May, 19 v. The Stall

Four markt!d points of distinction between the clause in the American Constitution and article 21 of . the Constitution of India may be noticed at this stage. the word 'Ilhe first '"liberty" in India it In U.S.A. Consti restricted (2) tution the same protection is given to property, while right in respect of property . in India the fundamental (3) The word "due" is is contained omitted altogether and the expression "due process of ( 4) The word "establi law" is not used deliberately. shed" is used and is to "Procedure" in our article 21. in article 31. limited liberty. The whole argument of the petitioner is founded the meaning of the word "law" given to it by the It seems unnecessary the powers and jurisdiction the U.S.A. and how they the meaning of law in the to adopt the interpreted by the the expression "due Supreme Court of America. embark on a discussion of the Supreme Court of ~ame to enlarge or abridge expression "due process of law" Without going details, I meaning of Supreme Court of U.S.A. m the word "law" as justification is no 1950 A.K. Goftalan •• Till SIOll Kania C.j. 110 SUPREME COURT REPORTS [1950] reasonable circumstances and under different process of law" merely because the word "law" is used in article 21. The discussion of the meaning of "due process of law" found in Willis on Constitutional Law and in Cooley's Constitutional Limitations shows diverse meanings given to that expression at different Supreme Court of U.S.A., so much so that the conclu sion reached by that the expression these authors is the view of the law. according majority of the judges of the Supreme Court at a particular It also shows how the meaning of the expression was widened or abridged in certain decades. Moreover, the meaning time to time the so given to that expression doctrine of police powers was brought into play. That doctrine, shortly put, is legislation meant for the good of the people generally, and in which the individual has to surrender his freedom to a certain extent because the benefit of the people at large, has not tested by the touchstone of the to be "due process of law" formula. to control time holding office. referred the Convention expressed Our attention was drawn the debates and report of the drafting committee of the Constituent the wording of this clause. respect of Assembly The report may be read not to contrbl the meaning of the article, but may be seen in case of ambiguity. In The Municipal Council of Sydney v. The Common ( ), it was tho'!ght that individual opinion of wealth in the debate members of cannot be for the purpose of construing the Constitution. The same opinion was expressed in United States v. Wong Kim Ark ( ' ). The result appears to be that while it is not proper to take into consider individual opinions of Members of Parlia the meaning of the ment or Convention to ·construe particular clause, when a question is raised whether a certain phrase or expression was lip for consideration at all or not, a reference the debates may be permitted. debate~ were In referred to to show that the expression • "due process of law" was known to exist in the American .Constitution (') (1904) 1 Com, L:R. 208. the present case (1) (169) U.S. &19 at 699. •.' 1950 A.K. Gopalan v. Thi Stau Kania C.J. S.C.R. SUPU.ME COURT REPORTS 111 resulted to such debate.s in construing an reasons were held as cogent and after a discussion was not adopted by the Consti tuent Assembly in our Constitution. In Administrator General of Bengal v. Prem/al Mullick (1), a reference to the proceedings of the Legislature which the passing of the Act was not considered legitimate the construction of a particular section. The for excluding a reference Indian Statute. Resort may be had to these sources with great caution and only when latent ambiguities are to be resolved. See Craies' Statute. Law. (4th Edition) page 122, Maxwell of Statutes Interpretation (9th Edition)' pp. 28-29 and Crawford on Statutory Construction · (1940 Edition) p. 379, 214. A perusal of the report of the drafting committee to which our attention was drawn shows clearly that the Constituent Assembly had before the American the expression "due process of law" but article and they deliberately dropped the use of that expression from our Constitution. article person law of procedure there was nothing law" must mean thinking "procedure the State. to preserve No extrinsic aid is needed and without expression If the to every the due process clause of to interpret the words of article 21, which in my opinion, are not ambig\lous. of other r¢ad, Normally Constitutions, . prescribed blished by Indian Consti the · tution wanted pr~ction given by to prevent American Constitution the phrase, or if they the Assembly from adopting wanted to limit . the same· to procedure only, to adopt that expression with only the word "procedural" pre the correct question is what fixed to "law". However, is the right given by article 21 ? The · only right that no person shall be deprived of his life or liberty . except according to procedure established by law. One may like to cover a larger area, but to give such a right is not the function of the Court ; it is the function of the Constitution. To read the word "law" as meaning rules of natural land one in (1) (1895) L.R. 22 I.A. 107 .. justice will that right 1950 A.Jr. Gopalan v. Till Stau Kania C.J. 112 SUPREME COURT REPORTS [1950] rules of natural to adopt "due process of law" difficulties because regards procedure, are nowhere defined and opinion the Constitution canriot be down a vague standard. This in omitting considered law" made specific except by procedure prescribed by "law" as used meaning but indefinite meaning of natural appears no reason why this peculiar meaning. Article 31 which Part respect of property runs as follows :-- justice, as in my .laying is particularly so when it was the expression "procedure established It cannot be the standard specific. the expression .as meaning legislature, The word, this Part has different shades of in no other article it appears to bear the in this article it should receive the fundamental is also rights III and reading justice. If so, relates "No person shall be deprived of his property save by authority of law." It is obvious that in that clause "law" must mean law. The obiect of dealing with property enacted under a different article appears more to provide the exceptions found in article 31 (2) to (6), rather than to give the word "law" a different meaning than the one given in article 21. The word "established" according to the Oxford Dictionarv means "to fix, settle; institute or ordain by enactment or agreement." The word "established" limits. According this agency can be either the legislature or an agreement between the parties. There is therefore no to give the meaning of "jus" to "Jaw" in article 21. itself suggests an agency which fixes the dictionary justification other. articles. of The phrase "procedure established by law" seems to be borrowed from article 31 of the Japanese Consti that Constitution tution. But which express! y preserve other personal different clauses have to be read together to determine the meaning of "law" the expression "procedure the Japanese established by Constitution have not been incorporated in the same language. It is not Constitution of India the Japa shown that the word "law" means "jus" in the Japanese Constitution these In nese Constitution. law." These articles of liberties 1950 A. K. Gopa/1J11 v. TheStalii KaniaC.J. S.C.R. SUPREME COURT REPORTS 113 the American Constitution is interpreted the rules of natural justice are rights claimed under not given by interpretation the words "procedure established by their article 31. law" The word "due" in the expression "due process of law" to meah "just," according to the opinion of the Supreme Court of U.S.A. That word imparts jurisdiction to the Courts to pronounce what is "due" from otherwise, according to law. The deliberate omission of the word "due" from article ·21 contention justiciable aspect of "law", i.e., to consider reasonable or not by the Court, does not whether it is form part of the Indian Constitution. The omission of the word "due'', the limitation imposed by the word "procedure" and the insertiop. of the word "established" legislative thus brings out more clearly prescription in the expression used in article 21. By adopting law" the Constitution gave the legislature the final word to determine the law. the phrase "procedure established by the idea of strength to be the person try military established except Our attention was drawn to The King v. The Military Governor of the Hair Park Camp (1 ), where articles 6 and 70 of Irish Constitution are dis cussed. Under article 6 it is provided that the liberty inviolable and no person shall be deprived of such except "in accordance with law" ..... . In article 70 it is provided that no one shall be tried "save in due course of law" and extraordinary Courts were not permitted offences. The ex Military Courts law" was interpreted to pression "in accordance with mean not rules of natural justice but as time. The Irish Court" gave the expression force at "due course of law" the meaning given to it according to the English law and not the American law .. It was observed by Lord Atkin in Eshugbayi Eleko v. Officer Administering member .of the executive can interfere with the liberty or property of a British subject except when he can support the legality of his act before a Court of justice. (1) [1924] ~ Irish Reports K.B. 104. the Government of Nigeria ( 2 British ), --J'w-isprudence (1) [1931] A. C. 662 at 670. accordance 114 SUPREME COURT REPORTS [1950] ' 1950 A. K. Gopalan v. Tiu State KaniaC.J. In The King v. The Secretary of State for Home ), Scrutton L. J. observed : "A man undoubt Affairs ( released if due edly guilty of murder must yet be forms of law have not been followed in his conviction." the whole set-up of It seems .very arguable Part III _of our Constitution these principles only remain guaranteed by article 21. the caption there are provisions this connection In A detailed discussion of the true limits of article 21 will not be necessary if article 22 is. considered a the extent therein for it may be preventive detention. noticed that the articles in Part III deal with different and separate rights. Under Freedom" articles 19-22 are grouped bur each with a that article 22 separate marginal note, (1) and (2) prescribe limitations on the right given by If the procedure mentioned- in those articles article 21. is followed the arrest and detention contemplated by article 22 liberty of the individual, will be legal, because personal that becomes the established legal procedure in respect of arrest and detention. Article 22 is for protection against arrest and detention in certain cases, and runs as follows :- (1) and (2), although is obvious infringe "Right It shall be "22. (1) No person who detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitiorier of his choice. is arrested (2) Every person who is arrested and detained in the nearest magis custody shall be produced before twenty-four hours of such trate within a period of the journey time necessary arrest excluding arrest magistrate and no such person shall be detained in the said period without the authority custody beyond of a magistrate. place of the Court of (3) Nothing in clauses (1) and (2) shall. apply- ( a) to any person who for the time being is an enemy alien ; or (1) [1923] to K.B. 361 at 382· S.C.R. SUPREME COURT REPORTS 115 (b) to any person who is arrested or detained 1950 under any law providing for preventive detention. law providing ( 4) No shall authorize period than three months unless- preventive detention the detention of a person for a longer ( a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as. reported before the ex Judges of a High Court, has piration of the said period of three months that there is in its opinion sufficient cause for such detention : A. K. Gopa/an v. The State Kania C.J. Provided nothing the detention of any person beyond authorise maximum period prescribed by any Parliament under sub-clause (b) of clause ( 1) ; or sub-clause shall law made by (b) such person is detained in accordance with the provisions of any law made by Parliament under sub clauses (a) and (b) of clause (7). (5) )Vhen any person is detained in pursuance law providing for pre of an order made under any the order ventive detention, shall, as spon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. the authority making in clause (6) Nothing authority making any such order as is referred to in that clause such authority to disclose interest to disclose. considers to be against facts which the public require (5) (7) Parliament may by law prescribe- ( a) the· circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause ( 4) ; (b) the maximum period for which any person in any class or clas5es of cases be detained under law providing for preventive detention ; and ( c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause ( 4) ." The learned Attornev-General contended subject of preventive detention does not 3-3 S. C. India{5 8. that the fall under 1950 A. IC Gopa!an v. TIN Siau Kania C.J. 116 SUPREME COURT REPORTS [1950] ( 4) improper It is obvious article 21 at all and is covered wholly by article 22. I am According to him, article 22 is a complete code. that contention. unable to accept in respect of arrest and detention article 22 (1) and (2) provide safeguards. These safeguards are excluded in the case of preventive detention by article 22 (3), but safeguards in connection with such detention are pro to (7) of the same article. It is vided by clauses therefore clear that article 21 has to be read as supple mented by article 22. Reading in that way the proper that to the extent the mode of construction will be procedure is prescribed by article 22 the same is to be observed ; otherwise article 21 will apply. But if cer tain procedural safeguards are expressly stated as not required, or specific rules on certain points of proce interpm it seems dure are prescribed, these points as not covered by article 22 and left open for consideration under article 21. To the extent the included or excluded, points are dealt with, and the points of proce article 22 .is a complete code. On dure which expressly or by necessary implication are not dealt with by article 22, the opetation of article 21 first to It is look at article 22 ( 4) to (7) and next at the provisions_ of the impugned Act to determine if the Act or any of its provisions are ultra vires. It may be noticed that the Japanese Constitution the American nor neither detention, provisions contain much less limitations on such right of detention, in normal times, i.e., without a declaration in normal times, of emergency. Preventive detention i.e., without the existence of an emergency like war, is recognised as a normal topic of legislation in List I, Entry 9, and List III, Entry 3, of the Seventh Sche the Chapter on Fundamental Rights dule. Even in article 22 envisages in respect of preventive detention in normal times. The provisions of article 22 ( 4) to (7) by their very wording leave unaffected the legislation on this point and emphasize large powers of (7) the power of the Parlia particularly by article 22 to have his case ment to deprive a person of a right considered by advisory board. Part permitting preventive remain . unaffected. thus necessary laying down legislation III ' ' S.C.R. SUPREME COURT REPORTS 117 article 22 · in particular are the only restrictions on that power . and but for those provisions the power to legis late on this subject would have been quite unrestrict ed. Parliament could have made a faw without any for preventive detention. safcglJMd · or any procedure is cer Such an autocratic supremacy of the legislature tainly cut down by article 21. Therefore, lature pr~scribes arprocedure by a validly enacted law and such procedure in the case of preventive detention does not come in conflict with the express provisions of Part III or article 22 (4) to (7), _the Preventive Denten that . the tion Act must be held valid notwithstanding Court may not fully approve of the procedure prescri bed under such Act. - 1950 Jt. K. O.J.fltin v. TlrlS"1# Kani4 C.J. three months Article 22 (4) opens with a double negative. Put in a positive form it will mean that a law which pro vides for preventive detention for a perioo longer than three months shall contain a provision establishing an advisory board, (consisting of persons with the quali fications mentioned in sub-clause (a), and which has to if in its report before the expiration of there was sufficient cause for -such detention. opinion This clause, if it stood by itself and without the re maining provisions of article 22, will apply both- to the Parliament and the State Legislatures. The proviso this clause further enjoins that even though the· ·ad~ the opinion that there was visory board may be of i.e., detention I» for such detention, sufficient cause yond the perioo of three months, still the detention is the maximum perioo, if not to be permitted beyond any, prescribed by Parliament under article 22 (7) (b). inoperative Again the whole of this sub-clause is made by article 22 ( 4) (b) in respect of an Act of preventive detention passed by Parliament under clauses (7) (a) and (b). Inasmuch as impugned Act is an Act of the Parliament purported to be so made, clause 22 (4) has no operation and may for the present discussion be kept aside. Article 22 (5) prescribes that· when any person under a preventive detention law is detained, the order shall, as soon as may the authority making · be, communicate to such person the grounds on which the order has been made and shall afford him the 1950 A. K. Gopalan v. Tlw Stot. x.,,;,, C.}. 118 SUPREME COURT REPORTS [1950] earliest opportunity of making a representation against the order. This. clause is of general operation in respect of every detention order made under any law permit ting detention. Article 22 ( 6) permits the authority making the order to withhold disclosure of facts which such authority considers against the public interest to disclose. It may be noticed that this clause only per the non-disclosure of facts, and reading clauses (5) and (6) together a distinction is drawn between facts and grounds of detention. Article 22 ( 4) and (7) deal not with the period of detention only but with other requirements the case of preventive detention also. They provide for the establishment of an advisory board, and the necessity of furnishing grounds to the detenue. and· also to give him a right to make a repre sentation. Reading article 22 clauses ( 4) and (7) to gether it appears to be implied that preventive deten tion for less than three months, without an advisory board, is permitted under the Chapter on Fundamental legisla Rights, provided such legislation is within tive competence of the Parliament or the State Legis lature, as the case may be. . Article 22 (5) permits the detained person to make a representation. The Constitution is silent as to the person to whom it has to be made, or how it has to be dealt with. But that is the procedure laid down by the Constitution. It does not therefore mean that if a law made by the Parliament in respect of preventive detention docs not make provision on those two points it is invalid. Silence on these points does not make the impugned Act in contravention of the Constitution rights given because the first question is what are by the Constitution in the case of preventive detention. The contention· that the representation should be to an outside body has no support in the Liversidge case the representation had to be made to •.he Secretary of State 'and not to another body. After such representation was made, another advisory board had to consider it, but it was not necessary to make itself to a third party. Article 22 ( 4) and (7) permit the non-establishment of an advisory legislation representation parliamentary law. Even expressly a 1950 A. K. GoltJlaa v. T1" Stall Kania C.J. S.C.R. SUPREME COURT REPORTS 119 preventive providing If so, how can it be urged that the non months. establishment of an advisory board is a fundamental right vio1ated by Act passed by the procedure prescribed the Parliament ? detention beyond The this ca5e. important clause to be considered is article In 22 (7). Sub-clause (a)·. is important for the case of an Act of -preventive detention passed by the Parliament this clause contained the Chapter thus permits detention be on Fundamental Rights, yond a period of three months and excludes the neces sity of consulting an advisory board, if the opening words of the sub-clause are complied with. Sub-clause It is not obligatory on the Parlia (b) is permissive. It was argued ment to prescribe any maximum period. that this gives the Parliament a right to allow a person If that construction is to be detained correct, it springs out of the words of sub-clause: (7) itself and the Court cannot help in the matter. Sub to lay down the clause procedure: to be: the advisory board in an inquiry under sub-clause (~) of clause (4). I am unable the contention tliat article 22 ( 4) (a) is the to accept rule and article 22 (7) the exception. I read them as two alternatives, the Constitution for making laws·on preventive detention. the Parliament provided by followc:q by (c) permits indefinitely. the security of Bearing ·in mind III, Entry 3, it is the provisions of article 22 read with article 246 and Schedule VII, List I, Entry 9, and, thus clear that the Parliament List is empowered to enact a law of preventive detention (a) for reasons connected with defence, (b) for reasons connected with foreign affairs, ( c) fer reasons connect India ; and (under List III}, ed with ( d) for reasons connected with the security of a State, the maintenance of ( e) for public order, or (£) for rea. Sons connected with the maintenance of supplies and services essential to the the petitioner has challenged community. Counsel for the validity of several provisions of the Act. . In res pect of the construction of a Constitution Lore~ Wright in James v. The Commonwealth of Australif' (1), reasons connected with (') (1936) A.C. 578 at 614. 1950 A. E. Gop,/an v. T/,. Stat< Kania C.J. 120 SUPREME COURT REPORTS [1950] theory o.r even observed that "a Constitution must not be construed in any narrow and pedantic sense." Mr. Justice Higgins in Attorney-General of New South Wales v. Brewery Employees' Union (1 ) , observed: "Although we are to interpret words of the Constitution on the same prin ciples of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act that we are it is a interpreting-to remember Constitution, a mechanism under which laws are to be made and not a mere Act which declares what the law In In re The Central Provinces and Berar Act is to be." ), Sir Maurice Gwyer C. J. after adopt XIV of 1938 ( 2 these observations said : "especially is this true of a Federal Constitution with its nice balance of jurisdic tions. I conceive that a broad and liberal spirit should inspire those whose duty it is to interpret it ; but I do not imply by this that they are free to stretch or prevert the language of the enactment in interest of any legal or constitutional the purpose supposed errors." There statement the Courts are not at liberty to declare an A,ct void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed the fundamental law has limited, either in terms or by necessary implica tion, the general powers conferred upon the Legislature the notion of we cannot declare a limitation under spirit of having discovered Constitution which the. is difficult upon any general principles instrument. to limit the omnipotence of the sovereign legislative power by interposition, except so far as the express the words be positive authority. It and without ambiguity, is no authority for a Court to vacate or that ground alone. ·But it is only in express constitutional . provi temporary ·will of a majority by a permanent and (2) (1939) F.C.R. 18 at 37. supplying omissions or of correcting authority something is not even mentioned :words of a written Constitution give legislative power and controlling repeal a Statute on in words. Where (') (1908) 6 Com. L.R. 469 at 611-12. is also stated, considerable limiting judicial It s.c.R. SUPREME COURT REPORTS 121 the ddibcrate wisdom of law settled. by paramount that one can find a safe and solid ground the nation for the authority of Courts of justice to declare void any legislative enactment. Any assumption of autho rity beyond the hands too great and too indefinite either for its own security or the protection of private rights. judiciary powers this would be to place 1950 A.K.~• v. 7/wSll* Kaia C.J. It was section 3 liversidge v. Anderson that by argµcd its legislative power to the Parliament had delegated executive officer in detaining a person on his being satisfied of its necessity. It was urged that the satis faction must be of the legislative body. This conten tion of delegation of the legislative power in such cases has been considered and rejected in numerous cases by the English Courts. It is our Federal Court and by refer to all those cases. A reading of unnecessary (1) the various speeches clearly negatives this contention. Section 3 of · the impugned Act is no delegation of legislative power to make laws. It only confers discretion on the officer to enforce the law made by the legislature. S.ection 3 is also impugned on the ground that it does not provide ?Jl objective standard which the Court can utilize for determining whether law have It is clear that no such objective been complied with. standard of conduct can be prescribed, except as tending to achieve or to avoid a laying down conduct detention action particular object. must be It is a subjective test based on the cumulative effect of different actions, perhaps spread over a considerable period. . As observed in The King v. Halliday (•), a Court by Lord Finlay investigate question whether suspicion exist circumstances of the restraint on a person. The contention warranting is urged in respect of preventive detention and not liable punitive detention. Before a person can be held that he should be in a for an offence it is obvious position to know what he may do or not do, and an omission to do or not to do will result in the State (2) (1917) A.C.260 at 269. (I) (1942) A.C. 206. taken on good suspicion. least appropriate· tribunal requirements of For preventive 1950 A. K. Gopalan v. The State Kania C.J. 122 SUPREME COURT REPORTS [1950] show, It has considering him guilty according to the penal enact ment. When it comes however to preventive detention, the very purpose individual not to prevent in a particular way but, as the merely from acting sub-heads summarized above from achieving a particular object. It will not be humanly possible to tabulate exhaustively all actions which may lead to a therefore been considered particular object. that a punitive detention Act which sufficiently prescribes the objects which the legislature considers have not to be worked up to is a sufficient standard to In my opinion, prevent the legislation being vague. therefore, the argument of tion 3 of It was also con tended that section 3 prescribes no limit of time for legislation is ultra vires. detention and The answer is found in article 22 (7) (b). A perusal of the provisions of the impugned Act moreover shows a period longer than three months bur not exceeding (b) of that one year section_ rest of the clauses mentioned in section 3 ( 1) (a) the detention is not contemplated to be for a period longer than three months, and in such cases a reference to the advisory board under section 9 is contemplated. in respect of clauses It appears the petitioner against in section 12 provision is made for detention impugned Act fails. in respect of (a) and therefore therefore Section 7 of the Act which is next challenged, runs on the same .lines as article 22 (5) and (6) and in my opinion infringes no provision of the Constitution. It' was argued that this gave only the right of making a representation without being heard orally or with evidence and out affording an opportunity therefore was not an orderly course of procedure, as required by rules of natural justice. The Parlia ment by the Act has expressly given a right to the person detained under a preventive detention order to receive the grounds for detention and also has given him a right to make a representation. The Act has thus complied with the requirements of article 22 (5). That clause, which prescribes what procedure has to be followed as a matter of fundamental right, is silent, about the person detained having a right to be heard 1950 A.K.Gopalatt 11. Tiii S"1U Kania C.]. S.C.R. SUPREME COURT REPORTS 123 law as old orally or by a lawyer. The Constituent Assembly had before them the provisions of clause (I) of the same article. The Assembly having dealt with the require ments of receiving grounds and giving an opportunity to make a representation has deliberately refrained If so,. I do from providing a right to be heard orally. not read the clause as guaranteeing such right under (5). An "orderly course of procedure" is article .22 not limited to procedure which has been sanctioned by forms of procedure are as much, settled usage. New held even by the Supreme Court of America, due forms, provided they give a process of It was person a fair opportunity to present his ca5e. contended that the right to make a representation in article 22 (5) must carry with it a right to be heard by tribunal ; otherwise the making of a independent substance because it is not an repn:sentation has no to read clause (5) of effective article 22 as giving a fundamental to be heard tribunal. The Constitution deli by an. ind¢pendent .berately · stops at giving the right of representation. This is natural because under article 22 (7), in terms, the Constitution permits the making of a law by Parliament· in which a reference to an advisory board may be omitted. To consider to make a representation including a right to be heard by an judicial, administrative or tribunal will thus be directly in conflict with advisory the express words of article 22 (7). :rs necessarily independent I am unable the right remedy. Even according to the Supreme Court of U.S.A. a In the United right to a judicial trial is not absolute. States v. Ju Toy ( 1 ), a question arose about the exclu the States, of a Chinese who sion from entry claimed to be a citizen of the United States. At page 263 following the majority passage :-"If for the purpose of argument, we assume to him, and the Fifth Amendment that to deny entrance to a citizen to deprive him liberty, we nevertheles5 are of opinion that with regard to him due process of law does not require the result of the cases which juclicial we· have cited, and the almost necessary result of the judgment contains applies trial: That (I) (198)U.S. 253 at 263. 1950 A. K. Copa/a• - v. TM Siok Kama C.J. 124 SUPREME COURT REPORTS [1950] power of the Congress to pass exclusion laws. That the decision may be entrusted to an executive officer, and ·that his decision is due process of law, was affirmed and explained in several cases. ~epeat the often-quoted rema, ks of Mr. Justice Curits, speaking for the whole Court, in Den Exden ltfurray v. ), to Hoboken Land and Improvement Company show that requirement of a judicial trial does ·not prevail in every case." is unnecessary It ( 1 that a respondent, (2) because justice. The Again, I am not prepared that an oral is nothing to support interview is compulsory. to accept the conten right to be heard orally is an essential rules of right of procedure even according to make a defence may natural be admitted, but contention In the Local Government Board v. Arlidge ( 1 ), the respon dent applied to the Board constituted under the Hous ing Act to state a special case for the opinion of the High invalid because Court, contending that the order was ( 1) the report of Inspector had been treated as a confidential document and had not been disclosed to the Board had to give the respondent an opportunity of be declined the person or ptrsons by whom ing heard orally by the appeal was finalry decided. The Board rejected the application. Both the points were urged before the House of Lords on appeal. Viscount Haldane the contention about the L. C. in his speech necessity of an oral hearing by observing "But it does not follow that the procedure of every tribunal must be the case of a Court of law In tradition in this country has prescribed certain princi the procedure must con ples to which, in the main, in detail form. But what In reject must depend on the nature of a tribunal." report· ing the contention about the disclosure of of the Inspector, the Lord Chancellor stated: "It might or might not have been useful to disclose this report, but I do not think that the Board was bound to do so than it would have been bound to disclose any more in the office before all the minutes made on the papers (2) (1915) A.C. 120. that procedure is to be (I) 18 H.O.W. 272 at 280. rejected same. 1950 A. K. Gopalaa v. Tu Stall Klllfia C.]. S.C.R. SUPREME COURT REPORTS 125 justice laid down for such cases a decision was come to . . . . What appears to me to have been the fallacy of the judgment of the majority in the Court of appeal is that it begs the question at . the beginning by setting up the test of the procedure instead of the other standard ·of a Court of which was in Board of Edu cation v. Rice ( 1 ). I do not think the Board was bound respondent orally provided it gave him to hear the the opportunities he actually had." the Parliament is supreme I am unable to accept the Parliament making the well-recognised laws, principles of natural justice accepted as such in all civilized countries. The same view is accepted in the United States in Federal Communications Commission v. W/R The Goodwill Station (• ). that in England against In spite of the view legislates A right to lead evidence against facts suspected to exist is also not essential in the case of preventive de the non-disclosure of tention. Article 22 ( 6) permits facts. That is one of the:_ clauses of the Constitution If even the non-dis dealing with fundamental rights. closure of facts is permitted, I fail to see how there can exist a right to contest facts by evidence and the non inclusion of such procedural right could make this Act invalid. right to appear legal practitioner infringement of a fundamental Section 10 (3) was challenged on the ground that it excludes in person or by any lawyer before the advisory board and it was argued that this was an right. It must be noticed that article 22 (1) which gives a de tained person a right to consult or be defended by his excluded · by legislation dealing with article 22 the Parliament is preventive expressly given power under article 22 (7) (c) to lay down the procedure in an inquiry by an advisory board. This is also a part of article 22 itself. If so, how can the omission to give a right to audience be considered rights ? It wa.~ pointed 'out against that section 10 the disclosure of a (2) 337 U.S. 265 at 276. detention. Moreover, (3) in the case of (3) prevents even the constitutional specifically (I) (191 n A.C. 179. 1950 A. K. Gopalan v. The Stale Kania C.J. 126 SUPREME COURT REPORTS [1950] portion: of the report and opinion of the advisory board. It was argued that if so how can the detained person put forth his case before a Court and challenge the con clusions ? This argument was similarly advanced in. Local Government Board v. Arlidge ( 1 ) and rejected, as mentioned above. In my opinion, the answer is in the provision found in article 22 (7) ( c) of the Constitution of India. It was argued that section 11 of the impugned Act was invalid as it permitted the continuance cif the de tention for such period as the Central Government or the State Government thought fit. This may mean an In my opinion this argument has no indefinite period. substance- because the Act has to be read as a whole. life of the Act is for a year and therefore The whole the argument the detention may be for an in definite period is unsound. Again, by virtue of article the Parliament is not obliged to fix the 22 (7) (b ), maximum term of such detention. it, except under section 12, and therefore it cannot be stated section 11 is in contravention of article 22 (7). It has not so fulfilled. is argued Section 12 of the the class or classes of cases It was argued impugned Act is challenged on the ground that it does not conform to the provisions of article 22 (7). It that article 22 (7) per mits preventive detention beyond three months, when the Parliament prescribes "the circumstances in which, in which," a person: that both these con may be detained. ditions must be this argu is unsound, because the words used in article 22 (7) interpretation. The use of the word "which" twice in the first part of the sub-clause, read with the. comma put after each, shows these to be read as dis legislature wanted junctive and not conjunctive. Such argument might have been possible ( tl, JOugh not necessarily accepted) if the article in the Constitution was "the circumstances and the class or classes of cases in which .... " I have that by the clause, as worded, the· legislature no doubt themselves are against such In my opinion, (l) (1915) A.C. 120. S.C.R. SUPREME COURT REPORTS 127 intended that the power of preventive detention beyond three months may be exercised either if the circum stances in which, or the class or classes of cases in which, a person is suspected or apprehended to be doing the objectionable section. This things mentioned in the contention therefore fails. 1950 A. K. Gopalan v. Th• State Kania C.J. ( (a) that a provided sub-sections foreign powers or It was next contended that by section 12 the perso.n might be Parliament had detained for a period longer than three months but not exceeding one year from the date of his detention, the opinion of an advisory board, without obtaining with a view to prevent him from acting in any manner the defence of India, relations of prejudicial India with the security of India ; the security of a State or the maintenance of (b) It must be noticed that the contingency public order. provided in section 3 (1) (a) (iii), viz., the maintenance to the community services essential of supplies and the wording of is omitted in section 12. Relying on in section 12, it was argued that in the impugned Act the wording of Schedule VII List I, Entry 9, and List III, ~ntry 3, except the last part are only copied. This did not comply with the requirement to specify either the circumstances or the class or classes of cases as is necessary to be done under article 22 the Constitution. Circum stances ordinarily mean events or situation extraneous individual concerned, while a class of cases mean determinable groups based on the actions of the individuals with a common aim or idea. Determinable may be according to the nature of the object also. the classification can the activities of people or by specify be by grouping to be attained or avoided. The argument advanced on behalf of the petitioner on this point does not appeal to me because it assumes that the words of Schedule VII List I, Entry 9, and List III, Entry 3 t<re never capable of being considered as circumstances or classes of cases. In my opinion, is not justified, particularly when we th.at assumption into consideration cases of preventive the actions of the objectives It is obvious (7) of 1950 A. K. Copa/an v. Tlv Stall Kania G.]. 128 SUPREME COURT REPORTS [1950] detention and not of conviction and punitive deten in those entries is tion. Each of the expressions used requirement of men capable of complying with tioning circumstances or classes of cases. The classifica itself tion of cases, having regard to an object, may amount It to a description of the circumstances. not disputed that each of the entries in the Legislative the Seventh Schedule has a specific connota Lists in If so, tion well understood and ascertainable in law. there appears no same expression when used in section 12 (1) (a) and (b) of the impugn ed Act should not be held to have such specific mean ing and thus comply with the requirement of prescrib ing circumstances or classes of cases. This argument therefore must be rejected. reason why the the same Section .. 13 (2) was attacked on the ground that even if a detention order was revoked, another deten tion order under section 3 might be made against the clause same person on appears to be inserted to prevent a man being released if a detention order was held invalid on some techni cal ground. There the Chapter on is nothing Fundamental Rights and in article 21 or 22 to prevent in a par liame11tary legislation, detention. Article 20 (2) may be read as a contrast on this point. inclusion of such a clause permitting preventive grounds. This the four Dealing with It is conceded such detention. The argument fundamental principles of natural justice in procedure claimed by the petitioner, it is thus clear that in respect of preventive detention no question of an objective standard of human con that no notice duct can be laid down. before detention can be claimed by the very nature that after deten should be given has incorporated impartial tribunal, article together specified preventive exceeds absence of an advisory board is expressly permitted in article 22 impugned Act. As 22 discretion. When classes of cases three months, the Parliament circumstances detention (5) and regards an i.ntimation of recognised the grounds (7) ( 4) 1950 A. K. Gopalara v. Tll4 State Kania C.]. S.C.R. SUPREME COURT REPORTS 129 the detention is opportunity to be heard, by article 22 (7). Under article 22 (4) it appears impli tribunal is not necessary ed that a provision for such than three months. As is no regards an in respect of oral absolute natural right recognised It has been held to depend on the representation. nature of the tribunal. -The right to make a representa the Constitution in artitie 22 (5) tion, is affirmed by and finds a place in the right to an orderly course of procedure the extent it is guaranteed by article 22 (4) read with article 22 (7) (c), and by article 22 (b), has also been to me provided It the petitioner's contentions even on therefore these po in ts fail. impugned Act. The the Act. (a) and (7) - Section 14 was strongly attacked on the ground justice and the right given by article 22 (5) of the that it violated all principles of natural Constitution. It runs as follows : infringed "14. (1) No Court shall, except for the purposes of a prosecution for an offence punishable under sub (2), allow any ·statement to be made, or any section evidence to 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 any representation made by him against person or of any such order ; and, notwithstanding anything contained in any other law, no Court sha~l be entitled to require any public officer to produce before it, or to Jisclose the substance of, any such communication or represen tation made, or the proceedings of an Advisory Board or that part of the report of an Advisory Board which is confidential. (2) It shall be an offence punishable with sonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without Central Government or the State. ·.Government, as the case may be, any contents or matter purporting to be contents of any such communication or representation the previous authorisation of is referred to in sub-section (1) : 1950 A. K. Gopalan v. The Stale Kania C.J. 130 SUPREME COURT REPORTS [1950] Provided that nothing apply to a disclosure made person who is the subject of a detention order." to his this sub-section legal adviser by a the Court to do with It even prevents I do not mean whether By that section the Court is prevented (except for the purpose of punishment for such disclosure) from informed, either by a statement or by leading the grounds conveyed to evidence, of the substance of the detained person under section 7 on which the order was made, or of any representation made by him against such order. It also prevents the Court from calling upon any public officer to disclose the substance of those grounds or from the production of the proceed ings or report of the advisory board which may be It is clear that if this provision declared confidential. the Court can have no material is permitted to stand the detention is proper before' it to determine whether the grounds are suffi or not. cient or not. from ascer taining whether the alleged grounds of detention have anything the circumstances or class or classes of cases mentioned in section 12 ( 1) (a) or (b). In Machindar Shivaji Mahar v. The King (1), the Court can examine Federal Court held that grounds given by the Government to see if they are relevant to legislation has in view. The provisions of article 22 (5) do not exclude the Court. Section 14 of the impugned that right of Act appears to be a drastic provision which requires in a preventive to sustain considerable support learned Attorney-General detention Act. The that the whole object of to prevent the section was ventilation in public of the grounds and the represen tations, and that it was a rule of evidence only which the Parliament could prescribe. I do not agree. This argument is clearly not sustainable on the words of article 22 clauses (5) and (6). The Government has which it considers undersirable to disclose in the public interest. It does not permit the Government to refrain from disclosing grounds which fall under clause (5). right under article 22 the object which ( 6) not to disclose (1) [1949-50) F.C.R. 827. 1950 A. K. Gopa/11n v. tMState Kania C.J. S.C.R. SUPREME COURT REPORTS 131 as a interest, to such If they are not detaining authority the order hat been made. detained person It the detention is open to contend before a Court Therefore, it cannot successfully be contended t,,hat the disclosure of grounds may be withheld from the Court in public rule of evidence. Moreover, the position is made clear by the words of article 22 (5). It provides that the the grounds communicate therefore on which the grounds mtist be connected with the essential order of preventive detention. the requirements of article 22 (5) are not connected order . will be complied with and to a detained per invalid. Therefore, grounds on which the order has been made have no connec the order; or have no connection tion at all with the circumstances or class or classes, of cases ·under which a preventive detention order cou1d be supported under section 12. To urge this argument tltc: aggrieved party must have a right to intimate to Cqurt the grounds ·given for the alleged detention and the representation made a person is served with a paper on which there are written three stanzas of a poem or three alphabets written in three different ways.· For the va!Wity of the detention order it is necessary that the grounds should be thost on which the order has been made. H the detained persori the Court this is not· in a position to put before the Court will be prevented from considering paper, :yvhether the. requirement~ of article 22 (5) are complied with and that is a: to. every person. the provisions of section 14 abridge the ,right given under article 22 (5) and a:te therefore ultra vires. right. which is guaranteed It seems to me therefore For instance, by him. It next remains to be considered how far validity of this section affects the rest of the impugned ,'\.ct. The .impugned Act minu.s this section can remain section will not unaffected. The omission of this change the. hature or .the structure or the object of legislation. . Therefore the decision the rest of the ultra ilires does no.t.affect the validity of In my opinion therefore Act IV of 1950, except Act. section 14, ·is not ultra vires. It does not infringe any 4-3 s. C. India/58 that section 14 1950 A. K. Gopalan v. The State Fad Ali J. 132 SUPREME COURT REPORTS [1950] provJS1orts of Part III of the Constitution and the con the validity of that tention of the applicant against 14, fails. The the extent of section Act, petition therefore fails and is dismissed. except is whether is wholly or the Preventive Detention Act, FAZL Au J.-The question to be decided in this 1950 in part invalid and (Act IV of 1950), the petitioner who has been detained under whether the nature of habeas that Act is entitled . The corpus on the ground that his detention is illegal. question being a pure question of law can be decided without referring to a long chain of facts which are narrated this Court and which have a more direct bearing on the alleged mala {ides of the authorities who have detained him than on the validity of the Act. in the petitioner's application to a writ The Act which is i!Ilpugned was enacted by the 1950, and will cease 1951, save as respects to be done before that date. in sections Section 3 (1) provides "the Central Government or the State Govern Parliament on the 26th February, to have effect on the 1st April, things done or omitted The main provisions of the Act are set out 3, 7, 8, 9, 10, ll, 12 and 14. ment may- ( a) if satisfied with respect to any person with a view to preventing him from acting manner prejudicial to- in any ( 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 mainten ance of public order, or (iii) the maintenance of supplies and services essential to the community, or (XXXI of 1946), (b) if satisfied with respect to any person who is the meaning of the Foreigners Act, to regulating a view expulsi1 n from a foreigner within 1946 his continued presence to . makmg arrangements India, that with a view India or with for his 1950 A. K. Goftalan v. T!uSlall Fazl Ali]. S.C.R. SUPREME COURT REPORTS 133 it is necessary so to do, make an .order directing that such person be detained." the earliest in a case where the person detained the Central Government, (2) and (3) of this section empower a Sub-sections Sub-Divisional Magistarte or the District Magistrate, in a Presidency Town Commissioner of Police exercise the power conferred by and · make the order contemplated in sub-section ( 1), but with the qualifica that any order made thereunder must be reported forthiwth to the Government of the State to which the in question officer is subordinate with the groi, mds on the order has been made and such other parti culars as in his opinion have a bearing on the necessity for the order. Section 7 of the Act provides that the authority making an order of detention shall as soon as may be communicate grounds on which the order has been made and shall opportunity of making a afford him in a case wh<;re such representation against the order, order has been made by that Government, and it has been made by a State Government or an officer subordinate thereto, to the State Government. Section 8 provides the Central Government and each State Govern ment shall, whenever necessary, constitute one or more advisory the Act. and state the qualifications of persons of which the board should consist. Section 9 provides that when a deten to preventing tion order has been made with a view a person from acting in any manner prejudicial to the maintenance of supplies and services essential to the community or if it is made in regard to a person who the meaning of the Foreigners is :i. foreigner within Act with a view to regulating his continued presence in India or making arrangements for . his expulsion India, · I/as the grounds on which representation, been made and the person detained shall, within six weeks from the date board. be placed before an advisory of detention, It will be noticed does not provide this section the cases of persons who are detained under section 3 (1) (a) (i) and (ii) will also be placed before the order the purposes of lays down Section 10 boards for advisory if any, board. 1950 .A. K. Gopalan v. The Stale Fa</ Ali J. 134 SUPREME COURT REPORTS [1950] reported in any case where followed by. the advisory board and procedure to be section 11 provides advisory board has is sufficient the detention of the person concerned, the cause for detention order may be confirmed and the detention of the person concerned may be continued for such period as the Central Government or the State Govern ment, Section 12 which is a very important section, as we shall pres ently see, runs as follows :- the case may be, thinks fit. be detained without obtaining "12 (I) Any person detained in any of the follow ing classes of cases or under any of the following cir cumstances may for a period · longer opinion of an Advisory Board but not exceeding one year from than three months, the date of his detention, namely, where such person has been detained with a 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. be reviewed where (2) The case of every person detained under a the provisions of sub-section detention order to which (1) apply shall, within a period of six months the order the date of his detention, . State was made by the Central Government or a Government, in sub-section order was made by any officer, specified (2) of section 3, to which such officer is subordinate, in consultation with a person who is or has been or is qualified to be appointed as Judge of a High Court nominated in that behalf by the Central Government or the State Government, as the case may be." by the State Government by such Government, and where Section 14, which is also a material section the purpose of this case, is to the following effect :- " ( 1) No Court shall, a prosecution for an offence punishable section allow any statement to be made, (2), except for the purposes of or any . 1950 ,4. K,. Gopaltfl! v, TheSlaY Fad. Ali J~· S.C.R. SUPREME COQRT REPORTS 135 evidence to be given, before it of the substance of any communication made l.fnder section 7 of the grounds on which a detention order has been made against representation made by him any . person or of any against such order ; notwithstanding anything and, no Court shall be entitled contained in any other ·1aw, to require any public officer to produce before it, or any such communication the substance of, to disclose the proceedings of an or representation made, report of an that part of Advisory Board or Advisory Board which is confidential. (2) It shall be an offence punishable with imprisonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the. previous authorisation of the Central Government or the State Government, as · any contents or matter purporting to the case may be, be the contents of any such communication or sentation as is referred to in sub-section (I) : Provided that nothing in this sub-section apply to a disclosure made to his legal adviser by a person who is the subject of a detention order." The point which has been pressed before us the Act is invalid, rights conferred by Part as it takes away or abridges III of and in support of this reliance is placed on article 13 (2) certain fundamental the Constitution of general proposition, which runs as follows:- India, "The State shall not make any law which takes away or abridges Part and any law made in contravention of this clause shall, _-to the extent of the contravention, be void." the rights conferred by The rights guaranteed under Part III of seven broad heads, Constitution are classified under as follows :--,. (I) Right to equality ; (2) Right to freedom·; (3) Right against exploitation ; ( 4) Right to freedom of religion ; (5) Cultural and educational rights ; ( 6) Right to property ; and (7) Right to constitutional remedies. 1950 A. K. Gopd...,. v. T/,, Stat< Fazl Ali J. 136 SUPREME COURT REPORTS [19501 occur under heading "Right Most of the articles which are said to have been these articles being articles 19 ( 1) ( d), 21 to have the present disregarded freedom," and 22. Another article which been violated is article 32, application have been made. Article for a writ of habeas corpus purports 19 ( 1) is divided sub-clauses under which is also said and runs as follows :- "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 India ; freely throughout the territory of ( e) to reside and settle in any part of territory of India ; ( f) to acquire, hold and dispose of property ; and to carry on (g) to practise any profession, or any occupation, trade or business." ( 1) (5) and Clauses (2), ( 4), in clause (3), that nothing (6) of this article provide shall affect the operation of any existing rights that clause, under certain conditions which are mentioned (5), with which we are directly concerned and which will serve as a specimen to show following effect :- these provisions, therein. Clause law in regard the nature to the in so far as it imposes, '"Nothing in ;ub-clauses (d), (e) and (f) of the the operation of any existing said clause shall affect or prevent the State from making any imposing, reasonable restrictions on the exercise of any of the rights conferred by the said in the interests of the general public sub-clauses either or for the protection of the interests of any Sched uled Tribe." The contentions acivanced on behalf of the peti tioner with reference this article are :-(1) that the Act under which he has been detained deprives him is a citizen of the Republic of India of the right India, to move which is guaranteed under article 19 (1) (d), and (2) throughout territory freely / 1950 A. K. Gopalan v. Till ;,'fall Fa.:! Ali J. S.C.R· SUPREME COURT REPOltTS 137 the essence to understand this argument, right conferred states that "personal liberty consists to judge whether the restrictions imposed by it is open to this that under clause_ (5) of article 19, Cou1 t Act on the exercise of the right conferred by article 19 (1) (d) are reasonable or otherwise. Before dealing it is necessary the words used in article 19 ( 1) ( d), and meaning of the true nature as to to have a clear comprehension thereunder. The contention is that freedom put forward on behalf of the petitioner of personal liberty and of movement any restraint on freedom of movement must be held to abridgment or deprivation of personal to amount the nature liberty, as the case may be, according I of the restraint. After very careful consideration, this contention have come to the conclusion "Commen in his in law. Blackstone well-founded (4th Edition, volume taries on the Laws of England" 1, page 134) of changing situation or the power to whatsoever place one's own moving one's inclination may direct, without restraint unless by due course of law". The autho ·of this statement has never been questioned, and it has been bodily "Commentaries on the Laws of England" and has been reproduced by Cooley treatise on "Constitutional Limitations" (8th Edition, volume 1, page 710), which was extensively quoted by both their arguments. The view parties freedom of movement is the essence of personal to any liberty will also be confirmed by book on the criminal law of England dealing with imprisonment or any commentary on offence of false Indian Penal Code dealing with the offences of wrongful restraint or confinement. Russell in his book (8th Edition, volume 1, page 861), sonment states as follows :- incorporated by H. J. Stephen dealing with the offence of false "Crimes and Misdemeanours" locomotion, person in his well-known imprisonment the course of reference imprisonment is unlawful "False liberty of another, whether restraint of by constraining him or compelling him to go to a particular place or by confining him in a prison or the personal 138 SUPREME COURT REPORTS [1950] 1950 A. K. Gopalan . v. The State Fa</ Ali J. police station or private place, or by detaining him against his will in a public place ........ the essential element in the offence is the unlawful detention of the person or the unlawful restraint on his liberty. Such interference with the liberty of another's movements is unlawful, unless it may be justified ......... " Again, Dr. Gour in dealing in his book (5th Edition, wrongful restraint British India" as follows :- page 1144) the offence of ''The Penal Law of observes "Following the principle that every man's person law visits with its penal is sacred and that it is free, though he ties those who abridge his personal liberty, may have no design upon his person. But that he controls its movements for ever so short a time is an offence against the King's peace, for no one has the right to molest another in his free movements." · Dealing with the offence of wrongful confinement, the same learned author observ~s as follows at page 1148 of his book :- is a species of 'wrongful " 'Wrongful confinement' In wrongful restraint' as defined restraint, there is only a partial suspension of one's liberty of locomotion, while in wrongful confinement there is a 'beyond certain circumscribing limits'." total suspension of liberty in the last section. In Bird v. Jones ( 1 Both these authors speak of restraint on personal the liberty of one's move liberty and interference with ments or suspension of liberty or locomotion as inter ), Coleridge J. terms. changeable "it is one part of the definition of freedom to t0- go whithersoever one pleases". A similar be able opinion has been expressed by several authors includ ing Sir Alfred Denning in his book entitled. "Freedom under the Law." There can therefore be no doubt that freedom of movement is in the last analysis the essence just as a man's wealth of personal liberty, generally measured this country in terms of rupees, annas and pies, one's personal liberty depends upon the extent of his freedom of movement. But it is con that freedom of move- tended on behalf of the State (1) 7 Q.B. 742. 1950 A .• K. Gopal~ ~­ T~S~ Fri.ti ~li_J. S.C.R. SUPREME COURT REPORTS 139 territory to stretch to the utmost extent the words "throughout that a citizen was entitled is not the freedom of movement ment to which reference has been made. in art!cle 19 ( 1) (d) to which Black stone and other authors have referred, but is a different the words species of freedom which is qualified by territory of India." How the u~e of "throughout the expression "throughout India" the meaning of the rest of the words used can qualify the article is a matter beyond my comprehension. In my opinion, the territory the ambit of the free of India" were used dom of movement to which it could be guaranteed by our Constitution. The Con stitution could not guarantee f~eedom of movement outside the territorial limits of India, and so has used those words to show to another freely move from one corner of the country and without any obstruction. is an "Throughout!' limiting expression, and not a amplifying I am surprised to find the expression "throughout the territory of India," which was used to give widest possible scope sought to be construed as an expression limiting the scope and nature of the freedom. words "throughout India;'' having regard they have been used here, force and meaning as the expression "to whatsoever place one's own inclination may direct" used by Blackstone, or the expression to be able to go whithersoever one pleases" "freedom J. in Bird v. Jones (l ). used by Coleridge I am certain that neither of these authorities . contemplated that the freedom of movement which territorial a British citizen, is guaranteed bevond limits of British territories. The question as to wh, ether preventive detention is an encroachment on the right guaranteed by article 19 (1) (d) has been considered by the Nagpur, Patna and Calcutta High Courts. The view which has been is . that ultimately adopted by preventive detention 19 (1) (d), but, in the Calcutta guaranteed by article to th~ freedom of movement, to the context these High . · Courts is not a violation of In my opinion, is vouchsafed territory of the same in which · (!\ 7 Q.B. 742. 1950 A. K. Gopalan v. The State Fa.r:l Ali J. 140 SUPREME COURT REPORTS [1950] I am inclined High Court, where the matter has been elaborately discussed, at least five Judges have held that it does, of Judges and in the ultimate analysis the number appears to be who have held the contrary view that the view ex same. Having regard to the fact is opposed to the pressed by so many learned it necessary to to take, the main objections which have been deal briefly with to be raised in support of the narrow meaning sought I ( d). attached them which the territory of based on the expression India." And I shall now proceed to deal with other seriatim. already dealt with one "throughout Judges I consider in article 19 to the Words ( 1) interests of that nothing in clause ( 1) "interests of any Scheduled Tribe" present or future, the exercise of in the I. It will be recalled that clause (5) of article 19, I have already quoted in full provides among ( d) shall affect other things imposing the operation of any law, reasonable restrictions on the right of freedom of movement either the protection of the interests of general public or for It has been argued that the use of any Scheduled Tribe. the words clause shows that the right guaranteed by article 19 ( 1) such as the right to ( d) visit different another and is different from the expression "freedom of movement" which has been stated by Blackstone to be another name for personal liberty. It is pointed contemplation here are out that mainly undesirable outsiders from visiting Scheduled Areas and exploiting Scheduled and if the words "freedom of movement" had Tribes, been used such a small matter would not have found a place in clause (5) of article 19. localities and to go from one place is a limited right of movement, restrictions preventing in the larger sense, the restrictions I must frankly confess that I am unable to appre to hold that a mere reference this argument and the plain meaning of the to Scheduled Tribes affects (d) of article 19. The words words used in clause (1) used in article 19 ( 1) ( d) are very wide and mean that to any a person can go at his will in any direction locality and to any distance. Restraint on a freedom 1950 A. K. Gopalan v. The Stall F~l Ali J. S.C.R. SUPREME COURT REPORTS 141 I "public in future interests") and hence they also the law in remembered his confinement interests." But localities will show regard to preventive detention "restrictions imposed to save all restrictive freedom of movement made the Fifth Schedule of the corresponding provisions of so wide in scope and extent may assume a variety of forms and may include internment or externment of a person, to a particular locality or with in the walls of a prison, his being prevented from visit in any particular area, etc. The framers ing or staying of the Constitution wanted lation affecting in the interests of the general public (which expression· means the same thing as is fully in the covered by the expression public there were restrictive laws made in the interests of an important community and that similar laws may have to be made they added the words protection of ·the interests of any Scheduled "for the Tribe." A reference Constitution and Government of India: Act, 1935, as well as to certain laws made for Chota Nagpur, Santhal Parganas and importance has the protection and been attached preservation of tribes and maintenance of order in tribal areas, and. this, in the special my opinion, mention of the scheduled tribes It may, appear to be a relatively small matter, but at first sight, in their anxiety the whole field of restrictive interest or in the laws made whether interests of a particular community and not to leave the framers of the Constjtution the smallest apparently decided to draft in the present form. · As far as I am aware, there are no restrictive interests of any community other laws made than the scheduled sufficiently comprehensive the smallest as restrictions on freedom of well as the most complete I am also satisfied movement. that the mere mention in clause of scheduled tribes plain meaning ot the words of the main provision which we find in article 19(1) (d) and confine it to some kind of peculiar and that great the members of the scheduled (5) eannot change I think clause (5) in this country in the public to account for in clause (5). is sufficient the clause to cover truncated loophole, freedom include in the tribes, l95o A.. /[, Gopalan v. Thi SlaU Fad A.II J. 142 SUPREME COURT REPORTS [1950) movement which liberty and which is unknown to any Constitution witb which we are familiar. is unconnected with personal It will perhaps be not out of place to refer in connection to Ordinance XIV of 1943, which is one of tbe ordinances by whicb the Defence of India Act, 1939, was partly amended. This ordinance provides for- to such autbority the authority empowered by "the apprehension and detention in custody of any person whom to apprehend or detain as tbe case may be su5pects, on · grounds appearing be reasonable, of being of hostile origin, or of having acted, acting, being about to act, or being likely to act the public safety or interest, in a manner prejudicial the defence of British India, . the maintenance of public order, His Majesty's relations with foreign powers or Indian States, tbe maintenance of peaceful conditions in tribal areas or tbe efficient prosecution of the war, is satisfied o~ wiJ;li liis apprehension and detention are necessary tbe purpose . of preventing him from acting in any sucb prejudicial manner, person in any area, from entering or residing or and the compelling of sucb person to reside and remain in anY area, or to do or abstain from doing anything." to whom ouch autbority the prohibition of such in connection witb to be noted remaining respect The points ordinance are :- ( l) that it is an ordinance specifically providing for apprehension and detention ; (Z) that notwitbstanding fact that there is a general reference in it to acts prejudicial to public safe ty ot interests and maintenance of public order is also a ·specific reference to maiii.tenance of peaceful ainditicins in tribal areas ; (3) that .tribal areas and scheduled kfudriid' . subjects as · would appear from SchcdillC appended to the Constitution ; and (4) ·that maintenance of peaceful tribes are the Fifth as much in the public interest as tribal areas may be in the hitercsts of. persons living in those areas. conditions • 1950 .A. •• K. Gopalil/I v. T/14.Slak Fa1:.I .dli J, S.C.R. SUPREME COURT REPORTS 143 (5) This ordinance shows at least this much that some the law of preventive detention can also be made tribes or scheduled areas in the interests of scheduled the mere mention of scheduled tribes and consequently in clause does not necessarily exclude laws relat ing to preventive detention from the scope of article 19 apply to the ordinance called (5). The same remarks 1944" "The Restriction and Detention Ordinance, (Ordinance No. III of 1944) which empowered Central Government or the Provincial Government detain and make orders the movements of in the interest of public safety, main certain persons tenance of public order as well as maintenance of peaceful conditions in tribal areas, etc. II. It is· also argued that since preventive deten total deprivation of freedom of the right granted the word to me. fall to be decided the right guaranteed by article 19 (1) (d) ? ; and tion amounts movement, under article 19 (1) ( d) "restriction" and not "deprivation" has been used clause (5). This argument also does not appeal There are really two questions which in this case, viz., (b) if so, what are the consequences, if any ? (a) Does preventive detention it is not a violation of in regard to which restricting to a I think It seems obvious is to be considered with reference to me that preventive detention amounts to a complete deprivation of the right guaran teed by article ( 19) ( d). The meaning of the word to the "restriction" second question and it will be highly technical to argue that deprivation of a right cannot be said to involve restriction on right. In my opinion, having regard to the context in the word "restriction" has been used, there is no antithesis between that word and "depri vation." As I have already stated, to move can assume a variety of forms and restric tion would be the most appropriate expression to be used in clause (5) so as to cover all those forms. ranging to various kinds of partial deprivation of freedom of movement. have to advert to this subject the exercise of I will however restraint on try to show and will the word 1930 A. Ir. Gopalon v. TheStau Fa<! Ali J. 144 SUPREME COURT REPORTS [1950] construction authority. I have suggested is supported by good III. It appears influenced by that some of the Judges who had the question which we have before us to deal with the argument that if the were greatly deprivation of personal liberty amounts to deprivation of the right granted under article 19 (!) (d);any con viction for an offence under Indian Penal Code involving a sentence of imprisonment will be subject the ground of reasonableness of to judicial review on tlle conviction the provisions of the Code under which is recorded. Meredith C. J. of the Patna High Court has given expression the situation to his concern for which will thereby arise, in these words :- they can the Penal Code, the Courts on the ground of reasonableness. the Courts supreme arbiters reject the claim made is very It would mean that eyery law under including all is open to examination It in regard to any it or accept it in reason. Bu't ideas of reasonableness or otherwise for example, laws relat as adultery regards as a crime punishable It law does the framers of the Constitution in the the Courts ........ " [Rattan Roy v. The State "It will be sweeping indeed. which a person may be imprisoned, provisions of such legislation, and accordance with their are apt is difficult hands of of Bihar]. to prohibition or take Indian imprisonment but the English ideas of whether it appeals to vary widely. Take so enormous a power intended to place such a matter to believe not. is that The obviqus and strictly to this argu the consideration, which has so greatly is not enough weighed with the learned Chief Justice, the plain meaning of the general words to cut down used in article 19 (5) of the Constitution. As has been pointed out "in construing enacted words, we are not concerned with the policy injurious or otherwise involved or with lmguage which may follow bv ~ving effect in a number the results of cases, to the 1950 A. K. Gopalan v. The Statt Fad Ali]. S.C.R. SUPREME COURT REPORTS 145 used" others. "no calamitous or untoward [King Emperor v. Benoari Lal Sharma and (1) ]. Apart from this aspect of -the matter, I agree with one of the learned Judges of the Calcutta High Court in his remark result will follow even if the provisions of the Penal Code be come justiciable." that no Court would interfere with a Code which has been the law of the land for nearly a century and the provisions of which are not in conflict with the basic principles of any sys to me that this Court should not tem of law. to a fundamental right be deterred from giving effect the Constitution, merely because of a granted under vague and unfounded fear that something catastrophic may happen. I am certain It seems but, raised to consist in to which a sanction by Meredith C. J. I have so far proceeded on the assutnption that the basis of the objection in my opinion, it is not. Crime correct in law, those acts or omissions has been defined \nvolving breach of a duty attached by law by way of punishment or pecuniary interests. (See Russell's "Crimes penalty the public and Misderneanours".) Section 2 of Indian Penal "every person shall be liable Code, 1860, provides that to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within British India." The Indian Penal Code does not primarily or necessarily the freedom of movement, and it impose restrictions on is not correct to say that it is a law imposing restric tions on the right Its primary object is to punish crime and not to restrict movement. The punishment may consist in imprisonment or a pecuni ary penalty. If it consists in a pecuniary · penalty, restriction on movement ; but if obviously there is a restriction on it consists imposed not under a law movement. This restraint imposing restrictions on movement but under a it punishable. The punish defining crime and making ment is correlated directly with the violation of other person's imprisonment, ri~ht and not with involves no the right to move freely. (I) (19!5) F.C.R. 161 at p. 177.

19.0 A~ K. Gopalan v. The Stale Fat! Ali J. 146 SUPREME COURT REPORTS [1950) therefore, essential! y is however used and In my the Indian Penal Code does not "law imposing movement possessed by the offender himself. opm10n, come within the ambit of the words restriction on the right to move freely". the arguments, frequent! y expression In the course of "punitive detention" was tendency was to put it on the same footing as preven for the purpose of certain arguments. tive detention different Punitive detention from preventive detention. A person is punitively de trial for committing a crime and tained only after a after his guilt has been established a competent Court of justice. A person so convicted can take his to the State High Court and sometimes bring it to this Court also ; and he can in the course of the pro ceedings connected with his trial take all pleas available to him including the plea of want of jurisdiction of the the invalidity of tbe . law under Court of trial and which h~ has been prosecuted. The final the criminal trial will tbus constitute" a serious obstacle in his wav if be chooses to assert even after his con viction that his right under article 19 (!) (d) has been violated. But a person who is preventively detained to face such an obstacle whatever other ob has not stacle may be in his way. judgment 1 in a better position IV. It was pointed to citizens, in cases of preventive detention, out tbat article 19 being con- the anomalous situation will follow a citizen will be than a non-citizen, because placed if a citizen is detained his detention will be open to some kind of judicial review under article 19 (5), but if a non-citizen has been detained his case will not be open to such review. it is said that the whole Act relating to preventive detention may be declared to be void though it concerns citizens as well as persons other than citizens. I must frankly state I am not at all perturbed by this argument. is a patent fact that the Consti tution has confined all the rights mentioned in article It is equally clear that restrictions 19 ( 1) to citizens. to a limited extent at least open on those rights are to judicial review. The very same question which is unreasonable, In this view, th?t It 1950 A. K. Gopa/an v. The State Faz/ Ali]. S.C.R. SUPREME COURT REPORTS 147 rights, to most of is any any of imposing u1ireasonable citizens are raised m regard to article 19 (1) (d) will arise with the other sub-clauses. A citizen regard to assemble peaceably and without arms, to form associations or unions and so on. If restrictions law will not be far as concerned,' but so far as non-citizens are con it may be good law cerned. I do not see why a similar situation arising with regard to the right granted under sub-clause ( d) should be stated to be anomalous. So far as the right of free movement is concerned, a non-citizen has been If a granted certain p£.otections in articles 21 and 22. citizen has been granted certain other· additional pro tections under article 19 (1) (d), there is no anomaly involved in the discrimination. I think that it is con ceivable that a certain law may be declared' to be void as ag~inst a citizen but not a non-citizen. Such a result however should not affect our mind if it is found to have been clearly within the contemplation o! the framers of the Constitution. against V. It was contended that the rights declared by article 19 are the rights of a free citizen and if he has liberty in the circum already been deprived of his referred to in articles 20, 21 and 22, then it stances that he still enjoys the right would be idle to referred to in article 19. After giving my fullest con to· this argument, I have not been able to sideration appreciate how it arises in this case. There is nothing in article 19 to suggest that it . applies only to those cases which do not fall under articles 20, 21 and 22. Confining ourselves to preventive detention, it is enough to point out that a person who is preventively detained must have been, before he lost his liberty, a free man. Why can't he say to those who detained him: "As a citizen I have the right to move freely and you cannot curtail or take away my right beyond the limits im posed by clause (5) of article 19." This is the only question which arises in the case and it should not be considera obscured by any abstruse or metaphysical tions. It is true that if you put a man under detention, he cannot move and therefore he is not in a position to 5-3 S. C. India/58 1950 A. /(. Gopalon v. The Sta11 Fa<I Ali]. 148 SUPREME COURT REPORTS [1950] exercise the right guaranteed under article 19 (1) (d), but this is only the physical aspect of the matter and a person who is account of disease bed-ridden on suffers law, however, In from a similar disability. physical duress does not deprive a person of the right If he has been detained to freedom of movement. under some provision of law imposing restrictions on the freedom of movement, then the question will arise If he has whether been detained under no provisien of law or under some law which is invalid. he must be set at liberty. restrictions are reasonable. the others. fundamental is attributed rights does not to it. namely, that each article To my mind. the scheme of the Chapter dealing with the contemplate a code by itself and is independent of In my opinion, it cannot be s~id that articles 19, 20, 21 and 22 do not to some extent overlap each other. The case of a person who is convicted of an offence will come under articles 20 and 21 and also under article 22 so far as his arrest and detention in custody before trial are concerned. Preventive detention, which dealt with in article 22, also amounts to deprivation of personal liberty which is referred to in article 21, and is a violation of the right of freedom of movement dealt with in article 19 (1) (d). That there arc other instances of overlapping of articles in the Constitution may be illustrated by reference to article 19 ( 1) ( £) and article 31 both of which deal with the right to property each other. It appears that some learned High Court Judges, who had· to deal with the very question before us, were greatly impressed the Drafting Com by the statement in mittee of the Constituent Assemblv on article 15 ( cor responding to the present article · 21 ), that the word "liberty" should be qualified by the insertion of word "personal" before it may be construed very widely so as to include the freedoms dealt with in article 13 (corresponding to the present article 19). I am not however preparded to hold that this statement is decisive on the question of the con struction nf the words used in article 19 ( 1) ( d) which are quite plain and can be construed without any to some extent overlap it for otherwise report of 1950 A. K. Gopalan v. TheStlJU Fazl Ali]. S.C.R. SUPREME COURT REPORTS 149 extraneous help. Whether the report of the Drafting Committee and the debates on the floor of the House should be used at all in construing the words of a sta tute, which are words of ordinary and common use and are not used in any technical or peculiar sense, is a debatable question ; and whether they can be used in aid of a construction which is a strain upon the language used in the clause to be)nterpreted is a ·still more doubtful matter. But, apart considerations, it is, I think, open to us to analyse the statement and see whether it goes beyond adding a superficially plausible reason-a somewhat plausible It in article 21. reason-for a slight verbal change seems clear that the addition of the word · "personal" before "liberty" in article 21 cannot change the mean ing of the words used in article 19; nor can it put a inseparably bound up with personal matter which liberty beyond its place. Personal liberty and personal freedom, in spite of the use of the word "personal," are, as we find in several books, sometimes used in a wide sense and embrace freedom of speech, freedom of association, etc. These rights are some of the most valuable phases or elements of liberty and they do not cease to be so by the addition of the word "personal." A general . statement by the Drafting Committee refer ring to freedom in plural cannot take the place of an the words authoritative exposition of the meaning of used in article 19 (1) (d), which has not been specifically to and cannot be such an overriding con referred sideration as to compel us to put a meaning opposed in article 19 to reason and authority. The words used (1) ( d) must be construed as they stand, and we have to decide upon the words themselves whether in the case of preventive . detention the right under article 19 ( 1) ( d) is or is not infiinged. But, as I shall point out later, however, literally we may construe the words used in article 19 (1) (d) and however restricted may be the meaning we may attribute to those words, there can be no escape 'from the conclusion that preventive detention is a <lirect infringement of the right guaranteed in arti cle 19 (1) (d). 1950 A. K. Gopalan v. The State Fa</ Ali]. 150 SUPREME COURT REPORTS [1950] that the "personal liberty" and I have shown liberty used in these words are used Having dealt with the principal objections, I. wish to revert once again to the main topic. The expressions freedom" have, as "personal we find in several books, a wider meaning and also a narrower meaning. In the wider sense, they include not only immunity from arrest and detention but also freedom of speech, freedom of association, etc. In the narrower sense, they mean immunity from arrest and juristic conception detention. of "personal liberty," when the sense of immunity from arrest, is that it consis~ in freedom of movement and -locomotion. I have also pointed out is at the root of the this conception criminal law of England and of this country, so far as the offences of false imprisonment and wrongful confine ment are concerned. The gravamen of these offences is restraint on freedom of movement. With these facts in view, I have tried to find out whether there is any freedom of movement known in England apart from personal arrest and detention, but I find no trace of any such freedom. In Halsbury's Laws ·of England (2nd Edi tion, volume 6, page 391), the freedoms mentioned are the right to personal freedom (or immunity from deten tion or confinement), the right to property, the right to freedom of speech, the right of public meeting, the right of association, etc. Similar classifications will be Law of the Constitution" and Keith's "Constitutional Law" and other books on constitutional subjects, but there is no reference anywhere to any freedom or right of movement in the sense in which we are asked to construe the words used in article l9 (1) (d) .. In the Constitutions of America, Ireland. and many other countries when: freedom is prized, there is no reference to freedom or right of movement as something distinct from personal liberty used in the sense of immunity from arrest and confinement. The obvious explanation is that in lep; al conception no freedom or right of move ment exists apart from what personal liberty connotes and therefore a separate treatment of this freedom was not necessary. It is only in the Constitution of the Free in Dicey's "Introduction the sense of immunity the Study of 1950 A. K. Gopalan v. The Stau Faz! Ali J. S.C.R. SUPREME COURT REPORTS 151 however that we find City of Danzig, which covers an area of 791 square in article 75:-"All these words miles, nationals shall enjoy freedom of movement within the City." There authoritative opinion available to support the view that this freedom is any thing different from what is otherwise called personal liberty. The problem of construction in regard to this particular right in the Constitution of Danzig is same as in our Constitution. Such being the general position, I am confirmed in my view that the juristic conception that personal liberty and freedom of, move ment connote the same thing is the correct and true conception, and the words used in article 19 ( 1) ( d) must be construed according to this universally accep legal concepuon. 14-B, This conclusion which permitted the British Parliament passed is further supported by reference to the war legislation in England and in India, upon which the law of preventive detention, which has been in force in this country since the war, is based. In the first world war, Defence of the Realm Consolidation Act, in 1914, an<l a number of regulations were made under it including the Secretary regulation to subject any person "to such obligations of State and restrictions as hereinafter mentioned in view of his hostile origin or associations." Lord Atkin in re to this regulation said in Liversidge v. Sir John ferring Anderson e ), "that the regulation undisputedly gave to a Secretary of State unrestricted power to detain a person." Apparently, Lord Atkin meant suspected that the restriction referred to in the Act included pre~ ventive detention. Under this regulation, one Arthur Zadig was the King's Bench for a writ of habeas corpus which was refused. The matter ultimately came up before the House of Lords in Rex v. Halliday ( 2 , and the noble Lords in ) dealing with ~he case proceeded on the assumption that there was no difference between internment and incar ceration or imprisonment. Lord Shaw in narrating -::he facts of th case stated:- interned, and he applied (I) [19~2] A. C. 238. (2) [1917] A. C. 260. f930 A. K. Copa/an v. The Stat< Faz/ Ali ]. 152 SUPREME COURT REPORTS [1950] "His person was seized, he has been interned ... . The appellant lost his liberty and was interned ...... " there was no imprisonment and difference between quoted the following passage from Blackstone:- He then proceeded internment and to state "The confinement of the person, in any wise, is an imprisonment. So that the keeping a man against his in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprisonment.'' Proceeding on- this footing (which I find to be the common basis in all other speeches delivered in the case, though Lord Shaw had given a dissenting judgment}, Lord Finlay while dealing with the provisions of the regwations observed :- "One of the most obvious means of taking pre cautions against dangers such as are enumerated is to impose some restriction on the freedom of movement of persons whom there may be any reason to suspect of being disposed to help the enemy" (' ). Again, Lord Atkinson while dealing with the mer its of the case made the following observation :- "If the legislature chooses to enact that he can be deprived of his liberty and incarcerated or interned for certain things for· which he could not have been hereto fore incarcerated or interned, orders made under it if intra vires do not in~ringe up on the Habeas Corpus Acts or take away any · right conferred by Magna Charta ...... " ( • ) that enactment and This passage read with previous passage internment and quoted by me will show that both incarceration were freedom of movement" and that deprivation of liberty and restriction on freedom of movement were used as alternative expressions bearing the same· meaning. "restrictions on regarded as The same conclusion is to be drawn by· referente to the regulations made in the last world war under the Emergency Powers (Defence) Act, l939. The regulation which directly dealt with detention orders was 18-B. This regulation and a number of other regulations have been placed in Part I under the heading "Restrictiom (I) [!917] A. C. 269. (2) [1917] A. C. 272. 1950 ..f. K. Copa/an v. '1"111 StaU Ftul Ali J. S.C.R. SUPREME COURT REPORTS 153 refers important, because on movements and activitie~ of persons.'' The . classi tWo . principal fication it meets arguments advanced It shows firstly case. that detention is a form of restriction and secondly that it is a restriction on movement. I have noticed that "movement" is used in plural, and the heading b1,1t, having to restncttons on activities, regard t<f the subjects classified under this head, move-. ment undoubtedly to physical movement and includes such movements as entering a particular loca to another, etc., i.e., the lity, going from one place very things to which article 19 (1) (d~ is said to have reference. In Liversidge's case, in construing the provi sions of the Act . of 1939, Viscount Maugham observed as follows:- refers "The language o£ the Act of 1939 (above cited) shows beyond doubt that Defence Regulations may be made which must deprive the subject "whose detention appears to the Secretary of State to be expedient in the interests of public safety" · of all his liberty of move" ment while the regulations remain in force" ( 1 ). Thus Viscount Maugham .also ·considered detention liberty of to be synonymous with deprivation of movement. placed under '.The classification that we find in the Defence of the Realm Regulations was with a little verbal modi fication adopted in the Defence of India Rules, and we rule 26, which dealt with that here .find preventive detention, has been heading "Restriction of movements and activities of persons." A somewhat similar classification has also been adopted in a series of Provincial Acts and Ordi nances relating ·to maintenance of order [see section 2 of the Bihar Maintenance of Public Order Act, 1949, section the West Bengal Security Act, 1948, section 4 of the East ~unjab Public Safety Act, 1949, section 2 of the Madras Maintenance of Public Order Act, 1947, section 3 of the U:P. Maintenance of Public Order Temporary Act, 1947, and section 2 of the Bom bay Public Security Measures Act, Acts and Ordinances, preventive detention and certain 1947]. l6 of In (1) [194-2] A. C. 219. 1950 A. K. Gopalan v. T"6 StaU -<- Fad Alij 154 SUPREME COURT REPORTS [1950] intern other forms of restriction ·~n, movement such as ment, externment, ·etc.. have been classed together and dealt wi~ more or less on the same footing, and some times they have been dealt with in different clauses of the same section. In one of the Acts, the same advisory board is to deal with the case of a dctenue as well as that of an· externed person, and there are also similar provisions giving them the right to represent their case to the Government. interpretation is accepted. We have only to ask . I will now assume for the sake of argument that reference is made the freedom of movement to which in article 19 ( 1) ( d) has nothing to do with personal liberty and that the words which occur in the ·article bear the restricted meaning attributed to them by the learned Attorney-General and some of my colleagues. It seems to me that even on this assumption, it is difficult to arrive at an} conclusion other than what I have already anived at. There can be no doubt that preventive detention does take away even this limited freedom of movement directly and substantially, and, if so, I d6 not see how it can be argued that the right under article 19 ( 1) ( J) is not infringed if the alterna ourselves : Does a person who is detained retain even a fraction of his freedom of movement in howsoever restricted sense· the term may be used and does he not freely from one place to another lose )lls right to move locality he likes as a necessary result of or visit any his detentipn ? I think'. I should refer here once more to the fact that in the Defence of the Realm Regulations and Defence of India Rules, preventive detention classed · under ·the heading "Restriction of movements and activities," "Movement" in plural and refers to that very type of movement which is said to be protected by article 19 ( 1) ( d), moving from one localities, State or place etc. One of the objects . of preventive detention is to restrain the person detained from moving from place to place so that he may not spread disaffection or indulge the places he visits. The in dangerous activities same consideration applies cases of persons who are interned or, externed. Hence, externment, to another, visiting different is here used 1950 A. K. Goj1alan • v. TlllSllJU Faz/ Ali J, S.C.R. SUPREME COURT REPORTS 155 the framers .of imposing restrictions the Constitution when internment and certain other forms of re~triction on movement have always been treated as kindred matters belonging to the same group or family and the rule which applies to one must necessarily apply other. It is difficult to hold that ·the case of extem ment can possibly be dealt with on a different footing from the case of preventive detention. I am however interested to find that the Patna and Bombay Righ Courts have held that a person who is externed can successfully assert that the right granted to him under article 19 (1) (d) has been violated. This view has not been seriously challenged before us, ai:id, if it is correct, I really do not see how it can be held that preventive detention is also not a direct · invasion of the right guaranteed in article 19 ( 1) ( d). Perhaps, one may pause here to ask wh~t kind of laws were in contempla tion of referred to in the public interest in article 19 (5). l think the war laws and the Provincial Ac!s and Ordinances to which I have already referred must have been among them, these being laws which expressly purport restrictions on movements. If so, we should not overlook the fact that preventive detention was an inseparable part of these laws and was treated as a form of restriction on move ment and classified as such. It seems to me that when the matter is seriously considered, it would be found that the interpretation of the learned Attorney-General attracts the operation of article 13 (2) no less strongly and directly than the interpretation I have suggested, and I prefer the latter only because I consider that it is legally unsound to inseparably bound up with and is the essential element in the legal concept of personal liberty as a wholly separate and unconnec I have already indicated, it will be ted entity. But as if we forget all enough for the purpose of this case about personal liberty and remember only that deten tion is, as is self-evident and as has been pointed /)ut judges, by Viscount Maugham another name for depriving a person of all his "liberty of movement." • and other eminent treat what is impose It was pointed out in the course of the arguments 1950 A. /(. C.J>alan v. Tt.. SJau Fa1:ol Ali ]. 156 SUPREME COURT REPORTS [1950] intended takes away this argument is indirect and consequential and that preventive detention not only right in article 19 (1) (d) but also takes away all the other rights guaranteed by article 19 ( 1), except the right to hold, acquire and dispose of property. Where to lead us to, I exactly cannot fully understand, but it. seems that it to me it overlooks involves an obvious fallacy, because difference in the modes in which preventive detention operates on the right referred to in sub-clause ( d) and other sub-clauses of article 19 ( l). The difference is that while preventive detention operates on freedom of inevitably, its operation on movement directly the other rights often only notional. One who is preventively detained is straightaway deprived of his right of movement as a direct result of his detention, but he foses the other rights only in consequence of his losing freedom of movement. Besides, while freedom of movement is lost by him in all reality and substance, some of the other rights may not be lost until he wishes to exercise: them or is interested in exercising them. A person who is detained may not be interested in freedom of association or may not pursue any profession, OCC\lpa the rights tion, referred to are lost only in theory and not as a matter of substance. I wish only to add that when I said that l was not able to understand the full force of the argument which 11 have tried to deal with, what I had in mind was that if preventive detention sweeps away or affects almost all the rights guaranteed in article ( 19) ( l), the matter deserves very serious consideration and we cannot lightly lay down that article l3 (2) docs not come tr; ide or business. In such a case, into operation. Being fully alive to the fact that it is a serious matter to be asked to declare a law enacted by Parlia ment to be unconstitutional, I have again and again asl_ted myself the question : What are we to put in the scales against the construction which I am inclined to adopt and 1n favour of the view that preventive detention does not take away the freedom of movement guaranteed in article 'The inevitable answer has always been that while in one of the scales (d) ? (1) 19 1950 .A. K. Gopaloa ·v,.. The.SIJIU Fad .Ali]. S.C.R. SUPREME COURT REPORTS 157 jurists, we have plain and unambiguous language, the opinion of eminent judicial dicta of high authority, constitutional practice in the sense that no Constitution refers to any freedom of movement apart from personal liberty, and the manner in which preventive detention has been treated in the very laws on which .our law on this subject is based, all that we can put in the · oppo site scale is a vague and ill-founded apprehension that some fearful object .. such as the revision of the Penal Code is looming obscurely in the distant • horizon, the peculiar objection that the mere mention of the sche the meaning of certain plain duled tribes will alter words, the highly technical and unreal distinction · bet the assumption ween restriction and deprivation and not warranted by any express provision that a person who is preventively detained cannot claim the right of freedom of movement because he is not a free man and certain other things which, whether taken singly or collectively, are too unsubstantial to carry any· weight. In these circumstances, I am strongly of the .view that article 19 (1) (d) guarantees the right of freedom of movement in its widest sense, that freedom of move ment being the essence of personal liberty, the right guaranteed under the article is really a right to per sonal liberty and that preventive detention is a depri vation of that right. I am also of the view that even on the interpretation suggested by learned Attor ney-General, preventive detention cannot but be held to be a violation of the ri, ght conferred by article 19 (1) (d). In either view, therefore, the law of preven tive detention is subject to such limited judicial review as is permitted under article 19 (5). The scope of the review is simply to see whether any particular law im poses any unreasonable restrictions. Considering that the restrictions are imposed on a most valuable right, there is nothing revolutionary in the legislature trust ing the Supreme Court to examine whether an Act which infringes upon that right is within the limits of reason. I will now pass on to the consideration of article 21, which runs as foilows :- "No person shall be deprived of his life or personal 1950 A. E. Gopalan Y. Ti.. SlaU Fazl Ali]. 158 SUPREME COURT REPORTS [1950] liberty by law." except according to procedure established Here again, our first step must be to arrive at· a clear meaning of the provision. The only words which cause some difficulty in the proper construction of the article are "procedure established by law," The learned Attorney-General contended ~e law or law enacted by learned us that the word "law" which is used in article 21 the State. means State-made On the other hand, the expression peaaoner contended strongly in a much "procedure established by law" wider sense and approximates expression "due process of law" as interpreted by the Supreme Court of America in the earliest times and, if that is so, it means exact! y what some of the American writers mean to convey by the expression "procedural due process." is used in meaning counsel law." arguments, In the course the purpose of construing they are plain and unambiguous, learned Attorney-General referred us to the proceedings in the Constituent Assembly for the purpose of showing that the article as originally drafted contained the words "without due process of law" but these words were subsequently replaced by the words "except according to procedure established by In my opinion, though the proceedings or discussions in the Assembly are not relevant for meaning of the expressions used in article 21, especially they . are relevant to show that the Assembly intended to avoid the use of the expression "without due process of law." That expression had its roots in the expression "per legem .terrae" (law of the land) used in Magna Charta in 1215. In the reign of Edward III, how~ver, the words "due process of law" were used in a statute guaranteeing that no person will be deprived of his property or indicted or put to death without being brought in to answer by due process of law (28, Edward III, Ch. III) .. The expression was afterwards adopted in the American Constitution and in the Constitutions of some of the constituent States, though some of the States preferred to U5e the imprisoned or S.C.R. SUPREME COURT REPORTS-== 159 1950 A. K. Gopa!a,t. v. The State Fazl Ali J-. words " in due course of law". or "according to the .[See· Cooley on "Constitutional law of the land." Limitations," 8th Edu. Vol. II, pages 734-5].· Jri the earlie~t times, the American Supreme Court construed "due process of law"· to· cover matters of procedure only, but gradually the meaning of the expression was widened so as to cover substantive law also, by laying emphasis. on the word "due." The expression ·was used in such a wide sense that" the judges found it difficult to define· it and in o::e of the cases it was observed as follows : - . " It would be difficult and perhaps impossible to ·· give to those words a definition, at once accurate, and broad enough to cover every case. This _difficulty and perhaps impossibility was referred. to by Mr. Justice 11Iiller in Davidson v. New Orleans, where the opinion was expressed that it is wiser to ascertairi their intent and application by the_' gradual process of judicial in clusion. and exclusion,' as the cases presented.for deci sion shall require, with the reasoning on which such - decisions may be founded:" · l.fissouri Pacific Railway Co. v. Hitmes ('). . · It ~eems plain that the Constituent Assembly did not adopt this expression on account of the very elastic meaning gtven to it, but preferred . to use the words ''according to procedure. established by law" which occur in the Japanese Constitution framed in 1946. . . . · . _ . It will not be out of place to state here in a few words how the Japanese Constitution came into exis It. appears that on the I Ith October, 1945, tence. General l\IcArthur. directed the Japanese Cabinet to initiate measures for the preparation of the Japanese· Constitution, but, , as no. progress was made, it was decided in February, 1946, that the problem of consti tutional reform should be taken over by the Govern ment Section of. the Supreme Commander's Head quarters. Subsequently the Chief of this Section and the staff drafted the Constitution with the help of American constitutional lawyers who . were called to · the task. This assist the Government Section ~onstitution, as a learned writer Ii.as remarked,. bore . in- ... (1) 115 U.S. 512 at page 518 • u 1950 · · ~l. K. Gopalan v. The State Fazl A!i J. 160 SUPREME COURT REPORTS [1950) on almost every page evidences of its essentially \Vestern origin,. and _this characteristic was especially , evident in the preamble•-" particularly reminiscent of the American Declaration of Independence, a preamble it has been observed, no Japanese could which, possibly have conceived or written and which few could even- understand." [See Ogg and Zink's "Modern Foreign _Governments"]. One of the characteristics of · the· Constitution which undoubtedly bespeaks· - of direct American influence is to be found in a lengthy chapter, consisting of 31 articles, entitled " Rights and Duties of the People," which provided for the first time an effective "Bill of Rights" for the Japanese _people. · The usual .safeguards ·have been provided there against apprehension· without a warrant and against arrest or detention without being informed of the charges or without adequate cause (articles 33 and 34). · Now there are two matters which deserve to be noticed :-(1) that the Japanese . Constitution was framed wholly under American influence; and (2) that at the time it was framed the trend of judicial opinion in_America was in favour of confining the meaning. of - • theexpression "due process of law " to wb-at is ex , •pressed· by certain American writers by the somewhat quaint but useful expression "procedural due process." That there was such a trend would be clear from the following passage which I· quote from. Carl Brent Swisher's" The Growth of Constitutional Power in the United States" (page 107) : - _ · · · " The American history of its interj>retation falls into three periods. During the first period, covering roughly the first century of government under ·the Constitution, due process was interpreted principally as a restriction upon procedure-_ and largely the judicial ·procedure-by which the government exercised its - - powers. During the second period, which, again roughly speaking, extended through 1936, due process was ex panded to serve as a restriction not merely upoµ procedur~ but upon the substance of the activities in which the government might engage. During the third period, extending from 1936 to date, the use of due 1950 A. K. Gopalan v. Tiu State Fazl Ali:J. S.C.R. SUPREME COURT REPORTS 161 as a process suspended or abandoned, original status as a restriction upon procedure." substantive restriction has been largely leaving it principally in. its In the circumstances mentioned, it seems permis that the expression "procedure esta sible to surmise in the Japanese Constitution blished by law" as used represented trend . of American judicial current opinion with regard to "due process of law," and, if that is so, the expression as used in our Constitution means all the words · "procedural due process." But I do not wish to base any conclusions upon mere surmise and will try to examine the whole question on its merits. that the American writers have read The word "law" may be used in an abstract or concrete sense. Sometimes it is preceded by an article such as "a" or "the" or by such words as "any" "all," etc., and sometimes it is used without any such prefix. But, generally, the word "law" has a wider abstract sense without meaning when used to be being preceded by an article. The question decided is whether the word "law" means nothing more than statute law. the meaning of Now whatever may be the ex "due process of law," · the word "law" is pression common "procedure expression as well as established by law" and though we are not bound to adopt the construction put on "law" or "due process of law" in America, yet since a number of eminent American Judges have devoted much thought subject, I am not prepared to hold that we can derive no help ·from their opinions and we should completely I will therefore in the first instance set ignore them. out certain ·quotations from a few of the decisions of the word the American Supreme Court construing "law as used law," in so far as it bears on the question of legal procedure. in the expression "due process of ( 1) "Although the legislature may at its pleasure provide new remedies or change old ·ones, the power is that it cannot nevertheless subject to take away remove certain ,which have been always certain condition land-marks, fundamental rights ancient 1950 .d. K. Gopalan v. Tlie Stai. Fat:I Ali]. 162 SUPREME COURT REPORTS [1950] recognized and observed in judicial procedures :" Bard well v. Collin ( 1 ) • (2) "By the law of the land is most clearly intend law : a law which hears before it ed the general condemns, which proceeds upon renders judgments only after trial. The meaning is that every citizen shall hold his liberty and property, and immunities under the protection of the general rules which govern society:" Dartmouth College Case(') inquiry and life, (3) "Can it be doubted that due process of law signifies a right to be heard in one's defence ? If the legislative department of the government were to enact a statute conferring the right to condemn the citizen .whatever of being heard, without any opportunity would it. be pretended that such an enactment would not be violative of the Constitution ? If this be true, is, how can it be said that the judicial as it undoubtedly department, the source and fountain of itself, has yet the authority ro render lawful that which if done under express legislative sanction would be violative of tb,e Constitution? judicial department of the government sitting to uphold and enforce the Constitution is the only one possessing If such authority exists then a power to disregard it. in consequence of to compel obedience to law and enforce justice, Courts possess the right to inflict the very wrongs which they were created to prevent:" Hovey v. Elliott(•). If such power obtains; then establishment, justice (4) "It is a rule as old as the law, and never more to ~ respected than now, that no one shall be personally bound until he has had his say in Court, by which is meant, until he has been duly cited to appear, and has been afforded an opportunity Judgment opportunity wants all the without ·.such citation and attributes of a judicial determination ; it is judicial usurpation and oppression, and can never be upheld where justice is justly administered: "Gatpin v. Page ( • ). Thus, · in America, the word "law" does not mean merely State-made law or law enacted by the State and does not exclude certain fundamental principles of to be heard. (1) 44 Minn.117; 9L.ll.A. 152. 1 ( ) 17 U.S. 4. (1) 167 u. s. 409 .. _ (') 85 U.S. 18.

#417. 1950 A. K. Gopalan v. Th. Stat. F~l Ali]. S.C.R. SUPREME COURT REPORTS 163 (3) tribunal, and ·Professor Willis these essentials may assume justice which inhere in every civilized system of law and which are at the root of it. The result of the numerou.s decisions in America has been summed up in his book on "Constitutional the essentials Law" at page 662, in the statement of due process are: (1) notice, (2) opportunity to be heard, (4) orderly impartial course of procedure. It is pointed out by the learned author different in different circumstances, and so long as they are conceded in principle, the requirement of law will require any be fulfilled. For example, a person cannot that he particular form or method of hearing, but all to be heard. require is a reasonable opportunity Similarly, an tribunal does not necessarily far as in every case. mean a judicial orderly· course of procedure is concerned, he explains the entire evidence but it does require it to examine record to ascertain the issues, to discover whether are facts not reported and to see whether or not the law has been , correctly applied to facts. The view expressed by other writers is practically the same as though some of . by Professor Willis, that expressed them do not expressly refer to the fourth element, viz., orderly course of procedure. The real point however is that these four elements are really different aspects of the same right, viz .. the right to be heard before one is condemned. it does· not require a Court impartial tribunal to strictly weigh So So far as this right is concerned, judicial opinion in England appears to be the same as that in America. In England, it would shock one to be told that a man can be deprived of his personal liberty without a fair if the trial or hearing. Such a case can happen only Parliament expressly takes away the right in question in an emergency as the British Parliament did during the last two world wars in a limited number of cases. I will refer here to a few cases which show that the fuf!damental principle that a person whose right is affected must be heard has been observed not onlv in cases involving personal liberty but also in proceedings affecting other rights, even &-3 S. C. lndia/58 they · may though 1950 A. 1'. Gopaian v. The Stak Fa.cl Ali]. 164 SUPREME COURT REPORTS [1950} judicially they acted come before administrative or quasi-judicial tribunals. Cooper v. The Wadsworth Board of Works (1) was a case under an Act which empowered the District Board to alter or demolish a house where the builder had neglected to give notice of his intention seven days be fore proceeding to lay or dig foundation. Acting upon th.is power, the Board directed the demolition of this was a building without notice to the builder, but held to be illegal. Byles J. in dealing with the matter observed as follows :- "I conceive because they had to appor had to determine the offence. and tion the punishment as well as the remedy. That being long course of decisions, beginning with Dr. so, a Bentley's case, and ending with some very recent there are no positive that although cases, establish the party shall be words in a statute requiring law will supply heard, yet the justice of the common the omission of judgment of Mr. Justice Fortescue, in Dr. Bentlev's case, is some what quaint, but it is very ·applicable, and has been the law from that time to the present. He says, "The objection for want of notice can never be got over laws of God and man both give the party an The opportunity to make his defence, .if he has any." In the same case Erle C. J. observed :- "It has been said the principle that no man shall be deprived of his property without an opportu judicial proceeding nity of being heard, is limited to a ...... I do not quite agree with that ; ...... the law, I think, has been applied to many exercises of power in common understanding would not be at all more a judicial proceeding the District Board in ordering a house to be pulled down." than would be legislature. The The observations made bv Erle C. J. were quoted and applied by Sir Robert Collier in Smith v. The Queen('), and the observations of Lord Campbell in Regina v. The Archbishop of Canterbury (1 ) were to the same effect. ( 1) 14 C.B. (N.S.) 180. (') 3 A.G. 614. (') I E. & E. 559. 1950· A. K. Gopalan TheSlaU Fozl Ali]. S.C.R. SUPREME COURT REPORTS 165 A similar opinion was expressed by Sir George Jessel in Fisher v. Keane (1), Labouchere v. Earl of W harncliffe, (2 last mentioned case, he observed as follows:- Russel v. Russel (8) • In ) those club cases judicial functions "It [Wood v. Woad(')] contains a verv valuable statement by the Lord Chief Baron as to his view of justice by persons other the mode of administering than Judge~ who have to perform which I should have been very glad to have had before that I recently heard, me on both the case of Fisher v. Keane and the case of namely, Labouchere v. Earl of W harncliffe. The passage I to a committee : "They are bound in the exercise of the rule expressed partem", that no man should be condemned to conseauences without having the opportunity of making his defence. This rule is not confined the conduct of strictly legal tribunals, but is applicable tribunal or body to adiudicate of persons upon matters to indivi duals'." authority .civil consequences invested with involving in the maxim "audi alteram their functions by this, referring the appellant, who had in Lapointe v. L'Association In that case, on an application This opinion was quoted with approval by Lord etc. de Macnaghten Montreal (5 ). pension by obliged to resign, the Board of Directors, without any judicial inquiry into the circumstances, resolved that he was obliged to tender the ground claim on resignation. This condemned rules of by Lord Macnaghten as being the elementary society and above all contrary principles of ·Lord Macnaghten were referred to and relied on in The King v. Tribunal of Appeal under the Housing Act, 1919 (6). In that case, a company proposed to build a picture house and the local authority having prohibited the Housing the company appealed under building, Ex. 190. procedure was justice." These observations of "contrary to refuse l') 11 Ch. D. 1.5:;, ( 11 13 Ch. D. 3-IU. (') 14 Ch. D. 471. (4 ) [1874] L. R. 9 {') [1906] A. C. 535. ('\ [1920] T. B. 334. • 1950 A. Ir. Gopal•n v. The Stall Faz;/ Ali]. 166 SUPREME COURT REPORTS [1950] that an appeal could (Additional Powers) Act, 1919, which contained a provision in certain cases be properly determined without a hearing and that the the hearing and appellate Court could dispense with determine It was held the appeal summarily. the meaning of rule 7 was that the tribunal on appeal might dispense with an oral hearing, not might dispense with a hearing of any kind, and that they were bound to give the sense of an opportunity to make <lut a case. The Earl of Reading in delivering the judgment observed : the appellants a hearing that . "The principle of law applicable to such a case is in a Lord in Lapointe v. L' Association etc. de in Wood v. Woad is cited with approval by well stated · by Kelly C.B. passage which Macnaghten Montreal ...... " In Local Government Board v. Arlidge ('), the Local Government dismissed an appeal by a person against whom a closing order had been made under Housing, Town Planning, &c. Act, without an oral hearing and without being allowed to see the report made by the Board's Inspector upon public inquiry. The House of Lords did not interfere with the order on the ground the appeal had been dealt with by an administrative authority whose duty was to enforce obligations on the interests of th~ individual community and whose character was that of an orga nization with The principle however was conceded and lucidly set forth that when the duty of ·deciding an appeal it is to decide it must act judicially, and whose duty they must deal with without parties an opportunity of presenting its case, and that the decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice. Commenting upon this case, which regarded as an extreme case, Mr. Gavin is generally Simonds, who afterwards became a member of House of Lords observes :- the question referred to each of and must functions. executive il\lposed, (') [19U) A. C. 120. S.C.R. . SUPREME COURT REPORTS - 167 "I think you would agree the subject matter of such proceedings as are here indicated was the liberty of the subject, or 'indeed his life, you would regard such a judicial procedure ·as outrageous." (See C K. Allen's "Law and Orders," page 167). 1950 A. K. Gopalan v. TluStilU F"l Ali]. tribunals, because I have particularly referred to cases which were I have before administrative deal in this case with preventive detention which to be an executive act and because I wish to that even before executive authorities and point out administrative tribunals an · order cannot generally be passed affecting one's rights without giving one such hearing as f?ay be appropriate to the circumstances of that Halsbury .after to add the case. liberties which are enumerating the most important recognized ' in England, such as right of personal freedom, freedom of speech, right of public meeting, etc.,· adds :- ·I have only right to the subject rights which appear there should be added to "It seems to me to have this list the following become well-established-the right of tried in accordance with have any case affecting him the principles of justice, that a man may not be a judge in his own principles to be condemned cause, and that no party ought unheard, or to have a decision given against hi1Il unless he has been given a reasonable opportunity of putting forward his case ...... " (Halsbury's Laws of England, 2nd Edition, volume 6, page 392). particularly natural ,which tribunal is whether The question the principle is well-recognized that no person can be condemned without a hearing by an impartial in all modern civilized systems of law and which Halsbury puts on a par with well-recognized fundamental rights cannot be regarded as part of the law of this I must confess country. give a negative answer this question. The prin ciple being part of the British system of law and procedure which we have inherited, has been observed in this country for a very long time and is also deeply rooted in our ancient history, being the basis of the it difficult I ·find 1950 A. K. Gopalan v. The State Faz/ Ali J. 168 SUPREME COURT REPORTS [1950] inhere system earliest though include foundation of this principle, whatever else then "procedure established by complete procedure to be adopted times. The panchayat the Criminal Procedure Code, whether it deals whole of trial of offences or with preventive or quasi such as are contemplated in administrative measures sections 107, 108, 109, 110 and 145, is based upon this principle, and it is difficult to the "law of see that it has not become part of in our system of law. land" and does not If that law" is so, it may or include. That the word "law" used in article may not is clear from 21 does not mean only State-made the fact is no statute laying down in contempt of Court cases, when the contempt is not within the view such procedure as now prevails in of the Court, yet these cases is part of our law. The statute-law which regulates the procedure of trials and enquiries in cri minal cases does not specifically provide for arguments in certain cases, but it has always been held that no decision should be pronounced without hearing argu ments. In a number of cases, it has been held that though there may be no specific provision for notice in the statute, the provision must be read the law. that some Judges have expressed a strong I am aware dislike the expression "natural ground that it is too vague and elastic, but where there are well-known principles with no vagueness about them, which all systems of law have respected and re cognized, cannot be discarded merely because they are in the ultimate analysis found to be based on the expression "natural justice" natural is not unknown to our la:w is apparent· from the fact that the Privy Council has in many criminal appeals from this country laid · down that it shall exercise power of interference with the course of criminal justice in this country when there has been a breach of prin justice or departure from the require ciples of natural In re Abraham Mallory Di/let (1 ments of justice. [See ), Taha .~ingh v. King Emperor '), George Gfeller v. The justice. That justice" on {') 12 A. C. 459. ( 1) I. L. R. 46 Bom. 515. 1950 A. K. Gopalan v. Thi S1au F<U:l Ali J. S.C.R. SUPREME COURT REPORTS 169 King ( 1 ), and Bugga and others v. Emperor (2)]. In the present case, there is no vagueness about the right to have one's guilt or in claimed which is the nocence considered by an impartial body and that right must be read into the words of article 21. Article 21 purports to protect life and personal liberty, and it would be a precarious · protection and a protection not worth having, if the elementary principle of law under discussion which, according to Halsbury is on a par with In fundamental rights, is to be ignored and excluded. the course of his arguments, the learned counsel for the Constitution petitioner repeatedly asked whether would permit a law being enacted, abolishing the mode of trial permitted by the existing law and establishing the procedure of trial by battle or trial by ordeal which was in vogue in olden times in England. The question envisages something which is not likely to happen, but it does raise a legal problem which can perhaps be met the expression "procedure established by law" simply means any procedure esta blished or enacted by statute it will be difficult to give a negative answer to the question, but if the word "law" include~ what I have endeavoured does, such an answer may be justified. It seems to me that there is nothing revolutionary in the doctrine the words "procedure law" must established by four principles set out in Professor Willis' include I have already stated, are different book, which, as aspects of the same principle and which have no vagueness or uncertainty about them. These principles, as the learned author points out and as the authorities rigid principles but are adapt show, are not absolutely able to the circumstances of each case within certain limits. I have only to add that it has not been seriously in this article means valid controverted law and "procedure" means certain definite rules of proceeding and not something which is a mere pretence for procedure. that "law" thi~ way to show that if I will now proceed to examine article 22 of the Constitution which specifically deals with the subject (1) A. I. R. 1943, P. C. 21 J. (1) A. I. R. 1919 P. C. 108. 19SO A. K. Gopalon v. The State Fa</ A/; J. 170 SUPREME COURT REPORTS [1950] of preventive detention. The first point to be noted in regard to this article is that it does not exclude operation of articles 19 and 21, and it must be same way as subject two articles, in the articles 19 and 21 must be read subject to article 22. The correct position is that article 22 must prevail in regarding so far as there are specific provisions preventive detentio1f, but, where there are no such provisions that'a{_ticle, the operation of articles 19 and 21 cannot be , exclllded. The mere fact that differ ent aspects of the same right have been dealt with in them mutually three different articles will not make exclusive except to the extent I have indicated. therein I will now proceed to analyse the article and deal with its main provisions. In my opinion, the main this article are:-( l) that no person can provisions of be detained beyond three months without the report of [clause 4 (a)] ; (2) that the Parlia an advisory board ment may prescribe the circumstances and the class or classes of cases in which a person may be detained more than three months without obtaining the opinion of an advisory board (3) that when a person is preventively detained, the authority making the order of detention shall communicate to such person the grounds on which is made and shall the earliest opportunity of making a repre afford him sentation against the order [clause (5)] ; and ( 4) that the Parliament may prescribe the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention [clause 7 (b)]. The last point does not re quire any consideration in this case, but the first three points do require consideration. [clause 7 (a)] ; the order In connection with the. question the first point, arises as to the exact meaning of the words "such de tention" occurring clause 4 (a). Two in the end of alternative interpretations were put forward : (1) "such detention" means preventive detention ; (2) "such de tention" means detention three months. is correct, then the function of the advisory board would be to go into the merits of the case of each person and simply for a period interpretation If the longer 19:0 A- K. Gopalt111 v. Tire State Far.I Ali J. S.C.R. SUPREME COURT REPORTS 171 to report interpretation, the safeguard provided by the advisory board. Since report whether there was sufiicient cause for his deten tion. According to the other the func tion of the advisory board will be government whether there is sufficient cause for person being detained for more than three months. On the whole, I am inclined to agree with second interpretation. Prima facie, it is a serious matter. to than three detain a person for a long period (more months) without any enqmry or trial. But article 22 (4) (a) provides that such detention may be ordered on the report of the report must be directly connected with the object for which it is required, the article, viz., calling for a report from the advisory board, loses its value, if the advisory board is not to apply its i:nin,d the government, namely, to the vital question before whether prolonged detention (detention for more than three months) is justified or not. . Under article 22 (4) (a), the advisory board has to submit its report before the expiry of three months and may therefore do so on the eighty-ninth day. It would be somewhat farcical to provide, that after a. man has been · detained for eighty-nine days, an advisory board is to say whether his initial detention was. justified. On the other hand, the question ·whether prolonged the determination of than three motnhs) is detention the determination of justified must necessarily the question whether ·the detention Wl!~ justified at all, and such an interpretation only can give real meaning and effectiveness to the provision. The provision being the nature , of a protection or safegi:iard, I must naturally in accord favourable to the subject and which is also (detention for more interpretation which the object in view. towards involve The next question which ·we have to discuss _re (a) lates to the meaning and scope of article 22 which runs as follows :- (7) "Parliament may by law prescribe- (a) the circumstances under which, and the ,cla~s in which, a person may be detained three months under any law for preventive detention without . obtaining or classes of cases for a period providing longer. than 1950 A. /(. Gopalan v. Tl.1 State Ftu::l Ali :J. 172 SUPREME COURT REPORTS [1950] the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause ( 4)." I must necessarily jurisdiction to enact it. The question is what is meant by "circumstances" and "class or classes of cases" used in this provision. This question has arisen because of the way in which these expressions appear to have been interpreted and applied in the Act of Parliament with which we are the matter is important and somewhat concerned. As to express my meaning as complicated, I shall clearly as possible even at the risk of some repetition, refer to the im and, in doing so, pugned Act as well as Lists I and III of the Seventh Schedule of the Constitution, under which Parliament Item 9 of· List I-Union the Parliament has power to legis List-shows late on preventive reasons connected (2) foreign affairs, and (3) security (1) defence, List-the appropriate item as to preventive detention can be made for reasons connected with the State, (2) the maintenance of public order, and (3) the main tenance of community. The subjects mentioned be made. (1) of the Act, the substance of which has Section 3 already been mentioned, reproduce in Lists law of preventive detention can III in regard item 3 which shows impugned Act refers India. Under List the security of important, and III-Concurrent detention for supplies and it verbatim. essential services I and (1) I "The Central Government or the State Govern ment may- ( a) if satisfied wit!}. respect to any person that to preventing him ·from acting in any with a view 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 main tenance of public order, or (iii) the maintenance of supplies and services essential to the community, or S.C.R. SUPREME COURT REPORTS 173 the meaning of (b) if satisfied with respect to any person who the Foreigners in India or with a to making arrangements for his expulsion from is a foreigner within Act, 1946 regulating his continued presence India, that with a view (XXXI of 1946), it is necessary so to do, make an order directing 1950 A. K. Gopalan v. The State Fazl Ali J. that such person be detained." It will be noticed that all the subjects of legisla tion concerning preventive detention occurring in item 9 of List I are grouped in sub-clause (1) of clause (a). in this group are three in number and, The subjects for convenience of reference, I shall hereafter refer to them as A, B and C. In sub-clause (ii), we item 3 of grouped two of the matters referred to in these being security of List III, maintenance of public I shall refer to as D and E. In sub-clause (iii), reference in item 3 of List has been made to the third matter Ill, anci I shall refer classification, the Constitution itself. to this subject as F. With the State and let us now two subjects, order. These in substance On reading articles 22 ( 4) and 22 (7) together, it would be clear that so long as article 22 ( 4) (a) holds the field and Parliament .does not act under clause (7) (a) of article 22, there must be an advisory board in every case, i.e., if the legislation relates to groups A to F, as it does here,. there must be an advisory board for all these groups. Article 22 .(7) however practically engrafts an exception. It states the Parliament may by an Act provide for preventive detention for reference to an advi more than three months without sory board, but in such cases it shall be incumbent on the Parliament to prescribe the circumstances and (2) the class or classes of cases in which such course is found to be necessary. clause ( 4) (a) is the clause (7) the exception, then the circumstances the class or classes of cases must be of a special or extraordianry nature, so as to take the case out of the It is always rule and bring it within If the case contemplated that contemplated the excef>tion. rule and (a) ( 1) 1950 A. K. Gopalan v. The State Fa<I Ali J. 174 SUPREME COURT REPORTS [1950) to do under is what, in my tlunk that it was ever legislation is possible excepting one, abnormal or extraordinary opinion, clause intended possible to draw the line between the normal or ordi cases, the Parliament (7) was expected (a). I do that Parliament treat the normal as the abnormal or could at its will the rule as the exception. But is precisely what has been done in this case. All the items on which i.e., preventive to E, have been put within the exception, and only A one, F, which relates to maintenance of supplies and services essential to the community, has been allowed co remain under the rule. In other words, it is provided that there shall be an advisory board only for the last category, F, but no provision having been made for the other categories, A to E, it may be assumed advisory board has been dispensed with in those cases. The learned Attorney-General maintained that it would have been open to the Parliament to dispense with the advisory board even for the category F, and if such a course had been adopted it would not have affected the Act. This is undoubtedly a logical the V'alidity of position in that it was necessary for him to go as justify his stand ; but, in my opinion, enacting section 12 of is not (a) to be is permitted by it. The circumstances prescribed must be special and extraordinary circum stances and the class or classes of cases must be of the same nature. the Constitution never contemplated that the Parliament should mechanically reproduce all or most of the categories A to F almost verbatim and not. apply its mind to decide in what circumstances and in what class or classes of cases the sateguard of an advisory board is to be dispensed with. the course adopted by the Parliament impugned Act article 22 In my opinion, is contemplated the sense far as this to (7) I may state here that two views are put forward before us as to how clauses (4) (a) and 7 (a) of article 22 are to be read:-(1) that clause (4) (a) lays down rule that in all cases where detention for more three months is ordered, it should be done in the report of the advisory consultation with and on 1950 A. K. Gopalan v. The State F!Jl{.l Ali J. S.C.R. SUPREME COURT REPORTS 175 (2) advisory board, to an advisory board ; board, and ~tause (7) (a) lays down an exception to this rule h¥ . providing that Parliament may pass an Act permitting detention . for more than three months without reference clauses (4) (a) and (7) (a) are independent clauses ' making two separate and alternative provisions regar ding detention for · more than three months, in one case on the report of an advisory board and in other case without reference to an advisory board. Looking at the substance and not merely at the wordsJ I am inclined to ·hold that clause (7) (a) practically engrafts an exception on the rule that preventive detention three months can be ordered only on the . more far I have report of proceeded on that footing. But it seems to me that it will make no difference the ultimate conclusion, whichever of the two views we may adopt. Even on recognized that the law which the Constitution the Parliament . make under article 22 (7) (a) would be an excep tionally drastic that an exceptionally drastic law must be intended for- an exceptional situation, every word of what I have said so far must stand. Clause (7) (a) is only an enabling provision, and it takes care to provide that the Parlia ment cannot go · to the extreme limit to which it is permitted to go without prescribing the class or classes of cases and the circumstances to which the extreme law would be applicable. the class or classes of cases and the circumstances must be of a special nature to require such legislation. law, and, on the principle latter view, it must be It follows and so enables "class or It was urged that the word "and" which occurs classes of between "circumstances" cases" is used in a disjunctive sense and should be read as "or", and by way of illustration it was men tioned that when it is said that a person may do this and that; it means that he is at liberty to do either this or that. I do not argument is sound. I think that clause (7) (a) can be accurately paraphrased somewhat as follows :-"Parliament may dispense with an advisory board, but in that case it class or shall prescribe the circumstances and think that this 1950 A. K. Gopolan · v. 1"he State Faz/ Ali]. 176 SUPREME COURT REPORTS [1950] classes of cases .... " If this is the meaning, then "and" must be read as ''and" and not as "or"; and "may" must be read as "'shall" Supposing it was said that Parliament may prescribe the time and place for the doing of a thing, then can it be suggested that both time and place should not be prescribed? It seems obvious to me that the class or classes of cases must have some reference to the persons to be detained or to their activities and movements or to both. "Circum stances" on the other hand refer to something extra as surroundings, background, prevailing neous, such conditions, etc., which might prove a fertile field for the dangerous activities of dangerous persons. There fore the provision clearly means that both. the circum stances and the class or classes of cases (which are two different expressions with different meanings and con notations and cannot_ be synonymous) should be prescribed, and prescription of one without prescribing the other will not be enough. As T have law as can be enacted under article already stated, such 22 (7) (a) must involve, by reason of the extreme limit to which it can go, serious consequences to the persons (1) prolonged detention, i.e., detained. detention for a period longer than three months, and (2) deprivation of the safeguard of an advisory board. Hence article 22 (7) (a) which purports to be a protec tive provision will cease to serve its object unless it is given a reasonable interpretation. To my mind, what it contemplates is that the law in question must not be too general but its scope should be limited by prescribing both the class or classes of cases and the circumstances. It will mean regarded It was contended expression "class or to enable the Parlia classes of cases" is wide enough treat any of the categories mentioned in Lists I and III, items 9 and 3 respectively, (i.e., any of the categories A to F) as constituting a class. At first sight, it seemed to me to be a plausible ari; tument, but the more I think about it the more unsound it appears remembered is what to me. The chief thing to be I have already emphasized more than once,. viz., type of law must be limited to a special or extreme special classes of cases and circumstances. Under the 1950 A. K. Gopalan - .v. Tll4StaU Fiu:l Ali]. S.C.R. SUPREME COURT REPORTS 177 to prescribe "the Constitution, the Parliament the power class or classes", acting within the limits of granted it under Lists I and III. The class or · classes must be its own prescription and must be so conceived as to justify by their contents the xemoval of an important safeguard provided by the Constitution. Prescribing is more than a mere mechanical process. to select and adapt the It involves a me11tal effort thing prescribed· to the object for which it has. ·to be prescribed. We find here that what is to be prescribed is "class or classes" "circumstances"). We (and also also find that what the law intends to provide is pro longed detention · (by which words I shall hereafter mean detention for more than three months) and eli mination of the advisory board. The class or classes to be prescribed must therefore have a direct bearing on these matters and must be so selected and stated that any one by looking at them may say:-"That is the reason why the law has prescribed prolonged deten tion without reference to an advisory board." In other words, there must be something to make the class or classes prescribed fit in · with an extreme type of legis lation-some element of exceptional gravity or menace which cannot be easily and immediately overcome and therefore necessitates prolonged detention; and there must be something to show that re~rence. to an ad visory board would be an undesiral;>le and cumbersome exceptional process and wholly unsuitable sit9ation to which the law applies. Perhaps a simple .illustration may make clearer. Under on which Parliament may make a law of preventive detention repeats · this phra puolic order.'~ The Act and states. in .section 3: "with a view to seology preventing him (the person to be detained) from acting in a manner prejudicial to the maintenance of public order." This may be all right for section 3, but section 12 must go further. An act prejudicial ·to the maintenance of public order may. be an ordinary act or it may be an act of special gravity. l think that article 22 (7) (a) contemplates that. the graver and the Lists, one of the maintenance connected with. the position ·"matter subjects simply . the 1950 A. K. Copa/an v. Tl:.t State Fad Ali J. • 178 SUPREME COURT REPORTS [1950] more heinous types of acts falling within the category of acts prejudicial to the maintenance of public order (or other heads) should be prescribed so as to define and circumscribe the area of an exceptional piece of legislation. That some kind of sub-classification (if I may be permitted to use this word) of the categories A to F was possible can be . illustrated by reference to regula tion 18-B of the British Defence of the Realm Regula tions. This regulation was made under an Act of 1939 which authorized "the making of regulations for detention of persons whose detention appears Secretary of State to be expedient in the interests of public safety or the defence of the realm." The two matters "public safety" and "defence of the realm" are analogous to some of the heads stated in Lists I and III. It will be instructive to note that under these two heads, regulation 18-B has set forth several sub heads or class or classes of cases in which preventive detention could be ordered. These classes are much more specific than what we find in section 3 of the impugned Act and therefore there less chance of misuse by the executive of the power to order preven tive detention. The classes set out are these:-(1) If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations, (2) if the Secretary of Sta.te has reasonable cause to believe any person to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts, (3) if the Secretary of State has reasonable cause to believe any person to have been or to be a member of or to have been or to be active in the furtherance of the objects of, any such organization as is hereinafter mentioned .... (a) the organization is subject to foreign influence or control (b) the persons in control of the associations with organization have or have had persons concerned in the government of, or sympathies with the system of government of, any Power with which His Majesty is at war, and in either case there is danger of the utilization of the organization for purposes prejudicial to the public safety, etc., (4) if the Secretary S.C.R. SUPREME COURT REPORTS 179 enemy, of State has reasonable cadse to believe that the recent conduct of any person for the ·time being in an area or any words recently wri~ten or spoken by such a person indicates or expressing sympathy with indicate that that person is likely to assist the enemy. I have only to point out that the scope within which in this preventive detention can be country is much larger than the scope indicated in British Act under which Regulation 18-B was framed, and therefore there is more scope for specification of the circumstances as well as the class or classes of cases under the impugned Act. But all that has been done is that words which occur in the legislative Lists have been taken and transferred into the Act. legislated upon 19·.o A. K. GopalM v. The Stat• F~l Ali]. What I have stated with regard to class or classes the circumstances which are of cases also applies also to be prescribed under article 22 (7) (a). These circumstances are intended to supply the background or setting in which the dangerous activities of dan specially harmful.· They gerous persons might prove must be special circumstances which demand a special ly drastic measure and under which reference to an advisory board might defeat the very object of preven tive action. The evident meaning of article 22 (7) (a) seems to be. that the pic_ture will not be complete with out mentioning both the classes and the circumstances. There was some discussion at the Bar as to what kind It is not of circumstances might ·haV(;... _been specified. for me to answer this question, but I apprehend that an impending rebellion or war, serious disorder in a the Puniab particular area "disturbed Government areas,'.' tense communal situation, prevalence of sabo tage or widespread yolitical dacoities and a -variety of other matters might answer the purpose the Constitu tion had in view. to declare certain areas as induced I will now to sum up th~ result of a somewhat protracted discussion into which I had to enter merely to clarify .the meaning of a very important provision in mv opinion, been of the Constitution which has. completely misunderstood 7-1 S. C. Ind'af58 . framers ISO SUPREME COURT REPORTS (1950} 1950 \ ' A. K.-Gopalan "· The Stat~ Fazl Ali J. impugned Act. It appears. to .me that article 22 deals. with three classes of preventive detention : - (I) prev_entive detention ·for. three months ; (2) preventive . detention for more than three ·· · months on the report of the advisory board ; and · · (3fpre~entive detention for .more than three I months without reference to the advisory board. · If one has to find some kind of a label for these classes for a clear understanding of the subject, one may label them as "dangerous," "more dangerous" and "most dangerous." . Now so far as the first two classes are concerned, there is not)ling to be prescribed . . under the Constitution. Apparently.the authors of the Constitution were not much concerned.about class No. (I), and they thought that in so far as class No. (2} was concerned the provision that· a reference to the advisory board was necessary coupled with the provi sion that detention was not to exceed the maximum. period which may be fixed by the . Parliament was . enough. · But they did take· care to. make a special. provision for class No. (3), and it is extermly impor tant for the liberty of the subject as well as for the smooth working of the Constitution that this provision · should not be lightly treated but should receive a well considered and reasonable construction. It js ele-· mentary that the rigour of a law should correspond to· or fit the gravity of the evil or danger it aims at.com-· bating, and ,it is also evident that the law which the· Parliament has been permitted to enact under article· 22 (7) (a) can, so far as rigour is concerned, go to the farthest limit. It follows that the law must have been intended for exceptionally grave situations and exigen cies. Hence the authors of the Constitution have made· it necessary that the Parliament should put certain specifications into the Act which it is empowered to. pass under article 22 (7) (a), so that by means of these specifications the necessity for enacting so drastic a law should be apparent on the face of it, and its application. should be confined to the classes and circumstances. specified. The Act must prescribe (I) " ch:.ss or classes of cases" which are to have reference to· the persons~ -r ' A. K. Gopolan v. The State Far.I Ali J. S.C.R. SUPREME COURT REPORTS 181 against whom the law is to operate and their activities and movements and (2) "circumstances" which would the back bring into prominence the conditions and grounds against which dangerous activities shoul,d call for special measures. By means two.fold prescription, the sphere for the application of the law will be confined only to a special type of cases-it will be less vague, less open to abuse and enable those who have to administer to determine objectively when a condition has arisen to justify the use of the power vested in them by in my opinion, is the true meaning and significance of article 22 (7) (a) and any attempt to whittle it down will lead to deplorable results. law. This, <!f opm1on, it does so the class or classes, Having stated my views as impugned Act conforms to the construction of article 22 (7) (a), I propose to consider at once whether section 12 of requirements of that provision. In my does not, because it fails to prescribe' either -the circum the class or classes of cases in the manner stances or - required by the Constitution. It does not prescribe circumstances at all, and, though it purports to pres in a manner showing that the. true meaning of the provision from which the Parliament derived its power has not been grasped. I have sufficiently dwelt on this part of the case and shall not repeat what I have already said. But I must point out that even if it be assumed that the view advanced by the learned Attorney-General is correct and it was within the competence of Parliament to treat any of the categories mentioned in items 9 and 3 of Lists I and III as constituting a class :ind to include it without any qualification or cha?ge, the impugned section cannot be saved on account of a two-fold error : (1) the word "and" which "class or classes" in article 22 (7) (a) has been with "circumstances" w.rongly construed to mean "or;" and- (2) the distinc tion between "circumstances" and "class or classes" are used as has been completely ignored appears interchangeable terms. The though the Constitution requirements and 'insists and they to be quite a serious one, because lays down 1950 A. K. Gopalan v. The State Fazl Ali]. 182 SUPREME COURT REPORTS [ 1950] as well dass or assumed m circumstances it has been the prescnption of that circumstances enacting class or classes, section 12 that prescription of · one of them only will be enough. The other error is still more serious root of the matter. There can be and goes no doubt classes are two different expressions and have different mean ings, but the Act proceeds on assumption that circumstances are identical with class or classes, as will appear from the words "any person detained in any of the following classe~ of cases or under any of the following circumstances" used the section. I have already shown how specification of important circumstances is in legislation of such an extreme and drastic character. Therefore, to confuse "classes" with to mention "circum 0 circumstances" and to omit stances" at all are in my opinion grave errors. There can, in my opinion, be no escape from the conclusion that section 12 of the Act by which a most important protection or safeguard conferred on the subject by the Constitution has been not a valid provmon, since it contravenes the very provmon in the Constitution under which the Parliament derived its competence to enact it. away, authority incumbent on communicate to that this provision the grounds on which I will now briefly deal with article 22 (5) which ordering the person preventive detention to the order has been detained made and to give him the earliest opportunity of making a representation against the order. It must be to afford remembered protection to and be a favour of a safeguard detained person, and it cannot be limiting any rights which he has under the law or any other provisions of the Constitution. If article 21 guarantees that before a person is deprived of his liberty he must be allowed an opportunity of establishing his innoceQce before an impartial tribunal, that right still remains. In point of fact, there is no express exclusion of that the Constitution and no prohibition against · right in constituting the other hand, the right to make a representation which has read as tribunal. On impartial intended 1950 A. K. G1;palan v. The Stau Fazl Ali]. S.C.R SUPREME COURT REPORTS 183 . and I am· not prepared to read any therefore be· some machinery representation being been granted under the Constitution, must carry with properly the right impartial person or persons. There oonsidered by an for properly cx:uhining the qses of the detenus and coming to the . conclusion that · they have not been detained without reason. · If this right had been expressly taken away by the Constitution, there would have been an end gf the· matter, but it has not been expressly taken away, implicit depriva tion 'Of. such a valuable right. The mere reference an advisory board in article 22 ( 4) (a) does_ not, if my the provision is correct, exclude the interpretation of oonstitUtion of ·a proper machinery for the piirpose of examining detenus on merits. The the purpose of constitutio1' reporting whether a person should be detained for more than three months or not is a very different thing from constituting a board for the purpose of reporting whe ther a man ·should be detained for a single day. In the view I take, all that Parliament could do under clause (7) (a) of article 22 was to dispense with an ad visory board for die purpose contemplated in clause ( 4) (a) of that article and not to dispense with the proper machinery, by , whichever · name it may. be called, for the purpose of examining the merits of the case of a detained person. of an advisory board for . law of preventive detention It was argued · that article 22 is a code by itself and the whole to be found within its four corners: I cannot however easily ,subscribe to this sweeping statement. ' The article does provide for some ~ers of procedure, but it does not exhaustively provide· for them.. It is, said that it prcr vides for notice, an opportunity to the det<;nu to repre sent his ca5e, an advisory board which may deal . with his .case, and for the maximum period beyond which · a ~):"son. cannot be detained. These points have un- · doubtcdly been . touched, but it cannot be said they. have been exhaustively is given, but it is represent the machinery for dealing with the represen provide tation. The advisory board has been .··mentioned, but treated. The left to the legislature 184 SUPREME COURT REPORTS (1950) 1950 A. K. Gopalan v. The Stat• Fa<l Ali]. for a period the Parliament, and longer it is only to safeguard detention than three months. There if the Parliament makes use of latitude unreasonably, article 19 (5) may enable the Court to see whether it has transgressed the limits of reasonableness. latitude still is ample the Act to come to accept the conclusions it underlies all their responsibilities have I will now proceed to deal with I have arrived at. So far as light of the Act is concerned, it was contended section 3 of that it is most unreasonable, because it throws a citi zen at the mercy of certain authorities, who may at their own will order his detention and into whose minds foundation we cannot probe to see whether there is any their action for the subjective satisfaction upon which this argu I am however unable is to rest. ment. The administrative authorities who have discharge to quick decisions and must necessarily be to act on their own judgment. This principle is by no means unreason the preventive or quasi able - and to be found in the administrative measures which are Criminat Procedure Code. Under section 107 of that code, it is left to the discretion. of the magistrate con cerned in his opinion there is sufficient ·ground for proceeding against any person who is likely to occasion a breach of the peace. Under section 145 also, his initial action depends upon his personal satisfaction. Therefore I do not find anything wrong or unconstitutional in section 3 of the Act. But I must point out that it is a n:asonable provision only for the first step, i.e., for arrest and initial detention, testing and must be followed by some procedure for satisfaction, which can be done only by providing a suitable machinery for exa mining the grounds on which the order of detention is the per made and considering sons detained representations of those grounds. in relation to determine whether subjective so-called I do not also find anything radically wrong in the Act, which makes it incumbent on the section 7 of authority concerned to communicate grounds on which the order has been made and to a detenu 1950 A. K. Gopal1J11 v. The Stau FazlAli J. S.C.R. SUPREME COURT REPORTS 185 I also therefore· ultra vires. in ordinary cases. to me in exercising its mind the detenus of afford him the · earliest opportunity of making a repre sentation against the order. Section 10 which provides that the advisory board shall make its report within ten weeks from the date of the detention conformity with article 22 ( 4) (a) of the Constitution, and the only comment which one can make Parliament was not obliged to fix sue~ a long period for the submission of a report and · could have made it shorter . The real sections which to offend the Constitution are sections 12 appear I have already dealt with the principle objec and 14. the provisions of .discussing tion to section 12, while article 22 (7) (a) and I am of the opinion that section 12 does not conform to the provisions of the Constitu tion .and is it be held that it technically complies with the requirements of article 22 (7) (a), Parliament has acted unreasonably discretionary . po'wer to essential matters and without applying the safeguard of an thus depdving advisory board which the Constitution has provided in normal cases. So far as section 14 is concerned, all my colleagues have held it to be ultra vires, and, as them, I do not I agree with the .views expresse.d by judgment by repeating in my so clearly and so own words what has been said well by the other provisions of the Act and it may not be possible to grant any is invalid. But I think that ground tM.t section 14 section 12 goes legislation inasmuch as it deprives a detenu of an essential in my opinion the petitioner is entitled safeguard, and to a writ of habeas corpus on that an the ground essential provision of the Constitution has not been complied with. This writ will of course be without prejudice to any action which the authorities may taken or may hereafter take against the petitioner this qualification under the penal law. I have because there were allegations of his being involved in facts were not some criminal cases clearly brought out before us. them. Section 14 may be severable relief to the petitioner on to encumber my the very root of the actual to add ·but 1950 A. K. Gopalan v. Tiu Stal< Fad Ali J. 186 SUPREME COURT REPORTS [1950] legislation In studying the provisions of I have only to add a few concluding' remarks judgment. impugned Act, I could not help instituting a compar ison in my own mind between it and similar legislation in England. during the last two world wars. I could not also help noticing that the impugned Act purports to be a peacetime Act, whereas which I have referred was enacted during the war. During the first war as well as the second, a number of persons were detained and a number of cases were brought to Court in connection with their detention, btit the two leading-eases which will be quoted again and again are Rex v. Halliday ( 1 ) and Liversidge v. Sir John Anderson ( • ). We are aware that in America certain standards which do not conform to ordinary Judges and normal law have been · applied by during the period of the war ~nd sometimes they are referred to as being included ,in "war compendiously power." The two English cases to ~Qich I ha".e the same principle, as will illustrate referred also appear two short extracts which reproduce. In Rex v. Halliday (' ), Lord Atkinson observed as .the personal follows:-"However precious liberty . of the · subject may be, there is something for which it may well be, to some extent, sacrified by legal enactment, namely, national success in the war, or escape from national plunder or enslavement." I wish In Liversidge v. Sir John Anderson Macmillan struck the same note in these words:~ ( '), Lord "The liberty whlch we so justly extol is itself gift of the law and as Magna Charta recognizes may by the law be ·forfeited or abridged. At a time when it is the undoubted law of the land that a citizen may by conscription or requisition be compelled to give up his life and all that he possesses for his country's cause it may well be no matter for surprise that there should be confided to the Secretary of State a discretionary power detention." relatively mild enforcing the precaution (1) (1917] A: C. 260. (•) [194Z] A. C. 206. · (3) [1917] A. C. 260 at p. 271. (4) [1942] A. C. 206 at p. 257. S.C.R. SUPREME COURT REPORTS 187 It in all cases without any first war as well as provision These passages represent the majority view in the two cases, but the very elaborate judgments of Lord Shaw in Rex v. Halliday and that of Lord Atkin in Liver there was room sidge v. Sir fohn Anderson show for a more dis for difference of opinion as well as passionate treatment of the the points case and volved is difficult to say that there is not a it. good substratum of sound law in the celebrated dictum of Lord Atkin that even amidst the clash of arms the laws are not silent and that they speak the same guage in war as in peace. However that may be, what I find is that in England regulations made second war during there was an elaborate for an advisory exception, which provided a wartime safeguard for persons deprived of their liberty. There was also a provision in the Act of that the Secretary of State should report at least 1939 once in every month as to the action taken under the regulation including the number of persons detained thereunder. I find that these reports under orders made available to the public. I also were printed and made find that the Secretary of State stated in the House of Commons on the 28th January, 1943, that the general to allow British subjects detained order would be the Regulation to have consultations with their the hearing of an officer. This legal advisers out of order applied consultations with barristers to cases where solicitors sent to inter- solicitors but not . view a detained person a clerk who was not an officer in com of the High Court. The impugned Act suffers though, parison, on account of want of such provisions, to have so far as I can see, no great harm was likely setting up a machinery composed of been caused by for exam either administrative or the cases of detained persons so as to satisfy the essentials of fairness in comparison with some of the later Provincial suffers Acts in which the safeguard of an advisory board is expressly provided for. I_ find that there is a provision in section 12 (2) of the Act for the review of the cases is quite different of detenus after six months, but this judicial authorities justice. The Act 1950 A. IC GojJala v. T/rt f;au Fazl Ali_}. • 188 SUPREME COURT REPORTS [1950] 1950 A. I(. Gopalan v. TJ,. 811111 from examining the merits of the case. The object of such a review is obviously to find out whether by rea son of any change in the circumstances, a review of the original order is required. I also altogether disappeared I am aware I hope that in pointing out the shortcomings of the Act I will not be misunderstood. both in England and jn America and also in many other countR<:s, there has been a reorientation of the old notions of individual freedom which is gradually yield realize ing to· social control in many matters. that those who run the State have very onerous is not correct to say that emergent ponsibilities, and it conditions country. Granting th.en that private rights must often be subordinated to the public good, is it not essential in a free community in the matter ? That a person should be deprived of his pe~sonal liberty without a trial is a serious matter, but the needs of society may demand it and the individual may often have balance between the maintenance of individual rights and public good can be struck only if the person who is deprived 6f his establish his innocence. and I do not see how the esta blishment of ;m appropriate machinery giving him such a chance can be an impediment government liberty is allowed ~ fair chance to strike a just balance to good and those needs. to yield Still '.-jail Sann]. S11STRI J.-This PATANJALI directions pettt10ncr detention purporting the C',onstitution of the Government of Madras under it has application India under article 32 of rckasing without to be issued by Preventive Detention Act, distinction of being the first application invoking the the guardian of p;uaranteed protection of this Court as Fundamental Rights against alleged infringement of the petitioner's right to freedom of movement. As the case importance and break involved issues of great public thoroughness ing of new ground it was argued with and ability on both sides, reference being made to more the Constitutions of less analogous provisions of 1950, S.C.R. SUPREME COURT REPORTS 189 other countries and in particular the United States of America. the Constitution of 1950 A. K. Gopalan v. The State Palanja/i Sastri }. The pet1t1oner ha<l been under detention previ ous! y un<ler orders passed by said Government under the Madras Maintenance of Public Order Act, that Act and all other 1947, but as the validity of similar enactments had safety in some of the High Courts in India after questioned the new Constitution came the Parliament enacted a comprehensive measure called the Preventive Detention Act, 1950, to as the impugned Act) extending to the whole of India with a certain exception not material he~e. (hereinafter referred public force, The Act came into force on 25th February 1950, the Government of Madras, and, on the 27th February, in purported exercise of the powers conferred by the impugned Act and in supersession of earlier orders, directed the detention of the petitioner, and - the' Qrder was served on him on 1st March. The petitioner contends in particular sections 3, 7, 10, 11, 12, 13 and 14 thereof take away or abridge the fundamental right to freedom of move ment in contravention of article 13 (2) of the Consti tution and is, therefore, void as declared therein. impugned Act and It is modelled on the first "Fundamental Rights." This Part Article 13 is one of a fasciculus of articles which Indian Constitution are comprised in part III of headed forms a new feature of the Constitution and Indian "Bill of Rights." the American Constitution which Amendments of the American rights of fundamental declare first article in this citizen~ Article 12, which Part, defines including the Govern "the State" as ments and Legislatures of the Union and the States as well as all local and other authorities against which rights are enforceable, and article 13 the fundamental inconsistent with the ( 1) declares that all existing laws provisions of Part the extent of inconsistency, be void. Clause the article, on which the petitioner's contention is primarily founded reads as follows : III shall, (2) of 1950 A., K. G.pa!an v. Th•S<au PatlJl!iali Sastri ]. 190 SUPREME COURT REPORTS [1950] "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, the extent of the contravention, be void." to "the relates only is necessary this Part," it As the constitutional inhibition against depriva rights con tion or abridgement first to ascertain ferred by the nature and extent of the right which, according to the petitioner, Part III has conferred on him, and, second I y, to determine whether the right so ascertained has been taken away or abridged by the impugned Act or by any of its provisions. The first question on the proper interpretation of relevant articles of the Constitution, the second involves the consider ;md ation of the provisions of the impugned Act. In throughout impose on such lines of argument. right under \Clause (5) of Mr. Nambiar appearing for the petitioner advan the first place, ced three main the right to move freely territory of India referred to in article 19 ( 1) ( d) is of the very the deten essence of personal liberty, and inasmuch as tion authorised by impugned Act was not a "reasonable restriction" which Parliament could vali impugned Act is void. Alternatively, the article, right under article 21 petitioner had a fundamental liberty except according law, and the impugned Act by authorising detention otherwise than took away that in accordance with proper procedure right and was therefore void. And. the provi to were sions . of the impugned Act alreadv in enacting ultra vires and them has overstepped the legislative power by article 22 clauses ( 4) to (7). to be deprived of his personal to procedure established by inoperative as Parliament limitations placed on lastly, referred Accordingly, the first question for consideration is whether article 19 (1) (d) and (5) is applicable to the present case : Stuart Mill, "Liberty," "consists in doing what tine desires. But liberty of the thus far limited-he must · not make himself a nuisance to others." Man, as a rational being, desires things, but in a civil society his desires have to be controlled, regulated individual must be to do many John 1950 A. K. Gopalan v: The State Patanjali Sastri ]. S.C.R. SUPREME COURT REPORTS 191 freely provides therefore, to move the State and settle "throughout the sense of is : Does article 19, individuals. in order freedom is a drastic their exercise. The power of in any part of authorises and reconciled with the exercise of similar desires by to be Liberty has, limited to be effectively possessed. Accord ingly, article 19, while guaranteeing some of the most liberty to every citizen valued phases or elements of as civil rights, regulation imposing certain the common good by "restrictions" on is no doubt an essential element of personal motion from bodily restraint, liberty which means invasion of and detention liberty. But the question in Part III of the Constitution, deal with the setting deprivation of personal liberty in ceration ? Sub-clause ( d) of clause ( 1) does not refer to freedom of movement simpliciter but guarantees territory of India." Sub-clause ( e) similarly guarantees the territory of to reside India. And clause (5) imposition of rights "reasonable restrictions" interests of the general public or for the protection of interests of any Scheduled Tribe. Reading these that they provisions were designed primarily to emphasise the factual unity of the territory of India and the right of a to secure to move from one place in India to another free citizen India un in any part of and to reside and settle barriers which narrow-minded hampered by provincialism may seek to interpose. The use of the . various sub-clauses seems "restrictions" rights guaranteed to imply, in by the article are still capable of being exercised, and the words to exclude the idea of incarceration though "restriction!' and "deprivation" are reach a point where it may well amount to deprivation. Read the group as a whole and viewed in its setting among of provisions (articles 19-22) to my mind t.o pre-suppose Freedom," article 19 seems the possession of to whom that the citizen fundamental the substratum is secured retains reasonably clear restriction may interchangeable the context, to "Right sometimes terms, as together, that the relating rights 1950 A. Jr. Goj>alan T/,.S•ate "· PattnfialiSa>lri j. 192 SUPREME COURT REPORTS I [1950] is not, referr:d he could immoveables lt was said of personal freedom on which alone the enjoyment of that sub these rights necessarily rests. clause (f) would militate against this view, as enjoyment of the right "to acquire, hold and dispose of propsrty" does not depend upon the owner retaining his personal freedom. This assumption is obviously properties , and even regards moveable wrong as as regards not acquire· or the prison bars ; nor dispose of them from behind could he "hold" sense of exercising rights them in the of possession and control over them which is what the the context. But where, as word seems to 'mean a penalty for committing a crime or otherwise, the lawfully deprived of his freedom, there could citizen no longer be any q uc:stion of his exercising or enforcing to in clause (1). Deprivation of the rights personal liberty in such a situation in my opinion, within the purview of article 19 at all but is dealt with by the succeeding articles 20 and 21. In to the citizens the other words, article 19 guarantees enjoyment of certain civil liberties while they are free, to all persons-citizens and while articles 20-22 secure non-citizens-certain constitutional guarantees gard to punishment and prevention of crime. Different criteria are provided by which to measure legislative judgments in the two fields, and a construction which would bring within article 19 imprisonment· in punish ment of a crime committed ·or in prevention of a crime to me, make a reductio threatened would, as it seems If imprisonment were ad absurdum of that rrovision. regarded to be the right men in article 19 (1) (d), it would equally be a tioned rights mentioned by the other sub restriction on the clauses. of clause ( l), with the result that ·all penal laws providing for imprisonment as a mode of punishment would have to run the gauntlet of clauses (2) to ( 6) be fore their validity instance, the law which imprisons for theft would, on that view, fall to be justified under clause (2) as a law sanctioning restriction of freedom of speech and expression. In deed, a Division Bench of the Allahabad High Court, in a recent unreported decision brought to our notice, as a "restriction" of accepted. For could be 1950 A. K. Gopalan v. The State Patanjali Sastri ]. S.C.R· SUPREME COURT REPORTS 193 lJ.eld, in clause reservations · liberty and (d), whereas it in determining infringed the right law which deprived to Blackstone's Commentaries, of undermining to overthrow referring liberty consisted place one's the security of the applied the State or tending validity or other wise of the impugned Act. The learn as covering cases of ed Judges construed article 19 deprivation of pers_onal logically enough, that inasmuch as the impugned Act, by author to free ising preventive detention, its validity should be dom of speech and expression, judged by (2), and as it failed to stand that test, it was unconstitutional· and void. Mr. Nambiar did not seek to g0 so far. He drew right conferred by sub-clause a distinction between (d) and those conferred by the other - sub-clauses. He urged, "in moving one's person personal to whatever inclination might direct," a person of and - that invasion of the such power of locomotion was a direct right mentioned in sub-clause it inter fered only indirectly sub-clauses. There is rights mentioned in the other no substance It would be illogical, to attribute. to one of and effect totally different from the sub-clauses a scop~ the scope and effect of the others or to draw a distinc tion between one right and another in the group. All the rights mentioned in clause (1) are equally essential elements in any civilised imprison ment operates as an extinction of all of them alike. It therefore, be said that deprivation of personal cannot right conferred by is an infringement of liberty sub-clause (d) alone but not of the others. The learned Judges of the Allahabad High Court realised this and were perfectly logical that the constitutional in holding validity of a law providing for deprivation of personal liberty or imprisonment must be judged by the tests laid down not only in clause (5) of-article 19 but also in the though their major other clauses including clause (2), liberty was a premise "restriction" within 19 is, my judgment, erroneous. liberty of and democratic community, that deprivation of personal and consequentially with the distinction suggested. in construing article 19, the meaning of •article individual A. K.Gopalan V, Tlw Stau Patatifali Sastri ]. 194 SUPREME COURT REPORTS [1950] the Federal Court in its true character, It was said that preventive detention being a dras in its tic restriction of the right to move fredy was, "pith and substance'', within article 19 (1) (cl) with clause. (5) and not within article 21 which deals with crime anp its punishment and prevention. There is no room here, in my opinion, for the application "pith and substance." As pointed out by the rule of the Privy Council in Prafulla Kumar Mukherjee v. The approving the Bank of Commerce Ltd., Khulna ( 1 ), in Subrahmanyan observations of Chettiar v. Muttuswamy Goundan { 1 ), the rule was evolved by the Board for determining whether an impu gned statute was, legislation with respect to matters within the jurisdiction of one legis legislative lature or another divided in a scheme of the Court power. No such question arises here. What has to ascertain true scope and meaning of is the article 19 in the context of Part Ill of the Constitution, in order to decide whether deprivation of° personal the pith and that article, liberty substance rule will be more misleading than helpful in the decision of that issue. Article 19, as I have already guarantees protection for the more import indicated, ant civil · liberties of citizens who are in the enjoyment of their. freedom, while at the same time laying down legislature may properly the restrictions which impose on and it has to do with deprivation of personal liberty or nothipg imprisonment which is dealt with by succeeding three articles. is also another consideration which points There the same conclusion. The Drafting Committee of to whose Report reference the Constituent Assembly, the argument, was freely made by both sides during liberty should be quali recommended fied by the insertion of the word 'personal' before it, for otherwise it might be construed very widely so as to in artirl~ include even the freedoms already dealt with (now article 19). The acceptance of this suggestion 13" the generally accepted shows · that whatever may be of such rights, "that the word the exercise falls within 11) 74 I.A. •3· (•) [J940J F.C.R. 188. 1950 A. K. Copa/an v. The Stale Patanjali Sastri J. S.C.R. SUPREME COURT REPORTS 195 connotation of the expression was used in article 21 freedoms dealt with personal liberty Constitution liberty'', "personal in a sense which excludes in article 19, context of Part III of that is to say, is something distinct from the freedom freely throughout the territory of India. It was further submitted that article 19 declared . It is, provided however, safeguard the rights is the substantive the constitutional validity of the High Courts which have rights of personal the procedural liberty while article the substantive 21 against their deprivation. This view of the correlation between the two articles has found favour with some of the Judges had occasion to consider impugned Act. to be observed that article 19 confers therein specified only on the citizens of India, while article 21 extends the protection of life to all persons-citizens and non and personal liberty citizens alike. Thus, the two articles do not operate in and this is one reason for rejecting a conterminous field, if article 21 is to be the correlation suggested. Again, as prnviding only procedural safeguards, understood · where liberty of right to personal in the Constitution ? Are they non-citizens to be found denied such have no right of personal to them ? procedural safeguard in article 21 exended And where is that most fundamental right of all, the provided for in the Constitution ? The right to life, the Fifth and Fourceenth Amendments of the Consti tution of the United States, presents an example of the and substantive rights in the same fusion of procedural the most funda though provision. The right to live, is al so one of the most difficult to define mental of all, and its protection generally takes the form of a decla that no per~:on shall be deprived of it save by ration "Process" due process of law or by authority of law. in this context connotes both the act to take away a man's life or personal and essential liberty. And the first step in a procedure established by law for such depri vation must be a law made by a competent legislature 8-3 S .C. India/SP "procedure" the manner of proceeding like its American prototype is that article 21, liberty, why altogether ? If 1950 A. K. Gopalan v. The State Patmefali Sastri J. 1% SUPREME COURT REPORTS [1950] authorising such deprivation. This brings me to the consideration of articles 21 and 22 to which was de voted the greater part of the debate at the Bar. These articles run as follows : "21. No person shall be deprived of his life or to procedure establi personal liberty except according shed by law. (1) No person who is arrested in custody without being informed, shall be de 22. tained as soon as may be of the grounds for such arrest. nor shall he be and to be defended by, denied the right a legal practitioner of his choice. to consult, '(2) Every person who is arrested and detained custody shall be produced before the nearest magistrate of such arrest within a period of twenty-four hours from the excluding place of arrest to the Court of the magistrate and no such person shall be detained said period without the authority of a magistrate. the time necessary for· the journey in custody beyond (3) Nothing in clauses (1) and (2) shall apply- ( a) to any person who for the time bemg is an enemy alien ; or (b) to any person who is arrested or detained law providing for preventive detention. under any ( 4) No shall authorise period than three months unless- law providing for preventive detention the detention of a person for a longer ( a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expira tion of the said period of three months there is in its opinion sufficient cause for such detention : Provided that nothing ~n this the detention of any - person beyond authorise maximum period prescribed Parliament under sub-clause (b) of clause (7) ; or by any sub-Clause law made by (b) such person . is detained in accordance with the provisions of any law made by Parliament under sub clauses (a) and (b) of clause (7). S.C.R. SUPREME COURT REPORTS 197 (5) When any person is detained in pursuance of -under any law providing for preventive and shall the earliest opportunity of making a an order made detention, soon as may be, grounds on which afford him representation against the order. the authority making communicate the order shall, to such person the order has been made ( 6) Nothing in clause (5) shall require the authority to in that clause such authoritv considers to be making any such order as is referred to disclose facts which against the public interest to disclose. . 1950 A. K Gopalti.n v. TM State Patanjali Sastri J. law prescribe- (7) Parliament may by ( a) the circumstances under which, and the a person may be detained than three months under any law for preventive detention without obtaining in accordance with or classes of cases for a period providing the opinion of an. Advisory Board the provisions of sub-clause (a) of clause ( 4) : in which, longer (b) t.he maximum period any person may in any class or classes of cases be detained under any law providing for 'preventive detention ; and for which (c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4)." "law" famous prncess law-artd Mr. Nambiar urged law" meant "due phrase that the expression the word article 21 should be understood, not in the sense of an enactment but as signifying the immutable and univer justice-the jus naturale of sal principles · of natural the civil "procedure thing as established law" the American Constitution aspect. Numerous American decisions were cited to show that the basic requirements of (1) an the phrase objective and a!certainable which it is possible (2) notice to the party of the accusation against him, (3) a reasonable opportu nitv for him to establish his innocence, and ( 4) an impartial tribunal capable of giving an unbiased judg that these reauirements ment. Mr. Nambiar conceded might have to be modified or adapted to suit the nature the object it had in the particular proceeding and to conform, of conduct procedural standard implied in its 1950 d. K. Gopalan v. TJt, Stat• P atatliali S4"'i ]. 198 SUPREME COURT REPORTS [1950] insisted liberty, as for instance, their relaxation or dispensation law governing personal to any express provision in a case of preventive detention, view, previous notice, which might result in the person con cerned going underground might be dispensed with. that these requirements, being Learned counsel the very core of the principles of natural justice which transcended all State-made laws, must be substantially complied with by any the process of subject, of life or deprivation of course, the Constitution sanctioning case or class of cases. He also appealed to the Pream the Constitution as the guiding star in its inter ble of pretation that, in view of democratic Constitution which the people of India have purported to give themselves guaranteeing to the citi justiciable, zens certain fundamental rights which are the provisions of Part III must be construed as being paramount the so called fundamental right liberty would have no protection against legislative action, and article 13(2) would be rendered nugatory. as otherwise to life and personal to the legislative will, to support his thesis adopted the democratic the executive and as a means to the There can be no doubt that the people of in exercise of their sovereign will as expressed their respective powers to themselves certain India have, ideal which the Preamble, the dignity of the individual and assures to the citizen other cherished human values expression of his personality, and in evolution and delegating to the legislature, in -the Constitution, judiciary reserved s<> thev have been retained called, I apprehend, because the delegated by the people and made paramount powers, as in the American model. Madison (who played a prominent part in framing the First Amendment of pointing out the distinc the American Constitution) between the American tion, "the great and ~sscn­ and the British ways of securing "Here they arc to prerogative but by secured not by laws paramount Constitutions paramount · to Virginia Resolutions, quoted in Near v. Minnesota ( 1 ). due to historical reasons, the people," observed fundamental rights, laws" : Report rights of (') 283 U.S. 697. 1950 A. K. Goj>lllt111 v. The Stat• Pala, Yali Sastri J. S.C.R. SUPREME COURT REPORTS 199 translated and I agree into positive This has been of the Indian Constitution, truing these provisions the Preamble as well as the constitutional of a Declaration of Fundamental Rights borne in mind. This, however, language of square with regard of enactment, less than from the natural meaning of the words used. in Part III that in cons the high purpose and spirit of significance should be is not to say that the the provisions should be stretched in dis this or that rule of interpretation of any the cardinal constitutional or other, intendment should be collected primarily constitutional theory that its spirit, justice. Giving full effect to the term "law" these principles, however, I in article 21 am unable to agree means the immutable and universal principles of natu "Procedure established by law" must ·be to refer to a procedure which has a statutory for no procedure is known or can be said to origin, have been established by such vague and uncertain concepts and universal principles of natural justice." in article 21 means "positive or State-made law." In my opinion, "law" "the immutable Judges have adopted No doubt, the American the due interpretation of other connotation in their the Fifth and Fourteenth Amend process clause ments of the American Con.stitution ("Nor shall any person be deprived of life. liberty or property without due process of law"). But that clause has an evolu tionary history behind it. The phrase has been traced back to 28 Edw. III Ch. 3, and Coke in his Institutes identified the term with the expression "the law of the land" in the great Charter of John. Even in England now firmly established. Coke understood these terms as implying an .inherent limitation on all legislation, and ruled in Dr. Bonham's Case (1) that "the common law will control Acts of Parliament and sometimes to be utterly void when they are against adjudge them this doctrine common was later discarded in England as being "a warning legislative omnipotence of Parliament reason." Though right and ( 1) 8 Rep. 118 (a). 1950 A. K. Gopalan v. The Staie Patanja{i Sastri ]. 200 SUPREME COURT REPORTS [1950] to be "property" to resist the "liberty" and the supremacy of the "due process of law" occurring for establishing [see Calder v. Bull ( ') ]. [per Willes rather than an authority followed" ) ] it gained }. in Lee v. Dude and Torrington Ry. (1 at first as a weapon ground in America, in the hands laws of of the Revolutionists with which Parliament, and later as an instrument in the hands of the Judges In the latter half of the 19th century, this doctrine of a transcendental common law or natural justice was absorbed in the connotation i1_1 af·the phrase Fifth and Fourteenth Amendments; By laying' em interpreting "law" as the phasis on the word "due'', justice and giving fundamental principles of natural the words their widest the Judges have made the due process clause meaning, into a general restriction on all legislative power. And when that power was threatened with prostration by the excesses of due process, the equally vague and i.r:., the power expansive of Government to regulate private in public rights interest, was evolved t-0 counteract such excesses. All this has been criticised introducing great uncer tainty in tH,e state of the law that country, for no one could he sure how due process of law would affect a particular enactment. A century after the phrase had been interpretation one learned Judge observed in 1877 it was incapable of precise definition and that its intent and application could only be ascertained by "the gradual process of [Davidson v. New Orleans (•)] inclusion and exclusion" and, as recently as 1948, another Judge referred difficulty of "giving definiteness to the vague contours of due judgment upon State action out of that gossamer concept:" Haley v·. State of Ohio ( '). doctrine of "police power", subject of judicial process" and "of spinning It is not a matter for surprise, Drafting Committee appointed by Assembly of recommended India the expression • "except according the Constituent substitution to procedure therefore, (') t'l (1871) L.R. 6 C.P. 576. 582. (1798) 3 Dalhas ·as. ('1 96 U.S. 97. (') 332 U.S.596. 1950 A. K. Gopl'11111 v. TlllStaU Patanjali So.slri J. S.C.R. SUPREME COURT REPORTS 201 rights) by law" rights to which is more specific." from the Japanese Con established "without due process stitution, 1946, for the words in the original draft, "as law" which occurred In their Report former Committee added "attempted they have (fundamental limitations they must necessarily be subject as definite as possible, since the Courts may have to pronounce upon them" (para. 5). In the face of all these considerations, it is difficult to accept the sugges in article 21 stands for the jus naturale tion tha,t and that the phrase "according to pro of the civil law, cedure established by law" is equivalent to due process of law in its procedural aspect, effect of i~troducing into our Constitution those "subtle and elusive criteria" was the deliberate purpose of the framers of our Con stitution to avoid. in that phrase which for that would have implied "law" and if Parliament or On the other hand, the interpretation · suggested intervener by the Attorney-General on behalf of the that the expression means nothing more than procedure. prescribed by any law made by a competent legislature is hardly more acceptable. "Established" according to him, means prescribed, Legislature of a State enacted a procedure, however, the accused person novel and ineffective for affording a fair opportunity of defending himself, it would be sufficient for depriving a person of his life or personal liberty. He submitted that the Constituent Assembly definitely rejected supremacy the phrase "due process of law" and when it rejected provided only "some procedure" was laid down. The Indian English preferred Constitution doctrine of Parliamentary supremacy, phrase law" must be construed in "procedure established by accordance with the English view of due process of law, any procedure which Parliament ma:y . choose to the speeches made by several members of attention the Assembly on the floor of the House for explaining, speech the legislative will unchallengeable, the "historical background." A the doctrine of judicial to prescribe. Learned that is to say, counsel having _ as he put it, 1950 A. IC. Gopalan v. Tlw Stat• Patan; ali Sastri J. 202 SUPREME COURT REPORTS (1950] intent of of the subjective indicative but it could not best be speaker, processes I ying behind the bill. Nor minds of all those Court could only search for legislature primarily ment, statutory committees, preambles etc. portance, the members of the Constituent Assembly of the debate on article 15 (now article 21). the course of the debate on a bill could at .reflect the inarticulate mental the majority vote which carried it reasonable to assume legislators were in accord. The the objective intent of the in the enact in the words used aided by such historical material as reports of I attach no im the speeches made by some of the course therefore, It law of legislation. is that The main difficulty the Constitution against is not correct I feel in accepting struction suggested by the Attorney-General the very completely stultifies article 13(2) and, indeed, It is of the essence conception of a fundamental right. is protected by the funda of that conception infringement mental to say by ordinary the doctrine of Parlia the Constitution has adopted So far, at any rate, as Part III mentary supremacy. the Constitution, as I have already obser is concerned, has accepted the American view of fundamental ved, rights. The provisions of articles 13 and 32 make this it then have been the inten reasonably clear. Could the Constitution tion of the framers of that the most life and personal rights fundamental important liberty should be at the mercy of legislative majorities as, mean merely "prescribed?". In other words, as an American Judge said constitutional prohibition in article 13 (2) · amount to no more than "You shall not take away life or personal take it' away," which is freedom unless you choose to mere verbiage. immune from legislative conferred no right article 21 there would be no question of contravening invasion, article 13 (2). The argument seems, beg the question, for it assumes that the article affords no such that article 21 affords legislative action in no protection against competent they would be if "established" were It is no sound answer in a similar context, immunity. It is said to my mind, to say that, in effect, ,, · S.C.R. SUPREME COURT REPORTS 203 1950 A. IC Gopalan , .. Tiu Stau Patanjali Saslri ]. for there criminal law, fQr judicial review, rights enuinerated is no the field of substantive on the ground of reason provision of such laws, as in the case of ableness or otherwise, in article 19. Even assuming learned Attorney it to be so the construction of the General would the effect of rendering wholly ineffective and illusory even the procedural protection which the article was undoubtedly designed to afford. It was argued in article 31 which provides .. law" that no person shall be deprived of his property ''save by authority of law" must mean enacted law and that if a person's prqperty could be taken away by legis his right to life and personal liberty need lative action, not enjoy any greater immunity. The misleading. Clause (2) of article 31 provides for pay right is justiciable ment of compenSiation and in clauses ( 4) and except (6) which are of a transitory character· The constitu tional safeguard of the said to property in not so illusory or ineffective as article is, clause (1) by itself might make it appear, even assum ing that "law" there means ordinary legislation. the two cases mentioned . the right therefore, analogy Much reliance was placed on the Irish case The King v. The Military Governor of Hare Park Camp ( 1 ) the Court held that the term "law" in article 6 of the Irish Constitution of 1922 which provides that· "the liberty of the person is inviolable and no person in accordance liberty except deprived of his shall be with law" meant a law enacted by the Parliament, the Public Safety Act of 1924 did and that therefore not contravene the Constitution. The Court followed The King v. Halliday (2) where the House of Lords by that the Defence of the Realm. (Con a majority held solidation) Act, 1914, framed theretinder did not infringe upon the Habeas Corpus Acts and. the~Magna Carta "for the simple reason that the Act and the Orders become part of the law of the as Lord Dunedin land.'; But pointed out "the British Constitution has entrusted two Houses of Parliament subject to the assent that was because, the Regulations (') [1924) 2 I.R; 104. ( 1) (1917) A.C. 260. 1950 A. K. Gopalan v. The Stl.tt PatanjaJi SastriJ. 204 SUPREME COURT REPORTS [1950] an absolute power untrammelled by any of the King, instrument obedience to which may be com written pelled by Irish judicial body," whereas the legislative powers of the Constitution Irish Parliament by mental rights and by providing for a judicial review the Constitution (article 65). This radical distinction was overlooked. a formal declaration of in contravention legislation restricted (1 ), The Attorney-General in monarchical Britain the executive could only act in the suggestion. As pointed out further submitted that, even on his interpretation, article 21 would be a protection against violation of the rights by the executive and by individuals, and that would be sufficient justification for the article ranking as a fundamental safeguard. There is no substance Eshugbayi Eleko v. Government of Nigeria (Officer Administering) pursuance of the powers given by law and no consti tutional protection against such action is really needed. Even struggle between law has long since ended in favour of prerogative and latter. "In accordance with British jurisprudence" in the case cited above, "no member said Lord Atkin of the executive can interfere with liberty or except on the condition subject property of a British the legality of his action before a that he can support Court of justice." As for protection against indivi duals, it is a misconception to think that constitutional safeguards are directed against individuals. They are its organs. as a rule directed against the State and Protection against violation of the rights by individuals must be sought in the ordinary law. therefore that article 21 was difficult designed to afford protection on! y against infringements by the executive or individuals. On the other hand, insertion of a declaration of .Fundamental Rights in coupled with an the Constitution, the forefront of express prohibition against legislative interference with these rights (article 13) and the provision of a consti tutional sanction for the enforcement of such prohibition in my by means of a judicial review the suggestion (article 32) to accept It is is, (') [1931] A.O. 662. 11150 A. K. Gopa/an v. The State Patanja/i Sastri J. S.C.R. SUPREME COURT REPORTS 205 opm1on, rights are laws. a clear and emphatic to be paramount to ordinary State-made indication ) as implies is to say, referring degree of "the ordinary the matter my most careful I have come two possible solutions After giving to the conclusion anxious consideration, there are only In the problem. first place, a satisfactory via media rwo extreme positions contended for on between the word "esta by stressing either. side may be found blislied" which firmness, permanence and general acceptance, while it does not exclude origination by statute. "Procedure established by law" may well be taken to mean what the Privy in King Emperor v. Benoari Lal Council referred and well-established Sharma ( 1 those settled usages criminal procedure," and normal modes of . proceeding sanctioned by Criminal Procedure Code which is the general law of in the country. criminal procedure Their Lordships trial by the distinction between special Courts provided by an Ordinance of the Gover nor-General and trial by ordinary Courts under It can be no objection . to Criminal Procedure Code. and uni this view that the Code prescribes no single types of cases but provides form procedure for all varying procedures for different of cases. Certain basic principles emerge as the constant factors common to all those procedures, and · they form the core of the procedure established by law. I realise that the life and liberty of the individual even on this view, interference, will not be immune from legislative the procedure so a competent legislature may change the protection if so minded. But, indicated, it must not be a change in the view I have ad hoc for any special purpose or occasion, but a change in the general law of procedure embodied in the Code. So long as such a change is not effected. The protection under article 21 would be available. The different measures of constitutional protection which to life and personal liberty will the fundamental right enjoy under article 21 as interpreted in the three ways to whittle down classes (1) [1945] F.C.R. 161, 175. 1950 A. K. Copa/an v. The Stale Patmiia/i Sastri ]. 206 SUPREME COURT REPORTS [1950] to the learned counsel to the petitioner's justice embodied as being contrary the construction contended referred to above will perhaps be best illustrated by a concrete example. Suppose that article 22 ( 1) was not there and Parliament passed an Act, as a temporary taking away in certain cases the right of an measure, to be defended by a legal practitioner. accused person the Act According immutable would be void 21, principles of natural whereas on the Act would be perfectly valid, Attorney-General, the Act indicated above, while, would be bad, but if the denial of such right of defence is made a normal feature of law of criminal procedure by abrogating section 340 ( 1) of to protect article 21 would be powerless the Code, against ·legislative action. But democratic though theoretically possible, normal law of procedure, would be difficult and that practical the protection difficulty will be the measure afforded by article 21. republic such a drastic in article for by to bring about, in a the ordinary on the view change I have provided It was provisions the safeguards the Criminal if. article this overlapping would 21 were intended clauses (1) and (2) of article 22 are more or less covered Procedure Code, avoided construction as indicated above. The argument over that, while the provisions of the Code would be liable to alteration by competent legislative action, safeguards in clauses 22, being could not be similarly dealt with and constitutional, explains why those safeguards find a place in the Constitution. ( 1) and (2) of article to bear sufficiently alternative to the construction I have The only indicated above, is to if a constitutional be avoided, would be to interpret the reference to "law" implying a constitutional amendment pro tanto, for it is only a law enacted by the procedure provided such amendment (article 368) that could modify or contravening override a article 13 (2). right without transgression fundamental 1950· A. K. Gopalan v. Tiu State PaJQl/jali Sastri J. S.C.R. SUPREME COURT REPORTS 207 in respect intention of I am unable such .as it has been found to preventive detention at all, the framers of the application of article 21 The question next arises as to how far the protec tion under article 21, to be, is available to persons under. preventive detention. The learned Attorney-General contended that article 21 did not apply as article 22 to (7) formed a complete code of constitu clauses . ( 4) tional safeguards of preventive detention provided only these provisions are conformed to, and, the validity of any law relating to preventive detention could not be challenged. to agree with this view. The language of article 21 is perfectly general and covers deprivation of personal liberty or incarcer ation, both for punitive and preventive reasons. If it was the Constitution really the to exclude to cases of pre ventive detention, nothing would have been easier than to add a reference to article 21 in clause (3) of article 22 which provides that clauses (1) and (2) of the latter shall not apply to any person who is arrested or detai ned under any law providing for preventive detention. Nor is there anything in the language of clauses (7) of article 22 leading necessarily to the inference article 21 dentention. These clauses deal only with certain aspects of preven tive detention such as the duration of such detention, constitution of an advisory board for reviewing order of detention in certain cases, the communication of the grounds of detention to the person detained and the provision of an opportunity to him of making a representation against the order. It cannot be said that form an exhaustive code dealing with these provisions all matters detention and cover the entire ·area of protection which article 21, preted above, would afford opinion to preventive detention as well. to the person detained. that article 21 is relating to preventive I am, . therefore, I have indicated to preventive inapplicable applicable the sense (4) I will now proceed to examme whether impugned Act or any of its provisions under which the petitioner has been ordered to be detained, takes away any of ·the rights conferred by articles 2~ and 22 thei protection afforded infringes thereby. The 1950 A. K. Gopalan v. The State Patanjali Sastri ]. 208 SUPREME COURT REPORTS [1950] This status. in mind in clauses to be borne unnecessarily right and so its preamble sinister-looking legitimate exercise (2). No doubt clause that preventive detention to (7) of article 22 should, imperil It is in this spirit some amends for the deprivation so as not to diminish incompatible with is doubtless designed In the first place, (3) of article 22 exclurles in this connec outstanding fact has been given a feature. constitutional so strangely out of place in a democratic constitution. sacrosanctity which invests personal liberty with of a fundamental promises of prevent an abuse of freedom by anti-social and sub the national versive elements which might welfare of the infant Republic. clauses (3) in my opinion, be construed and harmonised as far as possible with article 21 protection afforded personal liberty. as already stated, clause a person detained under any law providing for preventive detention from the benefit of the safeguards provided (1) (5) of the same article of these safeguards in that it provides the communication to the person detained the grounds on which the order has been made and for an opportunity being afforded the order, to him of making a representation against but the important right to consult and to be defended by a legal practitioner of his choice is gone. Similarly, in custody beyond a the prohibition against detention period of of a magistrate has also been taken away It was not disputed preventive detention. that, to the extent the express provisions of clauses to which ( 4) to (7) authorised the abrogation or abridgement of the safeguards providec'.l under other articles or sub form, stitution of other safeguards those express essentials of the due process on which Mr. Nambiar (which also form part of the ordinary and insisted, the Criminal Procedure established procedure under they are immutable Code, requirements and beyond to establish of notice innocence must, to have be taken legislative change) an opportunity as already stated, in a modified rule. Of though I cannot agree that 24 hours without provisions must authority in cases S.C.R. SUPREME COURT REPORTS 209 ( 4) (5) of tribunal implicit essential solely with requirements, innocent. A is an impartial law in the sense tribunal which to in clause intended to deal to conform, in cases of preventive detention, article 22. As been provided for by clause for an ascertainable standard of conduct to which article 22 makes no specific is possible provision such a safeguard can be said to be explained procedure established by in preventive detention cases, it could no doubt presently be invoked. This point will be considered impugned Act. The in dealing with provisions of the the most capable of essential of all, verdict. This, Mr. Nambiar giving an unbiassed submitted, was left unprovided for by article 22, (a) being, advisory board referred according to him, that is to say, question of duration of -the detention, there was sufficient cause for detain whether or not the person concerned for more than three months, the person detained and not with judging whether give an unbiassed judgment on that issue was an essential part <>f the protection afforded by article 21 in whichever way it may be interpreted, and reference was . made the preventive provisions of the in this connection Criminal Procedure Code (Ch. VIII). The impugned contra Act, not having provided for such a tribunal It will be vened article 21 and was -therefore void. is based on the seen that major premise that the advisory· board mentioned intended clause (4) (a) of article 22 is not a tribunal to deal with the issue of Is that view correct ? It was argued the words "sufficient cause for such detention" in sub-clause (a) of clause ( 4) had reference three months men in clause · (4) and that this view was supported tioned language of sub-clause (a) of clause (7) whereby by the to prescribe Parliament is authorised circum stances under which and the class or classe, of cases in which a person may be detained for a period. longer the opinion of an advisory s1:1bmitted, board. three months ·without In other words; the whole of this argument justification of detention. the detention beyond learned counsel 1950 A. K. Gopalan v. The State Patanjali Sastri ]. • I 1950 A. K. Gopalan v. The Stale · Patanjali Sastri J. 210 SUPREME COURT REPORTS (1950] to accept this view. unable those clauses provided for the Department of Defence, the words "such detention" the combined effect of clauses ( 4) and ( 7) was that no for a period person could be detained the opinion of an advisory months without obtaining that there was sufficient cause for detention for the longer period, except in cases where Parliament passed a law authorising detention for such period even without the opinion of an advisory board. Thus, these two clauses were concerned solely with the duration and so was the advisory of the preventive detention, board which that purpose. I am I am inclined to in sub-clause (a) refer back to the preventive detention mentioned in clause ( 4) and not to detenuon for a longer period than three months. An advisory board, composed as it has to be of Judges or lawyers, would hardly be in a posi tion to judge how long a person under preventive de say for reasons connected with defence, should tention, be detained. That must be a matter for the executive to determine, authorities, as they alone are responsible the defence of the country and have the necessary data for taking a deci the point. All that an advisory board can sion on as a safeguard against the reasonably be asked misuse of judge whether the detention is justified and not arbitrary or mala fide. The fact its report that the advisory board the expiry of three months and so could submit before it only a day or two earlier to an inference that the board was solely concerned the issue whether or not the detention should such tribu that period. Before any continue beyond nal could send in its report a reasonable time must as the grounds have to be communicated to the elapse, person detained, the detaining authority which has got to be placed be through the appropriate departmental channel. Each of these steps may, in the course of and three months' official routine, period might well have been thought a reasonable the board could be required to to allow before period submit its report. to do, the power, is to ·he has to make his r<;presentation cannot legitimately some time, is required the board to make 1950 A. K. Gojialan v. The Slat• Patanjali Sa.riri ]. S.C.R. SUPREME COURT REPORTS 211 reason to the sole that the words "such deten Assuming, however, the period of detention, there is tion'.'. had reference to for confining the enquiry by the no apparent issue of duration beyond advisory board to the question as to three months without reference Indeed, it whether the detention was justified or not. to conceive how a tribunal could fairly judge is difficult for more whether a person should be detained the same three months without at time considering there was sufficient cause for the detention at whether all. I am of opinion that the advisory board referred to in clause ( 4) is the machinery devised by the Consti reviewing orders for preventive detention in tution for the representations certain cases on a consideration of made by the view on which Parliament has proceeded impugned Act as will be seen from sections 9 and 10 It follows thereof, and I think it is the correct view. the petitioner cannot claim to have his case judged tribunal by virtue of article 21 by any other or otherwise. the persons detained. This in enacting impartial Mr. Nambiar, however, objected that, on this view, a law could authorise preventive detention for three months without providing for review by any tribunal, and for even long~r periods if Parliament passed an Act such as is contemplated in sub-clause (a) of clause (7). That may be so, but, however deplorable such a result may be from the person if, on a proper detained, construction of clauses ( 4) and (7), the Constitution is to afford no higher protection for the personal liberty of the individual. there could be no remedy the point of view of Turning next to the provisions. of the . petitioner before us. Act, whose constitutional validity was challenged, will be necessary to consider which affect place, it w::i~ contended the Central Gov&nment or the State Government detain any person acting 9-3 S. C. India/58 impugned only those provisions In that section 3, which empowers if it is "satisfied" that it is neces to preventing him from (among other in any manner prejudicial to do so with a view 1950 A. K. Gopa/an v, Tire State Patmija/i Sastri J. 212 SUPREME COURT REPORTS [1950] to show it will be possible standard of conduct to conform, but leaves the due process of law. things) the security of the State or the maintenance of cannot be said to comply with the proce public order, the section prescribes no dure established by law, objective and ascertainable it to the will and pleasure of the Government concerned make an order of detention. .The argument proceeds that the procedure established by on the assumption law is equivalent I have already endeavoured that it is not. Apart the argument overlooks that for the purposes from this, if not of preventive detention it would be difficult, rules of conduct impossible to such conform failure detention. As the very term implies, the detention in is effected with a view to prevent the person such cases from acting prejudicially to certain objects concerned the legislation providing for such detention· has in view. Nor would it be practicable to indicate m enumerate in advanc~ · what acts or classes of acts would be regarded as prejudicial.· The responsibility · for the security of the State and the maintenance of public order etc. having been laid on the executive to that Govern Government ·it must naturally be left the power of preventive detention whenever they think to which should lead down objective to exercise the occasion demands it. 12 came in for a good deal of criticism. the duration of That section, which governs petitioner's detention reads as follows :- Section ' "Duration of detention cases.-Any in· certain person detained in any of th.! following classes of cases or under any of the following circumstances may be detained without obtaining the opinion of an Advisory three months, but not Board for a period longer than exceeding orie year the date of his detention, namely, where such person has been detained with a 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 securit}r of a State or the maintenance of public order. l S.C.R. SUPREME COURT REPORTS 213 to which (2) The case of every person detained under a detention order the provisions of sub-section ( 1) apply shall, within a period of six months from the be reviewed where the order was date of his detention, made by the Central Government or a State Govern and where the order was ment, (2) of made by any officer specified to which such section 3, by officer a person who is, or has been, or is qualified to be appointed as a Judge of a High Court nominated in that behalf by the , Central Government or the State Government, as the the State Government by such Government, in consultation with is subordinate, in sub-section case may be." 1950 A. K. Gopalan v. Tiu Stall PatanJaJi Sastri J. It was a period It was urged for ordinary three months I and Entry 3 of List to prescribe this did not comply with the (7) of article. 22 as it merely requirements of clause the "matters" or legislative topics mentioned repeated III in Entry 9 of List of the Seventh Schedule the Constitution. What do under clause (7) of article Parliament has "the circumstances under which 22 in which" classes longer detained a person may the opinion ·without obtaining clause of an advisory board. !ases of preventive ( 4) (a) provided not continue detention where such detention could the opinion of beyond three months without obtaining an advisory board, whereas clause (a) made provision for special cases of detention for more than three months without the safeguard of the advisory for aggravated forms of prejudicial board':; opinion, In other words, clause ( 4) (a) laid down the conduct. It was rule and clause (7) (a) enacted an exception. indicate therefore necessary to the the more aggra detaining authority and mere mention authorised under the legislative to make laws in respect of preventive detention could hardly afford should not be any guidance to such authority and require regarded as sufficient is a two-fold fallacy in ments of clause in respect of which Parliament for its guidance forms of prejudicial activity, compliance with for Parliament the subjects (7). There (7) 1950 A.. K. Gopcla• •• Tlw S'°" Patatrjali SasJri "]. .. 214 SUPREME COURT REPORTS [1950] In place, longer a prescribed period this argument. the suggested correlation between clause (4) (a) and clause (7) (a) as is, as a matter of enacting a rule and an exception construction, without foundation. Reading clauses ( 4) it is reasonably clear that preventiv.t and (7) together in two cases : ( 1) where detention could subject the opinion of an advisory board is obtained, however (a) of [sub-clause clause ( 4)] and (2) where a person is detained under a law made by Parliament under sub-clauses (a) and (b) [sub-clause (b) of clause (4)]. These are of clause (7) two distinct It significant is not that sub-clause worded as a proviso or an exception to sub-clause (a) the same clause as it would have been if it was to correlate intended clause exception respectively is· opposed both to the language and the structure of those clauses. to operate as such. The attempt (4) (a) and clause (7) provisions. ( 4) (a) as .a rule and (b) of clause independent [per Secondly, the argume, nt loses sight of that clause (7) deals with preventive detention which is a purely precautionary measure which "must neces to some extent, on suspicion sarily proceed in all cases, or anticipation Lord as .distinct from proof" Atkinson in Re:r v. Halliday (' ']. The remarks I have already made with reference to the absence of any objective rules of conduct in section 3 of the impugned Act apply also to this criticism of section 12. It would be difficult, if not impracticable, to mention the v;irious circumstances, or to enumerate the various classes of cases exhaustively in which a person should be detained than three months for preventive purposes, for more except in broad outline. Suppose a person belongs to an organization pledged subversive activity as its polil:;y. Beyond his membership of the the person might have done nothing until he released he might was arrest; ed and detained. But if indulge in anything from the mildest form of _prejudi cial activity, like sticking an objectionable handbill on to the most outrageous acts of sabotage. a hoarding, ('} L. R. 1917 A. C. 260, 275. to violent

19.~0 A. K. Gopa/1J11 v. Till State Pa11J11jali Saslri ]. S.C.R. SUPREME COURT REPORTS 215 the general in other words, is that the person undoubtedly help enumeration of the various enumeration and classification How could the insertion in section 12 of a long series of categories of aggravated forms of prejudicial activities, or the circumstances in which such activities are likely to be indulged in, be of any assistance to the detaining authority in determin ing whether the person concerned should be detained three months or for a longer period ? All that would be necessary and sufficient for him to know coming to a decision on the point a member of such an organisation and will probably to the secu engage in subversive activities prejudicial the maintenance of public order rity of the State or he belongs to class (b) in section or, 12. While in detail in grading punishment for they would not be of much use in offences committed, the duration of preventive detention. Sufficient fixing g!lidance in such cases could be given by broadly indi cating nature of the prejudicial activity which a person is likely to indulge in, and that in effect is what Parliament has done in -section 12. Reference was made in this connection to Rule 34 of the Defence of India Rules framed under the Defence of India Act, 1939, where "prejudicial act" is defined by enumer it was also for the purpose of prohibiting ation. But such acts offences (sub-rule 5). And even there, the definition had to end in a residuary clause sweeping in acts likely "to the de the efficient prosecution of the war, prejudice fence of British India or the public safety or interest." In Lists Constitution six topics are mentioned which Parliament could make preventive detention, and section 12 of the impugned five of· them as being the classes of cases Act mentions this could not be authorised. regarded as a broad classification of cases or a broad description of circumstances where Parliament considers longer detention to be justifiable. A class can well be designated with reference to the end which one desires to as classes (a) to secure, and I and III of the Seventh Schedule _to in respect laws providing the matters referred (I)] and making [Rule 38 sub-rule the circumstances longer detention in which see why I fail 1950 .4. Ir. Gop. Ian v. TJ..Sta11 Patmijali Sastri ]. 216 SUPREME COURT REPORTS [1950] said, both, is no showed, it was obtaining objection. that Parliament did not, and (b) of sub-section the objects which Parliament desired the section, it seems enacting cation with contravene article 22 (7)· It was argued ( 1) of section 12 being clearly secure by to me that the classifi reference to such general aims does not substance (7) the circumstances in enact ing section 12, perform its duty of prescribing both the class or classes of cases the circumstances and where detention without advisory board's opinion could be for a period longer than three months. The use of the. disjunctive "or" between the words "class or classes word "circumstances" and of cases" Parliament that it need not prescribe both. proceeded on the view in contravention of article 22 (7) which This was those words. conjunctive. "and" between As There it means that Parliament may I read article 22 the classes prescribe either 12 in enacting section Parliament evidently the matters mentioned in clause (a) and (b) of sub-section ( 1) as sufficiently indicative both of the under which and the classes in which a person could be detained for the longer period. To say, persons who are defence of to "prescribe a class of persons months the circumstances under which" a in which and persnn may be detained for the longer period. In other be such as to words, - the classification amount to a sufficient description of the circumstances for purposes of clause (7). The circumstances which would justify precautionary detention beyond months without recourse to an advisory board must be for anything approaching an exhaus far too numerous tive enumeration, and it can, in my judgment, be no objection to the validity of section 12 that no circums apart from the matters 11Cferred tances arc mentioned to in clauses (a) and (b) of sub-section (1). It would the Court to strike down a ind~ed be singular for a parliamentary enactment because India may be detained beyond to act prejudicially regarded circumstances for instance, its opinion is at once itself may likely - 1950 ..t. K. Gopa/41.• v. TluSUU P""'11jali Sa.dri ]. S.C.R. SUPREME COURT REPORTS 217 certain classification therein made mention of certain circumstances adequate. is imperfect or is unspecific or in in effect to make the grounds this provision nullifies representation without to have to him and Lastly, Mr. Nambiar turned his attack on section 14 which prohibits the disclosure of the grounds of detention communicated to the person detained and of the representation made by him against the order of the Court from allowing such detention, and debars disclosure to be made except for purposes of a prosecu tion punishable under sub-section (2) which makes it an offence for any person to disclose or publish such previous grounds or authorisation of the Central Government or the State Government as the case may be. The petitioner com plains the rights conferred upon him under clause (5) of article 22 which of his detention entitles him communicated a representation If the grounds arc too vague to against the order. any such representation, or if they enable him to make irrelevant to the object of his detention, are altogether is not bona or are such as to show fide, he has the further right 6f moving this Couri and is also guaranteed to him under article 32. this remedy These . rights and remedies, the petitioner submits, can not be effectively exercised, if he is prevented on pain of prosecution, the grounds to the Court. There in this contention. All that ·the Attorney-General say in an$Wer was that if the other provisions of the Act were held to be' valid, to examine the sufficiency of the grounds on which ·the executive authority · was that detention was neces as laid down in Machindar Sliivap Mahar v. The sary, King ( 1 and so the petitioner could not complain of ), any infringement of his rights by reason of section 14 which enacted only a rule of evidence. The argument in the decision referred overlooks to above that it would be open to the Court to examine the grounds of detention in order to. sec whether were relevant the legislature had to the object which it would not be open to the Court from disclosing is great force that it was recognised that his detention "satisfied" (') [1949] F. C.R. 827. 1950 A. K. Gopalan v. TM State 218 SUPREME COURT REPORTS [1950] impossible by section 14, such as, for instance, the prevention of acts in view, prejudicial to public safety and tranquillity, or were such as to show that the detention was not bona fide. for these purposes is An examination of the grounds the protection afforded by article 22 (5) and article 32 thereby rendered nugatory. It follows that section 14 contra the provisions of article 22 (5) and article 32 in so far as it prohibits the person detained from disclos the grounds of his detention communi ing to the Court to him by the detaining authority or the repre sentation made by him against the order of detention, and prevents them for the the Court from examining it must be held purposes aforesaid, under article 13 (2) is severable. As not affect the rest of the Act which the petitioner did not disclose the grounds of his de tention pending our decision on this point, he will now be free to seek his remedy, if so advised, on the basis of those grounds. to be void. This however, and to that extent Ma/w.jan]. In the result, the application fails and is dismissed. MAHAJAN J.-The people of India having solemnly to constitute India into a Sovereign Democra resolved tic Republic on the 26th day of November 1949 gave to themselves a Constitution which came into force on the 26th January 1950. This is the first case in which this Court has been called upon to determine how far the Constitution has secured personal to the citizens of this country. liberty A. K. Gopalan, the petitioner, who was already the custody of the Superintendent, Central Jail, Cuddalore, was served with an order of detention under section 3 ( l) of the Preventive Detention A~~, It (Act IV of 1950) on the 27th February 1950. 1950 the Governor of Madras was said in the order the order was satisfied with a view in any manner prejudicial to the security of the State and the maintenance of public order. On 20th March 1950 a petition was presented to this Court under article 32 that it was necessary to make to preventing him from acting S.C.R. SUPREME COURT REPORTS 219 the Court and the State of Madras of the Constitution praying for the issue of a writ of habeas corpus directing to set him at produce him before issued. The return liberty. A writ was accordingly to the writ is that the detention is legal under Act IV of 1950, enacted by Parliament. The petitioner contends that the Act abridges and infringes certain provisions of Part III of the Constitution and is thus outside legislature the constitutional and therefore void and unenforceable. limits of 1950 A. K. (' ,paian v. TM State Mahqian]. The matter is one of great importance both be legislative power expressly conferred by the 7th Schedule has been impugned and because the liberty of seriously affected· The · decision of IV of 1950. the rights conferred by Part takes away or abridges III of the Constitution depends on a consideration of two points : the question whether Act the citizen (1) In what measure has the Constitution secured personal liberty to a citizen of India, and !J J (2) has the impugned legislation in any way taken if so, to rights so secured and away or abridged what extent ? Act provides IV of 1950 the State Governments preventive deten it has been enacted as a tion in certain cases and temporary measure. It will cease to have effect on the Central Govern 1st April 1951. It empowers to make an order ment and directing a person to be detained with a view preventing him from acting in any manner prejudi India cial to the defence of with foreign powers or the security of India. It also gives power to detain a person who acts in any manner prejudicial to the security of the main tenance of public order or the maintenance of supplies and services essential to into force on 26th February 1950 and was enacted the powers conferred on Parliament by by virtue of article 22 clause (7) of Part III of the Constitution read with the entries in the 7th Schedule. There can legislative will expressed herein be no doubt that the the State or relations of community. India, It 1950 A. K. Gopalan v. T/reStau Mahajan]. 220 SUPREME COURT REPORTS [1950] unless provisions or it can be shown to violate natural, citizens because social or political legislature has failed would be enforceable unless to keep within limits. It is quite its constitutional obvious that the Court cannot declare a statute uncon the ground of unjust stitutional and void simply on and oppressive rights injustice is prohibited or such rights are guaranteed or protected by the Constitution. It may also be obser ved that an Act cannot be declared void because in the opinion of is opposed to the spirit sup the Constitution but not so expressed in words. It is difficult on any generaf principles to limit the omnipotence of legislative power by judicial interposition except in so far as the express words of a written Constitution give authority. Article 13(2) of our Constitution gives such an authority and to the extent stated therein. It says 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. the Court it to pervade sovereign Preventive detention laws are repugnant to democ they cannot be found to exist ratic constitutions and in any of the democratic countries of the world. It law was in that no such was stated at the Bar force in In England the United States of America. for the first time during the first world war certain regulations framed under the Defence of the Realm Act provided for preventive detention at as a war measure faction of the Home Secretary and they ceased the conclusion effect of hostilities. The same seco~d world war. Similar duced during the period of the war in India under the Defence of India Act. The Government of India Act, 1935, conferred authority on the Central and Provincial Legislatures to enact laws on this subject for the first time and since laws on this subject have taken firm root here and have become a permanent part of the statute book of this country. Curiously enough subject has found place irl the Constitution in the thing happened during regulations were to have 1950 A. K. Gopalan v. TheStak Mahajan]. S.C.R. SUPREME COURT REPORTS 221 chapter on Fundamental Rights. Entry 9 of the Union List and Entry 3 of the Concurrent List of the 7th legislative power of Schedule mention topic. The jurisdiction, Parliament in however, to the provi sions of Part this Part provides :- laws is subject III of the Constitution Article 22 respect of the scope of to. enact " ( 1) No person who is arrested shal~ be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a practitioner of ~is choice. shall be produced before (2) Every person who is arrested and detained in cust9<iy the nearest magistrate within a period of twenty-four hours of such arrest · excluding the jour ney from the place of arrest to the Court of the magi strate and no such person shall be detained in custody beyond the authority of a IQagistrate. the said period without the time necessary for (3) Nothing in clauses (1) and (2) shall apply time being is (a) to any person who for an enemy alien ; or · (b) to any person who is arrested or detained under any law providing for preventive detention. ( 4} . No law · providing for preventive detention shall authorise the detention of a person for a longer period than three months unless- (a) an Advisory Board consisting of persons who are, or have been, or arc qualified to be appointed as, Judges of a High Court has expiration of there is in its opinion -sufficient cause for such deten tion: reported before three months the said period of Provided that nothing authorise the detention of any person beyond maximum period prescribed by any Parliament under sub-clause (b) of clause (7) ; or this sub-clause shall law made by (b) such person is detained in accordance law made by Parliament with the provisions of any under sub-clauses (a) and (b) of clause (7). 1950 A. K. Gopalan v. Th<Statt Mahajan]. 222 SUPREME COURT REPORTS (1950] authority making the order (5) When any person is detained in pursuance of an order made under any law providing for preven tive detention, the shall, as soon as may be, communicate grounds on which the order has been made and shall afford him the earliest opportunity of making a repre sentation against the order. ( 6) Nothing in clause authority making any such order as is referred to that clause to disclose facts which such authority con siders to be against the public interest to disclose. to such person require (5) (7) Parliament may by law prescribe- ( a) the circumstances under which, and the class or classes of ·cases in which, a person may be detained three months under any for a period law providing for preventive detention without obtain ing the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause ( 4) ; longer (b) the maximum period for which any person in any class or classes of cases be detained under any law providing for preventive detention ; and to be followed by an Advisory ( c) the procedure It to be resolved Board in an inquiry under sub-clause (a) of clause (4)." The question of the constitutional validity of statute has to be approached with great impugned caution in view of these provisions of the Constitution and has to be considered with patient attention. The benefit of reasonable doubt has favour of legislative action, though such a presumption is not conclusive. subject of preventive detention became the particular concern of intimate connection the Constitution because of its to protect which with deprivation of personal liberty in the Chapter on certain provisions were introduced the conditions Fundamental Rights and because of Preventive prevailing freedom detention means a complete negation of 1s of movement and liberty incompatible with both those subjects and yet in the same compartment with them in Part III placed of the Constitution. the newly born Republic. personal 1950 A. K. Copa/an v. The Stat1 Mahajan]. S.<:R. SUPREME COURT REPORTS 223 Though recognised it has also their harshness legislative power conferred on the Constitution necessity of laws as to preventive detention provided certain safeguards to mitigate by placing_ fetters on this subject. These are- for detention ( 1) That no for a · period of more the cause of the detention is investigated sufficiency by an advisory board within the said period of three months. This provision limits legislative power in the matter of duration of the period of detention. A law of preventive detention would be void it permits detention for a longer period than three months with out the intervention of an advisory board. three months unless can provide (2) That a State law cannot authorize detention beyond the maximum period prescribed by Parliament it in clause (7). This is a under the powers given legislative limitation on State legislature. law authorizing They cannot make a preventive detention for a longer period than that fixed by Parliament. power of (3) That Parliament also cannot make a authorizing detention for a period beyond three months without the intervention of an advisory board unless the law conforms to the conditions laid down in clause (7) of article 22. Provision also has been made to enable Parliament to make to be is a safeguard followed by advisory boards. This against any arbitrary that may otherwise form of procedure laws. for procedure find place in State Apart from these enabling and disabling provisions certain procedural rights have been expressly safeguar (5) of article 22. A person detained ded by clause law of preventive. detention has a right to under a obtain information as to the grounds of his detention and has also the right to make a representation protest il}g against an order of preventive detention. This right has been guaranteed independently of the dura tion of the period of detention and irrespective of the . existence or non-existence of an advisory board. No machinery, however, has been provided or expressly 1950 A.E.GarJ• v. TlwSt"'6 Mahqjan]. 224 SUPREME COURT REPORTS [1950] is, to me representation. for dealing with the guarantees mentioned It mentioned that when a constitutional right has been conferred as a necessary consequence, a constitutional remedy for obtaining redress in case 1of infringement of the right must be presumed to have been contemplated and it could not have been intended that the right was that a representation made may merely illusory and storage. Consideration of the well find place in cold representation made by virtue of clause (5) by an unbiassed authority in my opinion, a necessary consequence of the guaranteed right contained herein. to enable a detained The right has been conferred to establish his. innocence and to secure justice, person and no justice can be said to be secured unless· is considered by some impartial person. representation The interpretation that I am inclined to place on clause (5) of article 22 is justified by "the solemn words of the declaratl'on contained in the Preamble to the Constitu It is this declaration that makes our Constitution tion. sublime and it is chapter on Fundametal Rights that, make it one of the greatest charters of liberty and of which the people of this country may well be . proud. This charter forced out of unwilling hands of has not been it has been a sovereign the counrty given to themselves by through their Constituent Assembly. Any interpreta the provisions of Part III of the Constitution tion of this solemn declaration is apt to without reference to If the representation lead one given to a <\etained person by clause (5) of article 22 is a guaranteed right and has. been given for the purpose that no justice can of securing justice, then it follows be held secured to him unless an unbiassed person considers the representation and gives his opinion on the guilt or the innocence of the persons detained. the right cannot be defeated or made elusive by presuming that the detaining representation with authority itself will consider an unbiassed mind and will justice. That would· in a way make the prosecutor a judge in case and such a procedure is repugnant to all notions the Magna Carta but the people of In my view, the merits of into error. right of render 1950 A. K. Gopalan v. TheStau Mahajan]. S.C.R. SUPREME COURT REPORTS 225 authority the said considers not the security of the State and possibly justice. The Constitution has further curtailed the rights given in clause (5) by providing in clause (6) a privilege on the detaining authority of withholding facts in public to disclose. This privilege has been conferred interests security of the Constitution itself, but in view of these stringent provisions no additional clogs can be put on the proper consideration of detained person by presuming the detaining authority representa tion. It has also to be this context that a person subjected to the law of preventive deten rights conferred on tion has been deprived of persons who become subject law of punitive detention (2) of article 22]. He has been denied the right to consult a lawyer or be defended by him and he cap be kept in detention with out being produced before a magistrate. representation of itself will properly consider [ vide clauses (1) and remembered in invoked .oot be the extent Having examined the provisions of article 22, I consider the first question that was now proceed learned Attorney-General; canvassed before us i.e., that article 22 of the Constitution read with the entries in the 7th Schedule was a complete Code on the subject of preventive detention, and rhat being so, the other articles of Part III could the consideration of the · v.alidity of impugned It was conceded by the learned counsel for the statute. petitioner that express provisions in article 22 on the topic of preventive detention those provisions would prevail and could not be con trolled It was, however, urged that on matters on which this article had made no special provision on this the other provisions ·of Part III of the Constitution had applica tion, namely, articles 19 and 21 and to that extent laws made on this subject were In order to draw the inference that the framers of the Constitu regards preventive to be self-contained a clear in article 22 indication of such an intention has to be gathered. If the provisions embodied in this article have dealt the other provisions of Part III. the provisions justiciable. intended by, · detention 1950 A. IC Gopalan v. The Stalt Mahajan]. 226 SUPREME COURT REPORTS [19501 am. laws on contained to be assumed indication would be that all read in an in some detail, it has elsewhere. thing is an exclusion of with all the principal questions that are likely to arise in matters of procedure or on questions of the reason ableness of the period of detention, inference of such an irresistible. Ordinarily when a subject is expressly dealt with in a constitu that the intention was to exclude the application of the general Express provisions therein mention of one the other. Expressio unius est exclusio alterius. I satisfied the whole scheme of the Constitution on a review of that the intention was to make article 22 self-contained in respect of the subject of preventive detention. the articles in It was contended the Constitution should be ·harmonious manner and one article should not be read as standing by itself and as having no connection with the other It was said that they were articles in the same part. all supplementary In this connection to one another. it was argued that a law made under article 22 would not be valid unless it was in accord with the provisions <>f article 21 of the Constitution. This article provides shall be deprived of life or liberty that no person except according to procedure established by law. It was contended that in substance laid down that no person will be deprived of life or liberty with out having been given a f~ir trial or a fair hearing and that unless a law of preventive detention provided such law would be in contravention of this a hearing the sake of article and opinion argument learned it) counsel arises whether there is anything in article 22 which negatives the application of article 21 as above construed to a law In my opinion, sub-clause on preventive detention. (5) of article 22 read with clauses (1) and (2) leads to the inference that the contention raised by the learned counsel stated, (5), as already to be given to a detenu of provides the grounds of his detention. It also provides a limited inasmuch as it gives him an opportunity to hearing is unsound. Clause that notice has (but without thus void. Conceding expressing the article is correct, contention question 1950 A. K. Copa/an v, ThtState Mahajan]. S.C.R. SUPREME COURT REPORTS 227 implicit .opinion. in clause the principles of natural justice. The right establish his innocence. As, in my the con sideration of a representation made by a detained per (5), son by an unbiassed authority is it gives to the detained person all that he is entitled to consult and to be represented by a counsel of his own in express terms to such a per choice has been denied son by the Constitution. He is also denied an oppor tunity of appearing before a magistrate. When Constitution has taken away certain rights that ordina rily will be possessed by a detained person and in sub stitution thereof certain other rights have been conferred on him even in the matter of procedure, the inference is clear that the intention was to deprive such a person of the right of an elaborate procedure usually provided judicial proceedings. Ola use ( 6) of article 22 very strongly supports this conclusion. There would have been no point in laying <lown such detailed rules in respect of a law of preventive detention of procedure that such a law would be subject if the intention was tJ the provisions of article 21 of the Constitution. In its ultimate. analysis the argument of the learned coun sel for the ·petitioner that the impugned statute does not provide for an impartial tri for a consideration of the representation of the contravenes detained person and article 21 of the Constitution. As discussed above, is imolicit within article my opinion, such a provision 22 itself and that being so, the application of article 21 to a law made under article 22 is excluded. resolves extent this : itself territory of India guaranteed It was next contended that a law of preventive freedom of move detention encroaches on the right of ment withiri the to a citizen under article 19 ( 1) ( d) and that being so, by reason of the provisions of sub-clause (5) of article 19 It the ground of it was justiciable on is true, as already pointed out, that a law of preventive incompatible with the right of free detention dom of movement of a citizen. Preventive detention in freedom of locomotion substance is a negation of the ( d) but it cannot be guaranteed under article 19 (l) it may, the that it merely restricts 10-3 S. C. India/58 it. Be that as reasonableness. is wholly 1950 A.. Jr. Gopalan v. TheStau Mahajan j. 228 SUPREME COURT REPORTS [1950] itself If the restriction on If a law conforms it would not have troubled is whether it was intend~d question for consideration law made under that article 19 would govern a provisions of article 22. Article 19 (5) is a saving and Parliament It empowers an enabling provision. make a law reasonable imposing right of freedom of movement while article 22 (7) is empowering P.arliament to another enabling provision make a law on the subject of preventive detention certain circumstances. the con in article 22(7), it would be a good ditions laid down that law law and it could not have been intended that validly made should also conform the provi sions of article 19 (5). One enabling provision cannot be considered as a safeguard against another enabling provision. Article 13 (2) has absolutely no application in such a situation. intention of the constitu the subject of preventive tion was that a law made on detention had to be reason the touchstone of tested on itself by ex ableness, then in article 22 about the precise pressly making provision to which such a law scope of could be made and by mentioning the law dealing with to provide. then have Some of the provision that no redundant, detention can last three months without the necessity of such detention being examined · by an advisory board. This provision negatives the consultation of the advisory board months without would be reasonableness. Again article 22 has provided a safeguard if an advisory board has to be dispensed with, it can only be so dispensed with under a law made by Parliament and that Parliament also in enacting such a law has to con to certain conditions. This provision would have been unnecessary in article 22 if a law on this subject (7) sub-clause justiciable. article 22 ena- period bling Parliament for which a law on the subject of preventive detention. Under the deprivation of liberty for a period of that subject had the provisions of article 22 would In prov1S1on person the maximum detained (b) of clause been made justiciable on the ground of for instance, longer limitation subject the procedure a 1950 A. K. Copa/an v . The State Mahejan J. S.C.R. SUPREME COURT REPORTS 229 . be said is open regards to -make it self-contained as to Parliament to fix this express provision it any period, say, even a period of five to ten yeJ.rs as the maximum period of detention of a person. Can it in view of this express provision of the Constitution such a law was intended to be justicfablc by reason of article 19 (5) ? Dui:ation of detention is the principal matter in preventive detention laws which touchstone of rea possibly could be examined on sonableness under article 19(5), but this has been ex pressly excluded by express provisions in article 22. In my judgment, therefore, an examination of the pro the intention visions of article 22 ckarly suggests the law of preventive detention and that the validity of a law on the subject of preventive detention cannot be examined or controlled either by the provisions of article 21 or by the provisions of article 19 (5) because article 13 (2) to such a situation and article 22 is has no application two articles. The not subject to the provisions of these Constitution in article 22 has gone the extent of even providing that Parliament may by law lay down followed bv an advisory board. the procedure On all important points in connection with the subject of preventive detention provision has that being so, the only been made the validity of a law on correct approach is by considering the subject of preventive detention requirements of whether article 22 or in any way abridges or contravenes them and if the answer the law will be· valid, but if the answer the negative, the law would be void. in article 22 and in examining law made satisfied that could arise the affirmative, to be is in is in • self-contained on In expressing the view that article 22 is in a sense the · law of preventive detention I laying down that should not however be understood as in any way overlooked the the framers of the article safeguards laid down in my law as giving pwtec opinion, lays down substantive that ;:hey tion to life and to the procedure cannot established by law; it means before a person can be deprived of his life or liberty be deprived except according in other words, in article 21. Article 21 inasmuch as it says liberty 1950 A. K. Gopalan v. The State Mahajan]. 230 SUPREME COURT REPORTS [1950] further in view precedent guarantee immunity The next the Constitution. law conferring authority therefore underlying article 21 It further laws which contravene should exist some as a condition substantive for doing so and the law should further provide for a mode of procedure such deprivation. This article gives complete immunity against the exercise of despotic- power by against the executive. invalid It in its true concept gives also there should be some form of proceeding before a person can be condemned either in respect of his life or his the idea of It negatives liberty. fantastic, forms of proceedings. The arbitrary and oppressive principles liave been in drafting article 22. A law properly ma(ie under article 22 and which is valid in all respects that article and lays down substantive as well law on this subject woulcl fully satisfy the as adjective requirements of article 21, and that being so, there is. no cpnflict between these two articles. that aris~ whether in Act IV of 1950 which offends against the provisions of article 22 of Part III learned counsel that section 3 of the Act was bad petitioner contended inasmuch as it made "satisfaction of the Government" for detaining a person. It was said the criterion that as section 3 laid dqwn no objective rule of conduct for a person and as people were not to what behaviour was expected of them, the result was that it could not be known what acts a person was expected to avoid and what conduct on his part was prejudicial the maintenance of to the security of the State or public order ; the prejudicial act section 3 left the determination of of a person the Govern ment and the officer who was to administer this law had been furnished no guide and no standard in arriving at his own satisfaction whether of conduct the conduct was prejudicial counsel, State etc. This criticism of in my opinion, true that a detention order depends on the satisfaction of the the security of learned is not valid. It is no do!!bt to the arbitrary judgment of question is anything the Constitution. The in other words, it was argued that even decision told as 1950 A. K. Gopalan '· TheStau Mahajan]. ' S.C.R. SUPREME COURT REPORTS 231 intent article 22 of subject authority provmon concerned was the Constitution which the authority entrusted with to legal proof and procedure. is such that it implies detention on in accordance Government but to my the satisfaction of mind contemplates detention on the executive authority. the sub By its very nature judgment the making of and purpose of the law of order. The whole preventive detention would be defeated if satisfaction of to such an objective standard and was also subject to conditions In the 7th Schedule jurisdiction to make thi.:. law on this subject has been given for reasons connected with defence etc. and the maintenance of public order. These are subjects which life and concern the the State. Every citizen is presumed to know what behaviour is the life Qf the State or to its existence as prejudicial State is an ordered State. Considering presumed itself in its officers a reasonable way and also presuming usually wilf be reasonable men, it cannot be said that in making "satisfaction of judging prejudicial acts of persons who standard for to the law of preventive detention section 3 are subject the consti tution. to have a government that conducts any way contravenes article 22 of the very existence of government" as herein Section 7 of impugned Act gives to consider and adjudicate on to be made the case may be. full effect to the provisions of article 22 sub-clause (5) and enacts to the Central or that representation has State Government as It was that no machinery has been peached on the ground provided merits of the representation. To this extent, as already indicated, In the absence of a the contentions machinery raised to the de this Court under article 32 for a proper to express any relief. opinion as to the precise remedy open to a detained this respect. The absence of a provision of person the statute however would not make the this nature in law wholly . void. Section 9 of the Act makes reference in the representation to move it may be open It is, however, unnecessary is defective. investigation 1950 A. K. Gopalan v. The Statt 232 SUPREME COURT REPORTS [1950] clause the detenu before in cases falling under (iii) of clause (a) or clause (b) of sub-section the order. The to be followed by the advisory board is laid Parliament has been authorized to be followed by an (7). (c) of law had not provided a an advisory it given him a right to lead evidence in any way the law. The advisory board has been given information as it requires It has also been placed before the facts and arguments contained judicial the Constitution . itself contem for pre the validity of the law that subject cannot be impugned on the grounds to . the advisory board obligatory sub-clause ( 1) of section 3 within six weeks of procedure down in section · 10. to lay down such a procedure sub-clause advisory board It was contended personal hearing to board. nor had establish his cnt1c1Sm invalidate the power empowered the representation. The opportunity not as full as a person gets under normal procedure plates a special procedure being prescribed ventive detention cases, contended to call for such the person detained. to examine innocence. In my opinion, and does not the material the light of but when afforded for. preventive the Act which says indefinite. period. This section (3) of section 1 of the words "for such period as in any way offend against Section 11 of the Act was also against it offended it provided impugned on the the Constitution ground that detentiaTt· inasmuch as in my opinion for an in lhe background of the provision in to be sub-clause to have effect on 1st April, 1951. the Act will cease it thinks fit" Besides, the provisions of do not has been given article 22 wherein the maximum period for to be noted that Parlia It has preventive detention. ment has fixed a period of one year as the maximum period for the duration of detention where detention to an advisory board. In has to be without reference my opinion, in section 11 which the powers of the outside supreme legislature. to make a law fixing the constitutional Parliament is nothing limits of S.C.R. SUPREME COURT REPORTS 233 learned counsel for It is section 12 of the Act which was assailed bv rather vehe is of a very controversial charac It has been enacted on· the authority of clause mently. This section ter. (7) of article 22 and runs thus :- the petitioner 1950 A. K. Gopalan .. , Tiu State Mahajan]. detained without " {1) Any person detained in any of the following classes of cases or under any of the following circum stances may obtaining a period longer than opinion of an Advisory Board for three months, but not exceeding one year date of his detention, namely, where such person has detained with a view acting in any manner prcVudicial to- to preventing him (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. to which (2) The case of every person detained under a detention order the provisions of sub-section (1) apply shall, within a period of six months from the date of his detention, be reviewed where the order was made by the Central Government or a State Govern the order was ment, by such Government, and where made by any officer specified (2) of section 3, by to which such officer in consultation with a person is, or has been, or is qualified to be appointed as, that behalf by a Judge of a High Court nominated in the Central Government or the State Government, as the case may be." the State Government is subordinate, in sub-section the conditions to comply with it neither mentions The section purports the condi tions laid down in clause (7) of article 22. It was, how ever, argued it has failed that in substance and reality laid down there to comply with any of the circumstances under in ; which nor in which preventive detention without the machinery of an advisory board could be permitted. The cruciaf ques is whether section 12 mentions tion for consideration the classes any circumstances under which or defined in which authority was conferred by clause (7) of cases the classes of cases recourse 1950 A. K. Copa/an v. The State Mahajan J. 234 SUPREME COURT REPORTS [1950] there has It seems clear that to the classification the Constitution included clause detention. the Constitution the law of preventive ;n So far as I have to dispense with an advisory board. to gather from opinions of text-book writers been able on the subject of classification, the rule seems clear that to be some in making classification of cases the objects sought relationship for consideration to be accomplished. The question to be accomplish therefore is what object was sought (7) in article ed when 22. the real purpose of clause (7) for a contingency where compulsory was to provide requirement of an advisory board may defeat In my object of opinion, it was incorporated the cases being meet abnormal and exceptional cases, of a kind where an advisory board could not he to make such drasnc into confidence. The authority the supreme legislation was entrusted to legislature but that it can only enact a law the further safeguard of such a drastic nature provided circumstances under which such power had to be used the classes of cases or in the alternative it prescribed in which or stated a determinable group of cases this could be done. The intention was lay down some objective standard for the guidance of the detain ing authority on the basis of which without consulta tion of an advisory board detention could be ordered the period of three months. In this connection beyond the Constitution must to be remembered it has have thought of really some abnormal situation and of some dangerous groups of persons when it found it to dispense with a tribunal like an advisory necessary is not board which functions the detenu bound even to give a personal hearing and whose proceedings are privileged. The law on the subject of preventive detention in order to avoid even justified such an innocuous and peculiar on the basis of peculiar circumstances laid down and situations which had to be objectively intended by clause that fvas what in my opinion was (7). If the peculiarity it may be control or view of a detained person, the description of such a situation would institution could only be in camera and which in a situation outside it prescribed S.C.R .. SUPREME COURT REPORTS 235 law without amount to a prescription of the circumstances justify ing the detention for a longer period than three months the intervention of an advisory board. by a If, however, the abnormality the conduct the activities of a certain determin and character of able group of persons, to a class of cases which was contemplated to be dealt with under clause (7). In such cases alone arbitrary detention law beyond a period of could be held three months . that would amount justifiable by relates 1950 A. K. Gopal1111 v. The Stale Mahajan]. law on in a cumulative sense ; on the learned Attorney-General contended that in this clause that even is not given that meaning the phrase was . It was argued by the learned counsel for the peti the phrase "circumstances under which, tioner in clause (7) had and the classes of cases in which" used the other to be construed hand, in the same word "and" had been used if the word sense as "or." He further argued true construc "and" that Parliament could prescribe tion of .for the classes .of cases either the circumstances or the subject of preventive detention making a authorizing detention the machinery of an • advisory board. months without J. In Full Bench Reference No. 1 of 1950, Das Gupta of the Calcutta High Court held that the intention of the the law of legislature in enacting the clause was preventive detention authorizing detetion for a longer period than three months without the intervention of the requirements an advisory board had to fulfil both laid down in clause (7) and not only one of the require in the alternative. The same view has been ex I share this view pressed by my brother Sir Faz! Ali. with him. from a different aspect on the assumption that matter the contention raised by the learned Attorney-General is right. for a longer period I would, however, like to consider t\lat Dealing first with the question whether section 12 mentions any circumstances, so far as I have been able to see, it does not prescribe any circumstances unless the prejudicial acts for rea sons connected with the security of State, maintenance of public order, etc. are both the circumstances as well as it can be said 1950 .d. IC Gopalan v. T"4 Stal< Malzqjon J. 236 SD~REME COURT REPORTS ' (1950] learned Attorney-General feelings, an apprehended line of the classes of cases. In my opinion, the construc approach cannot be held to be correct in tion of clause (7) of article 22. I am inclined to agree the phrase some situation "circumstances under which" means extraneous to the detenu's own acts, in other words, it means some happening in the country with which is not concerned, such as a situation of the detenu tense communal internal rebellion pr disorder, the crisis of an impending war or In such a situation the machi apprehended war, etc. board could be dispensed with because it may become cumbersome or it may hamper the exercise of necessary powers. In this view .of the matter I have no hesitation in holding that no circum stances have been stated . in section 12, section ostensibly the draftsman of section 12 conjecture, it seems repeated the words of clause (7) of article 22 without an. those words application of his mind to the meaning of to meet an and as the legislation was passed in haste emergent situation, it suffers the defects which all hasty legislation suffer from. though so. If it was permissible of an advisory the cases three months could be suffered by I now proceed to consider whether section 12 has classified in• which detenti011 for a longer period beyond ~ citizen without ,the benefit of the machinery of an subjects advisory board. The section has placed five out of the legislative list within its ambit and these arc described as the classes of cases. The question whether it can be said that a mere selection of all or any reasons connected of the categories of the subjects for law of preventive detention could be made under the 7th Schedule amounts to a classifica tion of eases as contemplated in clause (7) of article 22. Entry 9 of the UniOn List and Entry 3 of the Concur the ambit of rent List of the 7th Schedule legislative power of Parliament on the subject of pre ventive detention on the following six subjects :- lay down , with which a ( l) Defence of India, (2) Foreign Affairs, (3) Se curity of India, ( 4) Security of the State, (5) Mainten- 1950 A. K. Gopalan v. The Swe Mahajan]. S.C.R. SUPREME COURT REPORTS 237 ance of public order, ( 6) Maintenance of supplies and services essential to the community. (7) intended ( 4) and is intended is provided reversed this process the Constitution. By Clause ( 4) of article 22 enjoins in respect of all the for preventive law can provide six subjects that no three months with detention for a longer period out reference to an advisory board. Clause (7) gives permission to make a law for dispensing with an ad visory board by a prescription of the circumstances and by a prescription of the classes of cases in which such a dispensation can be made. The legislative in my opinion, authority under clauses these six subjects. The normal proce extends to all dure to be followed when detention to be in respect of the six beyond a period of three months ( 4). The extraordi in sub-clause subjects nary and unusual procedure was to be adop in certain abnormal cases for which provision could be made by a parliamentary statute under clause (7). IV of ft seems to me, however, that section 12 of Act 1950 has quite contrary intention of this section Act IV the advisory board in five of 1950 has dispensed with out of the com pulsory procedure of an advisory board clause (4) of article 22 has been relegated to one out of subjects. This has been achieved by giving these six a construction which and the "subjects of legislation. this construction of clause (7) is in contravention of the clear. provisions of ( 4) of article 22 to all in article 22, and makes clause tents and purposes nugatory. Such a construction of to the Constitution saying in the clause would amount that a law of preventive detention cannot one breath provide for detention for a to an advisory board and at months without reference that Parliament, the same breath and moment saying if it so chooses, can do so in respect of all or any of in the legislative field. If that the subjects mentioned it would have been wholly unnecessary to pro was so, the Constitution on a matter vide such a safeguard in the classes of cases In my the six subjects above mentioned and coterminous with opinion, longer period "circumstances co-extensive the phrase laid down in which" so as to make . 1950 A. /(. Bopa/an v. Thi State Mahajan]. 238 SUPREME COURT REPORTS [1950] those groups of persons who are which very seriously affects personal -liberty. On the other hand, it would be a reasonable construction of the Constitution authorized to hold the clause that in serious classes of cases or in cases Parliament incorrigible or whose activities are secret the procedure of an advisory board may well be dispensed with, that being necessary in the interests of the State. On the other construction the framers of section 12, the Constitu as adopted by tion need not have troubled itself by conferring an authority oi: Parliament for making such a law. Moreover, if that was in very clear words 22 clause (4) thus:- "Unless otherwise the intention, it would have this by drafting article indicated Parliament no provided law providing for preventive detention shall authoriu than three months unless detention for a an Advisory Board has the sufficiency of the cause of such detention." longer period investigated The .words "Unless otherwise provided for by Parliament" would have been the con struction which the framers of section 12 have placed on article 22 clause (7). in accord with I am further of the opinion that the construction placed by the learned Attorney-General on clause (7) of article 22 and adopted by the framers of Act IV of anomalous situation. The matter 1950 creates a verv may be examined from point of view of the reasons connected with of preventive detention supplies and services essential the life of the com munity. This subject has been put under section 9 in Act IV of 1950. Suppose a tense situation arises and there is a danger of the railway system being sabotafed orders and it becomes necessary IV of 1950 against certain persons. According to Act in such a serious state of affairs the procedure of au advisory board is compulsory, while on the other hand, if there is an apprehension of disturbance of public order by reason of a wrong decision of an umpire at a cricker match or on account of conduct of persons celebrating then detention beyond co pass detention festival of Holi, 1950 A. K. Copa/an v. The State lvlahajan J. S.C.R. SUPREME COURT REPORTS 239 result be the gravity in attempt to commit months can be ordered without reference to an advisory board. Could such an anomalous in the con the Constitution ? The templation of the framers of I am inclined to place on the section construction that law of punitive is in accord with the scheme of the detention. Hurt is an offence under Indian Penal is one of the subiects of punitive deten Code and tion. The cases on the subject have been classified different groups, namely, simple hurt, grievous hurt, grievous hurt with dangerous weapons, grievous hurt to extort a confession, grievous to restrain a public officer from doing his duty, grievous hurt by a rash act, and grievous hurt on provocation. Even sim ple hurt ha"s been classified in different categories. The subject of assault has also been similarly dealt with. Sections 352 to 356 deal with cases classified according offence, i.e., cases of simple assault, assault on a public servant, assault on women, assault theft, assault for wrong fully confining a person and assault on grave provoca tion have been separately grouped. Another illustration is furnished by the Criminal Procedure Code in the pre ventive sections 107 to 110. These deal with different in one class, habitual groups of persons; vagrants are third and offenders in another, bad characters in the It seems that disturbers of peace in it must have been con on lines similar templated by that classes of cases would be prescribed by Parliament, but this has not been done. The Constitution has recognised varying scales of duration of detention with the idea will vary with the nature of the apprehended act, deten three months in ordinary cases, de tion for a period of than three months with the tention for a longer period in more serious intervention of cases, while detention the intercession of an advisory board months without for a still more dangerous class and for acts committed that all in grave cases of preventive reasons connected with the maintenance of public order stand on the same the same footing in the degree of gravity and deserve It can hardly be said detention to these that the Constitution for a longer period an advisory board the fourth. situations. 1950 A. K. Gopalon v. TM State Mahqjan ]. 240 SUPREME COURT REPORTS [1950] require a services essential duration of detention and all cases connected with maintenance of supplies and services essential to the life of the community stand in the matter of gravity on such a footing as lenient treatment. It is that in a sense all persons who the defence of prejudicially to India may be to form ~ne group and similarly comprehensively said persons who act prejudicially the maintenance of supplies and life of community may the question is, whether it was in classification was clause (7) or was it intended in a narrower and restricted sense ? It has to be remembered law under (7) was intended clause to provide detention for a longer period and such a law very seriously abridges personal situation liberty and a narrower and restricted meaning this expression will be in accordance with well established canons of construction of statutes. form another class but this comprehensive sense the Constitution intended by giving the legislative the scheme of list and very seriously abridges The wide construction of clause (7) of article 22 brings within the ambit of the clause all the subjects in the legislative liberty of a citizen. This could never have personal the intention of the framers of the Constitution. The narrow and is in accord restricted interpretation the ar_!icle and it also operates on the whole field of list and within that field it operates by demarcating certain portions out of If I each subject which severe may say so in • conclusion, section 12 in the same class because they happen and the leopard to be could not have been in the thoughts of the Constitutions-makers when clause (7) was introduced in article 22. For the that section reasons given above, I am of the opinion 12 of Act IV of 1950 does not fulfil the requirements of ciause (7) of article 22 of the Constitution and is not a law which falls within that clause. this section of Act IV of 1950 is void That being so, and by reason of it the petitioner cannot be quadruj5eds. Such a classification is no other provision treatment. treats the detention of justified. There the ambit of requires 1950 A. K. Gopalan v. The Stau Mahaj"" J. S.C.R. SUPREME COURT REPORTS 241 this law · under which he can be detained for. any period whatsoever. It was argus;d that it was neither practicable the case of apprehended acts of persons possible to make a classification on any definite basis '"'.hose activities are of a prejudicial character to the mainten ance of public -order or to the security of the State or to the defence of India. This contention to my mind is not sound. Such a classification was made in the Defence of India Act by defining rules under "a prejudicial act" in regulation 34. Mere difficulty the groups or in defining objecti precisely ascertaining vely the conduct of such groups is no ground for not the clear provisions of the statute or complying with if a I see no difficulty whatsoever for disobeying it. the provisions to comply with serious effort was made I cannot see that the compulsory rtquire of clause (7). likely ment of an advisory board to such in all cases or at disastrous or calamitous results requirement. becomes necessary to dispense with in accor The requirement of an advisory board the preamble of the Constitution and is the dance with that can make a · law of preventive barest minimum detention to some to a deme> tolerable cratic Constitution. Such a law also may have some of an justification even without dangerous advisory board situations or to deal with a class of people who are a .danger to the State but without such law would be destructive of all personal,, liberty. The Constitution must be taken have-,\ furnished an adequate safeguard laid down certain conditions in clause (7) and_ it could not be considered it provided no safeguard the words used in clause (7) were them at all and that merely illusory and had no real meaning. five out of the six . subjects of legislation requirement defined to meet certain its citizens when little degree notions of limitation Section 14 of Act IV of 1950 has been impugned the Consti on the ground provisions of articles 22 (5) and 32 of in these terms :- tution. This section it contravenes ruid abridges 1950 A. K. G•polan v. The Stale MaliDjan :J. 242 SUPREME COURT REPORTS [1950) (2), allow any statement " ( 1) No Court shall except for the purposes ot a prosecution for an offence punishable under sub to be . made, or any section evidence to 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 any person or of any representation made by him against tained in any other law, no Court shall be entitled to to produce before it, or require any public officer of, any such communication to disclose the substance or representation made, 'or the proceedings of an advi sory board or that part of the report of an advisory board which is confidential. 11otwithstanding anything order, (2) It shall be an offence punishable with prisonment for a terru which may extend to one year, or with fine, or with both, for any person to disclose or publish without the State Government, as the Central Government or case may be, any ccmtents or matter purporting to be contents of any such communication or representation as is referred to in sub-section ( l): authorisation of the previous Provided nothing to a disclosure made sub-section shall to his legal adviser by a is the subject of a detention order." person who This section {/of detention. He has been given a right the nature of an iron curtain the acts of the authority making the order of around preventive detention. The Constitution has guaranteed to, be told the grounds to the detained person the right to make a [ vide article . 22 (5) ], yet section 14 representation prohibits the disclosure of the ground~ furnished to him or the coptents of the representation made by him in a Court of law and makes a breach of this injunction punishable with imprisonment. Article 32 ( 1) of the Constitution if. terms:- ' "The right to move the Supreme Court by appro- the enforcement of the rights priate proceedings for conferred by this Part is ·guaranteed." 1950 A. K. Gol'Jl1J11 v. Tire State Mahajan]. S.C.R. SUPREME. COURT REPORTS 243 Sub-sectien (4) says:- "The right guaranteed by this article shall not be suspended except as otherwise provided for by Constitution." it is In this contingency six subjects mentioned Now it is quite clear that if an authority passes an order of preventive detention for reasons not connected with any of in the 7th Schedule, this Court can always declare the detention illegal and release the detenu, but is not possible function if there is a prohibition for ' this Court to against disclosing the grounds which have been ~erved upon him. It is only by an examination of the grounds that it is possible to say whether the grounds fall with in the ambit of the legislative power contained · in Constitution or are outside its scope. Again something may be served on the detenus as being grounds which are not grounds at all. right of the detained person under article 32 to move this Court for enforcing the right under article 22(5) that he be given the real grounds on which the deten tion order is based. This Court would be. disabled from exercisil).g its functions under article 32 and ad judicating on the p9int the ·. grounds given satisfy the requirements· of the sub-clause if it is not open to the grounds that have been furnished. It is it to see a guaranteed right of the person detained very grounds which are the basis of the order of deten tion. This Court would be entitled to examine the matter and the grounds furnished are to see whether the grounds on the basis of which he his been detained or they contain some other vague or irrelevant material. The whole purpose of furnishing a detained person with the grounds is to enable him to make a representation refuting these grounds and of proving his innocence. In order that this Court may be able to safeguard it is absolu fundamental righc and to grant him relief that the detenu is not prohibited under tely essential penalty of punishment to the Court and no injunction by law can be issued to this it from having a look at the grounds. Co1 rt disabling Section 14 creates a substantive offence if the irrounds the Court not and it also lays a duty on are disclosed 11-3 S. C. India/58 the grounds to disclose to have 1950 A. 1(. G•palan v. T 1" Siok Mahajan]. - 244 SUPREME COURT REPORTS [19301 inasmuch as It virtually to permit the disclosure of such grounds. to a suspension of a guaranteed right provided amounts it indirectly by a by the Constitution stringent provision makes administration of it de by this Court impossible and at the same prives a detained person from obtaining justice from this Court. In my opinion, therefore, this section when the grounds contravenes it prohibits to citizen or abridges extent. the disclosure of the powers of Parliament rights given by Part III is ultra vires is that, the decision The result of the above discussion in my <,>pinion, sections 12 and 14 of Act IV of 1950 as above the detenu's indicated are void and case has to be made by keeping out of sight these two If sections 12 and 14 are deleted provisions in the 'l'\ct. from 'the impugned legislation, the detention of the petitioner is not legal. The statute for a period of three has not provided for detention it could have done months or under article 22(4) being so, the petitioner cannot justifiably detained even for a period of three months. I would accordingly order his release. in such cases the Constitution and the result to express any opinion on In view of the decision above arrived at I do not consider it necessary other points that were argued at great length before true meaning us, namely, (1) what is of the expression "procedure established by law" article 21 of the Constitution, and , (2) what is precise scope of articles 19(1) (d) and 19(5) of Constitution. the scope and Mu/c"'1;iea]. MuKHERJEA J.-This is an article 32 of the Constitution praying habeas corpus upon the respondents with a view release unlawfully detained within the State of Madras. for a writ of is being the Central Jail, Cuddalore, the petitioner who, is alleged, application The petitioner, it is said, was initially arrested Malabar on 17th of December, 1947, and prosecution for having was started against him on various charges

19.'iO .d. K. GoJa!IJn v. Tiu S1a11 Mukherjea ]. J S,C.R. ~UPREME COURT REPORTS 245 in one of trial before the three criminal cases the criminal proceedings ceased. delivered certaiq violent speeches. While these criminal case~ were going on, he was served with an order of detention the Madr.as Maintenance of Public Order Act on 22nd April, 1948. This order of deten tion was held to be illegal by the Madras High Court, but 011 the same day that the judgment was pronounced, a second order of detention was served upon him. On for a writ of habeas his moving the High Court again corpus in 1espect to the subsequent order, his appli cation was dismissed on the ground that as he was riot granted bail the detention could not were pending against him, be said to be unlawful. Liberty,. however, was given to him to renew his application if and when his deten In two tion under out of the three criminal cases magistrate ended on February 23, 1949, and the peti tioner was sentenced to rigorous imprisonment for 6 months in each of the cases. These sentences however, were set aside in appeal on 26th September, 1949. As the Sessions regards the third case he was Judge of North Malabar and sentenced prisonment for 5 years but this sentence was redi1ced 6 months' imprisonment by the Madras High Court on appeal. The petitioner made a fresh application High Court praying for a writ of habeas corpus respect of ·his detention under the Madras Maintenance .of Public Order Act and this application, which was heard after he had served out his sente11-ces of imprison ment referred to above, was dismissed in January, 1950. On 25th February, 1950, the Preventive Detention Act wa:s passed by the Parliament and on the 1st of March following, 'the applicant under the Madras Maintenance of Public Order Act was cancell ed and he was served with a fresh order of detention under section 3(1) of the Preventive Detention Act 1950. On behalf of ~he resp~ndents the detention of the petitioner is sought to be justified on the strength of the Preventive Detention Act of 1950. The position taken up on behalf of the petitioner on the other hand is that the said Act is invalid and ultra vires the con reason of its being in conflict with certain stitution by the detention of to rigorous tried by 1950 A. K. Gopalan v. The State MukherjeaJ. , 246 SUPREME COURT REPORTS (1950] fundamental rights which are guaranteed by stitution. of the petitioner is invalid and that he should be at liberty. the Con the detention is argued, therefore, It III of The contentions is that as preventive detention territory, it comes within (d) of Part that have beel put forward by Mr. Nambiar who appeared in support of the petition, may be classified under four heads. His first conten is, in substance, a through restriction on the free movements of a person the purview the Indian of article 19(1) the Constitution which lays down the fundamental rights. Under clause (5) of the article, any restriction imposed upon this right of free movement must be reasonable an<l should the general public. interests of be prescribed in is reasonable or not The question as to whether it to be determined by the justiciable matter which Court. This being the legal position the learned Counsel invites us to hold those which are contained impugned Act, particularly in sections 3, 7, 10, 11, 12, 13 and 14 are wholly un reasonable and should be invalidated on the main provisions of that ground. is a . law. it provides It is argued for deprivation of the impugned the provision of article 21 of The second contention advanced by legislation learned in con Counsel the Constitution flict with inasmuch as the per sonal liberty of a man not in accordance with a proce the word dure established by 'law' here does not mean or refer to any particular legi the general law of the slative enactment but it means justice land, embodying with regard to procedure which are regarded as funda mental, in all systems of civilised jurisprudence. learned ·counsel procedure, if any, with regard to preventive detention as has been. prescribed by article 22 of the Constitution the chapter on Funda which itself mental Rights must override rules of those general procedure which are cnntemplated by article 21 but with regard to matters for which no provision is made in article 21 the general provision made in article 22, those principles of natural It is conceded by finds a place S.C.R. . SUPREME COURT REPORTS 247 in course of his argu must apply. He has indicated ments what . the essentials of such procedure are and the other point specifically raised in this connection section 12 of . the Preventive . that the provision of Detention Act is in conflict with article 22(7) of the Constitution. The last argument in support of this application that the provisions of sections 3 and 14 of the Preven tive Detention Act are invalid as they take away and render completely· nugatory constitutional remedies as is provided for in article 32 of the Constitution. the fundamental 1950 A. K. Copola11 v. T/,. Stall Mukherj1a J. though the protection of it should be well In discussing these points the citizens and the limitations imposed keep in mind .the general scheme of the Indian Consti the fundamental tution relating rights . of this respect upon the. legislative powers of the Govern ment. The Constitution of India is a written Consti t9tion and it has adopted many of principles of the English Parliamentary system, it the English doctrine of · the absolute not accepted Supremacy of Parliament in matters of legislation. In this respect it has followed the American Constini it. Notwith tion and other systems modelled on their political standing the representative character of limitations .institutions, imposed by their Constitution upon the action of Government, both legislative and executive, as -essential and private rights. They to the preservation of public :\s the serve as a check upon what has been described despotism of the case of Hurtado v. The People of California ( 1 ) liberty apd "a government which holds the property . of the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism." the State Legis is supreme and Parliament as well as latures must not only act within respective legislative spheres as demarcated the majority; and as was observed the limits of the Constitution the Americans subject at all In India it is its citizens, the lives, regard (IJ 110 U.S. 516. 1950 A. K. Gopalan v. The Staie M11kherJea J. 248 SUPREME COURT REPORTS [1950] rights which in all cases, be requirements and the Constitu lists occuring in the Seventh Schedule Ill of the Constitution guarantees tion, but Part legisla citizens certain fundamental transgress. · A statute tive authority can on no account law to be valid must, in conformity is for with the constitutional judiciary to decide whether any enactment is unconsti tutional or not. Article 13(2) the State shall not . point and provides expressly the right make any law which takes away or abridges conferred by this Par~ and any law made in contraven the contraven tion of this clause shall to the extent of tion, be void. Clause (!) of the article similarly in validates all existing laws which are inconsistent with the provisions of this Part of the Constitution. is imperative on The fundamental rights guaranteed by the Consti tution have been classified under seven heads or cate gories. They are: ( l) Right to equality; (2) Right to freedom; (3) Right against exploitation; (4) Right to freedom of religion; (5) Cultural and educational rights; (6) Right to property; and (7) Right to constitutional remedy. in many the American Constitution and bears to similar declarations respects The arrangement differs that adopted a likeness on certain points the <:;onstitutions of other countries. Of the different classes rights spoken of above, we are concerned here primarily with right to freedom which is dealt with in four articles beginning from article 19 and also with the right constitutional m article 32. remedy which fundamental embodied Article l(J enumerates certain forms of liberty the · ·otection of which is guaranteed by freedom, 20, certain protections are Constitution. given in cases of persons accused of criminal offences. Article 21 lays down in general terms that no person liberty, except shall be deprived of his life or personal Jn article 1950 A.K. G~an Tlw St"'4 •• MuklwrJla J. S.C.R. SUPREME CdURT REPORTS 249 to procedure established by according 22 provides for certain additional safeguards to arrest and detention and by way of exception rules so made, makes certain special provisions for particular form of detention known Detention. law. Article in respect as Preventive The first contention advanced by Mr. Nambiar to whether involves a consideration of the question as the subject matter of Preventive Detention, which the impugned legislative enactment, comes within purview of article 19(1) (d) of the Constitution, accord ing to which a right territory of India is one of the fundamental rights guaranteed is not disputed that clause (5) of article 19 sub-clause, it the courts would be attracted to it and it would be for imposed upon this to decide whether right by the Parliament are reasonable restrictions and · are within the permissible limits prescribed by clause (5) of the article. If it comes within to all citizens. to move freely the restrictions throughout law, There Indian is no authoritative definition of 'Preventive Detention' . in though as description of a topic of legislation it occurred Legislative Lists of the Government of India . Act, 1935, and has been used in Item 9 of List I and Item 3 of List III in the Seventh Schedule to the Consti tution. The expression has its origin the language in England while law Lords used by Judges or the explaining the nature of detention under Regulation 14 (B) of the Defence of Realm Consolidation Act, 1914, the First World War; and passed on the outbreak of the same language was repeated in connection with last World regulations made during emergency War. The word is used in contradistinc 'preventive' the words of 'punitive.' To quote tion. to the word Rex v. Halliday ( 1 ), it is not a Lord Finlay punitive but a precautionary measure." The object not to punish a man for having done something but intercept him before he does it and to prevent him from doing it. No offence is proved, nor any charge formula is suspicion ted; and the justification of such detention [1917] A. c. 260 at p. 269. (') 1950 A. IC Gopalon v. The Stott Mukheefea ]. 250 SUPREME COURT REPORTS [1950] in the world that I am aware of.. has made or reasonable probabi1ity and not criminal conv1ctton which can only be warranted by legal evidence ( 1 ). Detention in such form is unknown in America. It was resorted to in England only during war. time but no country their Constitution as has been done an integral part of in India. This is undoubtedly unfortunate, but not our business to speculate on questions of · policy or the reasons which led the repre to attempt sentatives of our people to make such a drastic provision in the Constitution itself, which cannot but be :regarded as a most unwholesome encroachment upon ties of the people. to explore to every man, rights in relation The detention of a man even , as a precautionary measure certainly deprives him of his personal 1ibcrty, be he a and as article 21 gtiarantees citizen or a foreigner, that he shall not be deprived of in accordance with his life and personal liberty, except the procedure established by law, requirements of to be fomplied with, article. 21 woula certainly have law. What to make preventive detention valid in later on. Article 22 requirements are I will discuss to all comes immediate~ after article 21. It secures persons certain fundamental to arrest and detention, and as already said, by way of excep tion to the rights thus declare, makes certain specific provisions relating to preventive detention. The subject of preventive detention is specified in and constitutes the Union Legislative List and it also Item No. 9 in Under article 246 of the Constitution, State Legislatures are empowered respective authorities. subject within the ambit of their Clause protective provisions of clauses ( 1) and (2) of the article tQ persons detained under any would not be available detention. The only law providing for preventive fundamental Constitution detention impose restraints upon the and which exercise (') Vide Lord Macmillan in LiwsiM v. Antl,,.,on (1912] A.C. 206 at p.2~. rights which are guaranteed the matter of preventive (3) of article 22 expressly enjoins _that the Parliament and. to legislate on in the Concurrent List. legislative powers that respect Item No. 3 that extent 1950 .d. K, Gopalan v. TJwSJ:iu Mukhnjea J. S.C.R. SUPREME COURT REPORTS 251 ( 4) in clauses to prescribe the Parliament is sufficient cause the expiration of contained to (7) of article 22. Clause (4) lays· down that no law of preventive detention shall authorise the detention of a person for a period longer than three months, unless an advisory board in sub-clause (a) constituted in the manner laid down of the clause has reported before period that there for such detention. The period of detention cannot, in any event, exceed the maximum· which is entitled to pres cribe under clause (7) (b). The Parliament is also given the authority the class of cases under which a person can be detained for a period longer than three months under any law of preventive detention without obtaining the opinion of the advisory board. There is one . safeguard provided for all cases which is contained in clause (5) and which the order of lays down detention shall; as soon as possible communicate the grounds on which . the order has been such person the .earliest opportunity of made and shall afford him making a represtntation against the order. But even the authority while giving the grounds of deten here, tion need it considers against public interest to disclose. not disclose such facts which the authority making circumstances is justiciable The question that we have to consider is whether a law relating to preventive detention a Court of law on the ground of reasonableness under· it takes article 19 (5) of the Constitution inasmuch as to free movement away or abridges the right territory of India guaranteed . by clause ( 1) ( d) of article. It will be seen from what has been said above the subject of that article 22 deals specifically with preventive detention detention fundamental enumerated in clauses (1) and (2) of persons who are detained under any law which may be passed by the Parliam~nt or State Legislatures acting under article 246 of the Constitution read with relevant aside for the moment the question as the reasonableness or otherwise of court can examine law relating is prescribed by any the procedure . that I will to how far rights relating to arrest and and expressly takes away the article legislative lists. l950 A. I(, G.,,.i... v. nt.lld MakJr,,jra J. 252 SUPREME COURT REPORTS [1950] that would the legislature to preventive detention. involve a consideration of the precise scope and meaning of article 21; but this much is beyond controversy that so far as the Constitu substantive law is concerned, article 22 of tion gives a dear authority to take away the fundamental rights relating to arrest and de tention, which are secured by the first two clauses of the article. Any legislation on the subject would only have to conform to the requirements of clauses ( 4) to (7) and provided that is done, there is nothing in the language employed nor in the context in which it appears which for suggestion that such law must affords any ground be reasonable it would be its character and reviewable by the Court on that ground.. Both articles 19 and 22 occur the Constitution and both of them purport to lay down the fundamental is well the Constitution guarantees. rights which settled that the Constitution must be interpreted in a to all its parts, broad and liberal manner giving effect that no conflict or and the presumption .should , be repugnancy was intended by framers. of a Constitution, the same principles preting the words in construing undoubtedly apply which are applicable a statute, but as was observed by Lord Wright /11mes v. Commonwealth of Australia( 1 ), · "the ultimate result must be determined upon the actual words used not in·· vacuo but as occurring in a single complex instrument in which one part may throw light on the "The Constitution," his Lordship went on other." saying, "has been described as federal compact and the construction must hold a balance between all its parts." the same Part of In It It seems to me is no conflict or repug nancy between two provisions of the Constitution and· an examination of the scheme and language of the r.atena cl articles which deal with the rights that what clause freedom would be sufficient (1) (d) of article 19 contemplates is not freedom from &tention, either punitive or preventive; and speaks of a different aspect or phase of civil liberty. it relates to show ' (') {19,361 A. c. 57,8 at p. 613. S.C.R. SUPREME COURT REPORTS first of Article 19, which this series of articles, enumerates seven varieties or forms of freedom beginning with liberty of speech and expression and ending with free right to practise any trade, profession in articles 19 to 22 or business. The rights declared liberties do not certainly exhaust which people possess under to enu~erate framers of the Constitµtion obviously those forms of liberty which come under and guarantee well-known constitutional to be fundamental and of writers and are considered vital importance to the community. law. The object of the whole list of recognised categories 1950 A. K. Gopalllll v. The Stale Mukhtrjea J. 1 to anarchy thing as absolute There cannot be any uncontrolled liberty wholly freed from restraint, for that would lead and disorder. The possession and enjoyment of all rights, as was observed by. the Supreme Cour,t of America in Jacobson v. Massachusetts ), are subject to such reasonable conditions as may ( be deemed by the governing authority of the country essential to the safety, health, peace, general order and· therefore morals of the community. The question, arises in each case of adjusting the conflicting interests In some cases, of the individual and of the society. to be placed upon free exercise of restrictions have individual to safeguard rights society; on the other hand, social control which exists for public good has got it should the detriment of individual rights and be misused liberties. Ordinarily, every man has order his life as he pleases, to say what he will, to go where he will, to follow any trade, occupation or calling at his pleasure and to do any Qther thing which he can let or hindrance by any other lawfully do without person. On the other hand for the very protection of' these liberties the society must arm itself with certain powers. No man's liberty would be worth impunity by any wrong-doer if it' can be violated with and if his property or possessions could be preyed therefore, upon by a thief or a marauder. The society, the protection has got to exercise certain powers for imprison and to arrest, search of these liberties to be restrained, interests liberty (1) 197 U.S. 11. 1950 A. K. Copa/an v. The State Mukhnjta]. 254 SUPREME COURT REPORTS [1950] themselves are If these powers are punish those who break the law. properly exercised, they the safeguards they can certainly be abused. The of freedom, police may arrest any man and throw him into prison without assigning any reasons; they may search his belongings on the slightest pretext; he may be sub jected to a sham trial and even punished for crimes unkonwn therefore, the rights of the people is attempts to do in declaring to strike a balance between liberty and social control. law. What the <;onstitution, individual list of individual in the general and they set down To me it seems that article 19 of the Constitution gives a liberties and prescribes in the various clauses the restraints that may be placed upon them by law so that they may not conflict with public welfare or general morality. On the other hand, articles 20, 21 and 22 are primarily c.oncerned with penal enactments or other laws under which personal or liberty of persons could be taken away in the safety interests of the society limits within which the State control should be exercised. Article 19 uses the expression "freedom" and mentions the several forms and aspects of it which are secured that could to individuals, together with the limitations interests of be placed upon them the other hand do society. Articles 20, 21 and 22 on not make use of to be placed <in lay down be de State control where an individual prived of his life or personal liberty. The right safety of one's life and limbs and to enjoyment of per the senae of freedom from physical re sonal liberty in straint ll!ld coercion of any sort, are the inherent rights of a man. The essence of these rights consists in restraining others from ·interfering with them and in terms of "free<!<>m" hence they cannot be described to do particular things. There is also no question of im posing limits on the activities of ihdividuals so far as the exercise of I think, these rights have not been mentioned reasons, in article 19 of the Constitution. An individual can be deprived of his life or personal liberty only by action the expression "freedom" and is concerned. For the restrictions these rights is sought that are 19~0 A. K. Gopalan v. The State Mukherjea J, S.C.R. SUPREME COURT REPORTS 255 the legislature life and personal freedom and secure 20 to 22 embody the be a valid is competent to enact within entire relation liberty both with regard of the State, either under the provisions of any penal the exercise of any other coercive enactment or process vested in it under law. What the Constitution the powers dqes therefore is to put restrictions upon of the State for protecting indivi rights of duals. The restraints on State authority operate as guarantees of individual people the enjoyment of life and personal liberty which are thus declared to be inviolable except in the manner In my opinion, the group these articles. indicated in of articles protection to depriva guaranteed by the Constitution tion of substantive as well as to procedural law~--I! is not to say,. as I shall show more fully later on, correct to matters of procedure only. article ..21 is confined There must be a substantive law, under which life and State is empowered - to deprive a man of his personal liberty and such law must limits of the powers assigned to it and which does not transgress any of the fundamental lays down. Thus a person cannot be Constitution convicted or punished under an ex post facto law, or a law which compels the accused to incriminate himself in a crimin.al trial or punishes him for the same offence more than once. These are the protections provided for by. article 20. Again a law providing for arrest and detention must conform the limitations prescribed (1) and (2) or article 22. These provisions by clauses in case of indeed have been withdrawn expressly and protections of much more preventive detention feeble and attenuated character have been substituted in their place; but the policy adopted by the Constitution which does not concern us at all. The position, therefore, is that with regard to the Constitution guarantees life and personal that no man could be deprived protection to this extent of these rights except law passed by a competent mentioned the procedure which above and the other hand, such law legislature within in accordance with lays down. Article 19, on this is a question under a valid liberty, rights limits 1950 A. K. Gopalan v. The State Mukhtl}aa J. 256 SUPREME COURT REPORTS (1950] intention rights by legislation, to indicate rights judiciary might the exercise of to deprivation of rhe precise definite legislature liberty quite enunciates certain particular forms of civil independently of rights dealt with under article 21. Most of them may be connected with or dependent it ; upon personal liberty but are not identical with limits and the purpose of article 19 is impose within which the State could,. by restrictions on individuals. The reasonableness or otherwise or such legislation can indeed be determined by the Court in the several clauses or article the extent laid down 19, though no such review is permissible with regard life and personal to laws relating liberty. Th.is may be due to the personal freedom constitute the most vital and essential rights which people enjoy under any State and in expression such matters of • the preferred by the Constitution\ to the variable standards clared Irish lays down Constitution article 40 (1) (4) (1) of which that "no citizen shall be deprived of his personal In the Constitu liberty save in accordance with law." tion of the Free City of Danzig, "the liberty of person has been declared to be inviolable and no ation or deprivation of personal liberty may be imposed ( vide by public authority except by virtue of a law" article 74). Article 31 of the Japanese Constitution is the closest parallel to article 21 of the Indian Consti tution and the language is almost in dealing the scheme adopted by the chapter on with the rights to freedom described fundamental rights and fo my opinion, proper t~st for delermining the validity of an enact ment llnder which a person is sought to be deprived of liberty has his life and personal article 19, but Constitution. Article 20 of course has no application so far as the law concerned. to be found not three following articles of lay down. We liberty being to preventive detention identical. This the Constitution relating to personal the same therefore, relating almost Mr. Nambiar's endeavour throughout has been 1950 A. K. Copa/an v. Thi State Mukhe~jea ]. S.C.R. SUPREME COURT REPORTS 257 proceed fundamental It cannot also be said establish that article 19 ( 1) ( d) of the Constitution with article 19 (5) enunciates rights of the citizens regarding· the substantive law of personal liberty, while article 21 embodies the protection as re gards procedural !_aw. This, in my opinion, would be these; provisions from a wrong angle alto looking at gether, Article 19 cannot be S,flid to deal with subst antive law merely, nor article 21 with mere matters of procedure. that the provisions of article 19(1) (d) read with clause (5) and article 21 are complementary to each other. The contents and subject matter of the two provisions are not indentical totally different principles. There is no mention of any "right to life" in article 19, important although that is the primary and If thing for which provision is correct, we the contention of the would have to hold /that no protection is guaranteed by the Constitution as regards right far as In the second place; even substantive law is concerned. regarded as one of if freedom of movement may be there are ingredients of personal in the concept and admittedly other elements included no provision for other forms of personal liberty are be found in article 19(5) of the Constitution. Further more article 19 is applicable to citizens only, while the rights guaranteed by article 21 are for all persons, citizens as well as aliens. The only proper way of avoi~ing these anomalies is to interpret the two provi this would sions as applying to different subjects and . be the right conclusion if we have in mind the scheme which underlies this group of articles. learned counsel in article 21. liberty, surely the most is made to life I will now turn to the language of article 19(1) (d) really comes preventive detention that all throughout sub-clauses which intimate and see whether within its purview. Article 19(1) (d) provides citizens shall have come immediately after sub-clause (d) and are ly conn\!cted with it, are in these terms: territory of India. The the i;ight to move freely "(e) To reside and settle in any part. of territory of India; 1950 A. IC Gopalan v. Tire si.11 Mul<i..efea J. 258 SUPREME COURT REPORTS [1950) ( f) to acquire, hold and dispose of property." three sub-clauses and Clause (5) relates to all the opera lays down that nothing in them shall affect tion of any existing law it imposes, or prevent imposing, reasonable restrictions on rights conferred by the . said sub-clause either interests of the general public or for the protection of the interests of any scheduled tribe. in so far as the State from making any the exercise of any of territory to article 301 which says the Indian the Constitution I agree with the learned Attorney-General construing article 19 (1) (d) stress is to be laid upon India," the expression "throughout and it is a particular and special kind of right, viz., territory, that of free movement throughout the aim and object of reside and In the next sub-clause, secure. settle "in any part of the territory of India" is given and here again the material thing is not right of residence or settlement but the right to reside or settle territory. For an analogous in any part of the Indian provision, we may refer subject to the other provisions of this Part, commerce and intercourse throughout the territory of India shall (1) be free. The meaning of sub-clause (d) of article 19 will be clear if we take it along with sub-clauses ( e) and in clause (f), all of which have been lumped together (5) and to all of which ding .those relating to protection of the interest of any It wjll be scheduled tribe have been made applicable. remembered that citizens. To an alien or foreigner, no guarantee of has been given. Normally all citizens would have the free right to move from one part of the Indian residence from one place choice and settle anywhere they like. The right of free trade, commerce territory of India is also secured. What the Constitu tion emphasises upon by guarariteeing that the whole of Indian Union in spite of its being divided into a number of States is really one unit so far as the citizens of the Union are concerned. All the to another. They can shift to any other place of the same restrictions rights are available throughout intercourse territory rights rights the · 1950 A. E. Gopalan v. The Stau Muklrlrj•tt]. S.C.R. SUPREME COURT REPORTS 259 or carry on business citizens would have facilities for moving they can reside like; and no restrictions either would be allowed to set up ·in one part of India and another. So far as free movement the same privileges and the same into any part of the territory and anywhere inter-State or otherwise these respects qetween laid down. throughout of various interests of of pestilence public which that is to say, interests of the commensurate with the right. is subject to liberties protection of any scheduled territory is concerned, the provision of clause (5), under which reasonable limitation may be imposed upon these tribe. general public or The necessitates such kinds. They may be restnct1ons may be connected with the avoidance ot spread ing of contagious disea~es; certain places again may be for military purposes and' there . may be kept closed prohibition of entry into areas which are actual or potential war zones or where ciisturbances of some kind or other prevail. Whatever the reasons might be, be reason it is necessary that these restrictions must the purpose able, In addition to general for which they are interest, the Constitution has the protection of the interests of the factors which has got into consideration in the framing of these · restrictions. The scheduled tribes, as is well known, are a backward and unsophisti cated class of people who are liable to be imposed upon be shrewed and designing persons. Hence there are_, them from alienating even various provisions disaDiing · their own properties except under special conditions. laws may be · and for their benefit. In their interest made restricting the ordinary right of citizens to go oi settle in particular areas or acquire property in them. The reference to the interest of scheduled tribe makes it quite clear-that the free movement spoken of in' the clause relates not to general rights· of locomotion but to the particular right of shifting or moving from one part of territory :my sort of discriminatory barriers. scheduled tribes as one of to be taken to another, without specified Indian This .view will receive further support .. if we the Constitution of to some analogous provisions 12-s S. C. India/ 8 1950 A. E. c.,.J .. v. TlvS- '>fuk/rerfaa J. Z60 SUPREME COURT REPORTS [1950] seen that sub-clauses other countries. (d), It will be in almost ( e) and ( f) of article 19 ( 1) are embodied identical language in one single article viz., article 75 of the Constitution of the Free City of Danzig. The article runs as follows : "All nationals within the and to settle at any place they .may real property and to earn right shall This sanctions." shall enjoy freedom of movement to stay choose, to acquire in any wav. curtailed without legal free city and shall have the right their living The several rights are thus mentioned being included in the same differentiated from is "described to be inviolable except by virtue law" in article 74 which appears just previous article. An analogous provisions language occurs the German Reich which is worded manner: together as category, while they are the "liberty of the person" which a slightly altered the Constitution of the following in article 111 of India" serarately in in any part of the Realm the whole Reich. Every one has the that he chooses, "All Germans enjoy the right of change of .domicile within right to to settle there, acquire landed property and pursue any means of livelihood." Here again the right to personal liberty article 114. A has been dealt with suggestion was made in course of our discussions the expression "throughout the territory of curring in article 19 ( 1) ( d) might have been used with a view to save Passport Regulations or to emphasise that no rights of free emigration are guaranteed by the Constitution. The suggestion does not seem to me to be proper. No State can guarantee its own territory. to do anything outside free right rights mentioned of all the fundamental This is true in article 19 and not merely of the right of free move that the words "through ment. Further it seems to me to do with out the territory of India" have nothing both in rights of Danzing as well as in the German Constitution, where similar words have been used with regard to the exer cise of the ri~ht of free movement emigration. We find throughout its citizens S.C.R. SUPREME COURT REPORTS 261 ( vide article 76 of territory, there are specific provisions which guarantet to all nationals the free right of emigration to othe• the Danzing Constitution countries and article 112 of the German In my opinion, therefore, preventive detention Reich). does not come either within the express language ·01 intendment of clause ( 1) ( d) of within the spirit and a article 19 totally different aspect or form of civil liberty. of the Constitution which deals with the Constitution 19:;0 A. K. Gopalan v. Tlte Stat1 Mukherjea J. reason of It is true that by preventive detention, a man may be prevented from exercising the right of free movement within the territory of India as contem plated by article 19(1) (d) of the Constitution, that is merely incidental to or consequential upon loss of liberty resulting from the order of detention. Not merely the right under clause ( 1) ( d), but many of the other rights which are enumerated under the other sub-clauses of article 19 (1) may be lost or suspended long as preventive detention continues. Thus a long as he is under detention may not be detenu so or carry on any trade able to practise any profession, to do; but this would or business which he might like not make the law providing for preventive detention a rights under legislation taking away or abridging article 19 (1)' (g) of the Constitution and it would be. cases the validity of the absurd legislation should be tested the re of clause (6) of article 19 and that the only quirement the person's free restrictions that could be placed upon exercise of trade and profession are those specified that clause. Mr. Nambiar concedes that in such cases we legislation must look to the substance of the particular trenches right to which it does not directly upon some relate· provides essence or substance for preventive detention in fact, "pr.rsonal to him, connotes nothing else but liberty" according unrestricted right of locomotion.. ·'The learned counsel refers in this connection to certain in 13lack stone's Commentaries on the Laws of England, where is not material. He argues, however, of a legislation which is to take away. or curtail the mere to suggest that in such of free movements in accordance with that it incidentally passages A. Ir. Gopalan v. Tire State Mukherjta J. 262 SUPREME COURT REPORTS [1950] in every security, personal security'', according author discusses what he calls the three absolute rights Engiishman, namely, rights inherent of personal liberty and property. to Blackstone, consists "Personal in a person's legal and uninterrupted enjoyment of his limb, his body, his health and his reputation; life, his whereas "personal liberty" the power of consists or moving one's locomotion, of changing of situation person to whatsoever place one's own inclination may direct without imprisonment or restraint unless by due seen that Blackstone It will be course of law ( 1 ). a somewhat uses the expression "personal liberty" in larger narrow and restricted sense. A much wider and connotation . is given to it by later writers on constitu In ordinary tional documents, particularly in America. relating "personal liberty" means liberty language or body of the or concerning the person individual; the antithesis of physical restraint or coercion. According to Dicey, on the subject "perso who is an acknowledged authority nal liberty" means a personal right not to be subjected arrest or other physical coercion in anv to imprisonment, manner It is, in my opinion, this negative right of not subjected to any form of physical restraint or coercion personal liberty and not that constitutes Indian mere freedom territory. that does not admit of legal justification ( 1 the essence of to move "persooal liberty" in to any part of .sense is ). not be irrelevant ln this connection, it may in accordance with the recom· point out that it was the word mendation of the Drafting Committee in article 15 "personal" was inserted before "liberty" 21. of the Constitution which now stands the Drafting Committee it is stated In the report of that the word "liberty" should be qualified otherwise, sertion it might be construed very widely so as to include even the freedoms already dealt with in article 13. Article If the 13, it should be noted, is the present article 19. views of the Drafting Committee were accepted by th~ of the word "personal" before as article by the it; (1) Vide Chase's Blackstone, "th Edn .. pp. 68, 73. (2) Vide Dicey on Constitutional Law, 9th Edn. pp. 207 208. 1950 A. K. Gopalan v. TluStau -Muklurjea ]. S.C.R .. SUPREME COURT REPORTS 263 .... thing as the to say at this stage article 19 ( 1) ( d) of the by the Supreme Court of It includes not only personal as used the meaning of words used in Cons~ituent Assembly, the intention obviously was the concept of contents of article 19 from exclude the in article 21. To what "personal liberty" extent the Constitution could be discovered from reports of Drafting Com mittee or debates on the floor of the House is a matter not quite free from doubt and I may have to take up this the meaning of the matter later on when discussing material clause in article 21 of the Constitution. It that if the report of the is enough Drafting Committee is an appropriate material. upon the Constitu of the words of which the interpretation be based, it certainly goes against the conten tion could tion of the applicant and it shows that the words used Con~titution do not mean "personal liberty" the same expression It is well known that in article 21 does. the word by itself has been given a very "liberty" standing wide meaning the United States of America. the free from physical restraint but into free con . use of one's own property and to enter tractual other hand, the expression "personal liberty" has been it to freedom deliberately used to restrict from physi cal restraint of person by incarceration or otherwise. Apart from the report of the Drafting Committee, that of the expression as is the plain grammatical meaning I have already explained. It may not, I think, to state that the operation of article 19 of the Constitution limited to free citizens only and that the rights the presupposition been described the citizens are at liberty: The deprivation of the loss personal liberty may entail as a consequence described in or abridgement the nature · of these rights article 19, but that is because of them is not possible in the is such that free exercise liberty. On the other hand _the . absence right to hold and dispose in sub clause (£) of article 19 (1) and wbich is not dependent on full possession of person:)! liberty_ by the owner may In the Indian Constitution, on of property which is in ·that article on · be quite of many of the the right to of personal relations. accurate rights 1950 A. K. Gopalan v. The State Muk"4rjea J. 264 SUPREME COURT REPORTS [1950] result and see whether established by law." not be affected if the owner is imprisoned or detained. Anyway, the point is not of much importance for pur that, in poses of the present discussion. The raised by Mr. Nambiar my opinion, the first contention cannot succeed and it must be held that we are not or otherwise of entitled to examine the reasonableness the Preventive Detention Act within the permissible bounds specified in clause (5) of article 19. I now deprive a man of his personal the law. ,in order that there may be a raised by Mr. come to the second point N"ambiar in support of the application; and upon point we had arguments of a most elaborate nature addressed to us by the learned counsel on both sides, displaying a considerable amount of learning and is a short one and turns search. The point, however, upon the interpretation to be put upon article 21 of the Constitution, which down that "no person shall be deprived o_f his ........ personal liberty, except according to procedure On a to be plain reading of the article the meaning liberty, that you cannot unless you follow and act law which for deprivation of such liberty. The expres provides sion "procedure" means the manner and form of In my opinion, it cannot be disputed legally established proced~re, the law which establishes it must be a valid and lawful law which the legislature enact in accordance with article 245 of the Constitu the particular items tion and which it relates It that such the fundamental rights law must not offend against which are declared in Part III of the Constitution. The position taken up by the learned Attorney-General is that as in the present case there is no doubt the competency of that Parliament relating to preventive detention which is fully covered by Item 9 of List I, and Item 3 of List III, and as no question of the law being reasonable or otherwise arises for consideration by reason of the article 19 ( 1) ( d) is not attracted to this case, the law must be held to be a valid piece of legislation and the procedure is also not disputed in the legislative according to the is competent to enact the fact that to. 1950 A. K. Gopalat1 v. The Stale Mukherjea J. S.C.R. SUP.REME COURT REPORTS 265 to, on. and not expression arguments, procedure only It referes to law the Constitution it has been adhered article 22 specifically for preventive detention in conformity with learned counsel, any particular the procedure, however, must be law. The not mean or signify, according the validity laid down by the detention cannot possibly be challenged. His further argument and lays down fully the subject of a legislation on what the requirements should be. As the impugned Act conforms requirements of article 22, no further question of its validity under article 21 of the Constitution at all arises. I will deal with The latter aspect of his is concerned, So far as the main argument the position taken up bv Mr. Nambiar is that article 21 substantive refers one which 1s law; "law" m established this context does enacted legislature otherwise quirements possessing a binding authority. in the abstract or general sense-in the sense of jus and not lex-and meaning thereby fundamental rules that lie at the root of every system own, and the authority of positive law including our in the jurisprudence of all of which is acknowledged if the word civilised the seme of any State-made "law" is law, article 21 could not rank as a fundamental imposing a check or legislative It will be always com authority of the Government. laying down petent to the legislature procedure op a thoroughly arbitrary and justice and posed to all elementary principles of protection whatso ness and the people would have no ever, provided hered to. learned counsel has relied upon a large number of American cases, where- the Supreme Court of America applied the doctrine of "due process of law" as it appears the American Constitution for the purpose of invalidat ing various legislative enactments which appeared capricious and arbitrary and opposed that Court to be to the 'fundamental principles of law. such procedure was scrupulously to pass a law irrational countries. interpreted in of this argument the limitation on It is argued In support principles 1950 .4. K. Gopalan .v. The State Mukherjea J. 266 SUPREME COURT REPORTS (1950) It may be noted here that in the original procedure established by the expression in place of the. expression "according by law" should argues by law" in article 21 of draft of in article 15 the Indian Constitution the words used (which now stands as article 21) were "in accordance process of law". The Drafting Committee with due recommended that the "due process" to procedure estab clause, be substituted. The present lished seems to have been modelled on article 31 ot article 21 the Japanese Constitution, where language emplo yed is "no person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, excep< law" Mr. according "procedure N ambiar the Constitution· established the same meaning as the "due process" clause this extent, viz., does in America, restricted only that it is limited to matters of procedure and not extend to questions of substantive law. To appre ciate the arguments against this view and to fix the in article 21, it would be is to be given to this clause necessary to discuss briefly doctrine of "due process of law" American Constitution and the wav in which it has been developed the · Supreme Court of America. In that have been advanced for precise meaning concept of "due process of law" or what is . considered to be its equivalent "law of the land" traces its lineage far back into the beginning of the 13th Century A.O. The famous 39th chapter of· the Magna Charta provides "no free man shall be taken or imprisoned di; seized, or outlawed or exiled or in any way des upon him nor send upon him troyed; nor shall we go but by the lawful law of the land." Magna Charta as a charter of English liberty was confirmcJ by successive Engiist1 monarchs and it is in one of these (28 Ed. III, Chap. 3) · known as "Statute of Westminster liberties of London", that the expression "due process of l~w" for the first phrases was judgment of his peers and by conception of as it appears in time appears. Neither of or d~fined in any of of Anglo-American and applied by confirmations explained history law, 1950 .it. K. GoJialan v. T"4Stau Mukhnjea J. S.C.R. SUPREME COURT REPORTS 267 proper In substance, imprisoned without to show cause why seizure documents, but on the authority of Sir Edward Coke may be said that both the expressions have the same 'that persons they guaranteed meaning. should not indict ment and trial by peers, and that property should be seized except in proceedings conducted in due form in possession should in which the owner or the persons should have an opportunity into America not be made (' ). These concepts came as part of the rights of Englishmen claimed by colonists. The expression in one form or other appear the exact phrase "due process of law" came to be a part of the Federal Constitution by the Fifth Amend ment which was adopted in 1791 and which provided that "no person shall. . . . be deprived of life, liberty or It was imposed property without due process upon the State Constitution in almost identieal Fourteenth Amendment in the year 1868. uage by the in some of the earlier State Constitutions of law." What of law" "due process difficult to define stitution contains no description of what process of law" nor does of which it could application Twining v. New Jersey ( ~) the Court observed: 1s even at the present day. The Con "dur. it declare the principles by In be ascertained. exactly means "Few phrases in the law are so elusive of exact apprehension as this. This Court has always declined it and to give preferred that should be gradually by the process of inclusion and exclusion ascertained in the course of the decisions of cases as they arise." its foil meaning a comprehensive <lefinition of It is clear, however, legislative as well as upon all the powers executive requirement of "due in the United States Constitution process law" of Govern imposes a limitation and judicial. ment, Applied in England only as protection against (a ). became a bulwark against arbitrary (1) Vide Willoughby on the Constitution of the United States, Vol.IP, p.1087. (2) 2 ll u. s. 79. (3) Vide Hurtado v. People of California,' 110 U.S. 516 at p. 532. in America legislation usurpation and royal tyranny, 19~0 A. X. Gopalan v. The Staie Mukhnjea J. 268 SUPREME COURT REPORTS [1950] legislation, its mere will; it is not within upon the legislative power is to protect citizens against arbitrary to make any process a "due process for that would make As it is a restraint obje~t. capnc10us of the Congress law" by limitation quite nugatory. As laid down cited above, "it is not any act legislative is law; law is something more as an act general law principles which inhere the entire the root of words of Daniel Webster in a famous _ the Supreme Court ( 1 ) : the competence the case than mere will exerted abiding lie at argument before in the Constitution and the land, the settled and system. To quote in form of power." It means signifies "By the law of the land is most clearly intended the general law-a faw which hears before it condemns, which proceeds upon enquiry and renders judgment after trial. The meaning is that every citizen immunities shall hold his life, govern under the protection of the general rules which society." liberty, property · principles of general law are along with What these common law seem to have alluded law or "law of the lanti", attempted to enumerate. To a the principles of English nobody large extent has ever they are modes of judicial proceedings obtaining in England, traditions of which came the settlers America. Some Judges principles of natural justice in ·~xplaining what is meant by general of a law of nature did not obtain a firm footing doctrine any time. In Wynehamer v. New York.(' ), Justice Hubbard declared himself opposed judiciary legislative authority or attempting declaring a statute invalid upon any fanciful theory of higher law or first principles of natural right outside of the Constitution. Coke's dictum of supreme obviously referred to principles fundamental law which of English common law certainly did exercise consider the minds of the American influence are observations in some cases Judges ( ') - and there to set bounds though to the to the a ( 1) DartTWuth College case, 4 Wheaton p. S 1 R. (2) 13 N. Y. 379. (3) Willis on Constitutional Law, p. 647. 19~0 A. K. Gop:dan v. Tiu State Mul.herjea J, S.C.R. SUPREME COURT REPORTS 269 unsuited upon powers that there are limitations the American Society ( 1 acted upon as being or conditions of the principles of natural which go to suggest as identical with those of common justice were regarded law were law, except where the rules of common character or were not considered to be of fundamental to the progress of ). In the case of Loan Association v. Topeka( 9 ), it was ob of Go served nature of vernment which grow out of the essential free Governments-implied individual reservations of the social compact could not rights without which are respected by all Governments en exist and which titled to the name. What is hinted at, is undoubtedly under which political the old idea of a social compact into being; and institutions were formed the suggestion themsdves their rights which they possessed at that time from their English there were certain rights of a fundamental ancestors, character still reserved by them which no State could possibly take away. into a State by surrendering a portion presumably they inherited supposed to come the Americans is that when As been said already, "due process of law" or Jurists in A!11erica. has never been defined by Judges expression would be to say The best description of the exercise of that it means in each particular case such the powers of Government settled maxims of law permit and sanction, and under such safeguards for as those maxims the protection of individual rights prescribe for question belongs ( 8 to which the one the class of cases as the ). clause of the features and there In the actual application relating to "due process of law" to particular cases the decisions of the Supreme Court of America present certain peculiar and unusual them. Ever since of uniformity and consistency the appearance of the clause in the Fifth Amendment and down to the middle of the 19th it was interpreted as a restriction on procedure, and particu larly the judicial procedure; by which the Government (1) Cooley's Constitutional Limitations, Vol. II, pp. 739.40. (2) 20 Wall, p. 655. (') Co.lley's Constitutional Limitations, Vol. 11, p,741. century, 1950 A.. K. Gopaian v. Tiil Stau Mukhnj1aJ. 270 SUPREME COURT REPORTS [1950] its powers. Principally it related accused persons the right to exercises crimes procedure by which person:; were tried and guaranteed to a fair trial in compliance with well established criminal to the proceedings. The rights machinery or proceeding were adjudicated and by which the powers of eminent domain and period it was not considered to have any bearing on . substantial law at all. applied hy which property taxation were exercised. During principle - Change, however, legislative a growing of a definite came in and the authority; and arose which the States attempted a new period to accumulation recognition of life, requirement rights any deprivation of the country- accounted iin judicial period followed witnessed liberty and doctrine that substantive of due property are protected by attempted process of law against political and at by economic conditions a outlook. The great extent for this change close of the civil war brought leading industrial development in the hands of industrialists and the emer large capital labouring class. New and import problems laws and regulations. Some of deal with by various them seem to have arbitrary and there was against what they described as legisla.tive encroachments upon their vested private rights. The Supreme Court now the rule of due process of law as a direct began to use and any . statute restrain limitation or administrative act, which imposed contractual of private relations between the employe.rs and employed, was as not being in accordance with due pro invalidated cess of law ( 1 ). What constituted a legitimate exercise judicial of the powers of legislation now came it was question opinion of the Court. The question reasonable in the of reasonableness obviously depends ideas of particular individuals and the Courts or r4ther the majority of Judges (1) Vidc Encyclopaedia of the Social Sciences, Vol. V, pp. 265-67. to be a statute was valid unless a clamour amon, gst businessmen a property or free upon substantial legislation. been ill-advised and thus marshalled largely upon and• no rights 1950 A. K. Gopalan v. The State Mukhtrjea J. < S.C.R. SUPREME COURT REPORTS 271 statutes. prohibited legislation which or otherwise of the the question arose as economic policy in deciding laid stress upon the doctrine of negative third chamber both views of social and In the reasonableness language of a well-known writer, the Courts became a the State Legislatures and the Congress( 1 ). To what extent the Courts freedom of contract is illustrated in tht case of Lochner v. New York( t ). In that case validity of a labour of persons in certain fields of activity for employ!llent more than 60 hours a week. Lochner was indicated for violating this law by employing a man in his Biscuit and Cake Factory who was than 60 by a majority of 5 to 4 hours in a week. The Court held the statute to be invalid on the ground "right to· purchase or sell labour is part of the liberty protected by the Amendment unless there are circum stances which excluded the right." That decision has been criticized not merely on the ground that it rested the language of Holmes J., who was one of the dissentient Judges "was not entertained by a large part of the country;" but it ignored that such protecting the health say, it was in substance an exercise of police powers with a view to accomplish some object of public interest( 3 ). regulation was necessary of the employees, that is to an economic theory which to quote to work more to some extent as a check upon simultan~ously gaining that while extended by It may be mentioned here doctrine was the doctrine of police the due process judicial power which pronouncements, operates the "due" process" clause was tance. Roughly speaking, police power may be defined of a Government to regulate the conduct as "a right of public safety, health, of its people in the interests morals a this authority, Government may make regulations concerning the regulation of traffic, the report safety ing of inspection of markets, the hours of work for women the sanitation of factories, of building, incurable diseases, anJ convenience. Under (1) Vi de Kelley and Harbinson on the American Constitution, p. 539. (2) 198 u s. 45. (3) Vide Willoughby on the Constitution ·or th~ U.S., Vol. Ill, p, 171. • 1950 A. K. Gopalan v. ' T/1• Stol8 Mu!Wrjea ]. ' 272 SUPREME COURT REPORTS [1950] a to which and such defined by the· extent has not been clearly doctrine generally accepted of some legitimate public purpose, constitutional, yet if the regulation has and children, the sale of intoxicants matters"( '). Here again, Court can interfere with exercise of police powers by judicial the State pronouncements. The that although any enactment by legislature under powers would not necessarily guise. of exercise of police direct relation to its proposed object which is the accomplish the wisdom the legislation should not be examined by or policy of the Courts. The rule is not without its exceptions it is not necessary p~esent though not quite purpose( • ). The the police uniform, reveal power doctrine. judicial pendulum in In the case of West Coast Hotel the other Company v. Parrish (3 ) which related the legality of a Statute for the minimum wages of women, Chief opinion of the Court, observed as follows : It may be said been a definite swing of the to elaborate them for our later decisions, Justice Hughes, who delivered the growing influence of that since 1936 regulating direction. liberty "In each regulation for women the violation alleged by attacking minimum wage of freedom of contract .. , What is the free deprivation speak of freedom of dom? The Constitution does not prohibits It speaks of contract. of liberty without due process of· law. deprivation In does not the Constitution• prohibiting that deprivation absolute liberty. and uncontrollable recognise of its phases has its history and conno Liberty in each tation. But the liberty safeguarded a social organisation which requires the protection of law against tfi.e the health, safety, morals and welfare of the people." evils which menace is liberty ·years indications In the succeeding certainly the requirement of due process of law as a sub control is becoming and the rule is being restricted more are that stantial restriction on Government a thing of the past (I) Vide Munroe_:The Government of the U.S., p. 522. (2) Vidc Willoughby on the Constitution of the U.S., Vol. I.II, pp. 1709-70. (3) 300 u. s. 379· ... S.C.R. SUPREME COURT REPORTS 273 and more will happen this stage ( 1. ) • to its original procedural meaning. What in future cannot certainly be predicted at of the Thus it will be seen instrument in the hands economic and social ideas of the American Constitution came to be used that the "due process" clause judiciary a potent control over social legislation. The judi for exercising cial pronouncements are not guided by any uniform principle, and the Judges, who form the majority in the Supreme Court for the time being, constitute, so to say, the yard-stick for measuring the · reasonableness or otherwise of any enactment during that period. No writer of American Constitutional Law has been. able uptil now to evolve and consistent set of of cases, where the principles doctrine of "due process of law" has been invoked or applied. anything like a definite out of the large mass passed 1950 A. K. Copa/an v. Thi Stat1 Muklrerjea J. the constitution-makers It is against this background that we must consi in India dealt with der how and gave finat shape to the provisions, on an analogous the Draft Con subject in the Indian Constitution. article 15 (which now stands as article 21) stitution, the 5th and 14th was apparently framed on the basis of Amendments the American Constitution. The article was worded as follows.: In "No person shall be deprived of his life or liberty without due process of law." report The Drafting Committee in the word "personal" before the word "liberty'.' and· the mended a change in the language of first suggestion was that be inserted was that established by law" shall be c~ss of law", expression was more specific. this article. The seco11d the expression "in accordance with procedtite substituted for "due p.ro that the former the reason given The learned AttorneycGeneral has placed before centering us the debates in the Constituent Assembly of the Drafting Committee and (I) Swisher- The Growth of Conatitutionat power in the United States, pp. 123-25. this recommendation he has referred us adoption of 19:i0 A. K. Gopalan v. TM S1at1 274 SUPREME COURT REPORTS [1950] it will be an important the purpose of caution and only when latent the Assembly who speeches of several members of played in the shaping of the Con the meaning of st1tut1on. As an aid to discover these debates are of doubtful words in a Constitution, to them", says Willoughby, value. "Resort can be had ambiguities "with great be of some are to be solved. The pr~ceedings may value when they clearly point out provmon. But when the question is of abstract mean ing, from this source difficult to derive much material assistance in interpretation" ( 1 The learned Attorney-General concedes ) • debates are not admissible to . explain the meaning of the words the purpose of showing that the Constituent Assembly when they finally adopted the recommendation of the Drafting Committee, were fully · aware of the implica the old form of express tions of the differences between Constitution, it will be better · if such extdnsic evidence is left out of account. In matters like this, different members act upon different impulses and from different motives and it that some members in a particular sense, while certain words accepted others took them in a different light. used and he wanted to use them only In my opinion, in interpreting is quite possible and the new. The report to such reports than in which a higher value of the Dra'fting Committee, however, has been relied upon by both 1X1rties and there are decided authorities attached the debates on the floor of the House. it is said that reports troduction of proposed reaching the true meaning of the legislation in case of doubtful interpretation. The report is extremely short. It simply says that the reason for the suggested change is t~ make the thing more specific. In Caminetti v. United States(' ), the Courts accompanying law may aid to Congress in my· mind I have no doubt clause which appeared in the process" was finally could be safely prc<umed that (1) Vide Willou~hby·on tbt' Constitution of the United States, p. 64. (2) 242 u. s. 470. retained by the Constituent Assembly, "due original draft the framers of the Indian that if the 1950 A. K.Gopal"" v. The State Mukheijea J S.C.R. SUPREME COURT REPORTS 275 of law as prevails and fluidic in spite of is that in view of the subject, an alteration the language more Constitution wanted that expression to bear the· same sense as it does in America. But when that form· was abandoned and another was deliberately substituted m its. place, it is not possible to say that difference in the language and expression, they should the same idea. Mr. mean the same thing and convey Nambiar's- contention somewhat uncertain the Drafting Committee America on recommended specific · and he would making extended over way, namely, that the whole adjective, merely. That is the reason, the word adopted, but the world "law" means thing as it does refers not to any State-t;nade law but to the fundament system :i.l principles which are and are based upon the immutable doctrines of natur al justice. instead of being substantive in the "due process" clause in America "process" the expression "procedure" ·sphere of law, it was that it was made specific inherent in the legal he says, why instead procedural us. hold the same as well purpose limited Attractive though this argument might "due process" doctrine think that In the first place, it of the Indi:)n Constitution appear, I _do not it would be possible to aci,:ept it as sound. is quite clear that the framers not desire to introduce into our svstem the elements of un that have grown certainty, vagueness and changeability round the in America. They wanted to make the provision dear. definite and precise and deliberately chost:: the words "procedure established by law", as in their opinion no doubts would ordinarily the meaning of this expression. The indefi arise about niteness application of "due process" doctrine in America has nothing to do with the distinc law. The uncertainty and elasticity itself which is a sort of hidden mine, the contents of which knows and nobody of the Judges. This the · Indian Consdtution deliberately discarded theory, 13-3 S. C. Jndia/58 . to the judicial conscience is merely revealed from are in the doctrine between substantive and procedural · 1950 A. K. Gopalan v. Tht State 276 SUPREME COURT REPORTS [1950] it appears "process of occurs before and qualifies to interpret in accordance with the interpretation law". proper" according case. It is this word which introduces in the application of the doctrine; and that is why they substituted a different form in its place which, according to them, was more specific. In to me that when the same the second place, words are not used, it will be against the ordinary a provision in our canons of construction Constitution analogous provision in the Constitu upon a somewhat tion of another country, where not only the language is entire political conditions and consti different, but the tutional set-up are dissimilar. · In the Supreme Court laid uniformly upon the of America stress has been word "due" which "Due" means "what expression to the circumstances of is iust and a particular variable element what is reasonable in one set of circumstances may not the Indian be so in another Constitution been deliber clearly thn the Comtitu introducing tion-makers the American "established" ordinarily means "fixed or laid down" and if ·"law" not any particular means, as Mr. Nambiar contends, piece of law but the indefinite and indefinable prin of natural justice which underlie positive systems ciples law or natural expressi.an "established", justice like a definite proce dure. omitted and this shows of India cannot establish anything law, it would qot at all doctrine. The word be appropriate to use had no in-.ention of and a different for natural the word "due'" set. In the word "law" connoting what of natural justice It does not appear that in any part has been used tution "general law" the principles positive law. On the other hand, article 31 of the Constitution, which appears chapter on Fundamental Rights, makes the word "law" is to deprive a person sanction already, Constitution of the Consti in the sense of has been described as outside the realm the provision it clear equivalent to State-ma. le law and the authority rot of his property, the Indian of such law is necessary. As of article 21 the provision save in one particular, has been reproduces, S.C.R. · SUPREME COURT REPORTS 31 of the Japanese Constitution and language of article the scheme and provisions of it is quite clear from that in speaking of law it refers Japanese Constitution the State. In to law passed or recognised in almost the Irish Constitution also, similar language which convi:ys the same idea. Article 40 (4) (1) provides that "no citizen shall be deprived law," and by law is certainly meant the law of the State. as such by there is provision liberty save in accordance with his personal

#1950. ..4. K. Gopalan v. The Stall Mu/c/wrfa11 J. law, abridging that if law contention is strongest_ argument Possibly in support of Mr. Nambiar's is taken to then article 21 would not be a mean State-made restriction on legislation at all. No question of passing the right conferred by this article any law could possibly arise and article 13(2) of the Constitu tion would have no operation this provision so far as of an American is concerned. To quote the words Judge it would sound very much like the Constitution speaking to the infringe the right created by these articles unless to do so(1 ) . later could legislature that the upon the argument limitations Apparently liberty, checks on the exercise of of the Cbnstitution. The fundamental this is a plausible must be admitted that we are not concerned with rights policy legislature, not merely impose but they serve as checks execunve powers as well, and in the matter of depriving a man on the high-handedness of his personal of the executive in the shape of preventing them law, taking any step, which is not in accordance with could certainly In the provisions of various· other countries, Constitutions relating to protection of personal liberty couched very .much It is all a question of policy as to whether the legislature or the judiciary would have the final say in such matters India deliberately these powers in the hands of the legis decided Constitution, upon lature. Article 31 of the Japanese is modelled, also which article 21 (I) Vide per Bronson]. in Taylorv. Poru 4Hill 140. in the same language as in article 21. the Constitution-makers of 'of our Constitution fundamental rights. rank as to place 278 SUPREME COURT REPORTS (1950] 1950 A. K. Gopalan v. The Statt Mukherjea J_. principle. the same proceeds upon Constitution, it is to be noted, time other rights in regard to access to Court which might serve as checks tive authority as well. Thus article 32 provides : The guarantees at arrest, detention Japanese the same on legisla of access "No person shall be denied the Courts." Article 34 lays down : "No person shall be arrested - he be detained without adequate cause; that the its place immediate privilege without the the Indian Constitution were or detained without at once informed of the charges against him or of counsel, nor shall cause must be immediate his presence and on the analogy of article 3.4 of demand of any person, such shown in open Court in presence of his counsel." It was probably two clauses. of Japanese Constitution article 22 of framed. Article 22 was not in the original Draft Constitution at all; and after the "due process" clause was discarded by the Constituent Assembly and the present form was in article 21, article 22 was substituted introduced with a view to sort of clieck and the detention places limitations upon the autho protection it affords as well. These protections indeed rity of the legislature have been that again not con article 21 the word "law" has been used in the sense of of law in the State-made law and not as an equivalent princi abstract ples of natural justice. The articl~ presupposes the law law under the provisions regard to the competency of the Constitution having it relates to and does .of the legislature and the !"tbject not infringe any of the fundamental rights which the Constitution provides for. denied to cases of preventive detention is a question of policy which does us as a Court. My conclusion, in matters of arrest and is a valid and binding sense embodying provide for some therefore, is that general In the view tha~ I have taken, the question raised the fact that the procedure it lays by Mr. Nambiar that the Preventive Detention Act invalid, bv reason of ._ ( • 1950 A. K. Gopalan v. The State Mukhtrjea ]. S.C.R. SUPREME COURT REPORTS 279 It law which down is exhaustive. Even if the procedure down is not in conformity with the rules of natural justice, does not fall for consideration. is enough. is a valid in my opinion, if the law legislature is competent to pass and which transgress any of the fundamental rights declared m Part III of the Constitution. It is also unnecessary into a discussion on the question raised by the learned Attorney-General as to whether article 22 by itself is a self-containe<,l Code with regard to the law of the procedure P.reventive Detention and whether or not it lays not exhaustive, ,it is not permissible the rules of natural justice. On by application of raised by Mr. Nambiar, the only question, third point therefore, which requires consideration is whether sec tion 12 of the Preventive Detention Act is ultra vires of the Constitution by reason of its being not in conformity with the provision of article 22 (7) (a). Article 22 (7) (a) of the Constitution empowers the Parliament to prescribe the circumstances under which, and the class or classes a person may be detained for a period of cases in which, lo ·1ger than three months under any law providing preventive detention without obtaining the opinion of board in accordance with the provisions an advisory of sub-clause (a) of clause ( 4). Section 12 of the Pre ventive Detention Act which purports to be an ment in pursuance of article 22(7) the Constitu tion provides as follows : to supplement (a) of in any of an advisory board " ( 1) Any person detained the fol.lowing class·~s of cases or under any of the following circum stances may be detained without obtaining opinion three months, but not exceeding one year from <late of Iris detention, namely, where such person been detained with a view to preventing him acting in any manner prejudicial to- for a period longer (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." It will be noticed are altogether six 1950 A. IC Gopalan v. Thi Stale Mukhldta J. 280 SUPREME COURT REPORTS [1950] listed classes in the in the two Items five have been public order and preventive detention. both as cir.cumstances and heads or subjects legislative lists, namely, item No. 9 of List I and Item No. 3 of List III which deal with Item No. 9 of List I mentions reasons connected with defence, India, while Item No. 3 foreign affairs and security of reasons connected with security· of List III speaks of of a State, the maintenance of maintenance of supplies and services essential to the the last head, all co!!lmunity. With the exception of the remaining in section 12 of the Preventive Detention Act and they have been of cases mentioned in which detention for more than three months would be permissible without the opinion of any advisory board. Mr. Nambiar's argument the mentioning of in section 12 does five out of the six legislative heads circumstances under not amount which, or the classes of cases in which, a person could three months as contem be detained· for more than plated by article in view of the fact that the two items "circumstances" the conjunction "classes" "and", what contemplated was that both these be specified and a of them would statement or specification of any one not be a proper compliance with the provisions of the clause. It is further pointed out that the mentioning of the same matters as "circumstances" or "classes" article 22(7) of the Constitution is not warranted by and is altogether illogical and unsound. the Constitution items should 22(7) (a). It is also contended to prescribing separated by really drafted 22(7) (a), 12 has been a better and more the Parliament may I must say that section under which, and the classes of cases in a rather clumsy manner and certainly it could have been proper way. Under framed in article specify circumstances the cases of detention which, for examination board could dispensed with. By "classes of cases" we mean certain determinable the ifi\lividlials comprised group, in each group being related to one another in a parti cular way which constitutes the determining factor of "Circumstances'· the necessity of placing the other advisory by the group. 1950 A. K. Gopalan v. Thi Stale Mukhnjea J. S.C.R. SUPREME COURT REPORTS 281 <;oncerned. however has the sanction of the circumstances or conditions which are external connote situations the persons Preventive detention can be for reasons connected with six provided for by law in the relevant items in the different matters specified lists, apd whatever the reasons might be, legislative a provision s:ontained in article 22 ( 4) (a) which there is three months lays down that detention for 11).ore than could not be permitted except with advisory board. An alternative provided for by clause (b) and Parliament has been to take away the protection given by given the option clause (a) and specify and the cases when this rule will not apply. I am extremely doubt ful whether the classification of cases made by Parlia ment in section 12 of the Act the object which the Constitution had classification has been .to persons detained legislative general heads mentioned ih the items in the lists as said above. heads have been taken out and labelled as classes of cases to which the protection of clause ( 4) (a) of the article would not be available. items are forms of activities connected with these five drastic treat equally dangerous and merit the same ment. The descriptions are very general and degrees of intensity danger under each one of these heads. really fulfils in view. The basis acts of the apprehended described with reference against common sense that be acts · of various Five out of the six It is to say Although in view. ·I am unable that section 12 has been I do not think framed with due regard to the object which the Consti that the sec tution had as being ultra vires the Constitution. tion is invalid The Constitution unfettered Parliament in the matter of making the classifications any method and it is open to the Parliament to adopt If it chose the principle in the enumeration of subjects under ·the rele implied vant legislative heads, it cannot be said that Parlia ment has exceeded its powers. as it likes. principle powers I am also unable to hold that both "circumst:mi:es" to be prescribed in order as well as "clas1es" have 1950 A. K. Gopalan v. The St.u Mukherjea ]. 282 SUPREME COURT REPORTS [1950] acts. both; classes power is an optional done in the perform two any legislation upon it to perform and Parliament, in terms of conferred on comply with the requirement of sub-clause (a) of article 22(7). The sub-clause (a) of the article lays down a if it so purely enabling provision the same. chooses, may pass certain Where authority to separate acts, ordinarily it would not be obligatory may do either if it so likes. Here the classes have been specified and the classes apparently are composed of persons who are detained for the purpose of preventing I am them from committing certain apprehended extremely doubtful whether the themselves as they purport could be described as "circumstances" to have been "Circumstances" section. refer to conditions like war, rebellion, would ordinarily like that, under communal which extra precaution might be necessary ·of of suspected persons beyond the period detention advisory three months without the sanction of the board might be justified. It is said that the likelihood committing the particular acts which of these persons are specified might constitute "circumstances." In my interpretation. opinion, that is not a plain and sensible But whatver that may be, as I am of opinion that it is not obligatory on Parliament I am unable circumstances and is ultra vires the Constitution to hold that section 12 because the circumstances are I rather clumsy have said at the beginning, and I do not know why Parliament used the word "or" when in the Constitution been used. itself the word "and" the classes of cases, not mentioned. As to prescribe both disturbances the draft is and things In the fourth the Preventive Detention Act. prohibits any Court the principal question for consideration of section 14 of section (1) of section 14 allowing ariy statement to be made to be given before it of the cation made under section 7 , detention order has been made against any or anv order." and last point raised by Mr. Nambiar is the validity Sub evidence or any substance of any communi of the grounds on which person against such representation made It further provides that no Court shall by him s.c.R. SUPREME COURT REPORTS 283 entitled to require it or to disclose the substance of tion or representation made or the proceedings advisory board or advisory board which is confidential. further provides that . any public officer to produce before any such communica of an the report of an (2) that part Qf SUb-section 1950 A. K. Gopalan v. The Su• Mukbtrjea ]. "It shall' be an offence punishable with imprison ment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the Central the case Government or may be, contents of any such communication or representation as is referred to in sub-section ( 1) : the State Government, as previous authorisation ihatter purporting any contents or Provided that nothing apply to a disclosure made to his legal person who is the subject of a detention order." in this . sub-section adviser by a It or any evidence drastic character. is also incompetent The provisions of this section are obviously imposes a ban on produced before any communication made to a Court and prevents it from allowing any statement be made it of substance of the detenu apprising him of the grounds upon which the detention order was made. The Court look into the proceedings before the advisory board or of the latter which is confidential. Further the report the disclosure a of such materials has been made punishable with imprisonment for a offence criminal term which may extend to one year. Mr. Nambiar's contention· render utterly restrictions is that these nugatory the provisions of article 32 of the Constitu tion v.:hich guarantees proceedings for move this Court by appropriate of the rights conferred by Part III of enforcement the petitioner It is not disputed Constitution. has the right of moving this Court for a writ of habeas .corpus, and position to upon which the detention to any decision on the point and pass a it to come to move this th-: right proprr judgment. Though unless the Court is in a groun9s examine order has been made, it to every person the is impossible 1950 A. K. Gopalan v. TM Stal4 Mu/Wrjeo J. 284 SUPREME COURT REPORTS [1950] on a of the proceeds preventive rights I do the respondent, it is pointed out guarantees only the ineffective and altogether enforcing such all arises. to this Court at for enforcement by the Constitution. this argument in my opinion, and materially curtails is not formally taken away, the entire proceed Court illusory. ings are rendered On behalf of article 32 right to constitutional rights which remedy If there are no rights declared person guaranteed to a the Constitution, who is detained under any law of preventive tion, no question an approach think that basis; . take section 14 does some of the fundamental rights which are guaranteed by the Constitution itself. Article 22, clause (5), of the Constitution lays down as is detained a fundamental right that when a person /the authority making the detention, order shall, communicate to such as soon as may be, the grounds on which the order has been made, person opportunity of making and shall afford him the earliest the order. Under clause (6), a representation the authority need facts as it con siders to disclose. But so the disclosure is not far as prohibited under any circumstance. It is also bent upon the detaining authority to afford a detenu the earliest opportunity of making a representation against It has been held in several cases, the detention order. rightly, that if and in my opinion quite the grounds supplied to a detained person are of such a vague and indefinite character adeq, uatr. representation to the same, that itself would be an infraction of the right which has been In my opi given to the detenu under law. not be possible for the Court to decide nion, it would of article 22, clause (5), have whether the provisions been duly complied with and guaranteed by it detenu unless the grounds communicated to him under article arc actually produced the provisions of this before the Court. Apart from this, it is also open the detention the person detained to be against the grounds are concerned, not disclose such public interest fundamental has been made available that · no proper could be made to contend in reply against 1950 A. K. Gopalan v. The S1ate Mu!rherjea ]. S.C.R. SUPREME COURT REPORTS 285 the· provisions of rendered unenforceable order has been a mala fide exercise of power by detaining authority and that the grounds upon which grounds which it is based, are not proper or relevant justify detention under law itself. These rights of the detenu would for all if the practical purposes be into the grounds which Court is precluded from looking been supplied In my opinion, section 14 Preventive Detention Act. of the Preventive Detention Act does materially affect rights declared under Part III of the the fundamental and for this reason it must be held to be Constitution is not disputed, however, illegal Act without affecting the other provisions of the Act in any way. The whole Act cannot, therefore, be held to be ultra vires. this section can be severed from to him und~r section 7 of and ultra vires. the rest of It itself as this Court the propriety of for it makes satisfaction of Mr. Nambiar has further argued authorities final in matters of thereby prevents that section 3 contravenes the provisions of article 32 of the Act also of the Constitution, preventive particular .from detention the detention satisfying order. This contention cannot succeed as no infraction fundamental right is involved of any interfere been pointed out already, this Court cannot unless it is proved that the power been exercised fide manner or that in a mala the grounds are not proper or relevant grounds which justify undoubtedly the rights under harsh, but as they do not take they cannot be articles 21 and 22 of the Constitution, held to be illegal or ultra vires. detention. The provisions the authorities in it. As in my op1mon, The result, therfore, is that, Preventive Detentibn Act must be declared to be intra the exception of section 14 vires the Constitution with be illegal and is held to present petition, however, must stand disinised, though ~o make a fresh to the petitioner it may application if he so chooses and if the grounds that have been supplied the Act do to hiin under section 7 of furnish adequate reasons for making such application. ultra vires. The · be open 1950 A. K. Gopalan v. Tiu StaU Do.]. 286 SUPREME COURT REPORTS [1950] Das J.-I am likewise cation should be dismissed. of opinion that this appli application is The contention of learned counsel appearing that the provisions support of this (Act IV at 1950), the Preventive Detention Act, !950 are extremely drastic and wholly unreasonable take away or, in any event, considerably abridge fundamental provisions of Part Ill of the Constitution and this Court should declare the Act wholly void under article 13(2) of the Constitution and set the petitioner at liberty. conferred on the citizens rights • It is illegal the three limbs the United States is the legislative power In England Parliament necessary to bear in mind the scope and the Court under the Constitu ambit of the powers of the same under tion. The powers of the Court are not is supreme all Constitution~. and there is no limitation upon its legislative powers. Therefore, a law duly made by Parliament, cannot be challenged in any Court. The English Courts have they have no authority to interpret and apply the law; or unconstitutional. By to declare such a law the American Constitution in the Congress and in a sense the the Union is vested Congress is the supreme legislative power. But supreme written Constitution of above all the law made by the Congress, in order to be valid, fore, the Supreme Court will Constitution. law to be unconstitutional intervene and void. As will be seen more fully hereaf1er, the under the leader Supreme Court of the United States, ship of Chief Justice Marshall, declare any law unconstitutional on the ground of its not being in "due process of law'', an expression tp be found in the Fifth . Amendment (1791) of the United the Fourteenth Amendment States Constitution and It ( 1868) which related to the State Constitutions. its own [n supremacy over is somewhere in India the executive and position of the Judiciary is not, and declare that the Supreme Court established be in conformity with the of Government and, assumed the power the Congress. provisions of If it 1950 A. K. Gopalan v. The State Das]. I S.C.R. SUPREME COURT REPORTS 2S7 in their respective transgression their respective limitation has been the legislative power, leaving our Parliament and the United States. between the Courts in England and While in the main legisla State Legislatures supreme the articles, tive fields, our Constitution has, by some of limitations put upon the Legislatures certain specified hereafter. to be discussed some of which will have so far as is that The point to be noted. however, there is anv limitation on Court must, on a complaint being made to it, scrutinise and ascertain whether such gressed and if there has been any law unconstitu Court will courageously declare tional, for the Court is bound by its oath to uphold imposed on Constitution. But outside the limitations State the legislative powers our Parliament and legislative Legislatures are supreme fields and the Court has no authority wisdom or policy of the law duly made by the appro prl!ite legislature. Our Constitution. unlike the English supremacy over Constitution, is a very the legislative authority, but such supremacy limited one, for· it to the field where the limitations put legislative power the Constitution upon it the la,w restricted field the Court may, on a scrutiny of made by the Legislature, declare to have transgressed the constitutional limitations. But the American Constitution, unlike our Constitution, the Court does not recognise the absolute supremacy of over the legislative authority in all respects, for outside limitations our the restricted field of constitutional Parliament and the State Legislatures are supreme their respective legislative fields and in that wider to play the role there is no scope for the Court in India It is well of the Supreme Court of for us to constantly remember this basic limitation on our own powers. is circumscribed by the United States. itself. Within the Court's to question is confined recognises if it is it void the Constitution came The impugned Act has been passed by Parliament into force. Article 246 gives exclusive power to Parliament to· make laws with I in respect to any of the matters enumerated in List exclusive power to the Seventh Schedule and it gives 1950 A. K. Gopalan V, The State Das]. 288 SUPREME COURT REPORTS [1950] \ to make laws with respect the State Legislatures any of the matters specified in List II of that Schedule. Ii also gives concurrent power to Parliament as well as to make laws with respect to to the State Legislatures any of the matters enumerated in List III Seventh Schedule. Residuary powers of legislation are vested in Parliament under article 248. to make The first thing to note is that under Entry 9 of List I the Parliament and under Entry 3 in List III both, Parliament and the State Legislatures are em laws for preventive detention for powered reasons connected with the several matters specified the respective entries. This legislation is not condi tioned upon the existence of any war with a foreign power or upon the proclamation of emergency under Part XVIII of the Constitution. Our Constitution has, therefore, accepted preventive detention as the subject legislation as distinct from emer matter of peace-time to provide "for preventive detention in the Constitution. There is such provision in the Constitution of any other country that I know of. ·Be that as it may, for reasons good or bad, our Constitution has deliberately and plainly the State Legislatures to Parliament and given power to enact preventive detention in· peace law is time. To many of us a preventive detention odious at all times but what that it is not for the Court to question the wisdom and policy of the Constitution which the people have given unto themselves. Court must not overlook. This is another basic fact which I desire to emphasise It is a novel feature laws even legislation. in mind that, The next thing to bear were nothing else in the Constituti1>n, legislative powers of Parliament and the State Legislatures their respective fields would have been absolute. In such circumstances the Court would have been entitled the State law, over Legislature had, stepped its legislative could not have otherwise questioned the validity of any law made by the Parliament or the State Legislatures. to scrutinise whether Parliament or in making a particular legislative field and encroached upon legislative power, the other field of 1950 A. K. Copa/an v. The State DasJ. S.C.R. SUPREME COURT REPORTS 289 III the grounds of to anybody or the Parliament or the Parliament and to take a man, citizen or non-ci:izen, Thus under Entry 9 of List I the Parliament and under the State Entry 3 of List Legislature could make as drastic a preventive deten Such a law might have author tion law as it pleased. ised a policeman, not to speak of a, District Magistrate the Commissioner of or Sub-Divisional Magistrate or Police, lot 1g as he custody and keep him in detention for as pleased. This law might not have made any provision for supp1ying to the detenu l11s deten tion or affording any opportunity to him to m1ke any setting up any representation advisory board at all. Likewise, under Entries 1 and the State Legislature 2 in List III might have added as many new and novel offences as for any it~ fancy might have dictated and provided cruel penalty ranging from the maiming of the limbs to bciling to death in oil or repealed the whole of the Codt of Criminal Procedure and provided for trial by battle or ordeal or for conviction by the verdict of a sorcerer or a soothsayer. Such law might have forbid den any speech criticising the Government, however mildly, or banned all public meetings or prohibited law. formation of all associations under penalty of the Parliament might have I Under Entry 33 made a law for acquiring anybody's properties for purposes of the Union without any compensation III the State Legislature could under Entry 36 in List do the same subject to List III which empowers the making of a law laying for payment of compensation which down principles 81 might be anything above nothing. Under Entry restricting or Parliament could have made any law even 'prohibiting inter-State migration so that a Bengali in Bihar or would not be able to move vice versa. It is needless the State Legis atrocious lature might have made under article 246 read with if there were nothing else in the Constitu different lists tion. Our Legislatures, subject the limitation of of legislative powers, would have been as distribution their respective --supreme into and settle to mqltiply laws which Parliament or the provisions of Entry 42 legislative fields as instances ·of List ..,. 1950 A. K. Gopalan v. The State Das]. 290 SUPREME COURT REPORTS [1950] English Parliament India, in such event, would have had duly made, have been entitled of the particular at the monstrous atrocities of such law. is and has been. The Court in the law it and apply it. It would not to utter a word as to the propriety law, although it might have shuddered interpret to take Our Constitution, however has not accepted this the State legislative to the provisions of the Constitution; abso.lute supremacy of our Parliament or Legislature. Thus by article 245 (1) this Constitution." Turning article 13(2) provides as follows: is definitely made "subject "The State shall not make any law which away or abridges and any shall to the extent of the contravention, be void." rights conferred by law made · in contravention of this Part this clause the competency of the Court This clearly puts a definite limitation on the wide It is certainly there has been any contravention of the Court has In this respect again legislative powers given by article 246. within declare whether this limitation. supremacy over the Legislature. the provisions so far referred From follows that legislative power of Parliament, namely,- law must be within there are two principal (i) that the to, limitation it clearly legislative as prescribed by article competence of Parliament 246; and (ii) that such subject to the pro the Constitution and must not take away or law must be visions of abridge the rights conferred by Part III. There can be no qu.estion-and, indeed, ihe these matters are justiciable and learned .contend otherwise-that is open to the to decide whether Parliament has transgressed Attorney-General Courts either of the limitations upon its legislative power. legislative powers of Parliament as prescribed by article 246. is VQid His contention the petitioner does nor is ultra vires Learned counsel impugned Act impugned Act - .l S.C.R. SUPREME COURT REPORTS 291 fundamental because it takes away or abridges the Consti rights of citizens conferreq by Part III of tution. It is, exact nature, extent and scope of the particular funda mental right insisted upon and then to see whether or, in any way, abridg impugned Act has taken away ed the fundamental right so ascertained. therefore. necessary to ascertain first 1950 A.K. Copa/an v. The Statt Das]. is free. the rights the person. to live, i.e., law. The truth of (jus. rerum). Of the to things, rights attached Civil riglits of a person are generally divided into the person two classes, namely, the rights attached (jus personarum) and i.e., pro person, the first and foremost life, is _ the freedom of which me:i,ns the right the right that one's life shall not be taken away except under authority of law. Next to the freedom of life comes the freedom of that ~ne's body shall not be the person; which means imprisoned and one's touched, violated, arrested or . limbs shall not be injured or maimed except under authority of the matter is that the right to live and the freedom of the person are the If a man's rights attached primary person it is exercise a variety of other auxiliary say, he can, within certain limits, speak what he likes, assemble where he form. any associations or unions, move about freely as his "own inclination may reside and settle apywhere he likes and practise direct," trade or any profession or carry on any occupation, business. These are attributes of the freedom of the per son and are consequently rights attached to the person. It should be clearly borne in mind· that these are not al.J to the person. Besides them there the rights attached are varieties of other rights which are also the attribu tes of the freedom of the person. All rights attached to liberties and the person are usually called personal they are too numerous to be enumerated. Some of fundamental auxiliary that they are regarded and valued as separate and dependent rights apart from the freedom of the person. then and then only that he so important and rights are rights, likes, Personal liberties may be compendiously summed I up as the. right to do as one pleases within the law. 14-3 S. C. India/58 1950 A. K. Gopalan v. Tire State Dos J. 292 SUPREME COURT REPORTS [1950] liberty the law because is not unbridled It is what Edmund Burke called "regulated III, Ch. 3, of say within licence. freedom." Said Montesquieu ~n Book his Spirit of the-Laws : "In Governments, laws, liberty can consist only what we ought do what we ought not tinually present to our minds independence and liberty. Liberty whatever liberty, because all his fellow-{;itizens would enjoy same power." that is, in societies directed by the power or doing to will. We must have con the difference between is a right of doing if a citizen could do be possessed of t.o will, and in not being constrained they forbid, he would no longer the laws permit, and To the same effect arc the of Webster in his Works ·vol. II, p. 393: following observations law, idea, "Liberty and refined licentiousness creation of authorised essentially different trespasses on right. It is a legal offspring of high civilization, which the savage never understand. Liberty understands, never can to wholesome restraint; exists in proportion the more restraint on others to keep off from us, the more liberty It is an error to suppose that liberty consists we have. in a paucity of laws .... The working of our complex legislative, system, full of checks and executive and judicial power liberty justice. These checks and restraints arc so many safeguards set around interests. rights and That man is free who is protected from injury." restraints on is favourable individual removing restraint . on intended victims. To curb freedom of Therefore, putting is really securing the liberty w10ng doing of one person the freedom of of the saboteur or surreptitiously fish plates from ·the railway lines is to ensure the safety and liberty of movement of the numerously innocent and unsuspect ing passengers. Therefore, restraints on liberty should be judged not only subjectively as applied to a few their operations but also individuals who come within of a far greater objectively as securing the number of individual individuals. Social interest libetry 1950 A.K. Gop:uar. v. Th4 StaJt Das J. :s.C.R. SUPREME COURT REPORTS 293 rights. then such too numerous them by clauses individuals, for it will ensure to be subordinated If a time, our liberty has also legislative as well as and prerogatives. Subject liberty may well have law ensures · and protects greater social interests. law will be a the greater social interests it may infringe wholesome and beneficent law although the liberty of some the rest of the members of the the greater liberty of to be society. At the same judici guarded against executive, al usurpation of powers certain restraints on individuais and reasonable checks on the State every person has a variety of personal to be catalogued. As will be liberties seen more nised personal liberties as fundamental It has them under article 19(1) but put guaranteed some of to (6). It has put restraints on ' checks on the State's legislative powers by articles 21 and 22. It has by providing for preventive detention, recognised that individual liberty may be subordinated to the larger social interests. Turning now to fully hereafter, our Constitution has heads, besides and 13), namely "General" "Right to Freedom" that Part lll is headed and deals with "Fundamental Rights" provisions (articles 12 to Equality" (articles 19 to (articles 14 to 18), "Right (articles 23 and 24), 22), "Right against Exploitation" "Right to 28), (articles 25 to Freedom of Religion" (articles 29 and "Cultural and Educational Rights" (article 31),. "Right to Con 30), "Right to Property" stitutional Remedies" (articles 32 to 35). Under heading "Right to Freedom" are grouped four articles, 19 to 22. Article 19(1) is in the following terms:- "(!) All citizens shall have the right- the Constitution I find (2) (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; · (£) to acquire, hold and dispose of property;. and 1930 A..K. GofJalan v. Thi StoU Das]. 294 SUPREME COURT REPORTS [1950] ..... (g) to practise any profession, or to carry on any occupation, trade or business." (2) to property in article 19 It will be noticed that of the seven to be curtailed by laws made or rights protect ed by clause (1) of article 19, six of them, namely, (a), (b), (c), (d), (e) and (g) are what are said to be rights attached (ius personarum). The remain to the person ing item, namely, (f) is the right (jus re rum ). If there were nothing else rights would have been absolute rights and the protec tion given them would have completely debarred Parliament or any of the State Legislatures from mak ing any law taking away or abridging any of rights. But a perusal of article .19 makes it abund the seven rights enumerated in antly clear that none clause (1) is an absolute right, for each of these rig_hts to be made is liable by the State to the extent mentioned several clauses (6) of that article. Those clauses save the p0wer of the State to make laws imposing certain the several rights. The nett specified restrictions on legislative power given by result is that the unlimited article 246 read with the different legislative the Seventh Scpedule is cut down by the provisions of article 19 and all laws made by the State with respect rights must. in order to be valid, observe these to these limitations. Whether any law has in fact transgressed these limitations is to be ascertained by the Court and if in its view by the law are greater to (6) whichever same to be unconstitutional and, therefore, void under article 13. Here again there is scope for the application of the "intellectual yardstick" of If, how ever, the law has not the Court overstepped will have to uphold the law, whether or not. the Court finds, on scrutiny, that the constitutional than what is permitted by clauses the Court will declare the restrictions is applicable the Court. limitations. imposed it likes (2) first part of that personal liberty The namely, by the Constitution by article 19(1) and that ventive Detention Act, 1950 has is put broadly, is generally guaranteed the Pre imposed unreasonable the argument 1950 A.K. Copa/an v. The Stare Das]. S.C.R. SUPREME COURT REPORTS 295 If personal to whether by prescribing the petitioner restrictions thereon the provisions of in violation of clauses (2) to ( 6) ot that article. The very first ques tion that arises, therefore, the freedom is as of the person which is primarily and directly suspended or destroyed by preventive detention is at all governed liberty as such is guaran by article 19(1). teed by any of the sub-clauses of article 19(1) then why has it also been protected by article 21 ? The answer suggested by learned counsel for personal liberty as a substantive is protected by article 19(1) and article 21 gives only an additional according the procedure protection taken away. to which that right may be I am un If this argument were able to accept this contention. that our Constitution does correct, then it would follow not guarantee to any person, citizen or non-citizen, freedom of his life as a substantive right at all, for the substantive right to life does not fall within any of the sub-clauses of clause ( 1) of article 19. reply that no constitution or human laws can guarantee the gift of God who alone can guarantee life which it. On a parity of reasoning no Constitu and protect tion or human laws · can in that sense guarantee free dom of speech or free movement, for one may be struck legs by dumb by disease or may lose paralysis or as a result of amputation. Further, what the procedural protection of article 21 has been called would be an act of supererogation, for when God takes away one's life whatever opportunity He may have had giyen to Adam to explain his conduct before sending him down, He is not likely these degenerate days to the requirements of notice or fair trial before observe ::.ny human tribunal said to be · required by article 21. The fifth Amendment and the Fourteenth Amendment of the American Constitution give specific protection right. So does article 31 of to life as a substantive There is no reason the japanese Constitution of 1946. the same. The why our Constitution should not do truth is that article 21 has given that protection to life that as will be seen here as a substantive right and that article properly understood does not pur after, port to prescribe any particular proced~re at all. The the use of his It is retorted 19!i0 A. IC. Gopalan v. The State Das]. 296 SUPREME COURT REPORTS [1950] the argument of counsel further astounding result of for the petitioner will be the citizen of India in article 19 will have only the rights enumerated to his person. clause ( 1) and no other right attached As rights I have already stated, besides mentioned in the several sub-clauses of article 19(1) liberties which there are many other personal a free man, the freedom of his i.e., a man who has person, may exercise. Some of those other rights have been referred to by Harries C. J. of Calcutta in his un reported judgment in Miscellaneous Case No. 166 of 1950 (Kshitindra v. The Chief Secretary of West Bengal) while referring the case to a Full Bench in the follow- ing words:- the several · "It must be remembered licensing in article 19. that a free man has than those stated in article 19 more and wider rights (1) of the Constitution. For example, a free man can eat what he likes subject to rationing laws, work as or idle as much as he likes. He can much as he likes drink anything he likes subject to the and smoke ;ind do a hundered and one things which are If freedom of person was not included the result or article 19, then a free man would only have the seven rights mentioned in that article. But the free man in India has far greater rights." obviously I find myself in complete agreement with the learned Chief Justice on this point. to eat what he likes will be liable to citizen's right be taken away by the excutive fiat of the Civil Supply Department ·without rationing laws. The Government may enforce prohibition with laws ·and so on. out any prohibition laws or licensing to give intended I cannot accept that our Constitution no protection to _the bundle of together rights which, in sub-clauses (a) to ( e) and with the rights mentioned liberaty. Indeed, I regard it as a (g) make up personal merit of our Constitution t-0 enumerate exhaustively and uses the compendious expression 'personal liberty" m article 21, and protects all of them. the necessity of any If it were otherwise, it does not attempt the personal rights It is pointed out word "liberty'' only wa. used as in the original draft the American 1950 A.K. Gopalan v. Tlw State Das J. S.C.R. SUPREME COURT REPORTS 297 to make If it were permissible I do not, however, desire learned counsel for the petitioner Constitution but the Drafting Committee added word "personal" that what was being protected by what is now article 21 was not what had already been protected by what is now article 19. the Drafting Committee's report, it would be another answer to the contentions of personal liberty as a substantive right was protected by article 19. to base the Drafting Committee's report 'and my judgment on its admissibility. Wh:tt I express no opinion as the Drafting Committee might the Constitution as finally passed has in have been, article 21 used liberty" which "personal-: in law as I have explained. have a definite connotation It does not mean only liberty of the person but (ius the person means liberty or the rights attached personarum ). The expressions "freedom of life" or "personal liberty" are not in article 19 the language of article 19 to squeeze and it is straining case the , in personal liberty right to life cannot be read into article 19. intentions of that article. the words In any to be is not in its operation, Article 19 being confined, to citi zens only, a non-citizen will have no protection for his liberty except what has been called life and personal If there be no the procedural protection of article 21. protect? substantive, right what will the procedure I recognise .that a foreigner should have the same priviieges as are given to a citi zen, but if article 21 the way I have is construed suggested even a foreigner will have equal protection the laws of our for his life and ,pt!rsonal country under our Constitution. fore, for all the reasons given above, the result of article 19 or that personal liberties are that article purports to protect all of them. liberty before I am unable, imperative to agree It is next urged is synonymous · 'with the expression "personal liberty" the right to move freely and, therefore, comes directly under article 19(1) (d). Reference ment of Sen J. of Calcutta in Miscellaneous Case No. to a Full Bench. that case 166 of 1950 while referring is made , to the unreported dissenting 1950 A.K. Gopalan v. The State Das]. 298 SUPREME COURT REPORTS [ 1\150] the following passage In his judgment Sen J. quoted from Blackstone's Commentaries:- to personal "Next security the rights that personal course of law." rights, namely, the above passage the rights attached On the authority of the personal libertv consists law of England liberty of regards, asserts and preserves, individuals. This personal power of locomotion, of changing situation, or moving inclination one's person to whatsoever place one's own imprisonment or restraint, unless may direct, without by due [Page 73 of George Chase's Edition (4th Edition) of Blackstone, Book I, chapter I.] the learned liberty came within Judge concluded article 19(1)(d). I am unable to.agree with the learned Judge's conclusion. On a perusal of Chapter I of Book I of Blackstone's Commentaries it will appear that the learned comm~mator divided (jus personarum) into two classes, namely, the person liberty." Under "personal security" and "personal included sev the head "personal security" Blackstone limb, body, the head "personal health and reputation, and under liberty" he placed only free movement. He first dealt with the several rights, classified by him the head "personal security" and then proceeded to say that next to those rights came personal liberty which according to his classification consisted only in the right of free locomotion. There is no reason to sup in article 21 of our Constitution the expres sion "personal liberty" has been used the restricted sense in which Blackstone used it in his Commentaries. synonymous If "personal liberty" freely which• is mentioned with the tight to move article 19(1) (d}, the astounding result will be that only the last mentioned right has~ what has been called the procedural protection of article 21 but none of the other rights in the other sub-clauses of article 19 ( 1) has any procedural protection at all. According the procedure to learned counsel for quired by article 21 consists of notice and a right of hearing before an tribunal. Therefore, ac right of movement cannot be cording to him, a man's taken away without giving him notice and a fair trial in article 21 were the petitioner the right of impartial life, S.C.R. SUPREME COURT REPORTS before an impartial tribunal but he may be deprived of his freedom of speech or his property or any of his other rights Without the formality of any procedure at all. The proposition has only to be stated to be rejected. In my judgment, article 19 protects some of the import ant attributes of personal liberty as independent rights and the expression "personal liberty" has been used including within in article 21 as a compendious its meaning all the varieties of rights which go to make up the penonal liberties of men. 1950 A. K. Gopalan v. The Stau Das]. the person the pith and the freedom of Learned counsel for. the petitioner next contends liberty undoubtedly means or includes that personal the freedom of the person and is right w move stance of about freely and consequently a pr.eventive detention law which destroys or suspends the right of pe~on must inevitably destroy or suspend free movement and must necessarily offend against the citizen by article 19 ( 1) ( d) protection given laid clown unless it -satisfies the test of reasonableness in clause (5). The argument is attractive and requires serious consideration as to the exact purpose and sc"pe of sub-clause (d) of article 19(1). the freedom of the very There are indications i.e., from one State to another within In other words, language of article 19 ( 1) ( d) itself that its .purpose is to protect not the general right •of ·free movement ~hich emanares from the freedom of the person but only a specific and it, namely, the special right of a free limited aspect of the Indian citizen of Indian to move freely throughout territory, Union. for exampie, that a free residing in the State of West Bengal will be free to move from West Bengal to Bihar or to reside and settle in Madras or . the Punjab without anv let or hindrance other than as It is this special right of move provided in clause (5). specific sense and ment of the Indian citizen protected for this particular purpose which article 19( 1) is argued on the authority of a ( d). It decision of a Special Bench of . the Calcutta High Courc presided over. by Sen J. in Sunil Kumar v. The Chief it guatantees, ordinarily Indian citizen 1950 A. K. G•p.Jan v. T/,. Stau Das]. 300 SUPREME COURT REPORTS [1950] restrictions. I ·am unable free movement Secretary of West Bengal ( 1 ) that the words "through out the territory of India" occurring in that sub-clause that our Constitution does not guarantee only indicate to its citizens in or into the right of free movement foreign territory and that those words have been added . to save passport to accept this interpretation. Our Constitution cannot possibly to any of its citizens any right of free movement in a foreign q:mntry and it was wholly superfluous specifically indicate for that the Constitution, would have gone without saying. The words "through out the territory of India" are not used in connection witli most of the other sub-clauses of clause (1) of that our Con article 19. Does such omission indicate stitution guarante~s to its citizens freedom. of speech and expression, say, in Pakistan? Does it guarantee to its citizens a right to assemble or to form associations or unions in a foreign territory? Clearly not. Therefore, it was not necessary to use those words in sub-clause ( d) in fqreign countries to indicate was not being guaranteed. It is said .. that by the use of those words the Constitution makes it clear guarantee was being given to any citizen with regard to emigration from India without a passport and the freedom of movement was restricted within territory of India. Does ·the omission of those words from article 19(1) (a) indicate that the citizen of India has been guaranteed such freedom of speech and ex pression as will enable him to set up a broadcasting station and broadcast his views artd expressions ·. to lands without a licences? Clearly not. Dropping foreign this line of argument · and adopting a totally . new of argument it is said the words "throughout the territory of India" dicates that the widest right of free movement that it could possibly give to its citizens has been given. Does, then, the omission of those words from the other sub clauses indicate some parts of those rights even beyond the qualifying clauses other rights prevail {1)54 C. W. N. 394. the limits of territory? that the Constitution has kept back . follow? Do not the Indian through.out that by the use of the Constitution 1950 A. K. Gopalan v. Th8Sta1e Das]. S.C.R. SUPREME COURT REPORTS 301 the Union they do, even without those words. Therefore, Clearly in sub-clause (d) for those words must have been used far as I some other purpose. That oth~r purpose, as can apprehend it, is to free movement indicate from one State to another within is protect that Parliament may not by a law made under ed so Entry 81 in List I curtail it beyond the limits prescrib Its purpose, as I read ed by clause (5) of article 19. it, is not to provide protection for the general right of free movement but to secure a specific and special territories of India regarded as an independent addi tional right apart from the general right of locomotion emanating from the freedom of It is a the matter guarantee against unfair discrimination of free movement of the Indian citizen Indian Union. is a protection against It has nothing to do with the freedom provincialism. of the person as such. That to every person, citizen or otherwise, in the manner and to the extent formulated by article 21. throughout the Indian citizen to move freely is guaranteed the person. throughout In short, Imposition of reasonable Clause (5) of article 19 qualifies sub-clause (d) of clause (1) which should, therefore, be read in the light of clause (5). The last mentioned clause permits the State to impose reasonable restrictions on the exercise of right of free movement throughout the territory of India as explained above. restric tions clearly implies the right of free movement is not entirely destroyed but that parts of the right remain. This reasonable restriction can be the interest of the general public or for the protection of the interests of any Scheduled Tribe. The Scheduled Tribes usually reside in what are called the Scheduled Areas. The provision for imposing restri~tion Qn citizens' right of free movement in the interests of the Scheduled Tribes clearly indicates that the restriction is really on his right of free movement into or within the that if it· be found necessary Scheduled Areas. for the protection of the Scheduled Tribes the citizens into or moving about may be restrained from entering in the Scheduled Areas although they are left quite free to move about elsewhere. This restraint may well be imposed either It means 1950 d. K. Gopalan v. The State Das]. 302 SUPREME COURT REPORTS [1950] are generally them. They may have necessary for the protection of the members of Scheduled Tribes who impecunious and constitute a backward class. They may need protec tion against money-lender~ or others whu may be out to exploit to be protected against their own impecunious habits which may result in their selling or mortgaging their hearths and homes. Likewise, the free movemen, of citizens may have b.e restricted in the interest of · the general public. A person suffering from an mfectious disease may be pre vented from moving awut and spreading the disease the nature of and regulations for his segregation · in quarantine may have be introduced. Likewise, healthy people may be prevented, in the interests of the general public. from entering a plague-infected area. There may be protected places, e.g., forts or to be other strategic place>, access whereto may have in the regulated or even prohibited general public. The point to be noted, however, is that when free movement is thus restricted, whether· in the interest of the general public or for the protection the Scheduled Tribes, such restriction has reference generally to a certain local area which becomes prohibited area but the right of free movement in all the Union is other areas left unimpaired. The circumstance contemplates only (5) taking away of a specified area and thereby restricting the field of the exercise of the right conferred by sub that sub clause ( d) of clause (I) indicates clause ( d) is concerned, not with person· or the general right of free movement but with a specific aspect of it regarded as an independent In other words, apart from the freedom of the person. in sub-clause (d) the real emphasis is on the words ''throughout ihe terr~tory of India." The purpose of (d) is to guarantee ·article 19(1) that there shall be no It gives protection against provincialism. State barrier. It has nothing to do with the freedom of the person as such. to my mind the freedom of that clause interests of Finally, the ambit and scope of ted by article 19(1) have protect right of to be considered. Does the rights protcv the other free movement and 1950 A. K. Gopalan v. The State Das]. S.C.R. SUPREME COURT REPORTS 303 though to libel, to exercise the citizen to overthrow, the State. Any therein mentioned the rights? Does in all circumstances personal rights irrespective of any other comideration? Does it postulate a capacity lawfully protection continue even loses his capacity, for exercising those rights? How can the continuance of those personal rights be compatible with the lawful detention of the person? These. per sonal rights and lawful detention cannot go together. Take the case of a person who has been properly con· victed of an offence punishable under a section of the [ndian Penal Code as to the reasonableness of which there is no dispute. His right to freedom of speech is certainly impaired. Under clause (2) the State may make a law relating slander, defamation, contempt of Court or any matter which offends against decency the security of, or or morality or which undermines law on any of these matters contemplated by this clause certainly must have some direct reference to speech and expres sion. It means that the citizen may not talk freedom of speech so that libel or speak contemrtuously of the Court ·or express indecent or immoral sentiments by speech or other forms of expression or utter seditious words. To say the security of the State that every crime undermines and, therefore, every section of the Indian Penal Code, irrespective of whether it has any reference . to speech or expression, is a law within the meaning of this clause is wholly unconvincing and betrays only a vain and forlorn attempt to find an explanation for meeting the argumeqt that any conviction by a Court of law must necessarily infringe article 19(1) (a). There can be the fact no getting away from a result of a conviction freedom of speech far beyond what is permissible under clause (2) of article 19. Likewise a detention on lawful con rights men viction impairs each of the other personal tioned in sub-clauses (b) to ( e) and (g) far beyond the limits of clauses (3) to (6). The argument that every section of the Indian Penal Code irrespective of whether it has any rights referred to any of reference to in sub-clauses (b) to ( e) and (g) imposing the law may directly curtail is a law that a detention impairs 1950 A. K. Gopalan v. Tiii Stal• Das]. 304 SUPREME COURT REPORTS [1950] rights or of ( 1) 19 (2) the conclusion restriction on the other personal rights protected by article several reasonable of plausibility. There can be the merit not even that a detention as a result of lawful convic no doubt the fundamental personal tion must necessarily impair beyond rights guaranteed by article what is permissible under clauses (6) of article•' ·and yet nobody can think of questioning the section of the detention validity of Indian Penal Code under which the sentence was ·passed. Why? Because the freedom of his person hav ing been lawfully taken away, the convict ceases to be the freedom of speech and expres entitled to exercise sion or any of rights protected by clause (1) of article 19. On a parity of reasoning he can not, while the detention lasts, exercise any other personal right, e.g., he cannot eat what he likes or when he likes for him but has to eat what the Jail Code provides the time when he is by Jail regulations required and at to eat. Therefore, is irresistible (19) (1), in so far as they relate rights referred to in sub-clauses (a) to (e) and (g), are rights which only a free citizen, who has the freedom It is pointed of his person unimpaired, can exercise. out, the above detention as a result of a lawful to acquire or hold not deprive a person of his in sub-clause (f). or dispose of his property mentioned The answer is simple, namely, that is not the person, (ius personarum) and a right attached freedom of its existence the person. Loss of freedom of to property. But fore, aoes not suspend suppose a person reason of its having been compulsorily acquired under article 31 he loses his right that property and cannot that his fundamental right under sub-clause complain (f) of clause (1) of article 19 hM been infringed. I~ in article 19 (J \ follows the rights enumerated subsist while the citizen has the legal capacity to excr· If his capacity to exercise them is gone, by cise them. rights reason of a lawful conviction with respect is not dependent on the loses his property by reasonings, conviction to rights attached as a counter the persorr, the person, that right to hold to the i.e., 1 1950 A. K. Gopalan v. The Stale Dos]. I S.C.R. SUPREME COURT REPORTS 305 follows to have It further to the right in sub-clauses (a) to (c) a11d (g), or by reason of a law ful compulsory acquisition with respect those rights while his sub-clause (f), he ceases incapacity lasts. if a citizen's freedom of the person is lawfully taken away otherwise than as a result of a lawful conviction for an offence, the same reason, cannot exer-. that citizen,· for precisely rights attached to his person including cise any of the in sub-clauses (a) to (e) and (g) of those enumerated In my judgment a lawful detention, article 19 (1). whether punitive or preventive, does not offend against (a) to (e) and the protection conferred by article 19(1) (g), for those rights must necessarily cease when In short, freedom of the person those rights end where the lawful detention begins. So therefore, construed, article 19 and article 21 may, in reality, no conflict easily go together and there is, betwen the validity or otherwise of preventive detention does not depend on, and is not dealt with by, article 19. is lawfully taken away. It follows, therefore, them. rights which, To summarise, independent rights. does not deal with the freedom of. the person the right to move freely throughout India which is not the result of article 19. Article 19 only deals with certain particular their origin and inception, are attributes of the freedom or the person but being of great importance· are regarded as specific It freedom, of the person as such. Article 19(1) (d) pro locomotion, tects a specific aspect of the right of free namely, the terri is regarded as a special privilege or tory of Indian citizen and is protected as such. right of an The protection of article 19 is co-terminous with the legal capacity of . a citizen to exercise the rights protec ted thereby, for sub-clauses (a) to ( e) and (g) of· article 19 (0 postulate the -person which freedom of rights 'the the capacity alone can ensure protected by those sub-clauses. A citizen who die.freedom of his person by being lawfully detained, whether. as a result· of a conviction for an offence or as a result of preventive detention loses his capacity therefore has none of the exercise rights which sub-clauses (a) to (e) and (g) may protect. rights and, to exercise ' - 306 SUPREME COURT REPORTS [1950) In my judgment article 19 has no bearing on question of detention and, cribes a applied by the Court has no application at all. the validity or otherwise of preventive (5) which pres to be defined and that being so clause reasonableness test of A. K. Copa/an 1950 ... Tht State Das], thus out of the absolute limitation on jeopardy and Article 19 being self-incrimination. the way. I come is concemed with providing protec article 20 which tion against what are well known as ex post facto laws, This artkle double constitutes a legislative power which would, but for this article be exercisable the State Legislatures under article by Parliament or If the Legislature 246 read with disobeys certainly prevent it. Article 20 has no bearing on preventive detention laws and I pass or1. Article 21 runs thus: "21. No person shall the legislative limitation be deprived of his the Court will lists. to procedure personal established by liberty except according law." liberty. to accept learned counsel life or personal to the argument, that by this article The contention of to give any protection the peti tioner is the Constitution offers to every person, citizen or non-citizen, only a procedural protection. According this article does not purport to life or per sonal liberty as a substantive right . but only prescribes that must be followed before a person may a procedure be deprived of his I am unable this contention. Article 21, as the marginal note states, guarantees "pro to every_ person it, tection of life, and personal liberty." As 1 read defines to which protection is given and does not p,urport to prescribe any particular procedure at all. not be deprived of his life or personal liberty except according to procedure established by law is the sub stantive fundamental right to which protection is given article, as I apprehend the ambit of the to be pro nght to life and personal liberty which to life and tected as a fundamental right. The right the Constitution. The avowed object the substantive That a person it, is to define fundamental S.C.R. SUPREME COURT REPORTS 307 is a qualified by the possibility to procedure established by liberty protected by article 21 personal absolute circumscribed according to depriva'tion according law is in delimits deprivation according this very definition and by obliiption .on the State depriving a: man of his life and personal that procedure purview of this article is not an right-a or risk of being lost law. Liability to-procedure established by the nature of words Of limitation. The article the ·right by a reference throws a corresponding to follow a procedure before liberty. What the purpose or to procedure established by to prescribe or indicate. to be is not within liability 1950 A. K. Gqpa/.,, v. The Stale Das]. introduction the petitioner The claim of learned counsel for that article 21 prescribes a procedure. This procedure, those fundamental according to learned counsel, means immutable rules of procedure which are sanctioned or well established ·by principles of natural justice accept in all climes and countries and at all times. Apart from the question whether any rule of natural proce the notions of justice d•Jte exists which conforms and fair play of all mankind at all times, it has to be ascertained whether the language of article 21 will per into our Constitution. The question mit its then arises as to what is the meaning of the expression "procedure established by law." The word "proce dure" in article 21 must be taken to signify some step leading up to the or method or manner of proceeding deprivation of life or personal liberty. According this procedure has to the language used in the article, "establish" The word according the Oxford English Dictionary, Vol. III, p: 197, means, amongst other things, "to render stable fix, or firm; institute or ordain permanently by enactment or settle, agreement." Ac;cording to Dr. Annandale's edition of "establish," the _N~w Gresham Dictionary means, amongst other things, "to found permanently; to enact or decree; to ordain ; to ratify; to institute; to make that the word "established" its ordinary natural sense means, amongst other things, law" will, 15-3 S. C. India/.58 by material support; to strengthen "Established "established "enacted." the word It follows by law." firm." 1950• A. K. Gopalan ... The State Das 7. 308 SUPREME COURT REPORTS [1950] law must, in article. 12, or Muhammadan this position to give If this sense of the therefore, mean "enacted by law." word "established" then the word "law" is accepted, must mean State-made law and cannot possibly m,ean the principles of natural justice, for no procedure can be said to have ever been "enacted" by those principles. When section 124-A of the Indian Penal Code speaks it does of "Government established by law," surely justice." not mean "Government set up by natural Therefore, I procedure established by apprehend, be procedure enacted by the State which, includes P'lfliament. by its 'definition if the cardinal There is no escape from the words used rule of con_struction, namely, in a statute their ordinary natural meaning, is applied. And this construction introduces no n<'velty or innova tion, for at the date or the Constitution the law of procedure this country, both civil and criminal, was mainly if not wholly, the creature of statute. The laws of procedure were Hindu abrogated and replaced by the Code of Civil Procedure or the Code of Criminal Procedure. Therefore, pro is quite compatible with cedure established by If, -however, the word "esta procedure enacted by law. is, taken to mean "sanctioned" or "settled" blished" the question will arise as to the meaning of the word "law" that context. Refer Jurisprudence, 10th Edi to Salmond's is made tion, p. 37, showing two senses and it is suggested that the word "law" in the expression "established by law" means law the principles of natural justice. It is abstract sense of learned counsel "jus" and not "lex", petitioner. the English that both and the Indian law in many cases, some of which have been cited before us, have recognised and applied principles of natural justice and that this Court should do the same in interpreting the provisions of our con in rrinc, tples. of natu stitution. ral justice as being within the word "law," having regard to the obvious meaning of that the other articles. Article 14 certainly em word in justice which ensures to bodies a principle of natural I find it difficult to let that the term "law" It is pointed out the meaning of "made firm" is used •1950 A. K. Gopalan v. The State Das}. S.C.R. SUPREME COURT REPORTS 309 law. law must refer the State-made . laws. in article 17 have There can be no doubt the State law gives equality the law. When natural every person equality before the iaw, justice speaks of and enjoins equality before natural to something outside It justice, and must mean to every person only when is said to be in accordance with natural that that law the words "in justice. reference to accordance with law" State in article 20 Likewise, the word "law" (1) can mean nothing but law made by the State. The "in accordance same remark applies the words in articles 23, 31 and 32. Natural justice with law" docs not the word impose any in articles 265 and 286 must mean State-made "law" law. If this be the correct meaning of the word "law" introducing the principles oi then there is no scope for natural justice in article 21 and "procedure established established by law made by the State which, as defined, . includes Parlia ment and the Legislatures of the States. law" must mean procedure tax and, therefore, to adopt regulating their those principles to be considered against We have been referred to a number of text books and decisions showing the development of the American doctr\ne of "due process of law" and we have been in. our Constitution. its historical The matter has background. The English settlers in different parts of Ami; rica had carried with them the English common rights law as a sort of personal inter se as well as between them and liberties the State. After the War of Independence the Consti tutions of the United States were drawn up in writing. the Constitution Thi; majority of those who framed the Comment and l1ad closely studied aries of the great English jurist Blackstone, who in his famous commentaries had advocated the separation of the three limbs of the State, namely, the judiciary. Montesquieu's Spirit of legislature and Laws had already been published wherein he gave a the Aristote broader and more emphatic expression lain doctrine of separation of powers. The experience impressed of the the American Constitution laws of Parliament had the framers of the executive, repressive lawyers A. Ir. C.palan 1950 •. Tlw 811111 Das]. 310 SUPREME COURT REPORTS [1950] and the real. This legislative bodies belief that it was the habit of all grasp and exercise powers that did not belong to them. The interference of ,the colonial Governors with legis judiciary was also lation experience coupled with the political philosophy of the time induced the framers or the American Constitutions to adopt safeguards not only against the executive but (See Munro on the Govern also against the legislature. the United States, 5th Edition, Chapter IV, ment of p. 53 et seq.). Says Judge Cooley in his Constitutional II, Chapter XI, p. 755: Limitations, 6th Edition, Vol. the American States, holding the sovereignty· in tJ:ieir own hands, have no occasion to exact any pledges from any one for a due observation rights; but the aggressive of individual tendency of it of no small they have deemed importance, the instruments under framing which their governments are to be administered by their they should repeat and re-enact this guarantee, agents, it as a principle of constitutional and thereby adopt protection." "The people of is such that, There can be little doubt different States risk as to their life, legislature. As Munro puts it at pp. 58-Ql :- intended not to take anv liberty or property even from the the people of in America the Constitution "The framers of set boundarie> to the powers of the Congress, and it was their intent should be observed. But how that these limitations was such observance to be enforced by ... the Courts? The statesmen not categoncally answer that question." of 1767 .and limits of there was The Constitution was silent the "due process clause" was express provision as to who was to serve as umpire in case the Congress overstepped the its legisla tive powers. By the 5th Amendment what is now known Federal Constitution and by the 14th Amendment a similar clause was adopted the State Constitutions. the words "due Some of the words of Magna course of law," some repeated Charta, namely, "the law of the land" but most of the State Constitutions used introduced S.C.R. SUPREME COURT REPORTS 311 "due process of law." All them used the expression the expressions meam the same thing, namely, that no person should be deprived of his life, liberty or property except in due process of law. The Constitution by clause gave the Supreme Court an opportunity to take: upon itself unconstitutional. And the Supreme Court, under the leadership of Chief Justice John Marshall, seized this to say the last word opportunity and assumed the right on questions of constitutionality, right to-day: (Munro, p. 62). the function or -declaring and possesses the national 1950 A. K. Gopalan v. Tire State Dos]. process or law" the American Courts The expression "due has been different in his the Growth of Constitutional Power in the interpreted ways at different times. Carl Brent Swisher book on United States at p. 107 says, with reference development of the doctrine of due procedure: largely interpreted interpretation "due process" was "The American history of its first period covering into three periods. During roughly the first century of Government under Constitution "princi pally as a restriction upon ·procedure-and judicial procedure-by which the Government exercised its powers. During the second period, which, again rough through 1936, "due process" was expanded to serve as a restriction not merely upon procedure but upon the substance of third period extending from 1936 to date, the use of restriction has been "due process" largely suspended or abandoned, leaving it principally in its original status as a restriction upon procedure." the activities the Government might engage. During speaking, extended as a substantive In the guise of interpreting "due process of law" the American Courts went much further than Lord Coke ever thought of doing. The American Courts to revise all gradually arrogated to themselves the power legislations. In the beginning they confined themselves to insisting on a due procedure to be followed hr'orC' a person was deprived of his life, liberty or property. time, "due process of law" ca1 "le to be ap In course of to social cont~ol, to procedure to personal liberty, 1950 A. K. Gopalm1 v. The Stale Das]. 312 SUPREME COURT REPORTS [1950J law : to substantive jurisdiction and (Willis, p. 642). In the worJs of Munro "due process of law" became a sort of palladium covering all manner of inJividual rights. All the while the Supreme Court refused to define the phrase, but used it to enable it to declare unconstitutional any Act of legislation which thought unreasonable : (Willis, p. 657). In Holden v. Hardy( 1 the following observations: ) we find the words "'This Court has never attempted precmon is sufficient to sav principles of justice which inhere free government which no member of disregard." to define with 'due process of law' ............ It immutable the very idea of the Union may there are certain ' law of In Taylor v. Peter l' ) Bronson J. observed: "The words 'by land' as used in the Constitution, do not mean a statute passed for purpose of working the wrong. That construction would render the restriction absolutely nugatory, and the Constitution into mere nonsense. turn this part of to the two Houses: The people would be made to say 'You shall be vested with the legislative power of State, but no one shall be disenfranchised or deprived of any of the rights or privileges of a citizen, unless In other words you pass a statute for that purpose. you shall not do the wrong unless you choose to do it.'" the State, namely, In It was thus that the Supreme Court of the United firmly established its own supremacy over States the executive other two iimhs of the words of John Dickinson the Congress. quoted in Munro at p. 61, "The Judges of Argon. began by setting laws and ended by making them.'' And all this sweeping development could only be possible because of the presence of one little word "due" which, not subject to any fixed definition. Whenever a sub in ani· law stantive did not find favour with the learned not reasonable Judges of and, therefore, it was not "due." law or some procedure laid down the majority of in its content, knows no bound and the Supreme Court it was ('J 169 U. S. 366 at p. 389. (') 4 Hill 140, 145. 1950 A. K. Gopalan v. The State Das]. S.C.R. SUPREME COURT REPORTS 313 the Constitution the needs of the The very large and nebulous import of in anomalies, to result the word for what "due" was bound the Judges was not "due" on one day according then constituting the Supreme Court became "due" 20 years later according to the new Judges who the Court had to then came to occupy the Bench, for society which were contmually changing and growing. The included larger content of due process of law, which both procedural and substantive due process of law, had of necessity to be narrowed down, for social interest in personal liberty had to give way interest in other matkrs which came to be considered to be of the community. This was achieved the United States evolving the new doctrine of police powers-a peculiar The police powers are nowhere ly American doctrine. In Chicago B. & Q. Ry. v. exhaustively defined. Drainage Commissioner ( 1 "police power" has beeu stated to to promote the public convenience or well as the public the public safety." Refer health, the public morals or to Cooley's Constitutional Limitations, 8th Edition, Vol. II, p. 1223 and to Chapter XXVI of Willis at p. 727. interest the Supreme Court of this connection may be made the general prosperity, regulations designed regulations destgned to promote "embrace to social ) The nett result is the all-inclusive and of due process of law has in America finable doctrine to its original status of a now been brought back procedural due process of law by the enunciation and application of the new doctrine of police power as an antidote or palliative to the former. Who knows when the pendulum will swing again. the procedu Turning now to what has been called ral due process of law it will be found that the matter has been described in different languages . in different cases. In Westervelt v. Gregg ( 2 ) Edwards J defined it thus: · "Due process of law undoubtedly means, due course of legal proceedings, according to those rules (1) 20+ u. s. 561, 592. ( 1 ) 12 N.Y. 202 314 SUPREME COURT REPORTS [1950] 1950 A .K,Gupalan v, Tht State Dru]. and forms which have been established for the protec tion of private rights." "the A more specific definition of the expressiou law of the land" meaning procedural due process was given by Webster appearing as counsel for the plaintiff 'In error in the "Trustees of Dartmouth College v. Wood ward( 1 ): "By the law of the land is most clearly inquiry and trial. The meaning is intended. the general law; a law which hears before it condemns; renders which proceeds upon judgment only after that every citizen shall hold his life, immunitie,, under the protection of the general rules ·which govern the form society. Everything which may pass under of an enactment is not therefore law of the land." liberty, property, and to be considered Willis in Ch. XXIII, p. 661, says : "The guarantee of due process of law as a matter of procedure m~ans that no part of a person's personal liberty, including ownership, shall be taken away from him except by the observance of certain formalities. Hence its object is the protection of the. social interest in personal liberty." At p. 662 Willis enumerates requirements of the procedural due process of law as follows: ( 1) notice, (2) opportunity to be heard, (3) an impartial tribunal and (4) an orderly course of procedure. In short, the procedural due process requires is to be deprived of his life, liberty or property shall have had "his day in Court." This according to Willough by p. 736, means: that a person who "(1) that he shall have had due notice, which may be actual or constructive, of the institution of the proceedings by which his legal rights may be affected; (2) that he shall be given a reasonable opportunity appear and defend his rights, including the right him introduce to testify, to produce witnesses, and relevant documents and other evidence, (3) tribunal in or before which his rights _are adjudicated is so constituted as to give reasonable assurance of (1) 4 Wheaton 518 at p •. ~79; 4 L. Edn. 629 at p, 6~5. and impartiality; and ( 4) that- it is a -COurt 1950 A. K. Gopalan v. The State Das]. S.C.R. SUPREME COURT REPORTS 315 honesty of competent jurisdiction." It will be noticed the fourth loughby is different Such, in short, are the doctrine of the process of law in and the requirements of insisted on by the Supreme Court of that country. item of Wil item of Willis. the development of the United States the procedural due process as the history of the fourth Learned counsel the introduction of for the petitioner before us does not contend that we should import this American doc its full glory but that we trine of due process of law in sho'!_ld adopt the procedural part of it and insist no person shall be deprived of his life or personal liberty except by the observance of the formalities which to be observed. The argu tice and fair play require ments of learned counsel for the petitioner are attractive and in the first blush certainlx appeal to our sentiment I find several but on serious reflection insuperable ob the American doctrine jections of procedural due process of into our Constitut10n. the legis That doctrine can only thrive and work where lature is subordinate to the judiciary in the sense the latter can sit in judgment over and review all acts of the legislature. Such a doctrine can have no appli is supreme. That cation to a field where is quite is why the doctrine of "due process of law" different in England where Parliament is supreme. J. This difference is pointedly described by Mathews in foseph Hurtado v. People of California ( 1 ) at p. 531: .wrung the King as guarantees against oppression usurpation of his prerogatives. It did not enter to provide security against the. minds of their own body or in favour of the commons by ing the power of Parliament, so that bills of attainder, er post facto laws, laws declaring forfeitures of estates and other arbitrary Acts of legislation which occur so in English history, were never regarded as frequently inconsistent with (notwith standing what was attributed to Lord Coke in Bonham's (1) (1882) l JO U.S. 516. "The concessions of Magna Charta were the legislature the land, for the law of the barons 1950 A. K. Gopalan v. The Stale Das]. 316 SUPREME COURT REPORTS [1950] case, [8 Coke 115, 118 (a),] the omnipotence of Parlia ment over the Common Law was absolute, even against right and reason. The actual and practical common legislative tyranny security for English was the power of a free public opinion represented by the Commons. liberty against In this country written Constitutions were deemed the rights and liberties of the people essential to protect against the encroachments of power governments and the provisions of Magna Charta were in the bills of rights. They were limita incorporated legislative as tions upon all the powers of government, well as executive and judicial.'" delegated to the two limitations on legislative fields. This basic distinction between our Parliament and their respective systems should never be lost sight of, if confusion of thought is imposed to be avoided. Although our Constitution has legislative authorities, yet subject to and outside such limitations our Constitution the State Legislatures In the supreme main, subject to the limitations I have mentioned, our Constitution has preferred the supremacy of the Legis the Judiciary. The English principle lature to that of is, therefore, more in accord with of due process of law our Constitution the American doctrine which has been evolved for serving quite a different system. The picturesque language of Bronson J. quoted above, the American the supremacy Constitution which does not recognise in, and to, a Constitution such as ours, has no application recognises restnct10ns, which, subject only to certain respective the supremacy of the Legislatures fields. to adopt our Constitution-makers deliberately declined the uncertain and shifting American doctrine 0£ due process ' of law and substituted due process of law" that were in the original draft by the more specific expression "except in accordance with to bring in the procedure established by law.'' To try fact, will be to American doctrine the Constitution as expressed in stultify In the next place, it is common knowledge is wholly out of place is quite appropriate the words "except the intention of the Congress, in spite or S.C.R. SUPREME COURT REPORTS 317 justice as adopted article 21. In the third place, in view of the plain mean ing of the language of that article as construed and ex it is impossible to let in whaf have been plained above called the principles of natui; al the American the procedural due process of law by Supreme Court. Again, even little word "due" does not find a place in article 21 so as to It speaks of procedure and not qualify the procedure. "due" procedure and, therefore, "the intellectual yard the Court is definitely ruled out. Finally,. it stick" of the doctrine of due pro will be incongruous to. import the doctrine of police cess of law without its palliative, It last mentioned powers. doctrine into article 21. the all-pervading is impossible to read 1950 A.K. Gopalan v. T//4 State Das]. · flexible principles It is It has also ·been suggested as a compromise this Court should adopt a middle- course between the of natural justice as adopted by the the un American doctrine of due process of law and bending rigidity of mere State~made laws. that we have our Code of Criminal Procedure which salutary princi embodies within its provisions certain that those under ples of procedure and we must insist lying principles should be regarded as procedure esta blished or settled by our positive law. But who will ~ay what are fundame11tal principles? What principles do I reject as inessential and what shall I adopt as fundamental? What is fundamental to me to be so to another Judge a. today may ·not appear decade hence, for principles give way with changing social conditions. to mean the due process of law should be the date law as it stood at general body of common of the Constitution. In Bardwell "' Collins ( 1 it was ) negatived in the following ·words : it was suggested In America " 'Due process of law' does not mean the general body of the law, common and statute, as it was at the for that would deny time the Constitution took effect; law in the legislature power any particular." The Court, to change or amend the in principles of however, brought ( 1) 44 Minn, 97. 1950 A.K. Gopa/4n v. Tl~ State Das J. 318 SUPREME COURT REPORTS [ 1950 J ,_ to prevent limitation which to improve upon I may today regard as natural justice under the due process clause. To sanc tify what the basic principles underlying our Code of Criminal Procedure will be to make them immutable and legislature them. This is nothing but im posing on the legislature a the Con I do not think it is a stitution has not placed on it. It Jlermissible adventure is a dangerous adventure, for it will bring about stag nation which means ruin. We must accept the Consti tution which is the supreme law. The Constitution h" by article 21 required a procedure and has prescribed certain minimum requirements of procedure in article 22. To add to them the Constitution to our intellectual yanlstick to recast to what an ideal and our unconscious predilections Constitution should be. for the Court to undertake. is not to interpret it according Article 21, right having authoritv and the proximate purpose in my fundamental ju<]gment, only in mind that at the date when formulates a substantive life and personal liberty which in its content is not an absolute right but 1s a limited its ambit circumscribed by the risk of its being taken away by following a proce established bv the appropriate law made by legislative article 21 is not to prescribe any particular procedure. It is to be kept into effect we had the Indian Penal Constitution came for any Code creating diverse offences and a conviction of them would deprive a person of his personal liberty. Under article 246 I of the Concurrent List, Parliament or any State Legislature could add taking more offences and create away personal this deprivation of personal liberty as a result of a conviction could only be done by the procedure laid down by following the date of Code of Criminal Procedure. Again, at this Constitmion in almost every province and a person could be depri ved of his personal liberty under laws. Those laws, however, provided a procedure of a sort which had to be followed. Therefore, before the Constitution came into force, personal liberty could be taken away there were preventive detention liberty. But all read with Entry further means 1950 A. K. Gopalon V. The Stat• Das J. S.C.R. SUPREME COURT REPORTS 319 If itself article following enacted by the proce<lure to Parliament and legislative authority procedure enacted by If article 246 stood by only by Criminal Procedure Code in the case of punitive deten the different tion or by Power, Security Acts in case of preventive detention. however, has been given the State Legislatures under article 246 read with Entry 2 of the to Criminal Concurrent List to make ·1aws with respect itself Procedure. repeal the the State Legislature could Parliament or the Criminal Procedure Code and also do whole of in the away even with the skeleton procedure provided Security Acts. appropriate away the life and personal liberty of any person with out any procedure at all. This absolute supremacy been cut of the legislative authority has, however, down by article 21 which delimits the ambit and scope of the substantive right to life and personal liberty hy reference to a procedure and by article 22 which pres cribes the minimum procedure which must be followed. In this situation the only power of law has provided determine whether the mini some procedure and observed and obeyed mum requirements of article 22 and to insist on more elaborate it is not procedure according wisdom of the law. however harsh, unreasonable, archaic particular or odious the provisions· of that law may be. technical interpreta is put upon article 21 then it will not constitute a fundamental right at all and need not have been in the chapter on Fundamental Rights, for every placed person's life and personal liberty will be at the mercy of the Legislature which, by providing some sort of a procedure and complying with requirements of article 22, may, at any ·time, deprive a person of its pleasure and whim. There his life and liberty at line of argument. Article are several answers if nothing else, certainly 21 as construed by me will, the executive and as protect every person against such will be as niuch a fundamental right deserving to its notion or legislative authority to question in enacting that if this strictly for the Court impugned the Court It is said the few it has, 1950 A.K. Copa/an v. T!it State Das]. 320 SUPREME COURT REPORTS [1950] to me liberty Such being be made bv the meaning of and the ambit and extent of life and personal the appropriate it, must at least conform Subject the famous 39th Chapter a place in the Constitution as of the Magna Charta was and liberty is a bulwark of that article 21 of It appears law. in English read with article 32 also gives us our Constitution the legislative authority some protection even agoinst life and in that a person may only be deprived of his in accordance with procedure which, personal although enocted by requirements of article 22. limita tion our Parliament or any State Legislature may it plea>es enact any law and provide any procedure liberty for depriving a person of his life and personal under article 21. the fundamental article the people of nght of life and personal liberty which this country have given nnto themselves, any law for liberty depriving any person of his legislative that may authority under article 246 ond in conformity with 1 he take awav or requirements of article 22 does not 21, · for abridge is circum- the very therefore, scribed as violating ts a provisions of article 13(2); Our Constitution compromise the Supreme Court of England and the supremacy of the United States. I have the limitations ju>ticiable, our Consti mentioned which are certainly tution has accepted the legislative that being so, we must be prepared to authority and, to put up that body and face occasional vagaries of the atrocious English with enactments of the nature of the petitioner statute the Bishop of has repeatedly If Parliament Rochester's cook be boiled may take away life by providing neck, logically there can be no objection it provides a sentence of death by shooting by a firing squad or by guilloting or in t:1e electric chair or even by boiling legislature may oil. A procedure offend against the Court's sense of justice and fair pby right con fcrred by for hanging by possibility or regarded to death. laid down by the the supremacy of referred, namely, law cannot be right conferred Parliamentary that article by article risk and, supremacy to which between learned counsel Subject , S.C.R. SUPREME COURT REPORTS 321 that h done and a sentence provided by the legislature may outrage is a wholly the Court's notions of penology, but irrelevant consideration. The Court may construe interpret its true mean the Constitution and ascertain ing but once the Court cannot question its wisdom or policy. The Constitution is supreme. The Court must take it finds if it does not accord with its preconceived notions of what an ideal Constitution should be. Our protection against in ultimate analysis in a free and intelligent public opinion which must eventually asert itself. the Constitution as legislative tyranny, if any, it, 1950 A. K. Copa/an v. The State Das]. legishture The conclusion recognised life, :m<l article 50 (5) guarantees that in point. Take the Constitution of I have arrived at does not for in many other Constitutions duce any no\'clty, supremacy of matter of depriving a person of his property. The English Democratic Constitution State. Article 40 (4) (i) provides be ,\t:prived of personal liberty save law, every citizen is inviolable and entered save in accordance with accordance with law·· mean the same thiag and I have no doubt reading clause (5) that the State-made law, searches of, or entry 107 (2) of the Czechoslovakian Constitution uses words "in accordance with clause (I) of br. made which will form part of Take the Constitution of Article 74 of headed "Fundamental Rights and Duties" as follows: liberty and the Irish Free that no citizen shall in accordance with the dwelling of shall not be forcibly law. The words "in the above clauses must in my mind in accordance with regulating justice into, dwelling houses. Article read with the law to the Constitution. the Free City of Danzig. II provides for we have not been referred that article, obviously means that Constitution which prescribed by natural law" which, it means in Part in both "The liberty or person shall be No limitation or deprivation of personal be imposed by public authority, except by virtue a la\\: inviolable. liberty may c•f 1950 A. K. Gopahm v, The State Das]. 322 SUJ?REME COURT REPORTS !1950] to stay and It concludes by saying The word "law" clearly cannot, the context, justice. Again, article 75 mean principles of natural the freedom of movement of that Constitution protects the right within the Free City and to earn to acquire real property and settle at any place, this right shall a living. legal sanctions. Legal sanc not be curtailed without this context, can onlv mean sanctions of the tion1, City laws. Article 114 of the Weimar Constitution the same is on the same lines and expressed language as article 74 of the Danzig Constitution. Take the Japanese Constitution of 1946 from which our article 21 is reputed to have been taken. Article XXXI of that Constitution says: in almost "No person shall be deprived of life or liberty nor imposed, except shall any other criminal penalty he according to procedure established by law." I do think their application to deprivation of that is not my purpose when to the other Constitutions; but Surely the words "except according to procedure the imposi established by law" tion of criminal penalty must mean State-made the same and the same words in the same sentence article cannot, acconling to ordinarv rules of construc their appli tion of statutes, mean a different thing life or liberty. 1 am aware cation that it is not right to construe one Constitution light of another and I after reading the relevant proYisions of other written Constitutions one sees auite clearly that there is no press in written ing special reason applicable Constitutions which principles of natural justice or of the American doctrine of due process of law into our Constitution. The several Constitutions referred to above have not adopted American doctrine but have been content with leaving the care of the life and liberty of their citizens laws made by is no novelty if It their legislatures. our Constitution has done same. For all these in spite of the very able and attractive argu reasons, the petitioner which ments of the learned counsel for I freely acknowledge, I am not com·inced the introduction into article 21 of our is any scope for inherent importation of to or requires 1950 A. K. Gopolan V, Tli4Stak Das]. S.C.R. SUPREME COURT REPORTS 323 the doctrine of due process of Constitution of even as regards procedure. I may or may not like it but that is the result of our Constitution as I under stand it. to them, to show "due process of historical The learned Attorney-General has referred to certam debates in the Constituent Assembly on the original clause which has now become article 21, · not as evidence languagt of article 21 to be used in interpreting background. His but as disclosing framers of purpose, he says, our Constitution had . the essential difference law" and meaning of the phrases law" clearly "ac~rding to procedure' established by the former th.tt expfained the judiciary and the latter implied the supremacy of . the legislature and with all knowledge the former in my opinion, expression and adopt the language of article 21 on it is possible to interpret the ordinary I do not think the debates. to, or rely on, . the debates, As I do not propose to refer for the purposes of this 'case, I express no opinion on the question of the admissibility or otherwise of debates. they deliberately agreed to reject ·of interpretation of statutes, it is at all necessary to refer the supremacy of the latter. As, they knew I now pass on requirements, except to article 22. The contention of that article 21 by learned counsel for the petitioner to procedure reason of the last few words, "according established by law" attracts ·the four requirements of the American procedural due process of law as sum reference has been made to which marised by Willis earlier, and that, extent they have been expressly abrogated or modified followed before a person by article 22, must be strictly I may be deprived of his have already stated for reasons set there is no scope -for introducing any rule of natural the American procedural due process of law justice or or any underlying principle of our Code of Criminal the conclusion Procedure into that article. This being the . major premise assumed by I have arrived at, learned counsel is missing and this the petitioner 16-3 S. C. India/58 life or personal forth above, liberties. 1950 A. K. Gopala• v. The Statt Das]. 324 SUPREME COURT REPORTS (1950] of argument does not begin and cannot be accepted. to accede scope of I am unable established by law. as against The learned Attorney-General, on to lite and personal It does not is by the defin~tion in the other hand, has at one stage of his argument, urged that article 21 has nothing to do with preventive detention at all and that preventive detention is wholly covered by article 22(4) to (7) whjch by themselves constitute a complete to this extreme point of code. it, view also. The true position, as I apprehend to my between the two extreme views. Article 21, mind, gives protection liberty the extent therein mentioned. recognise liberty as an absolute the right to life and personal right but delimits the ambit and itself. The absolute right article cut down by the risk of its being taken away in accordance with procedure It is . substantively right which this · circumscribed protected the executive article 21 the Constitution has legislature, as well as conditioned for a pro its deprivation by the necessity cedure established by law made by itself. While sub clauses (2) to (6) of article 19 have put a limit on fundamental rights of a citizen, articles 21 and 22 have put a limit on the power of the State given under arti cle 246 read with the legislative lists. Under our Con stitution our life and personal liberty are balanced by the citizens as laid down the rights of restrictions on in article 19 and by the checks put upon the State by 21 and 22. Preventive articles detention deprives a person of his personal as effectively as does liberty liberty, cir punitive detention and, therefore, personal cumscribed as it is by the risk of its being taken away, requires protection against punitive as well as preven tive detention. The language of article 21 is quite general and is wide enough protec forms of detention. tion to personal liberty against all It protects a person against preventive lletention by of a law made by the executive without the legislature It prevents the legislature. ing away a person's personal liberty except in accord ance with procedure established by law, although such the sanction to give its limited 1950 .d.K.~ "· The State Dos], S.C.R. SUPREME COURT REPORTS 325 that has If. as contended by the law is to be by itself. learned Attorney-General and held by me, article 19 only pro tects the rights of a free citizen as long as he is free and does not deal with total deprivation of personal liberty and if, as contended by the learned Attorney-General, article 21 does not protect a person against preventive detentjon then where is the protection for life and per the procedu sonal liberty as substantive rights which ral provisions of article.22 may protect? What is the is no substantive use of procedural protection In my judgment article 21 protects right? stantive rights by requiring a procedure and article 22 gives the minimum procedural protection. Clauses (1) and (2) of article 22 to be informed requirements of lay down the pro to be followed when a man is arrested. cedure They ensure four things: (a) right (b) right to_ consult, and to garding grounds of arrest, (c) be defended by, a legal practitioner of his choice, to be produced before a magistrate within 24 ( d) freedom from detention beyond hours and the magistrate. said period except by requirements are very much These, four procedural the procedural due similar to the Some of process of law as enumerated by Willis. to be found in our these salutary protections If the procedure has Code of Criminal Procedure. already been prescribed by article 21 incorporating principles of natural justice, or the principles underlying our Code of Criminal Procedure what was the necessity in clauses (1) and (2) of article 22? of repeating them Why this unnecessary overlapping? The truth is that article 21 does not prescribe any particular procedure life and personal the nece~sity for liberty merely envisages or indicates a procedure and article 22 lays down the minimum rules of procedure that even Parliament cannot abro is so far as punitive detention gate or overlook. This is concerned. But clause (3) of article 22 expressly provides clauses (1) and (2) shall apply to an alien enemy or to a person who is arrested or detained under any law pro It is ,thus expressly viding for preventive detention. that none of the procedure the protection in defining laid down are also 326 SUPREME COURT REPORTS [1950] 1950 ..!. /[. C.palan v. Tt.. St"" Das]. not be produced before made clear that a detenu need the magistrate and he the assistance of to have is not any lawyer for consultation or for defending him. Such being the express provision of our Constitution nobody can question its wisdom. So I pass on. to a Clauses reminded law made by (4), (5), (6) and (7) of article·22 in terms relate to preventive detention. Article 246 authorises the appropriate legislature to make a law for preventive detention in terms of Entry 9 il'I List I and/or Entry 3 in List III of the Seventh Schedule. On this legislative imposed certain limitations by article 22 power are this the legislature, whether it ( 4) to (7). According to be Parliament or a State Legislature, is for preventive detention shall authorise the detention of a person for a longer period two cases mentioned in than three months except to suD-clause (a) sub-clauses (a) and (b). The proviso law made only by and sub-clause (b) it is Parliament under clause (7). Under clause (7) Parliament alone and not any State Legislature suD the three may prescribe what are specified that clause. Although a State Legisiarure clauses of may make a law of Entry 3. the Seventh Schedule no law may authorise detention for more than three the provisions ot months unless rnb-clauses (a} and (4) sanction such detention. Even a (b) of clause law made by Parliament cannot authorise detention three months unless it is a law made for more In short, clause (4) under the provisions of clause (7). of article 22 provides a legislative power as to the period of . preventive detention. Apart legislative power, limitation on the from imposing a clause ( 4) also prescribes a procedure of detention than three months by providing for an a period longer advisory board. Then comes clause It lays down the procedure that has to be followed when a person is detained under any preventive detention, namely, (a) · the grounds of the order of de the cletenu as soon tention must be communicated as may be, and (b) earli~st opportunity of making a representation against the detenu must he afforded for preventive detention in List III of limitation on law providing (5). S.C.R. SUPREME COURT REPORTS 327 the place of the order. The first requirement that of a defence or hearing notice and the second requirements These are the only compulsory procedural is nothing to laid down by our Constitution. There prevent the Legislature from providip.g an . elabordte procedure regulating preventive detention but it is not If some procedure obliged to do so. is provided as en visaged by article 21 and the compulsory requirements of article 22 are obeyed and carried out nobody can, under our Constitution as law providing for preventive detention. I read it, complain of 1950 A~ K. Gopalan v. TM State Das]. detention by giving an opportunity for notice. He also does not to judge the reasonableness that the Learned counsel for the petitioner concedes four requirements of procedural· due process riied by Willis will have to be modified in their appli cation to preventive detention. Thus he does not sist on a prior notice before arrest, for he recognises that such a requirement may frustrate the very object of preventive the person in question to go underground. The provi sion in clause (5) for supplying grounds is a good sub stitute insist of the detention Tribunal satisfied should be a judicial tribunal. He will be the tribunal or advisory board, as in article it is called 22 of the Constitution, is an impartial body and goes into the merits of the order of the detention and its deci sion is binding on the executive government. He sists that the detenu must have a reasonable and effec to put up his defence. He does not tive opportunity insist on the assistance of counsel, is expressly taken away, by the Constitution sists on what he calls an effective opportunity of tribunal being heard · which will be free the grounds . of his detention and whose decision should be binding alike the executive authority which de on the detenu and tains. The claim may be reasonable but the question is not reasonableness or otherwise of before the Court the provisions of article 22 (4) to (7). Those provisions the provisions of are not justiciable, for they are Constitution itself, which is supreme over every· body for that itself. But he in person before an impartial examine 1950 A. K. Gopaltu1 v. Tiii Stau Das]. 328 SUPREME COURT REPORTS [1950] import to find out, on a proper con The Court can only seek in fact been provided. struction, what protection has the giving of The Constitution has provided facts as distinguished grounds of detention although from grounds may be withheld under clause ( 6) and the order of deten the right of representation against tion. It has_ provided the deten for the duration of procedural fundamental the guaranteed tion. There trial betore rights end. There is no provision for any any tribunal. One cannot the condition ot a trial by any tribunal that a right ot to make representation has been given. The right representation to "lodge than the right is nothing more objections" as provided by the Danzing Constitution and the Weimar Constitution. The representatious made will no doubt be considered by the Government. It is said a prosecutor cannot be himself judge. in a great the orders of detention will Ordinarily, majority of cases be made by the District Magistrate or Sub-Divisional Officer or the Commissioner of Police. The representation of the detenu goes the Govern ment. Why should that a high govern the government will not ment official at the seat of impartially consider the propriety of officials? Clause (5) does not imperatively provide for any oral representation which a hearing will entail. Indeed the exclusion of the provisions of clauses ( 1) and (2) negatives any idea of trial or oral defence. The training, Court may not, by this at all but it cannot question the wisdom or the In my judgment as regards policy of the Constitution. laws, limitation put preventive detention it must provide legislative power the minimum some procedure and at least incorporate laid "down requirements to (7). There the substantive limitation law which law. Therefore provides some procedure and complies with the quirements of article 22 ( 4) to (7) must be held to be a good law, however odiou.• Court to be. the order of detention made by article 22 ( 4) regards a preventive detention the only is that representation and temperament and it may appear it be assumed is no 1950 A. K. Gopalan v. The Strite Das]. S.C.R. SUPREME COURT REPORTS 329 test but leaves it to the authority the Act does not Learned counsel for the petitioner contends the impugned Act does not comply with even the bare requirements of article 22 (4) to (7). It is pointed out that section 3 of lay down any objective to define and say whether a particular person comes within legislative heads. In other words, it is contended Parliament has not legislated at all but has delegated I the executive authorities. its legislative powers do not think there in this contention. In the first place this is not an objection as · to proce is not open to the dure but Court's scrutiny. this contention the basic distinction between overlooks the delegation the conferring of an of power to make to be its execution authority and discretion as exercised under and in pursuance of law. The impugned Act has specifically set forth an ascertainable standard the conduct of a particular person is to be judged by the detaining authority. to substantive In the is any substance next place law which by which the law It is next urged not comply with article 22 for two reasons, namely- that section 12 of the Act does requirements of clause (7) of (i) that clause (7) contemplates a law prescrib ing the circumstances up.der which, and the class or of cases in which, a person may be detained for class's then another a period longer than three months and law thereafter providing for preventive detention for a period longer than three months; and (ii) that prescribe both the class or classes of cases detained for a period longer than three months. Parliament must circumstances under which, and in which, a person may be clause (7) As regards first point I do Parliament must make two laws, one laying down principles for longer detention and another tion ·for such longer period. cannot provide see why far deten It may be that a State for longer detention until Parliament 1950 A. K. Gopo/an v. T J., State Das]. 330 SUPREME COURT REPORTS [1950] itself to be three months. the detention to make a law to make a .Jaw for the petitioner. (b) contemplates by learned counsel and it is not obliged tennis and badminton tells his delicate child has made the law, but I can see no reason why Parlia ment cannot do both by the same Act. In fact, clause (4) accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7). the detention can well Therefore, be under the very law which the Parliament makes under sub-clauses (a) and (b) of clause (7). As to the second point the argu ment is that Parliament has a discretion under clause (7) to make any law but when our Parliament chooses the circumstances under which, must prescribe both . and the class or classes of cases in which, a person may be detained for a period longer I am unable to construe clause (7) (a) in the way sug It is an gested enabling provision empowering Parliament to prescribe Parliament may prescribe either or both. two things. If a father that he may play the strenuous game of football, it obviously does not mean that to play ac all, must play both table chi!,J, if he chooses tennis and badminton. It to the is an option given child. Likewise, the Constitution gives to Parliament two things. Parliament is not the power of prescribing to prescribe at all but if it chooses to prescribe obliged it may prescribe either or both. Clause 7 (a), in my opinion, has follow : The Parliament may prescribe which a person may be detained longer than three months and Parliament may prescribe class or classes of cases in which a person may be de than three months. That ap tained for a period pears to ine to be consonant with sound rules of con struction. Further, the circumstances and classes of cases may conceivably coalesce. Full Bench case No. 1 of 1950 before the Calcutta High Court (Kshitindra Narayan v. The Chief Secretary) itself indicates that the same provision may as cir learned cumstasces or as a classification. In counsel conceded the cir it had not cumstances but his complaint was be read that case that section 12 had prescribed circumstance for a period to be read distributively as but not longer the class or · Indeed 19j0 A. K. Gopa/an v. The Stat Das]. S.C.R. SUPREME COURT REPORTS 331 is, indicate the object to provinces therefore, clear that It may be according the six two categories. the circumstances. Again, on a variety of bases. the class or classes of cases. The majoritv of prescribed this contention. One learned Judge, the Court repelled however, held that section 12 had prescribed the class the circum or classes of cases but had· not prescribed stances. It the classification itself may It classification may be the detenus may be according to the age of the detenus. from. they are supposed It may be according to the activities they are to have in view or according to be engaged in. suspected In this case Parliament has taken five out of legislative heads and divided 'flie detenus are their suspected object or thus classified according activities endangering I do not see why Classification cannot the section. the detenus be made on falling in some of the legislative heads, for each lative head has a specific connotation well under~tood there has been a classifi cation that a person falls within ove or the other class may well be the circumstances under which he may be detained longer than it right, as a matter three months. limitation of construction, clause 7(a) of article 22~ In my judgment Parliament was not obliged under clause (7) to prescribe both circumstances and classes, and in any case has in fact and substance prescribed both. I do not consider read any If I am correct the fact the footing of the objectives of the several matters specified for a period further law. I am conscious (7) will do away with the opinion remembered that our Constitution in certain circumstances or that a law made by Parliament the salutary under article 22 of an advisory board. But safeguard of it must be itself contemplates certain class or classes of detenus even the advisory board may not be safe and trusted Parliament to make a law for that purpose. Our preference for an advisory board should not blind us to this aspect of the matter. is true that circumstances ordinarily riots, commotion, relate extraneous things, it has It 1950 A. Ii. Gopalan · v The State DaJ], 332 SUPREME COURT REPORTS [1950] It they had in mind I am free to confess or communal or some types of detenus should be denied board might be done away with. in mind some such situation when political sort of abnormal situa.tion and it is said the framers of the Consti tution had advisory also urged the more dan the privilege gerous that pres of the advisory board. cription of specific circumstances or a more rigid definite specification of classes would have been better and more desirable. But ideal. terms put any soch The Constitution has not the class or limitation as regards classes of cases and it i~ idle to the intention of the Constitution-makers, who, by the way, are the very persons who made this law. It is not for to the Constitution. the Court to improve upon o~ add If the law ·duly made by Parliament repugnant good sense, public opinion will compel Parliament to alter it suitably. the circumstances or that is crying for to speculate as is taken Finally, an objection to a person not for that section 14 of the impugned Act takes away or abridges the right of the detenu to move this Court by appropria_te proceed ( l) and (2) of article 32 speak of ings. Both clauses enforcement of rights conferred by Part III. The right to move this Court is given sake of moving only but for moving the Court for the enforcement of some rights conferred by Part III and to issue directions or this Court has been given power the enforc.ement of any of such orders or writs for application to attract the rights. of article 32, satisfy the person applying must that he has got a right under Part III which has to be I have alreadv said enforced under article 32. article 19 does not deal with the freedom of the person. I have also said that articles 21 and 22 provide for pro ·Under article tection by insisting on some procedure. the order of detention is 22 (5) the authority making enjoined, as soon as may he, t.o the that order has been made. detenu the grounds on which This provision has some purpose, namely, · that the detenu the disclosure the grounds will afford to communicate therefore, In order, 1950 A. K. Copa/an v. The State , __ Dn>']. S.C.R. SUPREME COURT REPORTS 333 detenu the scribblings on that his representation against the grounds which he to under article 22 (5). the order of detention. the piece of paper with the authority does loses a -Opportunity of making a not give any -0r~er. Supposing referred grounds at all as distinct fundamental clause (6). Surely from making a represen right because he is prevented Suppose the tation against the detenu a piece of paper authority hands over it which do not amount with some scribblings on the detenu :my ground at all for detention. Then also right has been ca11 legitimately complain to get infringed. He can then come the Court to the redress under article 32, but he cannot show Crrnrt under ~ection 14 of the Act and the Court cannot judge whether he has actually got entitled substantive <letenu may well complain that both his right under article 22 (5) as well as his article 32 have been constitutional remedies under infringed. He can complain of infringement of cannot remedial of his substantive that section 14 of the Act in so far as it me, therefore, to the Court the prevents in conformity grounds communicated therefore, wit,11 Part III of void under article 13(2). That section, however, On dearly severable an(! cannot affect 'and Das J. this que§tion in Criminal Miscellaneous No. 124 of 1950 of Patna (Lalit Kumar Barman v. Tlze State) and the majority of the learned Judges of Full Bench Case No. 1 of 1950 (Kslzitindra Narayan v. Tlze Chief Secretary) appear correct and sound. rights under article 32, because he infringement there has been an right under article 22 (5). the views of Meredith C. J. the Calcutta High Court the Constitution am! is, from disclosing In such a case the whole Act. the detenu It appears to him is not is a valid For the reasons I have given above, in my opinion, law except as to section the impugned Act 14 in so far as the grounds being disclosed to the Court. The petitioner before us does not com Further, plain that he has not got proper grounds. impugned Act the period of his detention under it prevents 1950 ..!. Jr. Gopala• 'f . . Tl.e Stoll DOI]. 334 SUPREME COURT REPORTS [1950] has not gone beyond three months and, in stances, this application should, dismissed. the circum irl my opinion, stand Petition di, missed. Agent for the Petitioner : S. Subrahmanyam. Agent for the State of Madras and Union of India : P.A. Mehta.