The Right to life and Due process of law had undergone a remarkable journey in India from A.K. Gopalan to Maneka Gandhi. Both cases Surfaced around political persons yet the change in mindset of Indian judiciary over a span of time can be witnessed from these cases.
WHO WAS A.K. GOPALAN?
Ayillyath Kuttiari Gopalan was an elected representative of lok sabha in the first elections held in the country in 1952 from communist party. He was the founder of communist party in India (Marxist). He was a 5 times elected representative from 1952 to 1977 when he took his last breath on 22 march. He also served in prison being a part of the Indian struggle for freedom.
A.K GOPALAN V. STATE OF MADRAS
|Bench||6 judges Bench of Supreme Court|
|Sitting judges||1.Hiralal Kania (CJI)|
2.S. Fazl Ali J.
3.M. Patanjali Sastri J.
4.Mehr Chand Mahajan J.
5.B.K. Mukherjee J.
6.Sudhi Ranjan Das J
|Dissent||S.Fazl Ali J|
|Ratio of case||5:1|
FACTS OF CASE
The petitioner, Ak gopalan , was detained in Madras Jail under Preventive Detention Act 1950. A writ of habeas corpus was moved under article 32 of indian constitution challenging the validity of Act under A19(1)(d) and A21 of constitution.he had been detained since December 1947 and was sentenced to prison, which was later on overturned.During his term in prison he was served with a notice under section 3(1) of preventive detention act 1950 as :
3. Power to Make Orders Detaining Certain Persons. – (1) The Central Government or the State Government may-
(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to-
(i) the defense of India, the relations of India with foreign persons, or the security of India, or
(ii) the security of the State or the maintenance of public order, or
(iii) the maintenance of supplies and services essential to the community; or
(b) if satisfied with respect to any person who is a foreigner within the meaning of the Foreigners Act, 1946-(31 of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India it is necessary so to do, make an order directing that such person be detained.
And the reasons of detention was not stated to him in pursuance to the powers granted under sec 14 of the Act.
1.whether the prevention detention Act 1950 violates A19 and 21?
2.Whether there is a link between A19 and 21 or not?
3.whether the procedure under A22 is to be followed under preventive detention act of 1950 or not?
1.A19(1)(d) provides all citizens the freedom to move freely across the territory if India and the said act restrained the movement of citizens thereby violating their fundamental rights.
2. The Act of 1950 did not fall within the reasonable restriction granted by A19(5).
3.it clearly violates the right under A21 as due course of law was not followed.
4.The article 19 and 21 must be read together as one deals with substantive rights of citizens and other with the procedural aspect.
5.Detention order under sec 3 was a clear cut violation of A22.
5. The order under sec 14 of act is violative of A13 of constitution.
1.the article 19 and 21 of constitution must be read separately.
2.The detention was as per the provision of A22.
3.the due process of law has been followed as given under A21.
4.Detention stands valid as per the test of A19, 21 and 22.
5. Detention is not arbitrary in nature.
6.the writ of Habeas Corpus must be dismissed.
– K.RAJAH AIYAR( advocate general of madras)
–M.C. SETALVAD (attorney general of india)
|Whether there was a connection between A19 and 21 or not?||The arguments were dismissed on this question.The freedom under A19 is different from personal liberty under A21.Personal liberty under A21 includes the right to travel or reside within the territory of india.A19 deals with citizens and A21 with all persons of the country. So these are 2 different provisions.|
|Whether prevention detention act 1950 is violative of article 22?||Sec 3, 7 and 11 of Act of 1950 was held as valid because under sec 2(7) (b) of this Act the parliament does not have mandatory power to set minimum detention period and the same is stated in A22.Sec 14 of the Act is unconstitutional as being violative of A22, which makes it mandatory to state reasons for arrest.By applying doctrine of severability we can maintain the validity of Act.|
|FINAL OBSERVATIONS||The procedure established by law is not synonyms with due process of law|
DISSENT BY JUSTICE FAZAL ALI
1.sec 12 was ultra vires of the constitution thereby making the detention illegal.
2.sec 14 contravenes with the provision that requires the disclosure of grounds of detention and is thereby void.
3.the act of 1950 is direct infringement of rights under A19(1)(d).
4.Even if we read A19 and 21 separately, the act of 1950 restricts the right of citizens to move from one locality to another.
5. A21 deals with substantive right and A22 lays down the minimum procedure to be followed in case of prevention detention which even parliament can violate.
6.under A22(7) the parliament must describe the circumstances and classes of persons that can be detained beyond 3 months without reference to the advisory board.
7. Personal liberty means freedom of movements and locomotion as defined by J. Fazal ali.
- The prevention detention act 1950 is valid.
- Sec 14 of act is unconstitutional.
- Detention was not beyond the 3 months period thereby making it legal.
- The writ of habeas corpus was dismissed.
POSITION AFTERWARDS THIS CASE
|R.C. COOPER V. UOI1970 1 SCC 248||The 11 judge bench adopted the views of J. Fazal Ali in this case.|
|A.D.M.JABALPUR V. SHIVKANT SHUKLA 1976 AIR SC 1207||The right to life and liberty was granted by constitution and cant be taken away by the state.|
|MANEKA GANDHI V. UOI AIR 1978 SC 597||S.C. held the procedure established by law under A21 must be the one that is just, fair and reasonable.The principle of equality and freedom provided under A13 and 19 must be read together.|
Now the judgment of Maneka Gandhi was followed in which the widest possible meaning was given to procedure established by law as laid under A21 of the constitution.
“This article is written by Daman preet Kaur, pursuing law from Punjabi university , patiala”.
Bare act on constitution of india
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