College : SCHOOL OF EXCELLENCE IN LAW
Court- Supreme Court of India
Citation: AIR 1950 SC 27
Coram – Hiralal Kania, Saiyid Fazl Ali, M. Patanjali Sastri, Meher Chand Mahajan, B. K. Mukherjea, S.R. Das.
Theme: The abrogation of fundamental rights under article 19,21 and 22 of the constitution
Subject: Constitutional law
STATEMENT OF FACTS : A.K. Gopalan was a communist leader who had been imprisoned by the state of Madras in 1947 under convictions of ordinary legal code , however those convictions were put aside . While he was imprisoned, he was served with another order of detention under the Preventive Detention Act, IV of 1950. A.K. Gopalan challenged the constitutionality of the act and filed a writ petition via article 32(1) contending the violation of his rights under articles 19,21 and 22 of the constitution.
Does the detention act contravene the provisions of Ar.19 and 21 of the constitution? Are the act’s provisions in accordance with Ar.22 of the constitution?
HELD: It was held that none of the sections of the Preventive detention act, IV of 1950 infringed the provisions of Part III of the constitution barring S.14, restricting the disclosure of the grounds of detention. Section 14 of the act was declared Ultra Vires, nonetheless the declaration did not affect the validity of the act as a whole.
ARGUMENTS/REASONING: The majority opinion held that preventive and punitive detention were outside the ambit of Ar.19 and hence the detention act of 1950 didn’t violate it. It was also contended that the said article provides protection to citizens who are free, therefore a citizen whose freedom is lawfully restrained, the question of enforcing Ar.19(1) does not arise. The preventive detention act followed the valid procedure i.e., in the form enacted by the state’s law and therefore the court came upon the reasoning that it does not infringe upon the rights under Ar.21. The various provisions of the preventive detention act 1950 are covered under Ar.22 and people which aren’t, are codicil through the aspects of Ar.21. The court held that S.3 of the act was justified as it was valid to give such discretionary powers to the executive, additionally the majority also agreed upon the validity of S.11 and 7 of the said act as under Ar.22(7)(b) the parliament is not mandated to set a minimum detention period and under 22(5) and 22(6) the right of representation and that off to be heard orally are not necessary. S.14 was however declared ultra vires because it contended the court’s right to determine the validity of detention.
THE JUDGEMENT OF THE COURT IN BRIEF: In this case, the Hon’ble Supreme Court dismissed the said writ petition and held the said act as a valid one. The first major judicial attempt in search of a proper meaning of the expression “procedure established by law” was made by the Hon’ble Supreme Court in Gopalan’s Case wherein the Supreme Court was also of the opinion that the procedure established by law under article 21 means justness of laws also as equal and proper implementation of laws. The Supreme Court also held that the phrase “procedure established by law” is borrowed from article 31 of the Japanese Constitution. But the language adopted by India is totally different. The Court held by a majority that the words ‘procedure established by law‘ meant simply any procedure as might be laid down by a State. The Court could not, under Art.21, go into the reasonableness of the ‘law’ so made, or the ‘procedure’ so laid down. The court rejected the contention that the word ‘law’ in Art.21 implicitly incorporated the principles of natural justice. The majority also rejected the contention that the expression “procedure established by law” implied the concept of ‘procedural due process’ which would enable the Court to see whether the law fulfilled the requisite elements of due procedure. But on all these crucial points pertaining to the meaning and scope of the expression, ‘procedure established by law’, Fazl Ali.J dissented from the majority view. According to him, the expression doesn't exclude certain fundamental principles of justice which are inherent in every civilized system of law and which are stated by the American Courts as consisting of notice, the chance to be heard, and an impartial tribunal, and an orderly course of the procedure. He further enunciated that the importance of the protection in Art.21 would be vilified by allowing the undesirable consequences of any procedure enacted by statute, however draconian and arbitrary it may be, as ‘procedure established by law’.
ANALYSIS OF JUDGEMENT: In this case, the Court had interpreted Article 21 extremely literally and went on to affirm that the expression procedure established by law meant any procedure which was laid down in the statute by the competent legislature that would deprive an individual of his life or personal liberty. It was further avowed that it was not permissible for the Courts to incorporate within the Article any such concept as natural justice, or the due process of law or reasonableness. Therefore, the Court had declared that the procedure couldn't be challenged albeit it weren't reasonable or not according to natural justice. The Court was wrong in ruling that each fundamental right was independent of each other and that Article 19 applied to a free man and not to a person in preventive detention.