Citation: AIR 1950 SC 27
Bench: M.H. Kania CJ and Saiyid Fazl Ali, M. Patanjali Sastri, Mehr Chand Mahajan, B.k. Mukherjea and S.R. Das, JJ
The petition in this case was made by Mr. A. K. Gopalan under Article 32(1) of the Indian Constitution, which sought a writ of Habeus Corpus against his detention in pursuance of an order made under the Preventive Detention Act, 1950 (‘Act). Mr. Gopalan was a communist leader, who had been under detention since December, 1947, as he was convicted & sentenced to terms of imprisonment under the ordinary criminal laws. However, these convictions were overruled. While he was detained, on 1st March, 1950, he was served upon an order by the Madras State Government, made under section 3 (1) of the Act, which confers upon the Central or the State Government the power to make orders to detain certain persons based upon the grounds mentioned therein. Thereafter, he challenged the legitimacy of the order under the Act on the ground that the Act violates the provisions given under Articles 13, 19 & 21, and also that the provisions of the Act IV of 1950 are not in conformity with Article 22. He also contended that the order was issued mala fide.
- Whether the detention Act of Madras State contravene the provisions of Article 19 and 21 of the Indian Constitution?
- Whether the State’s detention Act, 1950 provisions in accordance with Article 22 of the Indian Constitution?
The Hon’ble Supreme Court while dismissing thw writ petition held the Preventive Detention Act, 1950 as valid.
While attempting to understand the meaning of the expression “procedure established by law”, the Supreme Court was of the opinion that the procedure established by law under Article 21 means justness of laws as well as equal and proper implementation of laws.
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.
The Court also emphasised that Article 19 does not apply to the detainee, on the grounds that it would render the punishment of imprisonment under IPC illegal. Moreover, it would also bring into question the reasonableness of several penal provisions providing for punitive detention.
The Court also demarcated the relation between Art. 19 and 21 by holding a parochial view to the term- ‘Personal liberty” stating that it is about the liberty of the physical body and Article 19 merely contains some aspects of it.
In his dissenting opinion, Justice Fazal Ali, stated that the expression does not exclude certain fundamental principles of justice which are inherent in every civilized system of law and which have been stated by the American Courts as consisting of notice, the opportunity 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’.
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 could deprive a person 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 could not be challenged even if it were not reasonable or not consistent with 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