp. 58-Ql :-
"The framers of the Constitution set boundarie>
to the powers of the Congress, and it was their intent
that these limitations should
be observed. But how
was such observance to be enforced by ... the Courts? The
statesmen of 1767 did not categoncally answer that question."
The Constitution was silent .and there was no
express provision
as to who was to serve as umpire in
case the Congress overstepped the limits of its
legisla
tive powers. By the 5th Amendment what is now known
as the "due process clause" was introduced in the
Federal Constitution and
by the 14th Amendment a
similar clause
was adopted in the State Constitutions.
Some of the State Constitutions used the words
"due
course of law," some repeated the words of Magna
Charta, namely, "the law of the land" but most of
S.C.R. SUPREME COURT REPORTS 311
them used the expression "due process of law." All
the expressions meam the same thing, namely, that
no
person should
be deprived of his life, liberty or property
except in due process of law. The Constitution
by this
clause gave the Supreme Court an opportunity to
take:
upon itself the function
or -declaring the national laws
unconstitutional. And the Supreme Court, under the
leadership of Chief Justice John Marshall, seized this
opportunity and assumed the right to
say the last word
on questions of constitutionality, and
possesses that
right to-day: (Munro,
p. 62).
The expression
"due process or law" has been
interpreted
by the American Courts in different
ways at different times.
Carl Brent
Swisher in his
book on the Growth
of Constitutional
Power in the
United States at p. 107 says, with reference to the
development of the doctrine of due procedure:
"The American history of its interpretation falls
into three periods. During the first period covering
roughly the first century of Government under the
Constitution "due process" was interpreted "princi
pally as a restriction upon ·procedure-and largely the
judicial procedure-by which the Government exercised
its powers. During the second period, which, again
rough
ly speaking, extended through 1936, "due process"
was expanded to serve as a restriction not merely upon
procedure but upon the substance of the activities in
which the Government might engage. During the
third period extending from
1936 to date, the use of
"due process" as a substantive restriction has been
largely suspended or abandoned, leaving it principally
in
its original status as a restriction upon
procedure."
In the guise of interpreting "due process of law"
the American Courts went much further than even
Lord Coke ever thought of doing.
The American Courts
gradually arrogated to themselves the power to revise all
legislations. In the beginning they confined themselves
to insisting on a due procedure to
be followed
hr'orC' a
person
was deprived of his life, liberty or property.
In course of time,
"due process of law" ca1 "le to be ap
plied to personal liberty, to
social
cont~ol, to procedure
1950
A. K. Gopalan
v.
Tire State
Dos].
1950
A. K. Gopalm1
v.
The Stale
Das].
312 SUPREME COURT REPORTS [1950J
to jurisdiction and to substantive law : (Willis, p.
642). In the worJs of Munro "due process of law"
became a sort of palladium covering all manner of
inJividual rights. All the while the Supreme Court
refused
to define the phrase, but used it to enable it to
declare unconstitutional any Act of legislation which it
thought unreasonable : (Willis,
p. 657). In Holden v.
Hardy(
1
)
we find the following observations:
"'This Court has never attempted to define with
precmon the words 'due process of law' ............ It
is sufficient to sav that there are certain immutable
principles of justice which inhere in the very idea of
free government which no member of the
Union may
disregard."
In Taylor v. Peter l' ) Bronson J. observed:
"The words 'by the law of the land' as used in
the Constitution,
do not mean a statute passed for the
purpose of working the wrong.
That construction
would render the restriction absolutely nugatory, and
turn this part of the Constitution into mere nonsense.
The people would be made to say to the two Houses:
'You shall be vested with the legislative power of the
State, but no
one shall be disenfranchised or deprived
of any of the rights or privileges of a citizen, unless
you pass a statute for that purpose. In other words
you shall not do the wrong unless you choose
to do
it.'"
It was thus that the Supreme Court of the United
States firmly established its own supremacy over the
other two iimhs of the State, namely, the executive
and the Congress. In the words of John Dickinson
quoted in Munro at p.
61,
"The Judges of Argon.
began
by setting aside laws and ended by making
them.'' And all this sweeping development could only
be possible because of the presence of one little word
"due" which, in its content, knows no bound and is
not subject to any fixed definition. Whenever a sub
stantive law or some procedure laid down in ani· law
did not find favour with the majority of the learned
Judges of the Supreme Court it was not reasonable
and, therefore, it was not "due."
('J 169 U. S. 366 at p. 389. (') 4 Hill 140, 145.
'
S.C.R. SUPREME COURT REPORTS 313
The very large and nebulous import of the word
"due" was bound to result in anomalies, for what
was not "due" on one day according to the Judges
then constituting the Supreme Court became "due"
say 20 years later according to the new Judges who
then came to occupy the Bench, for the Court had to
adapt the Constitution to the needs of the society
which were contmually changing and growing.
The larger content of due process of law, which included
both procedural and substantive due process of law,
had of necessity to
be narrowed down, for social interest
in personal liberty had to give way
to social interest
in other
matkrs which came to be considered to be of
more vital interest to the community. This was
achieved
by the
Supreme Court of the United States
evolving the new doctrine of police powers-a peculiar
ly American doctrine. The police powers are nowhere
exhaustively defined. In
Chicago B. & Q. Ry. v.
Drainage Commissioner (
1
)
"police power" has beeu
stated to "embrace regulations destgned to promote
the public convenience or the general prosperity,
as
well as regulations designed to promote the public
health, the public morals or the public
safety." Refer
ence in this connection may be made to Cooley's
Constitutional Limitations, 8th Edition, Vol. II, p.
1223 and to Chapter XXVI of Willis at p. 727.
The nett result is that the all-inclusive and inde
finable doctrine of due process of law has in America
now been brought back to its original status
of a
procedural due process of law
by the enunciation and
application of the new doctrine of police power
as an
antidote or palliative to the former.
Who knows when
the pendulum will swing again.
Turning now to what has been called the
procedu
ral due process of law it will be found that the matter
has been described in different languages . in different
cases. In
Westervelt v. Gregg (
2
)
Edwards J defined
it thus:
·
"Due process of law undoubtedly means, in the
due course of legal proceedings, according to those rules
(1) 20+ u. s. 561, 592. (
1
) 12 N.Y. 202
1950
A. K. Gopalan
v.
The State
Das].
1950
A .K,Gupalan
v,
Tht State
Dru].
314 SUPREME COURT REPORTS [1950]
and forms which have been established for the protec
tion
of private
rights."
A more specific definition of the expressiou "the
law of the land" meaning procedural due process was
given
by Webster appearing as counsel for the
plaintiff
'In error in the "Trustees of Dartmouth College v. Wood
ward(
1
):
"By the law of the land is most clearly intended.
the general law; a law which hears before it condemns;
which proceeds upon inquiry and renders judgment
only after trial. The meaning
is that every citizen
shall hold
his life, liberty, property, and
immunitie,,
under the protection of the general rules ·which govern
society. Everything which may pass under the form
of
an enactment is not therefore to be considered the
law of the
land."
Willis in Ch. XXIII, p. 661, says :
"The guarantee of due process of law as a matter
of procedure m~ans that no part of a person's personal
liberty, including ownership, shall
be taken away from
him except
by the observance of certain formalities.
Hence its object
is the protection of the. social interest
in personal
liberty."
At p. 662 Willis enumerates the requirements of
the procedural due process
of law as follows: ( 1) notice,
(2) opportunity
to be heard, (3) an impartial tribunal
and (4) an orderly course of procedure.
In short, the
procedural due process requires that a person who
is to
be deprived of his life, liberty or
property shall have
had "his day in Court." This according to Willough by
p. 736, means:
"(1) that he shall have had due notice, which
may
be actual or constructive, of the institution of the
proceedings
by which his legal rights may be affected;
(2) that he shall
be given a reasonable opportunity to
appear and defend
his rights, including the right him
self to testify, to produce witnesses, and to introduce
relevant documents and other evidence, (3) that the
tribunal in or before which
his rights _are adjudicated
is so constituted as to give reasonable assurance of its
(1) 4
Wheaton 518 at p •. ~79; 4 L. Edn. 629 at p, 6~5.
S.C.R. SUPREME COURT REPORTS 315
honesty and impartiality; and ( 4) that-it is a -COurt
of competent jurisdiction."
It will be noticed that the fourth item of Wil
loughby is different from the fourth item of Willis.
Such,
in short, are the history of the development of
the doctrine of the process of law
in the
United States
and the requirements of the procedural due process
as
insisted on by the Supreme Court of that country.
Learned counsel for the petitioner before
us does
not contend that we should import this American
doc
trine of due process of law in its full glory but that we
sho'!_ld adopt the procedural part of it and insist that
no person shall
be deprived of his life or personal liberty
except
by the observance of the formalities which
jus
tice and fair play require to be observed. The argu
ments of learned counsel for the petitioner are attractive
and in the first blush certainlx appeal to our sentiment
but on serious reflection I find several insuperable ob
jections to the introduction of the American doctrine
of procedural due process of law into our Constitut10n.
That doctrine can only thrive and work where the legis
lature is subordinate to the judiciary in the sense that
the latter can sit in judgment over and review all acts
of the legislature. Such a doctrine can have no appli
cation to a field where the legislature is supreme. That
is why the doctrine of "due process of law" is quite
different in England where Parliament is supreme.
This difference
is pointedly described by Mathews J.
in foseph Hurtado v.
People of California (
1
)
at p. 531:
"The concessions of Magna Charta were .wrung
from the King
as guarantees against oppression and
usurpation
of his prerogatives. It did not enter into
the. minds of the barons to provide security against
their own body or in favour of the commons
by
limit
ing the power of Parliament, so that bills of attainder,
er post facto laws, laws declaring forfeitures of estates
and other arbitrary Acts of legislation which occur
so
frequently in English history, were never regarded as
inconsistent with the law of the land, for
(notwith
standing what was attributed to Lord Coke in Bonham's
(
1
) (1882) l JO U.S. 516.
1950
A. K. Gopalan
v.
The State
Das].
1950
A. K. Gopalan
v.
The Stale
Das].
316 SUPREME COURT REPORTS [1950]
case, [8 Coke 115, 118 (a),] the omnipotence of Parlia
ment over the Common Law was absolute, even against
common right and reason.
The actual and practical
security for English liberty against legislative tyranny
was the power of a free public opinion represented
by the Commons.
In this country written Constitutions were deemed
essential
to protect the rights and liberties of the people
against the encroachments
of power delegated to their
governments and the provisions
of Magna Charta were
incorporated in the bills
of rights. They were
limita
tions upon all the powers of government, legislative as
well as executive and judicial.'"
This basic distinction between the two systems
should never be lost sight of, if confusion of thought is
to be avoided. Although our Constitution has imposed
some limitations on the legislative authorities, yet
subject to and outside such limitations our Constitution
has left our Parliament and the State Legislatures
supreme in their respective legislative fields. In the
main, subject
to the limitations I have mentioned, our
Constitution has preferred the supremacy
of the
Legis
lature to that of the Judiciary. The English principle
of due process of law is, therefore, more in accord with
our Constitution than the American doctrine which
has been evolved for serving quite a different system.
The picturesque language
of Bronson J. quoted above,
while that is quite appropriate to the American
Constitution which
does not recognise the supremacy
of the Congress,
is wholly out of place in, and
has no application to, a Constitution such
as ours,
which, subject only to certain restnct10ns, recognises
the supremacy
of the Legislatures in their respective
fields. In the next place, it
is common knowledge that
our Constitution-makers deliberately declined
to adopt
the uncertain
and shifting American doctrine 0£ due
process ' of law and substituted the words "except in
due process of law" that were in the original draft by
the more specific expression "except in accordance with
procedure established
by law.'' To try to bring in the
American doctrine in spite or this fact, will
be to
stultify the intention of the Constitution as expressed in
S.C.R. SUPREME COURT REPORTS 317
article 21. In the third place, in view of the plain mean
ing of the language
of that article as construed and ex
plained above it is impossible to let in
whaf have been
called the principles of natui;al justice as adopted in
the procedural due process of law by the American
Supreme Court. Again,
even the all-pervading little
word
"due" does not find a place in article 21 so as to
qualify the procedure.
It speaks of procedure and not "due" procedure and, therefore, "the intellectual yard
stick" of the Court is definitely ruled out. Finally,. it
will
be incongruous to. import the doctrine of due
pro
cess of law without its palliative, the doctrine of police
powers.
It is impossible to read the last mentioned
doctrine into article
21.
It has also
·been suggested as a compromise tha
this Court should adopt a middle-course between the
· flexible principles of natural justice as adopted by the
American doctrine of due process
of law and the un
bending rigidity of mere
State~made laws. It is said
that we have our Code of Criminal Procedure which
embodies within its provisions certain salutary princi
ples
of procedure and we must insist that those under
lying principles should
be regarded as procedure esta
blished or settled by our positive law. But who will
~ay what are those fundame11tal principles? What
principles do I reject
as inessential and what shall I
adopt
as fundamental? What is fundamental to me
today may
·not appear to be so to another Judge a.
decade hence, for principles give way with changing
social conditions. In America it was suggested that
due process of law should
be taken to mean the
general body of common law
as it stood at the date
of the Constitution. In
Bardwell "' Collins (
1
)
it was
negatived in the following
·words :
" 'Due process of law' does not mean the general
body of the law, common and statute,
as it was at the
time the Constitution took effect; for that would deny
the legislature power
to change or amend the law in
any
particular."
The Court, however, brought in principles of
(
1
) 44 Minn, 97.
1950
A.K. Gopalan
v.
T//4 State
Das].
1950
A.K. Gopa/4n
v.
Tl~ State
Das J.
318 SUPREME COURT REPORTS [ 1950 J
natural justice under the due process clause. To sanc
tify what I may today regard
as the basic
principles
underlying our Code of Criminal Procedure will be to
make them immutable and to prevent the legislature
even to improve upon them. This
is nothing but im
posing on the legislature a limitation which
the Con
stitution has not placed on it. I do not think it
is a Jlermissible adventure for the Court to undertake. It
is a dangerous adventure, for it will bring about stag
nation which means ruin. We must accept the Consti
tution which
is the supreme law. The Constitution
h"
by article 21 required a procedure and has prescribed
certain minimum requirements of procedure in article
22. To add to them is not to interpret the Constitution
but to recast it according to our intellectual yanlstick
and our unconscious predilections as to what an ideal
Constitution should be.
Article 21, in my ju<]gment, only formulates a
substantive fundamental right to life and personal
liberty which in its content
is not an absolute right but
1s a limited right having its ambit circumscribed by
the risk of its being taken away by following a proce
dure established
bv law made by the appropriate
legislative authoritv and the proximate purpose of
article
21 is not to prescribe any particular procedure.
It is to be kept in mind that at the date when the
Constitution came into effect we had the Indian
Penal
Code creating diverse offences and a conviction for any
of them would deprive a person of his personal liberty.
Under article 246 read with Entry I of the Concurrent
List, Parliament or any State Legislature could add
more offences and create further means for taking
away personal liberty. But all this deprivation of
personal liberty
as a result of a conviction could only
be done by following the procedure laid down by the
Code of Criminal Procedure. Again, at the date of
this
Constitmion there were preventive detention laws
in almost every province and a person could
be depri
ved of his personal liberty under those laws. Those
laws, however, provided a procedure of a sort which
had to
be followed. Therefore, before the Constitution
came into force, personal liberty could
be taken away
,_
S.C.R. SUPREME COURT REPORTS 319
only by following the procedure enacted by the
Criminal Procedure Code in the
case of punitive deten
tion or
by the
proce<lure enacted by the different
Security Acts in
case of preventive detention. Power,
however,
has been given to Parliament and the
State
Legislatures under article 246 read with Entry 2 of the
Concurrent List to make ·1aws with respect to Criminal
Procedure.
If that article stood by itself the
Parliament or the
State Legislature could repeal the
whole
of the Criminal Procedure Code and also do
away even with the skeleton procedure provided in the
Security Acts.
If article 246 stood by itself then the
appropriate legislative authority could have taken
away the
life and personal liberty of any person
with
out any procedure at all. This absolute supremacy
of the legislative authority has, however, been cut
down
by article 21 which delimits the ambit and scope
of the substantive right to life and personal liberty hy
reference to a procedure and by article 22 which
pres
cribes the minimum procedure which must be followed.
In this situation the only power of the Court is to
determine whether the impugned law
has provided
some procedure and observed and obeyed the mini
mum requirements of article 22 and if it
has, then
it
is not for the Court to insist on more elaborate
procedure according
to its notion or to question the
wisdom of the legislative authority in enacting the
particular law. however harsh, unreasonable, archaic
or odious the
provisions· of that law may be.
It is said that if this strictly technical interpreta
tion
is put upon article 21 then it will not constitute
a fundamental right at all and need not have been
placed in the chapter on Fundamental Rights, for
every
person's life and personal liberty will be at the mercy
of the Legislature which,
by providing some sort of
a procedure and complying with the few requirements
of article
22, may, at any
·time, deprive a person of
his life and liberty at its pleasure and whim. There
are several answers to this line of argument. Article
21 as construed by me will, if nothing else, certainly
protect every person against the executive and
as
such will be as niuch a fundamental right deserving
1950
A. K. Gopalon
V.
The Stat•
Das J.
1950
A.K. Copa/an
v.
T!it State
Das].
320 SUPREME COURT REPORTS [1950]
a place in the Constitution as the famous 39th Chapter
of the Magna Charta was and
is a bulwark of liberty
in English law. It appears to me that article
21 of
our Constitution read with article 32 also gives us
some protection even
agoinst the legislative authority
in that a person may only be deprived of his life and
personal liberty in accordance with procedure which,
although enocted by it, must at least conform to the
requirements of article 22. Subject to this limita
tion our Parliament or any State Legislature may
enact any law and provide any procedure it plea>es
for depriving a person of his life and personal liberty
under article
21. Such being the meaning of that
article and the ambit and
extent of the fundamental
nght of life and personal liberty which the people of
this country have given nnto themselves, any law for
depriving any person of his life and personal liberty
that may be made bv the appropriate legislative
authority under article
246
ond in conformity with 1 he
requirements of article 22 does not take awav or
abridge any right conferred by article 21, · for
the very right con fcrred by that article is circum-
scribed
by this possibility or risk
and, therefore,
such law cannot
be regarded as violating the
provisions of article
13(2);
Our Constitution ts a
compromise between Parliamentary supremacy of
England and the supremacy of the Supreme Court of
the United States. Subject to the limitations I have
mentioned which are certainly ju>ticiable, our Consti
tution has accepted the supremacy of the legislative
authority and, that being so, we must be prepared to
face occasional vagaries of that body and to
put up
with enactments of the nature of the atrocious English
statute to which learned counsel for the petitioner
has repeatedly referred, namely, that the
Bishop of
Rochester's cook be boiled to death.
If
Parliament
may take away life by providing for hanging by the
neck, logically there can
be no objection if it provides
a sentence of death by shooting
by a firing squad or by
guilloting
or in
t:1e electric chair or even by boiling in
oil. A procedure laid down
by the legislature may
offend against the Court's sense of justice and
fair pby
,
S.C.R. SUPREME COURT REPORTS 321
and a sentence provided by the legislature may outrage
the Court's notions of penology, but that
is a wholly
irrelevant consideration.
The Court may construe and
interpret the Constitution and ascertain its true
mean
ing but once that h done the Court cannot question its
wisdom or policy.
The Constitution is supreme. The
Court must take the Constitution as it finds it, even
if it
does not accord with its preconceived notions of
what an
ideal Constitution should be. Our protection
against legislative tyranny,
if any, lies in ultimate
analysis in a free
and intelligent public opinion which
must eventually asert itself.
The conclusion I have arrived at does not
intro
duce any no\'clty, for in many other Constitutions the
supremacy of the legishture is recognised in the
matter of depriving a person of his life, liberty and
property.
The English Democratic
Constitution is
one in point. Take the Constitution of the Irish Free
State. Article 40 (4) (i) provides that no citizen shall
be , :prived of personal liberty save in accordance with
law, :m<l article 50 (5) guarantees that the dwelling of
every citizen
is inviolable and shall not be forcibly
entered
save in accordance with law. The words
"in
accordance with law·· in both the above clauses must
mean the same thiag and I have no doubt in my mind
reading clause (5) that it means in accordance with
the State-made law, for
we have not been referred to
any
rule prescribed by natural justice regulating
searches of, or entry into, dwelling houses. Article
107 (2) of the Czechoslovakian Constitution uses the
words "in accordance with law" which, read with
clause
(I) of that article, obviously means the
law to
br. made which will form part of the Constitution.
Take the Constitution of the Free City of Danzig.
Article
74 of that Constitution which is in Part II
headed
"Fundamental Rights and Duties" provides
as follows:
"The liberty or the person shall be inviolable.
No limitation or deprivation of personal liberty may
be imposed by public authority, except by virtue c•f
a la\:
1950
A. K. Copa/an
v.
The State
Das].
1950
A. K. Gopahm
v,
The State
Das].
322 SUJ?REME COURT REPORTS !1950]
The word "law" clearly cannot, in the context,
mean principles of natural justice. Again, article
75
of that Constitution protects the freedom of movement
within the Free City and the right to stay and to
settle at any place, to acquire real property and to
earn
a living. It concludes by saying that this right shall
not be curtailed without legal sanctions. Legal sanc
tion1, in this context, can onlv mean sanctions of the
City laws. Article
114 of the Weimar Constitution
is on the same lines and expressed in almost the same
language
as article 74 of the Danzig Constitution.
Take the Japanese
Constitution of 1946 from which our
article
21 is reputed to have been taken. Article XXXI
of that Constitution says: "No person shall be deprived of life or liberty nor
shall any other criminal penalty he imposed, except
according
to procedure established
by law."
Surely the words "except according to procedure
established
by
law" in their application to the imposi
tion of criminal penalty must mean State-made law
and the same words in the same sentence in the same
article cannot, acconling
to ordinarv
rules of construc
tion of statutes, mean a different thing in their appli
cation to deprivation of life or liberty.
1 am aware
that it
is not right to construe
one Constitution in the
light of another and that
is not my purpose when I
refer
to the other Constitutions; but I do think that
after reading the relevant
proYisions of other written
Constitutions one
sees auite clearly that there is no
press
ing special reason applicable to or inherent in written
Constitutions which requires the importation of the
principles of natural justice or of the American doctrine
of due process
of law into our Constitution. The
several
Constitutions referred to above have not adopted that
American doctrine but have been content with leaving
the life and liberty of their citizens
to the care of the
laws made
by their legislatures. It is no novelty if
our Constitution
has done the same. For all these
reasons, in spite of the very able and attractive argu
ments of the learned counsel for the petitioner which
I freely acknowledge, I am not com·inced that there
is any scope for the introduction into article 21 of our
S.C.R. SUPREME COURT REPORTS 323
Constitution of the doctrine of due process of iaw
even as regards procedure. I may or may not like
it but that
is the result of our Constitution as I under
stand it.
The learned Attorney-General
has referred to certam
debates in the Constituent Assembly on the original
clause which has now become article
21,
· not as evidence
to be used in interpreting the languagt of article 21
but as disclosing the historical background. His
purpose, he
says, is to show that the framers of
our Constitution had
. the essential difference in the
meaning of the phrases "due process of law" and
"ac~rding to procedure' established by law" clearly
expfained
to them, that they knew
th.tt the former
implied the supremacy of the judiciary and the latter
the supremacy of . the legislature and with all that
knowledge they deliberately agreed to reject the former
expression and adopt the latter.
As, in my opinion,
it
is possible to interpret the language of article 21 on
the ordinary rules
·of interpretation of statutes, I do
not think it is at all necessary to refer to the debates.
As I do not propose to refer to, or rely on,
. the debates,
for the purposes of this
'case, I express no opinion on
the question of the admissibility or otherwise of the
debates.
I now
pass on to article 22. The contention of
learned counsel for the petitioner
is that article 21 by
reason of the last few words,
"according to procedure
established
by
law" attracts ·the four requirements of
the American procedural due
process of
law as sum
marised
by Willis to which reference has been made
earlier, and that, those requirements, except to the
extent they have been expressly abrogated or modified
by article 22, must be strictly followed before a
person
may be deprived of his life or personal liberties. I
have already stated for reasons
set forth above, that
there
is no scope -for introducing any rule of natural
justice or the American procedural due
process of law
or any underlying principle of our Code of Criminal
Procedure into that article. This being the conclusion
I have arrived at, the
. major premise assumed by
learned counsel for the petitioner is missing and this
16-3 S. C. India/58
1950
A. K. Gopolan
V,
Tli4Stak
Das].
1950
A. K. Gopala•
v.
The Statt
Das].
324 SUPREME COURT REPORTS (1950]
line of argument does not begin and cannot be
accepted.
The learned Attorney-General, on the other hand,
has at one stage of his argument, urged that article 21
has nothing to do with preventive detention at all and
that preventive detention
is wholly covered by article
22(4)
to (7)
whjch by themselves constitute a complete
code. I am unable to accede to this extreme point of
view also. The true position, as I apprehend it, lies
between the two extreme views. Article 21, to my
mind,
gives protection to lite and personal liberty to
the extent therein mentioned. It
does not recognise
the right to life and personal liberty
as an absolute
right but delimits the ambit and
scope of the right
itself. The absolute right
is by the
defin~tion in that
article cut down
by the risk of its being taken away in
accordance with procedure established
by law. It
is this
· circumscribed right which is . substantively
protected
by article 21 as against the executive
as well as the legislature, for the Constitution has
conditioned
its deprivation by the necessity for a
pro
cedure established by law made by itself. While sub
clauses (2) to (6) of article 19 have put a limit on the
fundamental rights of a citizen, articles
21 and 22 have
put a limit on the power
of the State given under arti
cle 246 read with the legislative lists.
Under our Con
stitution our life and personal liberty are balanced by
restrictions on the rights of the citizens as laid down
in article
19 and by the checks put upon the State by
articles 21 and 22.
Preventive detention deprives a
person of
his personal liberty as effectively as does
punitive detention and, therefore, personal liberty, cir
cumscribed
as it is by the risk of its being taken away,
requires protection against punitive
as well as preven
tive detention. The language of article
21 is quite
general and
is wide enough to give its limited
protec
tion to personal liberty against all forms of detention.
It protects a person against preventive lletention by
the executive without the sanction of a law made by
the legislature. It prevents the legislature from tak
ing away a person's personal liberty except in accord
ance with procedure established by law, although such
S.C.R. SUPREME COURT REPORTS 325
law is to be by itself. If. as contended by the learned
Attorney-General and held
by me, article 19 only
pro
tects the rights of a free citizen as long as he is free and
does not deal with total deprivation of personal liberty
and if,
as contended by the learned Attorney-General,
article
21 does not protect a
person against preventive
detentjon then where
is the protection for life and
per
sonal liberty as substantive rights which the procedu
ral provisions of article.22 may protect? What is the
use of procedural protection if there is no substantive
right?
In my judgment article 21 protects the
sub
stantive rights by requiring a procedure and article 22
gives the minimum procedural protection.
Clauses (1) and (2) of article 22 lay down the pro
cedure that has to be followed when a man is arrested.
They ensure four things: (a) right
to be informed
re
garding grounds of arrest, (b) right to_ consult, and to
be defended by, a legal practitioner of his choice, (c)
right
to be produced before a magistrate within 24
hours and ( d) freedom from detention beyond the
said period except by order of the magistrate.
These, four procedural requirements
are very
much
similar to the requirements of the procedural due
process of law as enumerated by Willis. Some of
these salutary protections are also to be found in our
Code of Criminal Procedure. If the procedure has
already been prescribed by article 21 incorporating the
principles
of natural justice, or the principles underlying
our Code of Criminal Procedure what
was the necessity
of repeating them in clauses (1) and (2) of article 22?
Why this unnecessary overlapping? The truth is that
article
21 does not prescribe any particular procedure
but in defining the protection
to life and personal
liberty merely
envisages or indicates the
nece~sity for
a procedure and article
22 lays down the minimum
rules
of procedure that even Parliament cannot
abro
gate or overlook. This is so far as punitive detention
is concerned. But clause (3) of article 22 expressly
provides that none
of the procedure laid down in
clauses (1) and (2) shall apply to an alien enemy or to a
person who
is arrested or detained under any law
pro
viding for preventive detention. It is ,thus expressly
1950
.d.K.~
"·
The State
Dos],
1950
..!. /[. C.palan
v.
Tt.. St""
Das].
326 SUPREME COURT REPORTS [1950]
made clear that a detenu need not be produced before
the magistrate and
he is not to have the assistance of
any lawyer for consultation or for defending him. Such
being the express provision
of our Constitution nobody
can question
its wisdom.
So I pass on.
Clauses (4), (5), (6) and (7) of article·22 in terms
relate to preventive detention. Article
246 authorises
the appropriate legislature
to make a law for preventive
detention in terms
of Entry 9
il'I List I and/or Entry 3
in List III
of the
Seventh Schedule. On this legislative
power are imposed certain limitations
by article 22
( 4) to (7). According to this the legislature, whether it
be Parliament or a
State Legislature, is reminded that
no law made
by it for preventive detention shall
authorise the detention
of a person for a longer
period
than three months except in two cases mentioned in
sub-clauses (a) and (b). The proviso to suD-clause (a)
and sub-clause (b) refer to a law made only by
Parliament under clause (7). Under clause (7) it is
Parliament alone and not any State Legislature that
may prescribe what are specified in the three suD
clauses of that clause. Although a State Legisiarure
may make a law for preventive detention
in terms
of Entry
3. in List III of the
Seventh Schedule no
such law may authorise detention for more than three
months unless the provisions ot rnb-clauses (a} and
(b) of clause (4) sanction such detention. Even a
law made
by Parliament cannot authorise detention
for more than three months unless it
is a law made
under the provisions of clause (7).
In short, clause (4)
of article 22 provides a limitation on the legislative
power
as to the period of . preventive detention. Apart
from imposing a limitation on the legislative
power,
clause ( 4) also prescribes a procedure of detention for
a period longer than three months
by providing for an
advisory board. Then
comes clause (5). It lays down
the procedure that has to
be followed when a
person
is detained under any law providing for preventive
detention, namely, (a) · the grounds of the order of de
tention must
be communicated to the cletenu as soon
as may be, and (b) the detenu must he afforded the earli~st opportunity of making a representation against
S.C.R. SUPREME COURT REPORTS 327
the order. The first requirement takes the place of
notice and the second that
of a defence or hearing
These are the only compulsory procedural requirements
laid down
by our Constitution. There is nothing to
prevent the Legislature from
providip.g an . elabordte
procedure regulating preventive detention but it
is not
obliged to do
so. If some procedure is provided as en
visaged
by article 21 and the compulsory requirements
of article
22 are obeyed and carried out nobody can,
under our Constitution
as I read it, complain of the
law providing for preventive detention.
Learned counsel for the petitioner concedes that the
four requirements of
procedural· due process summa
riied by Willis will have to be modified in their appli
cation
to preventive detention. Thus he does not in
sist on a prior notice before arrest, for he recognises
that such a requirement may frustrate
the very object
of preventive detention
by giving an opportunity to
the person in question to
go underground. The provi
sion in clause (5) for supplying grounds
is a good
sub
stitute for notice. He also does not insist that the
Tribunal
to judge the reasonableness of the detention
should
be a judicial tribunal. He will be satisfied if
the tribunal or advisory board,
as it is called in article
22 of the Constitution, is an impartial body and goes
into the merits of the order of the detention and its deci
sion is binding on the executive government. He in
sists that the detenu
must have a reasonable and effec
tive opportunity to put up his defence. He does not
insist on the assistance of counsel, for that
is expressly
taken away,
by the Constitution itself. But he in
sists on what he calls an effective opportunity of
being heard in person before an impartial tribunal
· which will be free to examine the grounds . of his
detention and whose decision should
be binding alike
on the detenu and
the executive authority which de
tains. The claim may
be reasonable but the question
before the Court
is not reasonableness or otherwise of
the provisions of article
22 (4) to (7). Those provisions
are not justiciable, for they are the provisions of the
Constitution itself, which
is supreme over
every· body
1950
A~ K. Gopalan
v.
TM State
Das].
1950
A. K. Gopaltu1
v.
Tiii Stau
Das].
328 SUPREME COURT REPORTS [1950]
The Court can only seek to find out, on a proper con
struction, what protection has in fact been provided.
The Constitution has provided for the giving of the
grounds of detention although facts
as distinguished
from grounds
may be withheld under clause ( 6) and
the right of representation against the order of
deten
tion. It has_ provided for the duration of the deten
tion. There the guaranteed fundamental procedural
rights end. There
is no provision for any trial betore
any tribunal.
One cannot import the condition ot a
trial
by any tribunal from the fact that a right ot
representation
has been given. The right to make
representation
is nothing more than the right to
"lodge
objections" as provided by the Danzing Constitution
and the Weimar Constitution. The representatious
made will no doubt
be considered by the Government.
It
is said a prosecutor cannot be himself the judge.
Ordinarily, the orders
of detention will in a great
majority
of cases be made by the District Magistrate
or Sub-Divisional
Officer or the Commissioner of Police.
The representation of the detenu goes to the Govern
ment. Why should it be assumed that a high govern
ment official at the seat of the government will not
impartially consider the representation and judge the
propriety
of the order of detention made by local
officials? Clause (5) does not imperatively provide for
any oral representation which a hearing will entail.
Indeed the exclusion of the provisions
of clauses ( 1)
and (2) negatives any idea of trial
or oral defence. The
Court may not, by temperament and training, like
this at all but it cannot question the wisdom or the
policy of the Constitution. In my judgment as regards
preventive detention laws, the only limitation put
upon the legislative power
is that it must provide
some procedure and at least incorporate the minimum
requirements laid
"down in article 22 ( 4) to (7).
There
is no limitation as regards the substantive
law. Therefore a preventive detention law which
provides some procedure and complies with the
re
quirements of article 22 ( 4) to (7) must be held to be
a good law, however odiou.• it may appear to the
Court to be.
S.C.R. SUPREME COURT REPORTS 329
Learned counsel for the petitioner contends that
the impugned Act
does not comply with even the bare
requirements
of article 22 (4) to (7). It is pointed out
that section 3
of the Act does not lay down any
objective
test but leaves it to the authority to define
and
say whether a particular person comes within the
legislative
heads. In other words, it is contended that
Parliament
has not legislated at all but has delegated
its legislative powers to the executive authorities. I
do not think there
is any substance in this contention.
In the
first place this is not an objection as · to proce
dure but to substantive law which is not open to the
Court's scrutiny.
In the next place this contention
overlooks the
basic distinction between the delegation
of power to make the law and the conferring of an
authority and discretion as to its execution to be
exercised under and in pursuance of the law. The
impugned
Act has specifically set forth an ascertainable
standard
by which the conduct of a particular person
is to be judged by the detaining authority.
It
is next urged that section 12 of the Act does
not comply with the requirements of clause (7) of
article 22 for two reasons, namely-
(i) that clause (7) contemplates a law
prescrib
ing the circumstances up.der which, and the class or
class's of cases in which, a person may be detained for
a period longer than three months and then another
law thereafter providing for preventive detention
for a
period longer than three months; and
(ii) that under
clause (7) Parliament must
prescribe both 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.
As regards the first point I do not see why
Parliament must make two
laws, one laying down the
principles for longer detention and another
far deten
tion ·for such longer period. It may be that a State
cannot provide for longer detention until Parliament
1950
A. K. Gopalan
v.
The Strite
Das].
1950
A. K. Gopo/an
v.
T J., State
Das].
330 SUPREME COURT REPORTS [1950]
has made the law, but I can see no reason why Parlia
ment cannot do both by the same Act. In fact, clause
(4) (b) contemplates the detention itself
to be in
accordance
with the provisions of any law made by
Parliament under sub-clauses (a) and (b) of clause (7).
Therefore, the detention can well
be under the very
law which the Parliament makes under sub-clauses (a)
and (b) of clause (7). As to the second point the
argu
ment is that Parliament has a discretion under clause
(7)
to make a law and it is not obliged to make any
law but when our Parliament
chooses to make a .Jaw it
must prescribe both 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. I
am unable to construe
clause (7) (a) in the way
sug
gested by learned counsel for the petitioner. It is an
enabling provision empowering Parliament to prescribe
two things. Parliament may prescribe either or both.
If a father tells his delicate child that he may play
table tennis and badminton but not the strenuous
game of football, it obviously
does not mean that the
chi!,J, if he chooses to play ac all, must play both table
tennis and badminton. It
is an option given to the
child. Likewise, the Constitution
gives to Parliament
the power of prescribing two things. Parliament
is not
obliged to prescribe at all but
if it chooses to prescribe
it
may prescribe either or both. Clause 7 (a), in my
opinion, has to be read distributively
as follow : The
Parliament may prescribe the circumstance under
which a person may
be detained for a period longer
than three months and Parliament may prescribe the
class or classes of cases in which a person may be
de
tained for a period longer than three months. That ap
pears to ine to be consonant with sound rules of con
struction. Further, the circumstances and the class or ·
classes of cases may conceivably coalesce. Indeed the
Full
Bench case No. 1 of 1950 before the Calcutta High
Court
(Kshitindra Narayan v. The Chief
Secretary) itself
indicates that the same provision may
be read as
cir
cumstasces or as a classification. In that case learned
counsel conceded that section
12 had prescribed the
cir
cumstances but his complaint was that it had not
S.C.R. SUPREME COURT REPORTS 331
prescribed the class or classes of cases. The majoritv of
the Court repelled this contention. One learned Judge,
however, held that section
12 had prescribed the class
or classes of cases but
had· not prescribed the circum
stances. It
is, therefore, clear that the classification
itself may indicate the circumstances. Again, the
classification may
be on a variety of bases. It
may be according to provinces the detenus come
from. It may be according to the age of the detenus.
It may be according to the object they are supposed
to have in view or according to the activities they are
suspected to
be engaged in. In this case Parliament
has taken
five out of the
six legislative heads and
divided them into two categories. 'flie detenus are
thus classified according to their suspected object or
activities endangering the several matters specified in
the section. I do not
see why Classification cannot
be made on the footing of the objectives of the detenus
falling in some of the legislative heads, for each legis
lative head
has a specific connotation well under~tood
in law. If I am correct that there has been a classifi
cation then the fact that a person falls within ove or
the other
class may well be the circumstances under
which he may
be detained for a period longer than
three months. I do not consider it right,
as a matter
of construction,
to read any further limitation in
clause
7(a) of article
22~ In my judgment Parliament
was not obliged under clause (7) to prescribe both
circumstances and
classes, and in any case has in fact
and substance prescribed both.
I am conscious that a law made by Parliament
under article
22 (7) will do away with the salutary
safeguard of the opinion of an advisory board. But
it must
be remembered that our Constitution itself
contemplates that in certain circumstances or for
certain
class or classes of detenus even the advisory
board may not
be safe and it has trusted
Parliament
to make a law for that purpose. Our preference for
an advisory board should not blind
us to this aspect
of the matter. It
is true that circumstances ordinarily
relate to extraneous things, like riots, commotion,
19j0
A. K. Gopa/an
v.
The Stat
Das].
1950
A. Ii. Gopalan ·
v
The State
DaJ],
332 SUPREME COURT REPORTS [1950]
political or communal or some sort of abnormal
situa.tion and it is said that the framers of the Consti
tution had in mind some such situation when the
advisory board might
be done away with. It is
also urged that they
had in mind that the more dan
gerous
types of detenus should be denied the privilege
of the advisory board. I
am free to confess that pres
cription of specific circumstances or a more rigid and
definite specification of classes would have been better
and more desirable. But that is crying for the ideal.
The Constitution has not in terms put any soch
limitation as regards the circumstances or the class or
classes of cases and it i~ idle to speculate as to the
intention of the Constitution-makers, who,
by the way,
are the
very persons who made this law. It is not for
the Court
to improve upon
o~ add to the Constitution.
If the law ·duly made by Parliament is repugnant to
good sense, public opinion will compel Parliament to
alter it suitably.
Finally, an objection
is taken that section 14 of
the impugned Act takes away
or abridges the right of
the detenu
to move this Court by
appropria_te proceed
ings. Both clauses (
l) and
(2) of article 32 speak of
enforcement of rights conferred by Part III. The right
to move this Court is given to a person not for the
sake
of moving only but for moving the Court for the
enforcement
of
some rights conferred by Part III and
this Court
has been given power to issue directions or
orders or writs for the enforc.ement of any of such
rights. In order, therefore, to attract the application
of article
32, the person applying must first satisfy
that he has got a right under Part III which has to be
enforced under article 32. I have alreadv said that
article
19 does not deal with the freedom
of the person.
I have also said that articles
21 and 22 provide for
pro
tection by insisting on some procedure. ·Under article
22 (5) the authority making the order of detention is
enjoined, as soon as may he, to communicate t.o the
detenu the grounds on which that order has been made.
This provision has some purpose, namely, · that the
disclosure of the grounds will afford the detenu the
S.C.R. SUPREME COURT REPORTS 333
-Opportunity of making a representation against the
-0r~er. Supposing the authority does not give any
grounds at all
as distinct from facts referred to in clause (6). Surely the detenu loses a fundamental
right because he is prevented from making a represen
tation against the order of detention. Suppose the
authority hands over to the detenu a piece of paper
with some scribblings on it which do not amount to :my ground at all for detention. Then also the detenu
ca11 legitimately complain that his right has been
infringed.
He can then come to the Court to get redress under article 32, but he cannot show to the
Crrnrt the piece of paper with the scribblings on it
under ~ection 14 of the Act and the Court cannot judge
whether he has actually got the grounds which he is
entitled to under article 22 (5). In such a case the
<letenu may well complain that both his substantive
right under article
22 (5) as well as his right to
constitutional remedies under article
32 have been
infringed.
He can complain of infringement of his
remedial rights
under article 32, because he cannot
show that there has been an infringement of his
substantive right under article
22 (5). It appears to
me, therefore, that section 14 of the Act in so far as it
prevents the detenu from disclosing to the Court the
grounds communicated
to him is not in conformity
wit,11 Part III of the Constitution am! is, therefore,
void under article 13(2).
That section, however, is
dearly severable
an(! cannot affect the whole Act. On
this que§tion the views of Meredith C. J. 'and Das J.
of Patna in Criminal Miscellaneous No. 124 of 1950
(Lalit Kumar Barman v. Tlze State) and the majority
of the learned Judges of the Calcutta High Court in
Full Bench Case No.
1 of
1950 (Kslzitindra Narayan
v. Tlze Chief Secretary) appear to be correct and
sound.
For the reasons I have given above, in my opinion, the impugned Act is a valid law except as to section
14 in so far as it prevents the grounds being disclosed
to the Court.
The petitioner before us does not
com
plain that he has not got proper grounds. Further,
the period of his detention under the impugned Act
1950
A. K. Copa/an
v.
The State , __
Dn>'].
1950
..!.
Jr. Gopala•
'f
..
Tl.e Stoll
DOI].
334 SUPREME COURT REPORTS [1950]
has not gone beyond three months and, in the circum
stances, this application should, irl my opinion, stand
dismissed.
Petition di,missed.
Agent for the Petitioner : S. Subrahmanyam.
Agent for the State of Madras and Union of India :
P.A. Mehta.
The landmark 1950 Supreme Court ruling in A.K. Gopalan v. The State of Madras stands as a foundational pillar in the interpretation of India's constitutional framework, particularly concerning the Preventive Detention Act 1950 and its interplay with Fundamental Rights. This pivotal judgment, extensively documented and analyzed on CaseOn, set the early precedent for the relationship between personal liberty and state authority, shaping constitutional discourse for decades. It grappled with the scope of Articles 19, 21, and 22, delivering a verdict that, while later revised, remains a critical study in constitutional interpretation.
The petitioner, A.K. Gopalan, was detained under the Preventive Detention Act, 1950. He challenged his detention through a writ of habeas corpus, raising several profound constitutional questions:
The Court's analysis centered on the following key provisions:
The six-judge bench delivered a fractured verdict, with the majority opinion shaping the law for nearly three decades. The analysis can be broken down into the majority and dissenting views.
The majority adopted a narrow, literal, and compartmentalized approach to interpreting the Fundamental Rights.
The Court held that Articles 19 and 21 were mutually exclusive and should be read as separate, self-contained codes. Article 19, they reasoned, only protected the rights of a free citizen. Once a person was deprived of their liberty through a valid legal procedure (i.e., detention), they were no longer a 'free' citizen and could not invoke the freedoms guaranteed under Article 19. Therefore, a law of preventive detention could not be tested against the 'reasonableness' standard laid out in Article 19(5).
This was perhaps the most consequential part of the judgment. The majority held that “procedure established by law” under Article 21 meant a procedure prescribed by a law validly enacted by a competent legislature. It explicitly rejected the petitioner's argument to import the American concept of “due process of law,” which includes principles of natural justice and procedural fairness. The Court concluded that the framers of the Constitution had deliberately chosen the former phrase over the latter, intending to give supremacy to the legislature in prescribing procedure, however arbitrary or unjust it might seem.
The majority viewed Article 22 as containing specific rules for preventive detention. They reasoned that if a preventive detention law complied with the procedural safeguards laid out in Article 22, its constitutional validity could not be challenged under Article 21.
The majority upheld the Preventive Detention Act, 1950, with one crucial exception. They struck down Section 14 of the Act, which prohibited a detainee from disclosing the grounds of their detention to any court. This was deemed unconstitutional as it directly impeded the Supreme Court’s power of judicial review and rendered the fundamental right to a constitutional remedy under Article 32 meaningless. However, since Section 14 was severable from the rest of the Act, its invalidity did not affect the validity of the Act as a whole.
Navigating landmark rulings with intricate, layered opinions like A.K. Gopalan can be demanding for legal professionals and students. For those looking to quickly grasp the essence of such pivotal cases, CaseOn.in 2-minute audio briefs provide a powerful tool. These concise summaries distill the core issues, reasoning, and conclusions, enabling a deeper and more efficient analysis of complex judicial precedents.
The dissenting judges offered a more expansive and liberal interpretation of fundamental rights.
Justice Fazl Ali argued that fundamental rights were not isolated silos but interconnected. He contended that preventive detention was a direct violation of the freedom of movement guaranteed by Article 19(1)(d) and, therefore, any law permitting it must stand the test of reasonableness under Article 19(5). Furthermore, he opined that “procedure established by law” was not a hollow phrase and must include the four essential principles of natural justice: (1) notice, (2) opportunity to be heard, (3) an impartial tribunal, and (4) an orderly course of procedure.
Justice Mahajan concurred with Justice Fazl Ali on many points and further held that Section 12 of the Act was unconstitutional. He argued that it failed to properly prescribe the “circumstances” and “classes of cases” for detention beyond three months without an advisory board's opinion, as mandated by Article 22(7). Since Section 12 was invalid, he concluded that the petitioner's detention was illegal.
By a majority of 4:2, the Supreme Court dismissed the petition. It upheld the constitutionality of the Preventive Detention Act, 1950, except for Section 14. As Section 14 was deemed severable, the petitioner’s detention under the valid provisions of the Act was held to be lawful. The judgment established the principle that Articles 19 and 21 were to be read separately, and that the 'procedure established by law' was solely what the legislature enacted, free from the scrutiny of natural justice principles. This legal position, however, was famously overturned 28 years later in Maneka Gandhi v. Union of India (1978), which integrated the principles of reasonableness and natural justice into Article 21.
The A.K. Gopalan case is a cornerstone of Indian constitutional law for several reasons. It offers a crucial insight into the Supreme Court's initial, highly textualist approach to interpreting the Constitution. For students, it serves as the essential starting point for understanding the evolution of Article 21. For legal professionals, it highlights the dynamic nature of constitutional interpretation and the judiciary's role in expanding the frontiers of fundamental rights. Studying Gopalan alongside its successor, Maneka Gandhi, provides a complete arc of the transformative journey of the right to life and personal liberty in India.
Disclaimer: The information provided in this analysis is for educational and informational purposes only. It does not constitute legal advice. For advice on any legal issue, please consult with a qualified legal professional.
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