A.K.

Gopalan Vs The State Of Madras, Union Of India,

1950 AIR27, 1950 SCR 88

FACTS OF THE CASE

1. The petitioner had been under detention previously

under orders passed by the said Government under the
Madras Maintenance of Public Order Act, 1947, but as
the validity of that Act was challenged, he was detained
under Preventive Detention Act, 1950.
2. After 1950, this Act came into force on 25th February
1950, and, on the 27th February, the Government of
Madras, 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
order was served on him on 1st March
3. The petitioner applied for writ petition under Art. 32 of
the Constitution for a writ of habeas corpus and for his
release from detention, and contended that since the act
contravened the provisions of Arts. 13, 19, 21 and 22 of
the Constitution therefore it is invalid
4. So it was before the apex court to determine whether
there was infringement of rights conferred in Part III of
Constitution of India.

ISSUES RAISED

1. Whether the order made under Act IV of 1950

contravenes the provisions of articles 13, 19 and 21 and
the provisions of that Act are not in accordance with
article 22 of the Constitution and it is Mala fides.
2. Whether a person detained as conviction of an offence
can claim right under Article 19 of Indian constitution
3. Whether the right to move freely throughout the
territory of India enumerated under the Article 19 (1)(d)
is different from personal liberty mentioned in Art. 21 of
Constitution of India.
 4. Whether the law” used in article 21 means’ due process
of law’ or state made law.
5. Whether the Section 3 the Preventive Detention Act,
1950, which delegate the power to an executive officer
invalid on ground.
6. Whether the Section 7 and Section 11 of Preventive
Detention s is invalid as it is against the Article 22 of
Constitution of India.
7. Whether the Parliament prescribes either the
circumstances or classes of cases or both as mentioned
in Section 12 of Preventive Detention Act and in Art.
21(7) of Constitution of India.

LEGAL ANALYSIS

The principle of natural justice is a legal principle that holds

that all individuals are entitled to fair and impartial
treatment. This principle requires that decisions be made
without bias or prejudice and that all parties involved have a
chance to be heard. The principle of natural justice states
the following features
-No one shall be judged on his own matter
-No person shall be left unheard
-Every person has the right to know the reason on which his
decision has been made.
PLAINTIFF’S ARGUMENT

1. It was contended on the behalf of plaintiff that right to

move freely throughout the territory of India referred to
in article 19 (1)(d) is the core of personal liberty, and the
detention authorized by the impugned Act does not fall
in the ambit of “reasonable restriction” mentioned in
clause (5) of the article19, therefore, the impugned Act
is void.
2. It was contended that article 21 states “No person shall
be deprived of his life and personal liberty except
according to procedure established by law”[i], but the
 above mentioned act authorize detention without
following proper procedure and took away that right, so
it is void.
3. And that the provisions of the Preventive Detention Act,
1950 referred as ultra vires and as it against the article
22 clauses (4) to (7).
4. Counsel urged that the word “law” in article 21 should
be understood, not in the sense of an enactment but as
signifying the immutable and universal principles of
natural justice the jus naturale of the civil law and that
the expression “procedure established by law” meant
the same thing as that of “due process of law” in the
American Constitution.
5. That the Preventive Detention Act is invalid, as the
procedure it lays down is not in conformity with the
rules of natural justice, and also lack consideration
which is mentioned in section 12 of the Preventive
Detention Act, and it is ultra vires of the Constitution as
contravene with the provision of article 22 (7)(a).
6. Counsel argue that article 21 refers to ‘procedure only
and not to substantive law the procedure, however, and
the word ‘law’ should be interpreted in the sense of ‘jus’
and not the ‘Lex’.

RESPONDENT’S ARGUMENT

1. The learned counsel urged that the whole object of the

section was to prevent ventilation in public of the
grounds and the representations, and that it was a rule
of evidence only which the Parliament could prescribe.
2. The learned Attorney-General contended that the
subject of preventive detention does not fall under
article 21 at all and is covered wholly by article 22.
According to him, article 22 is a complete code.
3. The learned counsel argued that 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.
4. That the word “law” which is used in article 21 means
State-made law or law enacted by the State. And he
 referred 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
law”.
5. While the petitioner’s counsel argue the Act would be
void as principles of natural justice was not followed,
whereas respondent’s Counsel contended, the Act would
be perfectly valid.
6. He contended that the word “and” had been used in the
same sense as “or.” And further argued that even if the
word “and” is not given but it should be interpreted as
that the Parliament could prescribe either the
circumstances or the classes of cases.

DECISION AND REASON FOR DECISION

Whether the order made under Act IV of 1950

contravenes the provisions of articles 13, 19 and 21 and
the provisions of that Act are not in accordance with
article 22 of the Constitution and challenged on the
ground of Mala fides.

Chief Justice H.J. Kania , Justice Patanjali Sastri along with

Justice Mukherjee And Das viewed that the preventive
Detention Act, 1950, with the exception of Sec. 14 any other
provisions of the code thereof did not contravene any of the
Articles of the Constitution and even though Sec. 14 was
ultra rites inasmuch as it contravened the provisions of Art.
19, (5) of the Constitution, as this section was severable i.e.
they can be separated from the remaining sections of the Act,
so it will not affect the validity of the above other provisions
of this Act so, this act is valid , and the detention of the
petitioner was not illegal.
While Justice Fazal Ali and Mahajan give dissenting view and
held that Section 12, of the Act was also ultra vires, and
since it contravened the very provision Constitution under
which the Parliament derived its competence to enact the
law, the detention was illegal.
They opined that Section 14 of the Preventive Detention Act,
1950, contravenes the provisions of Art.19 (5) of the
Constitution as it prohibits a person detained from disclosing
to the Court the grounds on his detention or to the
representation made by him against the order of detention,
so to that extent it is void.

Whether a person detained can claim right under Article

19 of Indian constitution.

As per the then CJI H.J. Kania, Patanjali Sastri, Mahajan,

Mukherjea and Das Article 19 of the Constitution has no
application to a law which is related to preventive detention
even though as a result of an order of detention the rights
referred to in Art. 19(1)(a) to (e) may be restricted in general
and Art. 19(1)(d) i.e. may be curtailed in particular; and the
constitutional validity of a law relating to such detention
cannot therefore, be judged in the light of the test prescribed
in Article 19 (5) of Constitution of India.
Justice Das viewed that Article 19 (1) postulates a legal
capacity to exercise the rights guaranteed by it and if a
citizen loses the freedom of by reason of lawful detention
which is due to conviction in any offence or otherwise, he
cannot claim the right s under- sub clause (a) to (e) and (g) of
Art. 19 (1)(a) to (e) or Art. 19 (1)(g) of constitution of India.
Mahajan “Whatever be the precise scope of Art. 19 (1) (d) and
Art.19(5) the provisions of Art. 19(5) do not apply to a law
relating to preventive detention, inasmuch as ‘there is a
special self-contained provision in Art.22 regulating it”.
While Justice Fazl Ali while giving his dissenting view held
that Preventive detention is a direct infringement of the right
guaranteed in Art. 19 (1) (d), and even if a narrow
construction is placed but it will be subjected to such limited
judicial review as is permitted by Art. 19 (5).
Whether the right to move freely throughout the
territory of India given in Article 19 (1)(d) is different
from personal liberty mentioned in Art. 21 of
Constitution of India.

Majority of judges viewed that the concept of the right “to

move freely throughout the territory of India” referred to in
Art. 19 (1) (d), of the Constitution is entirely different from
the concept of the right to “personal liberty” referred to in
Art. 21, and Art. 19 should not, therefore, be read as
controlled by the provisions of Art. 21 and the view that Art.
19 guarantees substantive rights while Art. 21 prescribes the
procedure for enforcement is incorrect.
Justice Das viewed that the Article 19 protects some of the
important attributes of personal liberty as independent
rights while the expression “personal liberty” is used in Art.
21 as a compendious term meaning all varieties of rights
which go to make up the personal liberties of men.
While expressing dissenting view Justice Fazl Ali viewed that
even if it be assumed that Art. 19 (1) (d) does not refer to ”
personal liberty” and that it bears the restricted meaning
attributed to it, that is to say, signifies merely the right to
move from one locality to another, preventive detention must
be held to affect this limited right of movement directly and
substantially. One of the objects of preventive detention is to
restrain a person detained from moving from place to place
so that he may not spread disaffection or indulge in
dangerous activities in the places he visits. The same
consideration applies to the cases of persons who are
interned or externed. Hence, externment, interment and
certain other forms of restriction 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 to the others.

Whether the law” used in article 21 means’ due process

of law’ or state made law.
Judges of Apex Court held that in Art. 21 the word ‘law” has
been used in the sense of State-made law, it is not as an
equivalent to due process of law of the American
constitution. “procedure established by law” means law is to
be made by the State, that is to say, the Union Parliament or
the Legislatures of the States by following the procedure.
Justice Patanjali Sastri opined that the “Law” mentioned in
Art. 21 means positive or State-made law. “Procedure
established by law” does not mean any procedure which may
be prescribed by a competent legislature. The only
alternative to this construction, if a constitutional
transgression is to be avoided is to interpret the reference to
“law” as implying a constitutional ‘amendment pro tanto’, for
it is only a law enacted by the procedure provided for such
amendment that could modify or override a fundamental
right without contravening Art. 13 (2).
But all the judges did not agree with the above mentioned
point of view, Justice Fazl Ali viewed that “procedure
established by law “must include the four principles of
elementary justice which are at the root of all civilized
systems of law, they are: – (1) notice, (2) opportunity to be
heard, (3) impartial tribunal and (4) orderly course of
procedure. Hence the words “procedure established by law “,
whatever its exact meaning be, must necessarily include the
principle that no person shall be condemned without hearing
by an impartial tribunal.

Whether the Section 3 the Preventive Detention Act,

1950, which delegate the power to an executive officer
invalid on ground.

According to judges of the Apex Court, they held that Section

3 of the Preventive Detention Act, 1950, does not delegate
any legislative power to an executive officer but it merely
confers on such officer a discretion to enforce the law, so it is
therefore invalid on this ground.
Whether the Section 7 and Section 11 of Preventive
Detention Act, 1950 is invalid as it is against the Article
22 of Constitution of India.

Court held that the Section 7 is not invalid merely because it

does not provide for an opportunity for oral hearing but only
gives right to make a representation. Similarly, court held
that the provision mentioned in Sec. 11 of the act which give
right to detain a person for such period as the State thinks
fit is not against Art. 22 (7), hence it is not invalid.

Whether the Parliament prescribes either the

circumstances or classes of cases or both as mentioned
in Section 12 of the Preventive Detention Act and in Art.
21(7) of Constitution of India.

Chief Justice H.J. Kania, Justice Patanjali Sastri, Justice

Das, and Justice Mukherjee viewed that Article 22 (7) is
interpreted as Parliament may prescribe either the
circumstances under which, or the class or classes of cases
in which, without reference to the advisory board detention
can be made for more than three months. It is not necessary
that the Parliament should prescribe both.
As mentioned in the matters referred to in clauses (a) and
(b) of sub-sec. (1) of Sec. 12 constitute a sufficient
description of such circumstances or classes of cases so it
does not need to comply with Art. 22 (7). While few judges
opined that Art. 22(7) need to interpret it as that both the
circumstances as well as the class or classes of cases both
should be prescribed.
CONCLUSION
In the case of A.K. Gopalan vs. The State of Madras, the
court restricted the meaning of Article 19 and Article 21 of
the Indian Constitution. However, after several years in the
case of Maneka Gandhi vs. Union of India, the court
overruled this judgment and said that the opinion of Justice
Fazal Ali was correct. The court further said that the scope of
Article 21 and Article 19 has a wider view. From the above
analysis of the case, we can conclude to the fact that the
Right to life and personal liberty is not only recognized under
the Indian Constitution but also intentionally recognized on
the basis of the principles of natural justice. The case of A.K
Gopalan is one of the most important cases of Independent
India as in this case the question pertaining to Article 21 was
raised for the first time after the Independence of India.
However, the court took Article 21 in a narrow sense and
makes it in accordance with the procedure established by the
law. Almost after 30 years this decision was overruled and
lastly, Article 21 was taken into a broader sense. Lastly, the
court widen the view of Article 21 and said that the
procedure established by the law must be just, fair, and
reasonable. Therefore, from the above discussion, we can say
that the case of A.K. Gopalan vs. The State of Madras
(1950), was a landmark case in the Indian Constitution.
CRITICAL ANALYSIS
On 15th December 1950, the A K Gopalan v/s State of
Madras case was heard in the Indian Supreme Court. This
case is considered a landmark case in Indian legal history, as
it set a precedent for the protection of citizens’ rights under
preventive detention laws. The A K Gopalan v/s State of
Madras case revolved around the Preventive Detention Act of
1950, which allowed the government to detain individuals
without trial if they were deemed to be a threat to national
security. A.K.Gopalan, a communist leader, challenged the
constitutionality of this law. In a unanimous ruling, the
Indian Supreme Court upheld the law and ruled that citizens
could be detained without trial if they were considered to be
a threat to national security. The Supreme Court analyzed
the arguments of the parties and held that there is no
connection between Article 21 and 19 of the constitution.
The court further held that the principles of natural
justice were not violated in this case. The court finally
dismissed the writ petition filed by Mr Gopalan. The A K
Gopalan and the State of Madras is a landmark case in
Indian legal history. It is one of the important cases in which
the apex court of India interpreted the provisions of the
Indian constitution. The case set the precedent for how the
Indian courts would interpret and apply the provisions of the
Indian constitution in future cases. It is also significant
because it was among the first cases in which the principles
of natural justice were applied in India. The case is also
important because it established the principle that the
Indian constitution is a living document and that it can be
interpreted in light of changing times and circumstances. In
the case of Newspaper Express Pvt Ltd. v. Union of India
(1958), it was held that an order passed by the court without
hearing the other party shall be considered illegal. Hearing
fulfils the basic criteria of Indian laws and is also a right.A K
Gopalan and the State of Madras is a landmark case in
Indian legal history. The case set important precedents for
the fundamental rights of Indian citizens. It also helped to
define the concept of “due process” in India. Also, the case
developed and explained the doctrine of natural justice
which means that the administration cannot function
arbitrarily. The concept of natural justice simply talks about
fairness and justice. This case is studied and referenced by
law students all over the country.
 CASE COMMENT ON
A.K. Gopalan Vs The State Of Madras, Union Of India, 1950
AIR27, 1950 SCR 88

Submitted by,

Vaishnav S S
S4 Unitary LlB
C.S.I Institute of Legal Studies