Author: Mallika Kapoor, The Department of Law, Aligarh Muslim University.
CASE NAME: A.K. Gopalan vs The State of Madras, AIR 1950 SC 27
COURT: Hon’ble The Supreme Court of India
BENCH: M.H. Kania CJ and Saiyid Fazl Ali, M. Patanjali Sastri, Mehr Chand Mahajan, B.k. Mukherjea and S.R. Das, JJ
PETITIONER: A.K. Gopalan
RESPONDENT: The State of Madras
DECIDED ON: 19/05/1950
Facts of the case:
In this case, a petition was filed by the applicant A.K. Gopalan, who was a Communist Leader under Article 32(1) of the Constitution of India for a writ of habeas corpus against his detention in the Madras Jail. In the petition, he has given various dates showing how he has been under detention since December 1947. He had been sentenced to imprisonment but the convictions were set aside. While he was under detention under one of the other orders of the Madras State Government, he was served with an order made under Section 3 (1) of the Preventive Detention Act, 1950. He challenged the legality of the order and contended that the same contravenes the provisions of Articles 13, 19, and 21of the Constitution of India. It was further affirmed that the provisions of this Act were not in accordance with Article 22 of the Constitution. He had also challenged the validity of the order on the ground that it is issued with a mala fide intention. But in the instant case, the burden of proving that allegation is on the applicant since the applicant has not disclosed the grounds, supplied to him, for his detention and, therefore, the question of the order being issued with a mala fide intention couldn’t be gone into under this petition by the Hon’ble Court. This was the first case in which the different articles of the Constitution of India contained in the Chapter on Fundamental Rights had come for discussion before the Court.
· Whether the Preventive Detention Act, 1950 is ultra vires to the various Fundamental Rights enshrined under the Constitution of India?
· Whether the Act passed by Parliament conforms to the standard of ‘procedure established by law’ as laid down Art.21 of the Constitution?
The Judgment of the Court in Brief:
In this case, the Hon’ble Supreme Court dismissed the said writ petition and held the said act as a valid one.
The first major judicial attempt in search of a proper meaning of the expression “procedure established by law” was made by the Hon’ble Supreme Court in Gopalan’s Case wherein the Supreme Court was also of the opinion that the procedure established by law under article 21 means justness of laws as well as equal and proper implementation of laws. The Supreme Court also held that the phrase “procedure established by law” is borrowed from article 31 of the Japanese Constitution. But the language adopted by India is totally different.
The Court held by a majority that the words ‘procedure established by law‘ meant simply any procedure as might be laid down by a State. The Court could not, under Art.21, go into the reasonableness of the ‘law’ so made, or the ‘procedure’ so laid down. The court rejected the contention that the word ‘law’ in Art.21 implicitly incorporated the principles of natural justice. The majority also rejected the contention that the expression “procedure established by law” implied the concept of ‘procedural due process’ which would enable the Court to see whether the law fulfilled the requisite elements of due procedure.
But on all these crucial points pertaining to the meaning and scope of the expression, ‘procedure established by law’, Fazl Ali.J dissented from the majority view. According to him, the expression does not exclude certain fundamental principles of justice which are inherent in every civilized system of law and which have been stated by the American Courts as consisting of notice, the opportunity to be heard, and an impartial tribunal, and an orderly course of the procedure.
He further enunciated that the importance of the protection in Art.21 would be vilified by allowing the undesirable consequences of any procedure enacted by statute, however draconian and arbitrary it may be, as ‘procedure established by law’.
Analysis of the Judgment:
In this case, the Court had interpreted Article 21 extremely literally and went on to affirm that the expression procedure established by law meant any procedure which was laid down in the statute by the competent legislature that could deprive a person of his life or personal liberty. It was further avowed that it was not permissible for the Courts to incorporate within the Article any such concept as natural justice, or the due process of law or reasonableness. Therefore, the Court had declared that the procedure could not be challenged even if it were not reasonable or not consistent with natural justice. The Court was wrong in ruling that each fundamental right was independent of each other and that Article 19 applied to a free man and not to a person in preventive detention.