A.K. Gopalan v The State of Madras (1950)

This was the first great fundamental-rights case decided under the new Constitution — Kania CJ called it "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." It asked what protection Part III gives against detention without trial.

The majority answer was narrow. Preventive detention is expressly contemplated by the Constitution itself — by Article 22 and the legislative entries in the Seventh Schedule. So a preventive detention law is not tested for reasonableness under Article 19, and Article 21's "procedure established by law" means procedure laid down by State-made law, not American "due process". That is why the case is cited in labour law (for example in State of Madras v V.G. Row, 1952): Gopalan upheld deprivation of personal liberty by such means only because the Constitution itself sanctions laws providing for preventive detention, as to which no question of reasonableness can arise.

The petitioner, A.K. Gopalan, had been under detention since December 1947. Convictions under the ordinary criminal law had been set aside. On 1 March 1950, while already detained under a Madras Government order, he was served with an order under s. 3(1) of the Preventive Detention Act 1950. He applied to the Supreme Court under Article 32 for habeas corpus.

He argued that the Act contravened Articles 13, 19 and 21 and did not conform to Article 22, and that the order was made mala fide. Because s. 14 of the Act made it an offence to disclose the grounds of detention, he did not place the grounds before the Court, so mala fides could not be examined.

1. Does a law of preventive detention have to satisfy Article 19 — in particular the right to move freely under Article 19(1)(d), tested for reasonableness under Article 19(5)?
2. What does "procedure established by law" in Article 21 mean — enacted law, or principles of natural justice like American "due process"?
3. Is Article 22 a complete code on preventive detention, excluding Article 21?
4. Are ss. 3, 7, 11, 12 and 14 of the Act valid?

The petition was dismissed by a majority of four (Kania CJ, Patanjali Sastri, Mukherjea and Das JJ). Fazl Ali and Mahajan JJ dissented on the result. But all six judges held s. 14 void, as severable from the rest of the Act.

Article 19 does not apply to preventive detention

Kania CJ held that "both preventive and punitive detention are outside the scope of article 19." If detention had to be tested under Article 19, imprisonment for theft or cheating would also be open to challenge — an argument he said "must clearly be rejected". Article 19(1)(d) protects movement throughout India; "Sub-clause (d) has nothing to do with detention, preventive or punitive." And "Deprivation of personal liberty has not the same meaning as restriction of free movement in the territory of India." Since the Constitution itself deals with preventive detention in Article 22 and the legislative lists, a preventive detention law is not to be treated as in conflict with Article 19(1).

Fazl Ali J dissented: preventive detention directly infringes the right to move freely, so a preventive detention law is subject to limited review under Article 19(5), and "there is nothing revolutionary in 'the legislature trusting the Supreme Court to examine whether an Act which infringes upon that right is within the limits of reason."

"Procedure established by law" under Article 21

Kania CJ refused to import American due process. 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." He held that "the expression "procedure established by law" must mean procedure prescribed by the law of the State." To read "law" as natural justice would be unworkable, because those rules are nowhere defined, "and in my opinion the Constitution cannot be read as laying down a vague standard."

Fazl Ali J, dissenting, held that the words must include the elementary principles of notice, hearing, an impartial tribunal and orderly procedure — "different aspects of the same right, viz., the right to be heard before one is condemned."

Article 21 and Article 22

Kania CJ rejected the Attorney-General's argument that Article 22 was the whole law on preventive detention. "To the extent the points are dealt with, and included or excluded,, article 22 is a complete code. On the points of procedure which expressly or by necessary implication are not dealt with by article 22, the operation of article 21 will remain unaffected." (Mahajan J, by contrast, treated Article 22 as a self-contained code.)

The provisions of the Act

• s. 3 (detention on the satisfaction of the Government) was not a delegation of legislative power; it "only confers discretion on the officer to enforce the law made by the legislature."
• s. 7 (grounds and representation) followed Article 22(5); there is no constitutional right to an oral hearing.
• s. 12 (detention beyond three months without an Advisory Board): the majority held that Article 22(7) is satisfied if Parliament prescribes either the circumstances or the class of cases. Fazl Ali and Mahajan JJ held both were required, so s. 12 was void and the detention illegal; Mahajan J would have ordered release.
• s. 14 (ban on disclosing grounds to the Court) was held void by the whole Court. Kania CJ concluded that "the provisions .of section 14 abridge the right given under article 22 (5) and are there- fore ultra vires." But "The impugned Act minus this section can remain unaffected", so the rest of the Act stood.

A law providing for preventive detention, being expressly contemplated by Article 22 and the legislative lists, is not tested against Article 19 or its reasonableness standard. "Procedure established by law" in Article 21 means procedure laid down by validly enacted State law, not the American due-process standard of natural justice. Article 22 governs preventive detention on the points it deals with; Article 21 operates on points it leaves open. A provision barring disclosure of the grounds of detention to the Court violates Article 22(5) and is void, but is severable.

• Explain the relationship between Articles 19, 21 and 22 as understood in A.K. Gopalan. Give the majority view (separate compartments; Article 19 inapplicable to detention; "law" means State-made law) and Fazl Ali J's dissent.
• In labour law answers on the reasonableness of restrictions on the Article 19(1)(c) right to form unions, use Gopalan as V.G. Row did: preventive detention escaped the reasonableness test only because the Constitution itself sanctions it — a special case that does not extend to other restrictions on Article 19 freedoms.
• Remember the one point on which all six judges agreed: s. 14 was void. It is a common short-note question.