LLOYD LAW COLLEGE

EXPLAIN & REVIEW AK GOPALAN CASE

SUBMITTED BY

SACHIN

DIVISION...'B' ROLL NO...74 SEMESTER...4th

BATCH...2015-2020

IN

APRIL,2017

UNDER THE GUIDANCE OF

MR. SHEKHAWAT HUSSAIN

PROFESSOR OF POLITICAL SCIENCE

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 INDEX

1. INTRODUCTION
2. IMPACT OF AK GOPALANCASE
3. DUE PROCESS OF LAW
4. JOURNEY FROM GOPALAN TO MANEKA
5. MANEKA GANDHI CASE THE NEW APPROACH
6. PRESENT VIEW OF ARTICLE 21
7. CONCLUSION
8. BIBLIOGRAPHY

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 INTRODUCTION
Article 21 lays down that no person shall be deprived of his life and personal
liberty except according to the procedure established by law. It was this procedure
established by law that was first questioned and interpreted by the Supreme Court
of India in the case of A.K. Gopalan v. State of Madras

In the case of A.K. Gopalan v. State of Madras the validity of the Preventive
Detection Act. 1950 was challenged. The main question was whether Art. 21
envisaged any procedure laid down by a law enacted by the legislature, or the
procedure should be fair and reasonable. On behalf of the Appellant, an attempt
was made to persuade the Supreme Court to hold that the courts can adjudicate
upon the reasonableness of the Preventive Detection Act, 1950, or for that matter
any law depriving a person hi personal liberty. Three arguments were presented
from the Appellant side and the arguments were:

(1) The word law in Art. 21 does not mean merely enacted law but incorporates
principle of natural justice so that a law to deprive a person of his life or personal
liberty cannot be valid unless it incorporates these principles laid down by it.

(2) The reasonableness of the law of preventive detention ought to be judged

under Art. 19.

(3) The expression procedure established by law introduces into India the
American concept of procedural due process which enables the Courts to see
whether the law fulfils the requisite elements of a reasonable procedure. Thus, in
this case an attempt was made to win for a detenu better procedural safeguards
than were available to him under the relevant detention law and Art. 22. But the
attempt failed as the Supreme Court rejected all these arguments.

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Impact of A.K. Gopalan v. State of Madras
NATURAL JUSTICE
The majority in this case held that the word law in Art. 21 could not be read as
meaning rules of natural justice. These rules were vague and indefinite and the
Constitution could not be read as laying down a vague standard. Nowhere in the
Constitution was the word law used in the sense of abstract law or natural justice.
The word law was used in the sense of lex and not jus. The expression procedure
established by law would therefore mean the procedure as laid down in an enacted
law.

Only Fazl Ali, J. dissented from this opinion and held that the principle of natural
justice was part of the general law of the land and so it should be read accordingly
in Art. 21.

RELATION BETWEEN ARTICLES 21, 22 AND 19

The petitioners attempted to establish a link between Article 21, 22 and 19. The
majority rejected this attempt of the petitioners and pointed out that the word
personal liberty in Art. 21 in itself had a comprehensive content and, ordinarily, if
left alone, would include not only freedom various freedoms guaranteed under Art.
19. However, Art. 19 must be held to deal with few specific freedoms mentioned.
Similarly, Art. 21 should be held as excluding freedom dealt with in Art. 19. Thus
a law depriving personal liberty had to conform with Arts. 20 to 22 and not with
Art. 19 and Art. 19 could be invoked only when a law directly attempted to control
a right mentioned therein.

This approach of the judiciary meant that Art. 21 and 19 are exclusive freedoms
and one cannot overlap others ambit. On the other hand the minority held that Art.
19(d) did control Arts. 21 and 22, and, therefore, the reasonableness of the Act
should be justifiable under Art. 19(5).

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DUE PROCESS OF LAW
The U.S. Constitution lays down inter alia that no person shall be deprived of his
life, liberty or property, without due process of law.

It was contended in A.K. Gopalan v. State of Madras that the expression procedure
established by law in Art. 21 was synonymous with the American concept
procedural due process and, therefore, the reasonableness of any law affecting any
person’s life or personal liberty, should be justiciable in order to assess whether the
person affected was given a right of fair hearing. The Supreme Court, however,
rejected this contention stating that absence of words due process of law is itself
evident to prove difference in view of constitution-makers with that of American
view.

However, Faiz Ali, J., disagreed with the majority view on this point as well. He
interpreted the phrase procedure established by law in Art. 21 as implying
procedural due process, meaning thereby that no person could be condemned
unheard.

Thus, the Supreme Court ruling meant to deprive a person of his life or his
personal liberty:

(1) there must be a law;

(2) it should law down a procedure; and

(3) the executive should follow this procedure while depriving a person of his life
or personal liberty. This judgement was highly criticized and K. Subba Rao, former
Chief Justice of India, said about this case that, “The preponderance of view
among the jurists is that it is wrongly decided. It has in effect destroyed one of the
greatest of the fundamental rights, i.e., personal liberty.” Fazl Ali, J., in his
minority opinion has taken a much more liberal view of Art. 21. It took nearly
three decades for his view to be vindicated in Maneka Gandhi v. Union of India.

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Journey from Gopalan to Maneka: 1950 – 1977
A.K. Gopalan v. State of Madras held the field for almost three decades, i.e., 1950
to 1977. This case settled two major in points in relation to Art. 21. One, Arts. 19,
21 and 22 are mutually exclusive and independent of each other. Two, a law
affecting life or personal liberty of a person could not be declared unconstitutional
merely because it lacked natural justice or due process. The legislature was free to
lay down any procedure for this purpose.

As interpreted in A.K. Gopalan v. State of Madras , Art. 21 provided no protection

or immunity against competent legislative action. Art. 21 gave a carte blanche to a
legislature to enact a law or to provide for arrest of a person without much
procedural safeguards. It gave final say to the legislature to determine what was
going to be procedure to curtail the personal liberty of a person in a given situation
and what procedural safeguards he would enjoy.

EFFECT ON ARTICLES 19, 21 AND 22

In A.K. Gopalan v. State of Madras , the Supreme Court delinked Art. 19 from
Arts. 21 and 22. This view led to anomalous decision at times. It was because of
this view that the court refused to view the validity of detection of the Appellant
under Preventive Detention Act, 1950 in the case of Ram Singh v. Delhi. Though,
in course of time this view softened and in R.C. Cooper v. Union of India, also
popularly known as Bank Nationalization case, the Supreme Court applied Art.
19(1)(f) to a law enacted under Art. 31(2), to view the validity of the law. Before
this case these two articles where considered mutually exclusive of each other.
This case had such an impact on the view of the Supreme Court regarding the
mutually exclusiveness of fundamental rights that in the case of Sambhu Nath
Sarkar v. State of West Bengal that the bench said that the majority view of Bank
Nationalization case impliedly held the majority view of A.K. Gopalan15 case
incorrect.

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MANEKA GANDHI V. UNION OF INDIA: THE
NEW APPROACH
Maneka Gandhi v. Union of India, is a land mark case of the post emergency
period. This case shows how liberal tendencies have influenced the Supreme Court
in interpreting Fundamental Rights, particularly, Art. 21. This case showed that
Art. 21 as interpreted in Gopalan case could not play any role in providing any
protection against any harsh law seeking to deprive a person of his life and
personal liberty. In fact this case has acted as a catalytic agent for the
transformation of the judicial view on Art.21.

The court has reinterpreted Art.21 and practically overruled Gopalan case which
can be regarded as highly creative judicial pronouncement on the part of Supreme
Court. Since Maneka Gandhi case the Supreme Court has given Art. 21, broader
and broader interpretation so as to imply many more fundamental rights. In course
of time, Art.21 has proved to be very fruitful source of rights of the people

In Maneka Gandhi case, order under S. 10(3)(c) of the Passport Act which
authorizes the passport authority to impound passport if it deems it necessary to do
so in the interest of the sovereignty and integrity of India, security of India,
friendly relations of India with any foreign country, or in the interest of general
public was challenged. Maneka Gandhi’s passport was impounded by the Central
Government under Passport Act in the interest of general public. She filed a writ
petition challenging the order on the ground of violation of her fundamental rights
under Art.21. One of the major grounds of challenge was that the order
impounding the passport was null and void as it had been made without affording
her an opportunity of being heard in her defence. The leading opinion in Maneka
Gandhi case was pronounced by Justice Bhagwati.

The Court reiterated the proposition that Art. 14, 19, and 21 are not mutually
exclusive. This means that a law prescribing a procedure for depriving a person of
‘personal liberty’ has to meet the requirement of Art. 19. Also, the procedure
established by law in Art. 21 must answer the requirement of Art. 14 of the
Constitution of India.

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 The expression personal liberty in Art. 21 was given an expansive interpretation.
The court emphasized that the expression personal liberty is of widest amplitude
covering a variety of rights which go to constitute the personal liberty of man. The
expression ought not to be read in a narrow and restricted sense so as to exclude
those attributes of personal liberty which are specifically dealt with in Art. 19. The
attempt of the Court should be to expand the reach and ambit of the fundamental
rights rather than attenuate their meaning and content by the process of judicial
construction, and hence right to travel abroad falls under Art. 21.

The most significant aspect of the case is the reinterpretation of the expression
procedure established by law used in Art. 21. Art. 21 would no longer mean that
law could prescribe some semblance of procedure, however arbitrary or fanciful, to
deprive a person of his personal liberty. It now means that a procedure must satisfy
certain requisites in the sense of being just, fair and reasonable. The process cannot
be arbitrary, unfair or unreasonable. Thus, the procedure in art.21 must be right and
just and fair and not arbitrary, fanciful and oppressive. The Court reached it
decision by holding that Arts. 21, 19 and 14 are mutually inclusive. rights of the
people.

IMPACT OF MANEKA GANDHI

The reincarnation of Art.21 which Maneka Gandhi case brought has been exerting
a deep impact on contemporary constitutional jurisprudence. Maneka Gandhi case
completely overrides the Gopalan’s view which had held the field for nearly three
decades. Since Maneka Gandhi case, the Supreme Court has again underlined the
theme that Arts. 14, 19 and 21 are not mutually exclusive, but they sustain,
strengthen and nourish each other. It has brought the Fundamental right of life and
personal liberty into prominence which is now regarded as the heart Fundamental
Rights. In quite a few cases in the post-Maneka era, the Supreme Court has given
content to the concept of procedural fairness in relation to personal liberty. By
establishing a nexus between Art. 14, 19 and 21, it is now clearly established that
the procedure contemplated by the Art. 21 must answer the test of reasonableness.
Thus, Art. 21 emerged as the Indian version of the American concept of due
process of law and has come to the source of many substantive rights and
procedural safeguards to the people. The Court has observed that Art.21, though
couched in negative language, confers the Fundamental Rights to life and personal

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liberty and has also deeply influenced the administration of criminal justice and
prison administration. In a number of cases the Supreme Court has expounded
several propositions with a view to humanize the administration of criminal justice
in all its aspect. Art.21 has also proved to be a very productive source of several
fundamental rights over and above those mentioned in the Constitution in Arts. 14
to 31.

EXPANDING HORIZON OF ARTICLE 21 POST-MANEKA GANDHI

JUDGEMENT

A very interesting development in the Indian Constitution jurisprudence is the

extended dimension given to Art. 21 by the Supreme Court in the post-Maneka era.
The Supreme Court has asserted that in order to treat a right as a Fundamental
Right, it is not necessary that it should be expressly stated in the Constitution as a
Fundamental Right. Political, social and economic changes in the country entail the
recognition of new rights. The law in its eternal youth grows to meet the demand
of the society. Since Maneka Gandhi case, Art. 21 has proved to be multi-
dimensional. The aspect of Art. 21 is brought out by the following judicial
pronouncements. This extension in the dimensions of Art. 21 has been made
possible by giving an extended meaning to the word life and liberty in Art. 21.
These two words in Art. 21 are not to be read narrowly. These are organic terms
which are be construed meaningfully. The right to life enshrined in Art. 21 has
been liberally interpreted so as to mean something more than survival and mere
animal existence or animal existence. It therefore includes all those aspects of life
which go to make a man’s life meaningful, complete and worth living. Art. 21 is to
be read not only with directive principles but also fundamental duties.

QUALITY OF LIFE

A grand step was taken by the Supreme Court in expanding the scope of Art. 21,
when it argued that life in Art. 21 does not mean merely animal existence but
living with human dignity. The Supreme Court has thus given very extensive
parameters to Art. 21.

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PRESENT VIEW OF ARTICLE 21
Art.21 assures every person right to life and personal liberty. The term life has
been given a very expansive meaning. The term personal liberty has been given
very wide amplitude covering a variety of rights which go to constitute personal
liberty of citizens. Its deprivation shall be only being as per the procedure
prescribed in the relevant law, but the procedure has to be fair just and reasonable.

LIFE

The expression life in Art.21 has been interpreted by Supreme Court rather
liberally and broadly. Over time, the court has been giving an expansive
interpretation to it. In Francis Coralie, the Supreme Court has held that the
expression life in Art.21 does not connote merely physical or animal existence but
embraces something more. It include right to live with human dignity and all that
goes along with it, the bare necessity of live such as adequate nutrition, clothing
and shelter over their head. The Supreme Court in Shantisar Builders v.
Narayanan Khimalal Totame, held that right to life would include right to food,
clothing, decent environment and reasonable accommodation to live in. Therefore,
the concept of life has been expansively interpreted in recent years implying a host
of Fundamental Rights there from.

PERSONAL LIBERTY

This expression is of widest amplitude and it includes various kinds of rights like
Right to locomotion, Right to travel abroad, Rights of a prisoner to speedy trail,
Rights to defence before Advisory Board to take legal aid where the employer is
represented by a lawyer. In the light of decisions of the Supreme Court, the word
life and personal liberty are liberally interpreted and now being invoked almost as
a residuary right. On account of expanding interpretation, now the right to
pollution free water air, right to food clothing, environment, protection of cultural
heritage, right to every child to a full development, right of person to reside in hilly
areas to have access to road and right to education, have all found their way into
this Article.

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PROCEDURE ESTABLISHED BY LAW

The court emphasized that a procedure must be right and just and fair and not
arbitrary, fanciful and oppressive otherwise it will be no procedure at all and the
requirementof Art. 21 would not be satisfied. Accordingly the Court suggested
certain modifications in the Special Court Bill 1978. The Court suggested that
there should be provision for transferring case from one Special Court to another
which is necessary to avoid trail of an accused by a judge who may be biased
against him. The Court further emphasised that there is a duty of the State to
preserve law and order. It is the duty of the state to see that the rule of law
enunciated by the Art.21 is available to the greatest number. In Olga Tellis case,
the Supreme Court has again emphasised that the procedure prescribed by the law
for the deprivation of rights conferred by Art.21 must be fair, just and reasonable.
It must conform to the norms of justice and fair play. Procedure which is unfair or
unjust or attracts the vice of unreasonableness, there by vitiating the law which
prescribe that procedure and consequently, the action taken under it.

CONCLUSION
Article 21 of the Constitution says, “No person shall be deprived of his life or
personal liberty except according to procedure established by law.” Maneka
Gandhi’s case is not only a landmark case for the interpretation of Article 21 but it
also gave an entirely new viewpoint to look at the Chapter III of the Constitution.
Prior to Maneka Gandhi’s decision, Article 21 guaranteed the right to life and
personal liberty only against the arbitrary action of the executive and not from the
legislative action. Broadly speaking, what this case did was extend this protection
against legislative action too. In Maneka Gandhi’s case, the meaning and content
of the words ‘personal liberty’ again came up for the consideration of the Supreme
Court. In this case the Supreme Court not only overruled A.K. Gopalan’s case but
also widened the scope of words ‘personal liberty’ considerably. Bhagwati, J.
observed: “The expression ‘personal liberty’ in Article 21 is of widest amplitude
and it covers a variety of rights which go to constitute the personal liberty of man
and some of them have raised to the status of distinct fundamental rights and given
additional protection under Article 19.” With respect to the relationship between
Art. 19 and Art. 21, the Court held that Art. 21 is controlled by Art. 19, i.e., it must
satisfy the requirement of Art. 19. The Court observed: The law must therefore
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now be settled that Article 21 does not exclude Article 19 and that even if there is a
law prescribing a procedure for depriving a person of personal liberty, and there is
consequently no infringement of the fundamental right conferred by Article 21
such a law in so far as it abridges or takes away any fundamental right under
Article 19 would have to meet the challenges of that Article. Thus a law depriving
a person of personal liberty has not only to stand the test of Article 21 but it must
stand the test of Art. 19 and Art. 14 of the Constitution.

Thus with the above brief preview of article 21 it is clear that it has a
multidimensional interpretation. Any arbitrary, whimsical and fanciful act of the
part of any state depriving the life or personal liberty would be against article 21 of
the Indian constitution. Hence to conclude, it may be said that Maneka Gandhi’s
case, gave the term personal liberty widest possible interpretation and gave effect
to the intention of the drafters of the Constitution. This case, while adding a whole
new dimension to the concept of ‘personal liberty’, extended the protection of Art.
14 to the personal liberty of every person and additional protection of Art. 19 to the
personal liberty of every citizen.

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 BIBLIOGRAPHY
 DD BASU COSTITUTION OF INDIA
 http://www.indiancaselaw.com/a-k-gopalan-v-state-of-madras-sc-1950/
 supremecourtofindia.nic.in/
 https://books.google.co.in/books?isbn=1317809785

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