# SAsTRI, MAHAJAN, MuKHERJEA and DAs JJ.)-Section 14 of the v. Preventive Detention Act

- **Citation:** [1950] 1 S.C.R. 88
- **Court:** Supreme Court of India
- **Decided:** 1950
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sastri-mahajan-mukherjea-and-das-jj-section-14-of-the-v-preventive-detention-act-161
- **Pages:** 247

## Headnote

19~0
May, 19.
88
SUPREME COURT REPORTS
[1950)
A.K.GOPALAN
ti.
THE STATE OF MADRAS.
UNION OF INDIA : INTERVENER.
[SHRl
HAluLAL
KANIA
C.J.,
SAIYID
FAZL
ALI,
l'ATANJALI SASTRI, MEHR CHAND MAHAJAN,
MuKHERJF:A and S. R. DAs JJ.J
Preventive Detention Act (IV of 1950), ss. 3, 7, 10-14.-VaJidity-Constitution
of
India,
1950, Arts. 13, 19
to 22, 32-Law
relating :o preventive detention-Whether infringes Fundamental
Right as to freedom of movement-Whether subject to judicial
review a. to reasonableness under Art. 19 (5)-Scope of Art. 19Right of free movement and Right to personal liberty, nature and
incidents of-Art. 221 whether complete code as to preventive detro·
tion-Scope and
applicability
of Art. 21-"Law," "procedure
established ·by law," meanings of-Whether incluile rules of natural
justice-Construction of Art. 21-American decisions on °d«e pro.-
cess of U.W,n value of-Omission to
provide objective standard for
satisfaction of authorities, to pravirl< for oral hearing or leading of
evidence, to fix maximum· period of detention, and to specify "circumstances" and "classes of cases" where period of detention may
be extended over 3 months, prohibiting detenu
from
disclosing
grounds of detention-Validity of law-Construction of Constitution
-Reference to· debates and Report of Drafting CommitteePermissibility.
The
Petitioner
who
was
detained
under
the
Preventive
Detention Act (Act IV of 1950) applied under Art. 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:
Held,
per KANIA C. )., PATA1'JAL1 SAsTIU,
Mu1<HERJEA and
DAs JJ. (FAZL Au and MAHAJAN JJ. dissenting)-that the Preventive Detention Act, 1950, with the exception of Sec. 14 thereof
did not contravene any of the Articles of the Constitution and
even though Sec. 14 was ultra vires inasmuch as it contravened
the provisions of Art. 22(5) of the Constitution,·'" this section was
severable from the remaining sections of the, ~t, the invalidity
of Sec. 14 did not affect the validity of the Act as a whole, and
the detentiori of the petitioner was not illegal.
FAZL Au and MAHAJAN JJ.-Scction 12 of the Act was also
ultra, vires, · and since it contravened the very provision in the
·1
J
•
S.C.R.
SUPREME COURT REPORTS
89
Constitution under which the· Parliament derived its competence
19j0
to enact the law, the detention was illegal.
Held, by the Full Court (KANIA C. J., FAZL Au, l'ATANJALI
A.K. Gopalan
SAsTRI, MAHAJAN, MuKHERJEA and DAs JJ.)-Section 14 of the
v.
Preventive Detention Act,
1950, contravenes
the
provisions of
The Stall
Art~
22 ( 5) of
the
Constitution
in
so far as it prohibits
a
person detained trom 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.
Per KANIA C. J., PATANJALI SAsTR1, MAHAJAN,
MuKHERJEA
and DAs JJ. (FAZL Au J. dissenting).-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 'bf
detention the rights referred to in sub-els. (a) to (e) and (g) in general, and sub-cl. (d) in particular, of d. (I) of Art. 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 cl. ( 5) of the said Article.
DAs J.-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 rights
under sub-els. (a) to (e) and (g) of Art. 19 (I); likewise if a citizen's
property is compulsorily acquired under Art. 31, he cannot claim
the right under sub-cl. (f) of Art. 19

## Text

_Characters 0–39,904 of 552,407. This is a partial read: ask again with offset=39904 for what follows._

19~0
May, 19.
88
SUPREME COURT REPORTS
[1950)
A.K.GOPALAN
ti.
THE STATE OF MADRAS.
UNION OF INDIA : INTERVENER.
[SHRl
HAluLAL
KANIA
C.J.,
SAIYID
FAZL
ALI,
l'ATANJALI SASTRI, MEHR CHAND MAHAJAN,
MuKHERJF:A and S. R. DAs JJ.J
Preventive Detention Act (IV of 1950), ss. 3, 7, 10-14.-VaJidity-Constitution
of
India,
1950, Arts. 13, 19
to 22, 32-Law
relating :o preventive detention-Whether infringes Fundamental
Right as to freedom of movement-Whether subject to judicial
review a. to reasonableness under Art. 19 (5)-Scope of Art. 19Right of free movement and Right to personal liberty, nature and
incidents of-Art. 221 whether complete code as to preventive detro·
tion-Scope and
applicability
of Art. 21-"Law," "procedure
established ·by law," meanings of-Whether incluile rules of natural
justice-Construction of Art. 21-American decisions on °d«e pro.-
cess of U.W,n value of-Omission to
provide objective standard for
satisfaction of authorities, to pravirl< for oral hearing or leading of
evidence, to fix maximum· period of detention, and to specify "circumstances" and "classes of cases" where period of detention may
be extended over 3 months, prohibiting detenu
from
disclosing
grounds of detention-Validity of law-Construction of Constitution
-Reference to· debates and Report of Drafting CommitteePermissibility.
The
Petitioner
who
was
detained
under
the
Preventive
Detention Act (Act IV of 1950) applied under Art. 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:
Held,
per KANIA C. )., PATA1'JAL1 SAsTIU,
Mu1<HERJEA and
DAs JJ. (FAZL Au and MAHAJAN JJ. dissenting)-that the Preventive Detention Act, 1950, with the exception of Sec. 14 thereof
did not contravene any of the Articles of the Constitution and
even though Sec. 14 was ultra vires inasmuch as it contravened
the provisions of Art. 22(5) of the Constitution,·'" this section was
severable from the remaining sections of the, ~t, the invalidity
of Sec. 14 did not affect the validity of the Act as a whole, and
the detentiori of the petitioner was not illegal.
FAZL Au and MAHAJAN JJ.-Scction 12 of the Act was also
ultra, vires, · and since it contravened the very provision in the
·1
J
•
S.C.R.
SUPREME COURT REPORTS
89
Constitution under which the· Parliament derived its competence
19j0
to enact the law, the detention was illegal.
Held, by the Full Court (KANIA C. J., FAZL Au, l'ATANJALI
A.K. Gopalan
SAsTRI, MAHAJAN, MuKHERJEA and DAs JJ.)-Section 14 of the
v.
Preventive Detention Act,
1950, contravenes
the
provisions of
The Stall
Art~
22 ( 5) of
the
Constitution
in
so far as it prohibits
a
person detained trom 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.
Per KANIA C. J., PATANJALI SAsTR1, MAHAJAN,
MuKHERJEA
and DAs JJ. (FAZL Au J. dissenting).-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 'bf
detention the rights referred to in sub-els. (a) to (e) and (g) in general, and sub-cl. (d) in particular, of d. (I) of Art. 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 cl. ( 5) of the said Article.
DAs J.-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 rights
under sub-els. (a) to (e) and (g) of Art. 19 (I); likewise if a citizen's
property is compulsorily acquired under Art. 31, he cannot claim
the right under sub-cl. (f) of Art. 19 ( l) with respect to that property. In short the rights under sub-els. (a) to (e) and (g) ~nd
where lawful detention begins and therefore the validity of a
preventive detention Act cannot be judged by Art. 19 (5).
MAHAJAN J.-Whatever bethe precise scope of Art. 19 (I) (d)
and Art. 19 (5) the provisions of Art. 19 (5) do not apply to a
law relating to
preventive
detention, inasmuch as there is
a
special self-contained provision in Art. 22 regulating it.
F AZL Au J .-Preventive
detention is a direct
infringement
of the right guaranteed in Art. 19.(J) (d), even if a narrow construction is placed on the said sμb-clause, ' and a law relating
to preventive detention is therefore subject to such limited judicial review as is permitted by Art. 19 ( 5).
Per KANIA C. J., PATANJALI SAsrn1, MuKHERJEA and DAs JJ.
(FAzL Au J. dissenting).-The concept of the right "to move
freely
throughout
the
territory
of
India"
referred
to
in
Art. 19 (I) ( d), of the Constitution is entirely different from the
concept of the right to "personal liberty" referred to in Art. 21,
and Art.· 19 should not, therefore, be read as controlled by the
provisions of Art. 21.
The view that Art. 19 .guarantees substantive rights and Art. 21 prescribes the procedure is incorrect.
DAs. J.-Article 19 protects
some of the
important
attributes
of personal
liberty
as independent rights and the
expression
"Personal liberty" is used in Art. 21 as a compendious term
19j()
A.K. Cop.Ian
. v.
T1" Sl<JU
"
90
SUPREME COURT REPORTS
[1950]
including
WJth1n
. its meaning all varieties of
rights
which
go to make up the personal liberties of men.
FAzi. Ac1 ).-Even if it be assumed that Art. 19 (l)(d) does not
.refer to "personal liberty" and that it. bears the restricted
mean .
ing attributed to it, that is to say, it signifies merely the right to
move from one locality to .another, preventive detention must
be
held to affect this limited right of movement directly
and
sub.
stantially.
One of the objects of preventive detentioq is. to res·
train a person detained from moving from place to place so that
he may not sPread disaffection or indulge in dangerous activities
in the places he visits.
The same consideration applies to the
cases of persons who are interned or externcd.
Hence, extcrnment,
internment and
certain
other
forms of restriction
on
movement have always been treated as kindred matters belonging to the same group or family, :rnd the rule which applies to
one must necessarily apply to the others.
Per KANIA C. J., PATANJALI SAsTa1 and DAs JJ. (MAHAJAN J.
dissenting),_:_Article 22
does not form a complete code of constitutional
safeguards
relating to preventive detention.
To the
extent that provision is made in Art. 22 it cannot be controlled
by Art. 21 ; but on points of procedure which expressly or by
necessary implication are not dealt with by Art. 22, Art. 21 will
apply.
DAs J.-Art. 21 protects substantive rights by
requiring
a procedure and Art. 22 lays down the minimum rules of procedure
that even the
Parliament cannot abrogate or overlook.
MAHAJAN J.-Art. 22 contains a self-contained code of constitutional safeguards relating to preventive detention and
cannot be
examined or controlled by the provisions of Art. 21.
The principles underlying Art. 21 are however kept in vic\v in Art. 22 and
there
is no
conflict
between
these
articles.
M UKHER JEA J .-
Even assuming that Art. 22
is not a self.-contained cWe relating
to preventive detention and that Art. 21 would apply, it is not
permissible to supplement Art. 22 by the application of rules of
natural justice.
FAzL ALI J.-Art. 22 docs· not form an exhaustive cod.e by itself relating to preventive detention.
Parliament
can make further provisions and if it has done so Art. 19 (5) may
be applied to see if those provisions have transgressed the bounds
of reasonableness.
Per KANIA C. J.,
MuKHERJEA and DAs JJ. (FAzL Au J.
tfusttnting).-in Art. 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 scn5':
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 Sup~me Court of America.
PATANJALI SAsTP.I
J.-'-"Law~
.in Art. 21 docs not 'mean the jus naturale of civil law but means
S.C.R.
SUPREME COURT REPORTS
91
positive or State-made law.
"Procedure established
by
law"
1950
does not however mean any procedure which may be prescribed
by
a competent
legislature,
but the ordinary
well-established
1f.K •. Gopalan
criminal procedure, i.e., those settled usages and normal modes
v.
of procedure sanctioned by the Criminal Procedure Code, which
7 M stak.
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 Art. 13 (2).
FAZL Au ].-There is nothing revolutionary in the view that
"procedure established by law" must include the four principles of
elementary justice which inhere in and are at the root of all civilized systems of law, and which have been stated by the American
Courts and jurists as consisting in (1) notice, (2) opportunity
to
be heard, ( 3) impartial tribunal and ( 4) orderly course of procedure.
These four· principles are really different aspects of the
same right, namely, the right to be heard before one is condemned.
Hence the words "procedure established by law", whatever
its
exact meaning be, must necessarily include the principle that no
person
shall be condemned without hearing by
an
impartial
tribunal.
Per KANIA C. J., F.\zL Au, PATANJAU
SAsTRI,
MAHAJAN
and DAS JJ.-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 tbe 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.
FAZL Au ].-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.
Per KANIA C. ].,
MAHAJAN and DAs JJ.-Scction 7 of, the
said Act is not invalid merely because it docs not provide for an
oral hearing or an opportunity to lead evidence but only gives a
right to make a representation. Right to. an oral hearing and
right to give evidence arc not necessarily implm in the right to
make a representation given by Art. , 22.
fer KANIA C. J. and MAHAJAN J,-Thc _provision contained in
Sec. 11 that a person may be detained for such period aa the
12-A
1950
A.Jr. Goj>olan
v.
Tlw StaU
92
SUPREME COURT REPORTS
[1950]
State thinks fit docs not contravene Art. 22 (7) and it is n<(t there.
fore invalid.
Per ~IA C. J.,
PATANJALI
SASTRI, MuKHERJEA and DAs JJ,
(FAZL Au and
MAHAJAN Jj. dissenting).-Article 22 (7) means
that Parliament may
prescribe either the circumstances
under
which, or the class or classes of cases in which, a person may be
detained for a period loqger than three months without reference
to an advisory board.
It is not necessary that the . Parliament
shoμld prescribe both.
The matters referred to in cla11ses (a)
and (b) of s11b-sec. ( 1) of Sec. 12 constirute a sllfii~ient description of such circumstances or classes of cases and Section 12 is
not therefore open to -the objection that it does not comply ':Vith
Art. 22(7). Das J.-Parliament has in fact .and
substance
prescribed both in clauses (a) and (b) of sub-sec. (1) of Sec. 12.
FAZL Au and MAHAJAN JJ.-Article 22 (7) means that both
the circumstances and the class or classes of cases (which are two
different expressions with different meanings and connotations)
should be prescribed, and the prescription . of one· without
the
other will not be enough.
The enumeration of the subjects for
reasons
connected with which a law of preventive detention
could be made contained in els. (a) and ( b) of sub-sec. (I) of Sec. 12
docs riot amount to pre§cribing the
circu~stanccs under
which,
or the class or classes of cases in which, a person can be detained
for mote than three months.
Per KANIA C. J .-While it is not proper to take into consideration the individual opinions of members of. Parliament or
Convention to construe the meaning of a particular clause, when
a question . is raiScd whether a certain phrase or expression was
up for consideration at all or not, a ref~rcnce to the debates may
be permitted.
PATANJALl SAsTR1
J~In construing the provisions
of an Act, speeches made in the course of the debates on the bill
should
not
be
taken
into
consideration.
MuKHERJEA J.-In
construing the ·Constitution it is better to leave out of account
the debates in the Constituent Assembly, but a higher value may
be placed on the report of the Drafting Committee.
ORIGINAL Jmuso1cnoN : PEnnoN No. XIII OF 1950.
Application under Art. 32 (1) of. the CoJ¥titution
of India for a writ of habeas corpus :i.gainst the detention. of the appellant in the Madras jail in pursuance
of an order of detention made under the Preventive
Detention Act, 1950. The material facts of the case
and arguments of counsel are ·set out in detail in the
judgments. The relevant
provisions of
the Preventive
Detention Act, 1950, are printed below.
~\
S.C.R.
SUPREME COURT REPORTS
93
J. Short title, extent and duration.-This· Act may be called
the Preventive Detention Act, 1950.
(2) It extends to the whole of India ......
(3) It shall cease to have effect on the lst day of April, 1951,
save as respects things done or omitted to be done before that
date.
2. Definitions.-ln
this
Act,
unless the context otherwise
requires.
· (a) ".State Government" means, in relation to a Part C
State, the CKief Commissioner of the State ; and
(b) '1detention
order''
means
an
order
made
under
Section 3 ..
3 .. Powq to make prders detaining certain persons.-(1) The
Central Governmel!t--Or. the State Government may-
(a) if satisfied with respect to any pers~n that _with a view
to preventing him from acting in any manner prejudicial to-
(i) the defence of India, the relations of India with
foreign powers, or the security of India, or
(ii) the security of the State or the maintenance of
public order, or
(iii) the
maintenanci: of supplies and services
essential
to the community, or
( b) if satisfied with respect to any person who is a foreigner
within the meaning of the Foreigner~ Act, 1946 (XXXI of 1946),
that with a view to regulating · his continued presence in India or
with- a view· to making arrangements for
his expulsion from
India
it is necessary so to do,
make an order directing that such
person be detained.
(2) Any District Magistrate . or Sub-Divisional Magistrate, or
in a Presidency-town, the Commissioner of Police, may, if satisfied
as provided in sub-clauses (ii) and (iii) of clause (a) of sub-section ( 1), exercise th• power conferred by the said sub-section.
(3) When any order is made under this section by a District
Magistrate, Sub-Divisional Magistrate or Commissioner of Police,
he shall forthwith report the fact to the State Government
to
which he is subordinate together with the grounds on which the
order has been made and such other particulars as in his opinion
have a bearing on the necessity for the order.
7. Grounds of order of detention to be disclosed to persons
affected by the order.-(J)When a person is detained in pursuance
of a detention· order, the authority making the order shall, as soon
as may be, communicate to him the grounds on which the order
has been m:tde, and sha.11 afford him the earliest opportunity
of
making a representation against the order, in a case where such
order has been made bv the Central· Government, to that Government, and in a case where it has been made by a State Government or an officer subordinate thereto, to the State Government.
1950
A.K. Gopalan
v.
The Stal8
- . \
1950 ''
SUPREl\IE COURT REPORTS
[1950}
i\. K. Gopa!an·
·· 11. ConfiTmation of detention order.-In any case where theAdvisory Board has reported that -there is in its opinion sufficient
cause for the detention of the person concerned, the Central
Government or the State Goverllment, ·as the· case ma.y be, may
v.
Tke State
cOnfirm the detention order and continue the detention of theperson concerned for stich .period as it thinks fit.
- -,-~--'- 12. Duration of detention in certain cases.-(!} Any person
"detained in any of the following classes of cases or under any of
the following circumstances may· be detained without obtainingc
. the. opinion-, of an, Advisory Board for a period longer than three·
months, but not exceeding one year from the date of his detention,
namely, _where such person has been detained with lJo view to·
preventing him from acting in any manner prejudicial to-
.
(a} the defence of India, ·relations of India with foreign:
powers or the security of India; or _
(b) the security of a· State or the maintenance of public
order.
*
\..;* -·
· * .-o-.
~-~
.
•
14. Disclosure of grounds of detention, etc.-(1) No court
shall, except for the purpose of a prosecution for -an offence
punishable under ·sub-section (2), allow any statement to be
made, or any evidence io -be given, before it of the substance of·
any communication made under section 7 -of the grounds on
which a detention order has been made against any1 person or of·
any representation made by him. against such order; and not-
. withstanding anything contained in any other la.w, no court shall
be entitled to require any public officer to produce before it, or~
to disclose the substance of, any such communication or repre .. -
sentation made, or the proceedings of an Advisory Board or that -
· part of the report of an Advisory Board which is confidenti•l.
(2) It sh~ll · be an offenee punishable with imprisonment for·
a term which maY extend to One );.ear, or with fine, or with both,
·for any person to ·disclose or publish w_ithout the previous·
authorisation of. the Central __ Government or the State Govern ..
ment, as the case may be, any contents or matter purporting to ·
be contents Of any such communication' or representation as is
referred to in sub·section (1) :
·
Provided that nothing in this sub-section shall apply to a
disclosure made . to his legal adviser by a pe~son wh-o is the sub· -
· ject of a. detention order.
lYf. K. Nambiar (S. K. Aiyar and V. G. Rao,.
with. him) for the petitioner.
K. Rajali Aiyar,
Advocate-General of JJfadras ·
(C.R. Pattabhi Raman and R. Ganapathi, with him)
for the State of Madras .
. JJ{. C. Setalvad, Attorney-General for India (Jindra-·
lal, with him) for the Union of India.
•
•,
S.C.R.
SUPREME COURT REPORTS
95
1950.
May 19.
The following
Judgments
were
delivered.
KANIA C. J.-This is a pet1t1on
by
the applicant
under article 32 (1) of the Constitution of India for a
writ of
habeas. corpus against his
detention in the
Madras
Jail.
In the petition he
has
given various
dates showing how he has been under "'detention since
December, 1947.
Under the ordinary Criminal Law
he was sentenced to terms of imprisonment but those
convictions were set aside.
While he was thus under
detention under one of the orders of the Madras State
Government, on the 1st of March,
1950, he was served
with an order made under section 3 ( 1) of the Preventive Detention Act, IV of 1950. He challenges the
legality of , the order as it is contended that Act IV of
1950 contravenes the provisions of articles 13, 19 and
21 and the provisions of that Act are not in accordance
with article 22 of the <"'A>nstitution. He has also challenge~ the validity of the order on the ground that it
is issued mala fide. The burden of proving that allegation is on the applicant.
Because of the penal provisions of section 14 of the impugned Act the applicant
has not disclosed the grounds, supplied to him, for his
detention and the question of mala fides of the order
therefore cannot be gone into under this petition.
The question of the
validity of Act IV of 1950
was argued before us at great length. This is 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. The Court
is indebted to ·the learned counsel for the applicant and
the
Attorney-General
for their assistance in interpreting the true meaning of
the relevant clauses of the
· Constitution.
In order to appreciate the rival contentions it is
useful first to bear in mind the general scheme of the
Constitution.
Under article 53 of the Constitution the
executive power of the Union is vested in the President
and is to be exercised by him in accordance with the
1950
Jf.K. Gopa/1111
v.
Tiu Stat1
Kania C.]
195()
A.K. Gopalan
v.
The State
Kania C.J.
96
SUPREME COURT REPORTS
[1950]
Constitution either directly or through officers subordinate to him. The legislative powers of the Union are
divided
between
the
Parliament and Legislatures of
the States. The ambit and limitations on their respective powers are found in article 246
read with article
245, Schedule VII, Lists 1, 2 and 3 of the Constitution.
For the Union of India the Supreme Court is established and its powers and jurisdiction are set out in
articles
124 to
147.
This follows the pattern of the
Government of India Act,
1935, which was the previous Constitution of the Government of India. Unlike
the American · Constitution, there is no article vesting
the judicial power of the Union of India in the Supreme
Court. The material points substantially
altering the
edifice are first in the Preamble which declares India
a Sovereign Democratic Republic to secure to all its
citizens
justice,
liberty and equality and to promote
among them all, fraternity.
Part III of
the Constitution is an important innovation. It is headed "Fundamental Rights".
In that Part
the
word
"State"
includes both the Government of the Unio)l and the
Government of the States. By articles. 13 it is expressly
provided that all laws in force in the territory of India,
immediately before the commencement of the Constitution, in so far as they are inconsistenl with the provisions of this Part, to the extent of such inconsistency,
are void. Therefore, all laws in operation in India on
the day the Constitution came into force, unless otherwise
saved, to the extent
they
are inconsistent with
this
Chapter on
Fundamental
Rights, become automatically void.
Under article 13 (2) provision is made
for legislation after the Constitution comes into operation. It is there provided that the State shall not make
any law which takes away or abridges the rights conferred by this Part and any law made in contravention
of this clause shall to the extent of the contravention,
be void.
Therefore, as regards future
legislation
also
the Fundamental Rights in Part III have to be reS:
pected and, unless otherwise saved by the provisions
of the Constitution, they
will be void
to the extent
they contravene
the
provisions of Part III.
Under
article 245 (1) the legislative powers conferred under
S.C.R.
SUPREME COURT REPORTS
97
article 246 are also made "subject to the provisions of
this Constitution," which of course includes Part III
dealing with the Fundamental Rights.
The term law
in article 13, is expressed to be wide enough to .include
Acts, Ordinances, Orders,
Bye-laws, Rules, Reg\llations
and even custom or usage having, in the territory of
India, the force of law. The rest of this Part js divided
in seven divisions. "Right to Equality" is found in
articles · 14-18,
"Right to
Freedom"
in articles 19-22,
"Right
against
Exploitation"
in
articles 23 and 24,
"Right to
Freedom of
Religion"
in articles 25-28,
"Cultural and Educational
Rights" in articles 29 and
30, "Right to Property" in article
31 and "Right to
Constitutional
Remedies"
in artciles
32-35.
In this
case
we are directly concerned only with the articles
under the caption "Right to
Freedom"
(19-22) and
article 32 which gives a remedy to enforce the right§
conferred by this Part. The rest of
the articles may
have to be referred to only to assist in the interpretation of the above-mentioned articles.
It is obvious that by the insertion of this Part the
powers of the Legislature
and the Executive, both of
the Union and
the
States, are further curtailed and
the right to enforce the Fundamental Rights found in
Part III by a direct application to the -Supreme Court
is removed from the legislative control. The wording
of article 32 shows that the Supreme Court can be
moved to grant a suitable relief, mentioned in article
32
(2), only in respect of the FuJ?damental
Rights
'1
mentioned in Part III of the Constitution.
The petitioner is detained under a preventive detention order, made under Act IV of 1950, which has
been passed
by
the Parliament of India.
In the
Seventh Schedule of the · Constitution, List I contains
entries specifying items in respect of whieh the Parlia- .
ment has exclusive legislative powers. Entry 9 is in
these
terms : "Preventive detention
for reasons connected with Defence, Foreign Affairs or the Security of
India ; persons subjected to such detention." List III
of that Schedule enumerates topics on which both the
Union
and
the
States
have
concurrent
legislative
1950
A.K. Copalan
v.
TJ.e Slate
Kania C.J.
1950
A.Jr. -G•J>alan
. v.
Kania C.J.
98
SUPREME COURT REPORTS
f 1950]
powers.
Entry 3 of that List is in these terms:
"Preventive
detention for reasons
connected with the
security of. a State, the maintenance of public order or
the
maintenance of supplies
and services essential to
the community ; persons subjected to such detention."
It is not disputed that Act IV of 1950 is covered by
these two Entries in List I and List III of the Seventh
Schedule. The contention of the petitioner is that the
impugned legislation abridges or. infringes the rights
given by articles
19-21
and is also not in accordance
with the permissive legislation on preventive detention
allowed under articles 22 ( 4) and (7) and in particular is
an infringement of the provisions of article 22 (5). It
is therefore neces>ary to consider in detail each of these
articles and the arguments advanced in respect thereof.
Article 19 is for the
protection of certain rights
of freedom to citizens. It runs as follows :-
"19. (1)-All citizens shall have the right-
(a) to freedom of speech and expression ;
(b) to assemble peaceably and without arms ;
( c) to form associations or unions ;
( d) to
move freely
throughout the territory of
India:
( e) to reside
and
settle
in any
part of the
territory of India ;
( f) to acquire, .hold and dispose of property ;
and
·
(g) to practise any
profession, or to carry on
any occupation, trade or business.
"(2) Nothing in sub-clause (a) of clause (1) shall
affect the operation of any existing law in so far as it
relates to, or prevent the State from
making any law
relating to,
libel, slander, defamation, contempt of
court or any matter which offends against decency or
morality or which undermines the security of, or tends
.to overthrow, the State.
(3) Nothing in sub-clause
(b) of the said clause
shall affect the operation of any existing law in so far
as
it imposes,
or prevent the State from making
any
law imposing,
in the interests of public order
•·
'
S.C.R.
SUPREME COURT REPORTS
99
reasonable restrictions on
the
exercise. of the right
conferred by the said sub-clause.
(4) Nothing in sub-clause
(c) of the said clause
shall affect the operation of any existing law in so far
as it imposes, or prevent the State from making any
law
imposing, in
the interests of public order or
morality, reasonable restrictions on the exercise of the
right conferred by the said sub-clause.
(5) Nothing in sub-clauses (d), (e) and (f) of the
said clause shall affect
the operation of any existing
law in so far· as it imposes, or prevent the State from
making any law
imposing,
reasonable
restrictions on
the exercise, of any of the rights conferred by the said
sub-clauses either in the interests of the general public
or for the protection of the interests of any Scheduled
Tribe.
(6) Nothing in sub-clause
(g) of the said clause
shall affect the operation of any existing law in so far
as it imposes, 9r prevent the State from making any
law imposing, in the interests of the general public,
reasonable restrictions
on
the exercise
of the right
conferred by the said
sub-clause,
and,
in particular,
nothing in the said sub-clause shall affect the operation
of any existing law in so far as it prescribes or empowers
any
authority to prescribe, or prevent the
State from making any law prescribing or empowering
any authority to prescribe, the professional or technical
· qualifications necessary for
practising any profession
or carrying on any occupation, trade or business."
Clause
(2) specifies the limits up to which the
abridgement of the right contained in 19 (1) (a) may
be permitted.
It is an
exceptionr Similarly· clause
(3) sets out the limit of abridgement of the right in 19
(1) (b) and clause (4) specifi~s such limits in respect of
the right in 19 (1) (c). Clause (5) .is in respect of the
rights mentioned in 19 (I) (d), (e) and (f) and clause
. (6) is in respect .of the rights contained in 19 (l) (g).
It cannot be disputed that the articles collected under,
the caption "Right to Freedom" have to be considered
together to appreciate the extent of the
Fundamental
Rights.
In the first place it is necessary to notice that
2-3 S. C. India/58.
1950
A.K. Gopalan
v.
The Slate
Kania C.J.
1950
.4.E. Gap.Ian
v.
Kania C.J.
100
SUPREME COURT REPORTS
(1950]
there is a distinction between rights given to citizens
and persons. This is clear on a perusal of the provisions of article 19 on the one hand and articles 20, 21
and 22 on the other.
I~ order to determine whether a
right is · abridged or infringed it is first necessary to
determine the extent of the right given by the articles
and
the
limitations prescribed in the articles themselves
permitting its
curtailment.
The inclusion of
article 13 (1) and (2) in the Constitution appears to be
a matter of abundant caution. Even in their
absence,
if any of the fundamental rights was infringed by any
legislative enactment, the Court has always the power
to declare the enactment, to the extent it transgresses
the limits, invalid. The existence of article 13( 1) and
(2) in the Constitution therefore is not material for the
decision of the question what fundamental right is
given and to what extent it is permitted to be abridged
by the Constitution itself.
As the preventive
detention order results in the
detention of the applicant in a cell it was contended
on his behalf that the rights· specified in article 19 (1)
(a), (b), (c), (d), (e) and (g) have been infringed.
It
was argued
that because of his detention he cannot
have a free right to speech as and where he desired
and the same argument was urged in respect of the
rest of the rights mentioned in sub-clauses (b )', ( c), ( d),
(e) and (g). Although this argument is advanced in a
case which· deals with preventive detention, if correct,
it should be applicable in the case of punitive detention also to any · one sentenced to a term of imprisonment under the relevant section of the Indian Penal
Code.
So considered, the argument must clearly be
rejected. In spite of the saving clause's (2) to (6),
permitting abridgement of the rights connected with
each of them, punitive detention under several sections .
.of the Penal Code, e.g., for theft, cheating, forgery and
even
ordinary assault, will be illegal. Unless sui:h
conclusion necessarily
follows
from
the article, it is
obvious that such construction should be avoided. In
my opinion, such result is clearly not the outco~e of
the Constitution. The article has to be read wh:hout ·
any pre-conceived notions.
So read, it clearly means
•
•
S.C.R.
SUPREME COURT REPORTS
101
that the
legislation to
be
examined must be directly
in respect of one of the rights mentioned in the subclauses. If there is a
legislation
directly
attemp~ing
to control a citizen's freedom of
speech or expression,
or his right to assemble
peaceably and without arms,
etc., the question whether
that
legislation is saved by
the relevant saving clause of article 19 will
arise.
If,
however, the
legislation is
l)Ot
directly in respect of
any of these subjects, but as
a result of the operation
of
other legislation,
for
instance,
for
punitive
or
preventive detention, his right under any of these subclauses is abridged, the question of the application of
article 19 does
not arise. The true approach is only
to consider the directness of
the legislation
and not
what will be
the
result of
the
detention
otherwise
valid,
on the mode of the detenue's life. On that
short ground, in my opinion, this argument . about the
infringement of the rights mentioned in article 19 (I)
generally must fail. Any other construction put on
the article, it seems to me, will .be unreasonable.
It was next urged
that
while
this interpretation
may meet the contention in respect of rights under
article 19 (1) (a), (b), (c), (e) and (g), the right given by
article 19 (1), (d) is left untouched. That sub-clause
expressly gives. the right "to
move
freely
throughout
the territory of India".
It was argued that by the
confinement
of
the
petitioner under the
preventive
detention order
his
right to move · freely throughout
the territory of India is directly abridged and
therefore
the State must show
that
the
impugned
legislation
imposes onlv reasonable restrictions on the exercise of
that right in the interests of the
general public or for
the protection of the interests of any
Scheduled Tribe,
under article 19 (5).
The Court is
thus enjoined to
inquire
whether
the
res.tnct10ns
imposed
on
the
detained
person are
reasonable in the -interests of the
general
public.
Article
14 of the
Constitution gives
the right to equality in these terms :
"The State shall not denv to any
person equality
before
the
law
or the equal protection of the laws
within the territory of India."
A.K. Copa/an.
v.
The Stale
Kanin C.J.
1950
A.Jr. Gopalan
v.
The Stat•
Kama C.J.
102
SUPREME COURT REPORTS
[1950]
It was argued that the words "within the territory
of India" are unnecessary in that article
because the
Parliament is supreme
to make
laws operative only
within
the
territory of
India.
Without those words
also the article will bear the same meaning. Similarly,
it was urged that the words "territory of
India" in
article 19 (1) (d) may
be treated as superfluous, and
preventive detention would
thus
be an abridgement
of the right to move ·freely. In my opinion, this rule
of construction itself is faulty.
Because certain words
may be considered <uperfluous
(assuming them to be
so in article 14 for the present discussion) it is quite
improper to assume that they arc superfluous wherever
found in the rest of the Constitution. On the contrary,
in my opinion, reading sub-clause ( d) as a whole the
words
"territory
of
India"
arc
very
important.
What is sought to be protected by that sub-clause is
the right to freedom
of
movement, i.e., without
restriction, throughout the territory of India.
Read
with their natural grammatical meaning the sub-clause
only means that if restrictions are sought to be put
upon
movement of a citizen from State to State or
even within a State such restrictions will have to be
tested by
the permissive
limits
prescribed· in clause
(5) of that Article. Sub-clause ( d) has nothing to do with
detention,
preventive or punitive. The Constitution
mentions a right to freedom of movement throughout
the territorv of India. Every word of that clause must
be given its true and legitimate meaning and in the
construction of a Statute, particularly a Constitution,
it
is · improper to
omit any word which has a
reasonable
and
proper place
in it or to refrain
from giving effect to
its meaning. This position
is made quite clear when clause (5) is read along with
this sub-clause.
It permits the imposition of reasonable
restrictions on the exercise of such right either in the
interest of general
public or the protection of the
interest of
any
Scheduled
Tribe. It is difficult to
conceive of a reasonable restriction necessary in the
interests of the general public for confining a person in
a cell. Such restriction may be appropriate to prevent
a person from going from one Province to another or
S.C.R.
SUPREME COURT REPORTS
103
one area to another; having regard to local conditions
prevailing in particular areas.
The point
however is
made abundantly clear by the alternative, viz., for the
protection
of
the interests of any
Scheduled Tribe.
What protection of the interests of a Scheduled Tribe
requires the confinement of a man in a cell? On the
other hand, preventing the movement of a person from
one part of the territory of India to another and the
question of
reasonable
restriction
imposed to protect
the interests of a Scheduled Tribe is clearly intelligible and often noticed in the course of the
administration of the country.
Scheduled
Tribes
have
certain
rights,
privileges
and also disabilities.
They have
their own civilization, customs and mode of life and
prevention of contact with persons or groups with a
particular
Scheduled
Tribe
may
be
considered
undesirable during a certain
time or in
certain
conditions.
The legislative
history of
India
shows
that Scheduled Tribes have been ·given a separate
place on these grounds. Reading article
19
as
a
whole, therefore,
it seems to
me
that it has no
application to a legislation dealing with preventive or
punitive detention as its direct object.
I may point
out that the acceptance of
the
petitioner's argument
on the interpretation of this clause will result in the
Court being called upon to decide upon the reasonableness of several
provisions of the
Indian Penal Code
and several other penal legislations as abridging this
right. Even under clause (5), the Court is permitted
to apply the test of reasonableness of the
restrictions
or limits not
generally, but only to the extent they
are either in the interests of the general public, e.g.,
in case ,of an epidemic, riot, etc., or for the protection
of
the
interests of
any
Scheduled
Tribe.
In
my
opinion, this is not the intention of the
Constitution.
Therefore the contention urged in respect of article 19
fails.
It was argued that article
19 and article
21
should be read together as
implementing each other.
Article 19
gave
substantive
rights to
citizens while
article 21 prescribed that no person can be deprived
of hrs life and personal liberty except
by procedure
1950
A .K. Gopal an
v.
The State
Kania C.J.
19 0
A.K. Gopalan
v.
The Stale
Kania C.J.
104
SUPREME COURT REPORTS
(1950]
established by law.
Even so, on a true construction
of article -19, it seems to me that both preventive and
punitive detention are outside the scope of article
19.
In order to appreciate the true scope of article 19
it is useful to read it by itself and then to consider
how far the other articles in Part III affect or control
its meaning. It is the first article under the caption
"Right to Freedom".
It gives
the rights mentioned
in 19 (1) (a) to (g) to all citizens of India.