TABLE OF CONTENTS

LIST OF ABBREVIATION……………………………..……2-2

INDEX OF AUTHORITIES……………………………..…...3-3

STATEMENT OF JURISDICTION………………….……...4-4

STATEMENT OF FACTS…………………………..………..5-6

STATEMENT OF ISSUES….…………………………...……...7-7

SUMMARY OF ARGUMENTS…………………………...... 8-8

ARGUMENTS ADVANCED……………………………..….9-12

PRAYER………………………………………………......….13-13

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 LIST OF ABBREVIATION

& And

AIR All India Reporter

Anr. Another

Art. Article

HC High Court

Hon’ble Honourable

Ors. Others

S.C.R. Supreme Court Report

SC Supreme Court

V. Versus

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 INDEX OF AUTHORITIES

STATUTES:

 PREVENTIVE DETENTION ACT, 1950

 CONSTITUTION OF INDIA,1949

CASES REFERRED:

 Machindar Shivaji Mahar v. The King

 Lalit Kumar Barman v. The State
 Kshitindra Narayan v. The Chief Secretary

BOOKS REFERRED:

 Dr. J.N. Pandey; Constitutional Law of India; Central Law Agency; 54 th

Edition
 KD Gaur; Indian Penal Code; Universal Law Publishing; 6th Edition

DICTIONARY REFERRED

 Black’s Law Dictionary

WEBSITES REFERRED:

 https://www.scribd.com/document/345502115/A-k-gopalan-
Case#fullscreen=1
 https://indiankanoon.org/doc/1857950/
 https://www.scribd.com/document/332985295/Team-Code-Ck9-Appellant
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 STATEMENT OF JURISDICTION

The S.C. of India has the inherent jurisdiction to entertain of the present case by
virtue of Article 32 of the Indian Constitution.

Article 32 of the Indian Constitution.

32. . Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement of any
of the rights conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 )
and ( 2 ), Parliament may by law empower any other court to exercise within the
local limits of its jurisdiction all or any of the powers exercisable by the Supreme
Court under clause ( 2 )

(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution

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 STATEMENT OF FACTS

I. This was a petition by the applicant under article 32 of the constitution of

India for a writ of habeas corpus against his detention in the Madras jail.
In the petition he had given various dates showing how he had been
under detention since December1947. He had been sentenced to
imprisonment but the convictions were set aside.

II. While he was thus under detention under to imprisonment but the
convictions were set aside. While he was thus under detention under one
of the orders of the Madras State Government, on 1 March, 1950 he
was served with an Order of the Madras State Government under
section3(1) of Preventive Detention Act,1950.

III. He challenged the legality of the order as it was contended that 1950 Act
contravenes the provisions of article13, 19 and 21 and provisions of that
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 had been
issued mala fides.

IV. The burden of proving that allegation was on the applicant. Because of
the penal provision of Section 14of the impugned Act the applicant had
not disclosed the grounds, supplied to him for his detention and the
question of mala fides of the order, therefore, could not be gone into
under the petition.

V. The question of the validity of the Preventive Detention Act was argued
before the Supreme Court at a great length. This was first case in which
different articles of the Constitution of India contained in the
Fundamental Rights Chapter had come for discussion.

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VI. The question of the validity of Act IV of 1950 was argued before us at
great length. This is the first case in which the different articles of the
Constitution of India contained in the Chapter on Fundamental Rights has
come for discussion before us.

VII. The Court is indebted to the learned counsel for the applicant and the
Attorney-General for their assistance in interpreting the true meaning of
the relevant clauses of the Constitution.

VIII. As the preventive detention order results in the detention of the applicant
in a cell it was contended on his behalf that the rights specified in article
19 (1) (a), (b), (c), (d), (e) and (g) have been infringed.

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 STATEMENT OF ISSUES

 Whether the Preventive Detention Act, 1950 ultra vires

Fundamental Rights under Constitution?

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 SUMMARY OF ARGUMENTS

 Whether the Preventive Detention Act, 1950 ultra vires

Fundamental Rights under Constitution.

 Act IV of Preventive Detention Act, 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. As the preventive detention order results
in the detention of the applicant in a cell it was contended on his behalf that
the rights specified in article 19 (1) (a), (b), (c), (d), (e) and (g) have been
infringed. It was argued that because of his detention he cannot have a free
right to speech as and where he desired and the same argument was urged in
respect of the rest of the rights mentioned in sub-clauses (b), (c), (d), (e) and
(g).

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 ARGUMENTS ADVANCED

 Whether the Preventive Detention Act, 1950 ultra vires

Fundamental Rights under Constitution.

 Gopalan contended that detention deprived him on his right to personal

liberty guaranteed under Article 21 that personal liberty under Article 21
included all the freedoms conferred by Article 19(1) (a) to (G) that it
included the right to free movement conferred by Article 19 (1) (d) because
freedom of movement was the essence of personal liberty and, therefore, the
preventive detention Act off 1950 should also satisfy the requirements of
Articles 19(1) and that Article 19(1) dealt with substantive rights and
Article21 with procedural rights.
 Initially where the validity of the preventive detention Act, 1950 was
challenged, the main question was whether Article 21 envisaged any
procedure laid down by a law enacted by a legislature, or whether
the procedure should be fair and reasonable. by this case, an attempt was
made to win for the detenu better procedural safeguards than were available
to him under the relevant detention law and Article 22, and a very important
question was raised which required interpretation of constitution


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 The detention he cannot have a free right to speech as and where he desired
and the same argument was urged in respect of the rest of the rights
mentioned in sub-clauses (b), (c), (d), (e) and (g). Although this argument is
advanced in a case which deals with preventive detention, if correct, it-
should be applicable in the case of punitive detention also to any one
sentenced to a term of imprisonment
 while this interpretation may meet the contention in respect of rights under
article 19 (1) (a), (b), (c), (e) and (g), the right given by article 19 (1) (d) is
left untouched. That sub-clause expressly gives the right "to move freely
throughout the territory of India." It was argued that by the confinement of
the petitioner under the preventive detention order his right to move freely
throughout the territory of India is directly abridged and therefore the State
must show that the impugned legislation imposes only reasonable
restrictions on the exercise of that right in the interests of the general public
or for the protection of the interests of any Scheduled Tribe, under article 19
(5).

 Article 14 of the Constitution gives the right to equality in these terms:

"The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India."

The words "within the territory of India" are unnecessary in that article
because the Parliament is supreme to make laws operative only within the
territory of India. Without those words also the article will bear the same
meaning.

 Article 21 which is also in Part III under the caption "Right to Freedom"
runs as follows :-

"No person shall be deprived of his life or personal liberty except according
to procedure established by law."

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 This article has been strongly relied upon by the petitioner in support of his
contention that the impugned Act is ultra vires the Parliament as it abridges
the right given by this article to every person. The Constitution of the United
States of America the corresponding provision is found in the 5th and 14th
Amendments where the provision, inter alia, is "that no person shall be
deprived of his life or liberty or property except by due process of law." It
was contended for the petitioner that the Indian Constitution gives the same
protection to every person in India, except that in the 'United States "due
process of law" has been .construed by its Supreme Court to cover both
substantive and procedural law, while in India only the protection of
procedural law is guaranteed. It was contended that the omission of the word
"due" made no difference to the interpretation of the words in article 21. The
word "established"' was not equivalent to "prescribed". It had a wider
meaning. The word "law" did not mean enacted law because that will be no
'legislative protection at all. If so construed, any Act passed by the
Parliament or the State Legislature, which was otherwise within its
legislative power, can destroy or abridge this right. On the same line of
reasoning, it was argued that if that was the intention there was no necessity
to put this as a fundamental right in Part III at all. As to the meaning of the
word "law" it was argued that it meant principles of natural justice. It meant
"jus", i.e., law in the abstract sense of the principles of natural justice, as
mentioned in standard works of Jurisprudence, and not "lex", i.e., enacted
law. Against the contention that such construction will leave the meaning
vague, it was argued that four principles of natural justice recognised in all
civilized countries were covered, in any event, by the word "law".

 Section 14 was strongly attacked on the ground that it violated all principles
of natural justice and even in- fringed the right given by article 22 (5) of the
Constitution. It runs as follows:

"14. (1) No Court shall, except for the purposes of a prosecution for an
offence punishable under subsection (2), allow any statement to be made, or
any 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 such
order; and, notwithstanding anything contained in any other law, no Court
shall be entitled to require any public officer to produce before it, or to
disclose the substance of, any such communication or representation 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

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 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 the
case may be, any contents or matter purporting to be contents of any such
communication or representation as is referred to in sub-section (1):

Provided that nothing in this sub-section shall apply to a disclosure made to

his legal adviser by a person who is the subject of a detention order."

By that section the Court is prevented (except for the purpose of punishment
for such disclosure) from being in- formed, either by a statement or by
leading evidence, of the substance of the grounds conveyed to 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 proceedings or report of the advisory
board which may be declared confidential.

 It even prevents the Court from ascertaining whether the alleged grounds of
detention have anything to do with the circumstances or class or classes of
cases mentioned in section 12 (1) (a) or (b). In Machindar Shivaji Mahar
v. The King1 ,the Federal Court. held that the Court can examine the
grounds given by the Government to see if they are relevant to the object
which the legislation has in view. The provisions of article 22 (5) do not
exclude that right of the Court. Section 14 of the impugned Act appears to be
a drastic provision. which re- quires considerable support to sustain it in a
preventive detention Act.
 Therefore, that section 14 of the Act in so far as it prevents the detent from
disclosing to the Court the grounds communicated to him is not in
conformity with Part III of the Constitution and is, therefore, void
under article 13 (2). That section, however, is clearly severable and cannot
affect the whole Act. On this question the views of Meredith C.J. and Das
J. of Patna in Criminal Miscellaneous No. 124 of 1950 (Lalit Kumar
Barman v. The State) and the majority of the learned Judges of the Calcutta
High Court in Full Bench Case No. 1 of 1950 (Kshitindra Narayan v. The
Chief Secretary) appear to be correct and sound.

1
(1950)11FCR827

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 PRAYER

WHEREFORE IN THE LIGHT OF FACTS STATED, ISSUES RAISED, ARGUMENTS

ADVANCED, REASONS GIVEN AND AUTHORITIES CITED, THIS HONOURABLE
COURT MAY BE PLEASED TO:

DECLARE THAT THE PREVENTIVE DETENTION ACT IS INVALID AND IT IS

UNCONSTITUTIONAL AND IT IS ONLY MISREPRESENT FOR THE FUNDAMENTAL
RIGHTS.

AND PASS ORDER, DIRECTION, OR RELIEF THAT MAY DEEM FIT IN THE
INTEREST OF JUSTICE, FAIRNESS, EQUITY AND GOOD CONSCIOUS FOR WHICH
THE COUNSELS SHALL FOREVER PRAY.

COUNSELS FOR THE APPELANT

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