Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.
A.K. Gopalan Vs. The State of Madras
AIR1950SC27, 1950CriLJ1383, [1950]1SCR88
Hon’ble Judges/Coram: H.J. Kania, C.J., B.K. Mukherjea, M.C. Mahajan, M. Patanjali Sastri, Sudhi Ranjan Das and S. Murtaza Fazal Ali, JJ.
Decided On: 19.05.1950
FACTS: –
The petitioner who was detained under the Preventive Detention Act (Act IV of 1950) applied under Article 32 of the Constitution for a writ of habeas corpus and for his release from detention, on the ground that the said Act contravened the provisions of Arts. 13, 19, 21 and 22 of the Constitution and was consequently ultra vires and that his detention was therefore illegal.
ISSUE: –
Whether Preventive Detention Act (Act IV of 1650) is in contravention of Article 13, 19, 21 and 22 of the Indian Constitution?
JUDGMENT: –
Section 14 of the Preventive Detention Act, 1950, contravenes the provisions of Article 22 of the Constitution in so far as it prohibits a person detained from disclosing to the Court the grounds on which a detention order has been made or the representation made by him against the order of detention, and is to that extent ultra vires and void.
Article 19 of the Constitution has no application to a law which relates directly to preventive detention even though as a result of an order of detention the rights referred to in sub-clause (a) to (e) and (g) in general, and sub-clause (d) in particular, of clause (1) of Article 19 may be restricted or abridged; and the constitutional validity of a law relating to such detention cannot therefore, be judged in the light of the test prescribed in clause (5) of the said Article.
Article 19 (1) postulates a legal capacity to exercise the rights guaranteed by it and if a citizen loses the freedom of his person by reason of lawful detention as a result of a conviction for an offence or otherwise he cannot claim the right s under- sub-clauses (a) to (e) and (g) of Article 19 (1); likewise if a citizen’s property is compulsorily acquired under Article 31, he cannot claim the right under sub-clause (f) of Article 19 (1) with respect to that property. In short the rights under sub-clauses (a) to (e) and (g) end where lawful detention begins and therefore the validity of a preventive detention Act cannot be judged by Article 19 (5). The concept of the right “to move freely throughout the territory of India” referred to in Article 19 (1) (d), of the Constitution is entirely different from the concept of the right to “personal liberty” referred to in Article 21, and Article 19 should not, therefore, be read as controlled by the provisions of Article 21. The view that Article 19 guarantees substantive rights and Article 21 prescribes the procedure is incorrect.
Article 19 protects some of the important attributes of personal liberty as independent rights and the expression “personal liberty” is used in Article 21 as a compendious term including within it meaning all varieties of rights which go to make up the personal liberties of men.
Article 22 does not form a complete code of constitutional safeguards relating to preventive detention. To the extent that provision is made in Article 9.9, it cannot be controlled by Article 9,1; but on points of procedure which expressly or by necessary implication are not dealt with by Article 22, Article 9.1 will apply. Article 21 protects substantive rights by requiring a procedure and Article 19 lays down the minimum rules of procedure that even the Parliament cannot abrogate or overlook.
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 principles of natural justice; and “procedure established by law” means procedure established by law made by the State, that is to say, the Union Parliament or the Legislatures of the States. It is not proper to construe this expression in the light of the meaning given to the expression “due process of law” in the American Constitution by the Supreme Court of America.
“Law” in Article 21 does not mean the jus naturale of civil law but means positive or State-made law. “Procedure established by law” does not however mean any procedure which may be prescribed by a competent legislature, but the ordinary well-established criminal procedure, i.e., those settled. Usages and normal modes of procedure sanctioned by the Criminal Procedure Code, which is the general law of criminal procedure in this country.
The only alternative to this construction, if a constitutional transgression is to be avoided is to interpret the reference to “law” as implying a constitutional ’amendment pro tanto, for it is only a law enacted by the procedure provided for such amendment that could modify or override a fundamental right without contravening Article 13 (2)Section 3 of the Preventive Detention Act, 1950, does not delegate any legislative power to an executive officer but merely confers on such officer a discretion to enforce the law made by the legislature, and is not therefore invalid on this ground.
The fact that the section does not provide an objective standard for determining whether the requirements of law have been complied with, is not a ground for holding that it is invalid. Section 3 is however a reasonable provision only for the first step, i.e., for arrest and initial detention and must be followed by some procedure for testing the so-called subjective satisfaction, which can be done only by providing a suitable machinery for examining the grounds on which the order of detention is made and considering the representations of the persons detained in relation to those grounds.
Section 7 of the said Act is not invalid merely because it does not provide for an oral hearing or an opportunity to lead evidence but only gives right to make a representation. Right to an oral hearing and right to give evidence are not necessarily implied in the right to make a representation given by Article 22.
The provision contained in Sec. 11 that a person may be detained for such period as the State thinks fit does not contravene Article 22 (7) and it is not therefore invalid. Article 22 (7) means that Parliament may prescribe the circumstances under which, or the class or classes of cases in which, a person may be detained for a period longer than three months without reference to an advisory board. It is not necessary that the Parliament should prescribe both. The matters referred to in clauses (a) and (b) of sub-see. (1) of Sec. 12 constitute a sufficient description of such circumstances or classes of cases and Section 12 is not therefore open to the objection that it does not comply with Article 22 (7). Parliament has in act and substance prescribed both in clauses (a) and (b) of sub-sec. (1) of Sec. 12.
HELD: –
The preventive Detention Act, 1950, with the exception of section 14 thereof did not contravene any of the Articles of the Constitution and even though section 14 was ultra vires inasmuch as it contravened the provisions of Article 22 of the Constitution, as this section was severable from the remaining sections of the Act, the invalidity of Section 14 did not affect the validity of the Act as a whole, and the detention of the petitioner was not illegal.
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