Discuss one of the judgments in AK Gopalan vs state of Madras (Judges assigned to

each student below) with your focus on the judicial reasoning on the following points:
a. Constitutionality of the Preventive Detention Act.

In A K Gopalan V. State of Madras, AIR 1950 SC 27 petitioner filed a writ of Habeas Corpus
against his detention in Madras Jail. It questioned the expression ‘Personal Liberty’. The issue
was whether Preventive Detention Act 1950 ultra vires Fundamental Rights under Constitution.
It was held that the Preventive Detention act was intra vires the Constitution of India with the
exception of Section 14 which is illegal and ultra vires. It was further held that Article 21 is
applicable to preventive detention and Preventive Detention Act 1950 permits detention beyond
a period of three months and excludes the necessity of consulting an advisory board. It is not
obligatory on the Parliament to prescribe any maximum period.
In Maneka Gandhi V. Union of India the court expressed ‘personal liberty’ under Article 21 of
the widest amptitude. Protection with regard to Article 19 also included unlike in the case of
Kharak Singh.

The Supreme Court’s role of explaining the constitutionality of preventive detention has been
enormous and positive. The use of preventive measures from being victimised with unlawful use
of preventive detention has been safeguarded massively by Writ Habeas Corpus. Double
Jeopardy too stands consistent from Petitioner’s defence point.

Habeas Corpus – Article 32 and 226 empowers the Supreme Court and High Court respectively
to issue writs. Habeas Corpus which means “you may have the body” is a writ issued calling
upon person by whom another person is detained to bring the Detenu before the Court and to let
the court know by what authority he has been detained. The writ of Habeas Corpus is a device,
requiring examination of the question of illegal detention. The writ has been described as “a
great Constitutional privilege of the Citizen” or the first security of civil liberty”

b. Is due process to be read into Article 21?

In 1950, A.K. Gopalan vs Madras the Supreme Courtrefused to read the concept of due process
of law into the words ‘procedure established by law’ in Article 21. In 1957, in the context of
Article 14, the Court observed ‘it is extremely doubtful whether due process clause can have
application under our constitution. In Maneka Gandhi vs Union of India held that the ‘procedure
established by law’ in Article 21 means a just, reasonable, and fair law. Simultaneously, in a
separate concurring judhment, Justice Bhagwati laid the foundations of a guarantee of non-
arbitrariness or reasonable in Article 14.

In Gopalan vs State of Madras Justice Mukherjea said that in article 21 the word ‘law’ had been
used in the sense of state –made ‘law’ and not as an equivalent to ‘law’ in the abstract or general
sense embodying the principles of natural justice, and ‘procedure established by law’ meant

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procedure established by laws made by Parliament or the state legislatures. The Supreme Court
of India held that Article 21 is complete code; procedure established by law need not comply
with the principle of natural justice and reasonableness under Article 19. Court decisively
rejected the application of due process of law under Article 21 pointing out that as long as a
person was detained according procedure established by law, he could not challenge his
detention.

Whilst the majority of judges in Maneka Gandhi’s case held that the procrdure of law in Article
21 must also answer the requirement of Article 14 without stating the contents of Article 14 for
this purpose, Justice Bhagwati alone took the opportunity to find the content of reasonableness
from the principle of equality in Article 14 itself. Justice Bhagwati observed that “A law
depriving a person of personal liberty and prescribing a procedure for that purpose within the
meaning of Article 21 has to stand a test of one or more of the fundamental rights conferred
under Article 19 which may be applicable in a given situation. Ex-hypothesi it must also be likely
to be tested with reference to Article 14. On principle, the concept of reasonableness must,
therefore, be projected in the procedure contemplated by Article 21 having regard to the impact
of Article 14 on Article 21.”
Thus, in India due process concept can be perceived under the theory of basic structure, doctrine
of non-arbitrariness under Article 14 and ‘just, fair and reasonable’ requirement of Article 21.
Even Articles 19 (2) to (6), 20, and 22 also insulate the content of due process in the Indian legal
system.

c. Should natural law be read into Article 21?

Article 21 Constitution of India and Natural Law

The most significant expression under this Article is „procedure established by law‟ the issue
arise whether the above mentioned expression can be read as principles of natural justice. For
which, the Supreme Court of India in majority ruled that the word „law‟ under Art. 21 could not
be read as rules of natural law. Since, the rules of natural law are vague and imprecise and thus
the Constitution could not be read as laying down an indistinguishable standard.

Late Mr. Bhagawati J. stated, “the principle of reasonableness which legally as well as
philosophically is an essential element of equality or non-arbitrariness pervades art 14 like a
brooding omnipresence”. Therefore, the procedure laid in Article 21 “must be right, just and
fair” and shall not be arbitrary, oppressive, otherwise, it would be no procedure at all and the
requirements under Art. 21 would not be fulfilled.

Under Article 14 & Article 21 of the Constitution of India, the articles firmly deal with the
principles of natural justice. The violation of principles of natural justice shall results in
arbitrariness; therefore, violation of natural justice is also a violation of Right to Equality under
Article 14. Natural Justice has its foundation on good conscience and human values that follows

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a fair procedure.

d. Relation of Article 19 to Article 21

Article 19 provides certain absolute rights such as freedom of speech and expression, freedom of
movement, freedom of forming associations and unions, etc. This Article brings about important
changes in the society as it provides various rights to the people so that there is harmony among
the people of our country. Even though this Article covers a vast area of operation, it does not
provide a person the freedom to do anything and everything as per his whims and fancies.
Various other provisions of the Article provide restrictions to various issues affecting public
tranquillity and security.

On the other hand Article, 21 provides for protection of life and personal liberty. This provision
of the Constitution is one of the most implemented as well as widely interpreted areas in the field
of law enforcement. The Article covers the most sensitive area, i.e. protection and securing the
life and liberty of a person. Perhaps this may be the most violated provision of our Constitution
as well. Various courts in our country have interpreted the constitutional validity of Article 21 in
a common man’s life. Important among them is the case of Maneka Gandhi v. The Union of
India wherein the court looked into matters not only affecting Article 21 but also Articles 14 and
19 as well. The court stated that the act on the part of the respondents was violating Article 14 in
the sense that the act leads to arbitrariness on the part of the respondent which violated the right
to equality of the petitioner. Article 21 was being violated in the sense that petitioner was
restrained from going abroad. The judgment was one of the landmarks among the cases relating
to the violation of certain fundamental rights mainly, article 19 and 21.

Article 21 is applicable even during the time of election wherein people have the sole right of
electing the best person as their representative. No person has a right to compel anyone to elect
the person other than his/her wish. Even though voting is not a fundamental right but a ‘statutory
right’, the court, in the judgment of the case PUCL v. Union of India, distinguishes “right to
vote” and the “freedom of voting as the species of the freedom of expression” under Article 19
of the Constitution. There are various other major judgments in cases regarding enforcement of
fundamental rights. For example, the case of Kesavananda Bharathi v. Union of India, which is
considered as a landmark among cases regarding the enforceability of constitutional rights in
favour of the citizens. The judgment in the said case makes it clear that even the Central or State
Government has certain limitations in encroaching into a person’s rights, mainly fundamental
rights.

Conclusion

Thanks to the drafters of the Constitution for framing it in such a way that it neither makes any
mandatory provisions regarding various rights for the citizens nor makes any citizen free from
certain fundamental duties that must be followed by every citizen of the country. It has also

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looked deeply into the socio-economic scenario of India so that no rights or duties will be
omitted. Apart from certain fundamental rights, the Constitution also provides certain other
rights and duties towards the citizen which are enclosed in Part IV of the Constitution known as
‘Directive Principles of State policy.’ Such provisions are framed under the notion that rights of
each and every individual change accordingly and such rights cannot be considered as
fundamental but have to be enforced. One of the merits of the of our Constitution is that it
neither restricts a person from enforcing his fundamental rights, nor it provides full freedom to a
person in such a manner that he exploits or violates such rights himself or against the society.
Perhaps this feature of our Constitution makes it different from any of the other major
Constitutions of the world.

e. What are the rights included within Article 21 as per the judgment and is there a
hierarchy within them.

Article 21 lays down in general terms that no person shall be deprived of his life or personal
liberty, except according to procedure established by law. Article 21 guarantees to every man, be
he a citizen or a foreigner, that he shall not be deprived of his life and personal liberty, except in
accordance with the procedure established by law, the requirements of article 21 would certainly
have to be complied with, to make preventive detention valid in law. Given the sheer breadth of
rights being read into Article 21, it is evident that the same level of justification for infringement
by the State for all rights recognised by the Court end up being problematic. Das J’s opinion in
Gopalan engages with the idea of a hierarchy of rights. For Das J, at the very top of this
hierarchy falls the right to life, which means the right to not have one’s life taken except in
accordance with law. Then comes the right to the freedom of the person, the right against
restraint or coercion of the physical body except according to law. These are the primary rights
attached to a person, after which come the auxiliary rights that are attributes of the freedom of
the person and are also attached to the person, including, but not limited to, Article 19 rights.
Even within the auxiliary rights, Das J seems to accept the existence of a hierarchy where Article
19 rights would fall above the other auxiliary rights since they are more fundamental.

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