A.K. Gopalan vs The State Of Madras, [AIR 1950 SC 27]

FACTS

The petitioner has applied under Article 32 of the Constitution to invoke writ of habeas corpus to release him from detention. He has challenged The preventive detention Act, 1950 on the ground that it violates Articles 13, 19, 21 and 22 of the Indian Constitution and therefore his detention was illegal.

ISSUE

Whether Preventive Detention Act, 1950 is violative of Article 13, 19, 21 and 22 of the Constitution?

ARGUMENTS

Petitioner:

The main contention of the petitioner is that the preventive detention act, 1950 is ultra vires the constitution and infringes fundamental rights enshrined under  Articles 13, 19, 21 and 22. The petitioner has challenged sections 3, 7, 11, 12, 13, 14 and various other provisions of the Act on the grounds that these provisions prohibit the detenue from exercising his rights conferred to him by the Constitution.

Respondent:

The state has put forth the contention that the preventive detention act, 1950 is not ultra vires the Constitution. The personal liberty of a person can be infringed in accordance with procedure established by law. As the act has been passed by the state, it automatically comes under the purview of “procedure established by law” mentioned in Article 21 of the Constitution, which broadly covers preventive detention law as well. Hence, provisions under the Act do not infringe the fundamental rights of the citizens.

OBSERVATION

Article 19 of the Constitution would not be applicable to preventive detention laws even though any of the provisions of the said law restricts or infringes Article 19. If a citizen loses his freedom of person by the reason of lawful detention, he would not be entitled to claim his rights under sub-clause (a) to (e) and (g) of Article 19(1), in a similar way, if the property of an individual is compulsorily acquired under Article 31 of the Constitution, his right under sub clause (f) of Article 19(1) cannot be claimed.  The concept of moving throughout the territory of India under Article 19(1)(d) of the Constitution is not the same as the concept of personal liberty under Article 21. Article 21 definitely protects some facets of Article 19 as personal liberty includes all varieties of rights which make up all the liberties of men and women.

Article 22 of the Constitution provides for safeguards against preventive detention law. However, it is not a complete code in itself relating to preventive detention. Article 21 has significant effect on Article 22, as it validates infringement of personal liberty in accordance with procedure established by law.  “ Procedure established by law” simply means law enacted by the state. The definition of the word “law” read with the rules of natural justice provides a very vague understanding of the subject.  The word “law” definitely doesn’t mean universal application of the principles of natural justice. The words under Article 21 are extremely generic and covers deprivation of personal liberty, both for punitive and preventive reasons. If the framers of the Constitution intended to exclude the application of Article 21 to cases of preventive detention, it would have been much easier 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 persons detained under preventive detention law. The language of clauses (4) to (7) of Article 22 also does not indicate that Article 21 prohibits preventive detention. 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 within Article 21.

Under Article 22 (5), the authority ordering for detention, shall as soon as possible, explain to the detenu the grounds on which the detention order has been made. The purpose of the provision is mainly that disclosing of the grounds will give the detenu the opportunity to challenge the order of detention.  In case the authority does not provide any grounds at all, the detenu’s fundamental right will be infringed because he is prevented from approaching the court of Law. The detenu can also rightly complain about infringement of right if the authority hands him a scribbling instead of proper grounds of detention . He may be able to move to the Court under Article 32, but the Court will not be able to adjudge whether he has got the grounds of detention under Article 22(5)  and Section 14 of the Preventive detention Act. . In these circumstances, the detenu can move to the court for  the infringement of both his substantive rights under Article 22 (5) as well as his right to constitutional remedies under Article 32.  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). 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 with Part III of the Constitution and is, therefore, void under Article 13 (2). That section, however, is clearly severable and cannot affect the whole Act.

HELD

The Court held that the preventive detention act, 1950 is not ultra vires the constitution with the exception of section 14, which was held to be unconstitutional.