Does the ghost of Gopalan still haunt our jurisprudence?

A search for the contemporary relevance of A.K.Gopalan Vs State of

Madras1

Justice Jayasankaran Nambiar A.K

Judge, High Court of Kerala

For a landmark case that was decided in the first year of working our
Constitution, I believe Gopalan does not get its due credit. I consider
this rather unfortunate because a reading of the several opinions in
Gopalan reveals the sheer erudition, judicial discipline and clarity of
thought that guided the judges in the rendering of their respective
verdicts, not to mention the fascinating, persuasive and riveting
arguments advanced by the lawyers who appeared in the case. The
opinions reveal an application of well established principles of
interpretation of statutes as also the need felt by the judges to respect
the doctrine of separation of powers indicated in the Constitution,
thereby avoiding the temptation of legislating into the silences of the
Constitution by gathering from an overall reading of it, a spirit and
intendment that was never expressed in words.

The case itself concerned a challenge to a preventive detention law

under which the petitioner was incarcerated. The main ground of
challenge was that the incarceration infringed his fundamental right
under Art. 19(1)(d) to move freely throughout the territory of India,
more so when the restriction imposed on him did not satisfy the test
under Art.19 (6) of being a reasonable one, that was necessitated in
the interests of the general public.

The alternate contention raised was that if the effect of the law on him
was to deprive him of his personal liberty then, in terms of Art.21,
that could have been done only through a procedure established by
1
A.K.Gopalan v State of Madras – A.1950 SC 27
law and this meant that it could only be under a law that conformed
to the requirements of providing (i) notice (ii) an opportunity of
hearing (iii) an impartial tribunal and (iv) orderly course of
procedure. The term “Law” had to be taken as referring to valid law
and the term “procedure” to certain definite rules of proceeding and
not something that was a mere pretence for procedure.

Going further, and referring to the provisions of Art.22 of the

Constitution, it was contended that the said Article was not a self
contained code covering the law of preventive detention and that, in
respect of matters not expressly provided for under Art.22, the
requirements of substantive and procedural fairness had to be
gathered from the other provisions of the Constitution. Some of the
provisions of the statute were also impugned as infringing the
fundamental right of the detenue to approach the Court under Art.32.

The majority view of five out of the six judges was that the allegation
of infringement of a fundamental right had to be considered against
the express provisions of the Article that guaranteed its protection.
Thus, a challenge to a statutory provision as infringing the
petitioner’s right under Art.19 had to be examined in terms of the
provisions of that Article and not any other provision of the
Constitution. Viewed thus, what the incarceration had done was to
deprive the petitioner of his personal liberty and not merely restrict
his freedom of movement and hence, an examination of an
infringement under Art.19 did not arise for consideration. Further,
insofar as the petitioners incarceration had been through a procedure
established under a law enacted by Parliament, the requirements of
Art.21 were also seen as satisfied.

Noticing that during the debates of the Constituent assembly, the

aspect of inclusion of a due process clause had been deliberated upon
and it was decided not to include such a clause in Art.21, the court
rejected the plea for reading in a substantive due process requirement
into Art.21. It was observed that the court could not ignore the clear
intention of the framers while interpreting the provisions of the
Constitution.

The majority also found that Art.22 was a self-contained code

governing the law of preventive detention in our country and that, it
was not controlled by the provisions of either Art.19 or Art.21. Justice
Mahajan observed that, when the constitution had taken away certain
rights that ordinarily would have been possessed by a detained
person, and in substitution thereof certain other rights were
conferred on him even in the matter of procedure, the inference was
clear that that the intention was to deprive such a person of the right
of an elaborate procedure usually provided for in judicial
proceedings.

Justice Mukherjea in his judgment went further and clarified that

when there is a specific provision in the Constitution dealing with the
subject of preventive detention (Art.22) then there is no necessity to
read in a requirement of reasonableness of the law made under
Art.22, especially when the said Article does not expressly say so.
According to him, since all the provisions of the Constitution are to be
given effect to, one cannot read in a requirement that is spelt out in
Art.19, into Art.22 where it is not so contemplated. He then went on
to explain the true scope and ambit of Arts.19 to 22 by observing that
Art.19 gives a list of individual liberties and prescribes the restraints
that may be placed upon them by law so that they may not conflict
with public welfare or general morality. Arts. 20,21 and 22, on the
other hand, are primarily concerned with penal enactments or other
laws under which personal safety or liberty of persons could be taken
away in the interests of society and they set down the limits within
which the State control should be exercised. In other words, while
Art.19 talks about freedoms, Arts.20, 21 and 22 deal with restrictions
on state control. These restraints on State authority operate as
guarantees of individual freedom and secure to the people the
enjoyment of life and personal liberty, which are then declared to be
inviolable except in the manner indicated in the said articles. Thus,
while the freedoms in Art.19 may be connected with or dependent
upon personal liberty they are not identical with it.

The only point on which the majority judges agreed with the
petitioner was with regard to the contention that certain provisions of
the impugned statute, that forbid the petitioner from disclosing the
material communicated to him by the detaining authority before any
court of law, had the effect of infringing his fundamental right under
Art.32. The said provisions were therefore declared unconstitutional.

The minority view of Justice Fazl Ali stands out in its acceptance of
the contention that there is interplay of the rights guaranteed under
Art.19, 20, 21 and 22. It was his view that while Art.22 contemplated
certain procedural safeguards for the detenue under a preventive
detention law, to the extent not expressed under the said Article,
additional safeguards would have to be read in from Arts.19, 20 and
21. In his words, Art.22 does not exclude the operation of Arts. 19 and
21 and it must be read subject to those two articles in the same way as
Arts. 19 and 21 must be read subject to Art.22. Art.22 must prevail in
so far as there are specific provisions therein regarding preventive
detention but where there are no such provisions in that Article the
operation of Arts. 19 and 21 cannot be excluded. Art.22 is not a code
in itself.

As for the interpretation of the phrase “procedure established by law”,

he agreed that the procedure in question had to be under a law that
conformed to the requirements of providing (i) notice (ii) an
opportunity of hearing (iii) an impartial tribunal and (iv) an orderly
course of procedure. He thus read in a limited requirement of
substantive due process into Art.21 of the Constitution.

The “Silo’s theory” propounded in Gopalan, whereby one had to look

to the particular Article that guaranteed the right alleged to have been
infringed and test the validity of State action against the extent of
delimitation of the right permitted under that Article, was based on
an understanding that the protection of rights guaranteed under the
Constitution was through control on state action. The said approach
was consistent with American jurisprudence of the time where liberty
to the citizens of that country was guaranteed through restrictions on
State intrusion.

The Gopalan approach was followed in Kharak Singh Vs State of

UP2. In that case, the petitioner was arrested in 1941 in a case of
dacoity, but was later released for want of evidence. The police,
however, compiled a history sheet against him that was essentially a
personal record of a criminal under surveillance. The petitioner, who
was subjected to regular surveillance, including “midnight knocks”
moved the court for a declaration that his fundamental rights were
violated. The challenge was repelled by the Court which maintained
that the freedom to move freely throughout the territory of India,
guaranteed by Art.19 (1) (d) was not infringed because the “midnight
knocks” did not impede or prejudice his locomotion in any manner.
The midnight knocks were found, however, to violate the petitioner’s
fundamental right under Art.21 since it amounted to an unauthorised
intrusion into a person’s home. The sanctity of the home and the
protection against unauthorised intrusion was seen as an integral
aspect of ordered liberty that formed part of “personal liberty” under
Art.21.

The dissenting view of Subba Rao J in Kharak Singh however took a

different line. It is in this judgment that one finds the seeds of the
new approach to the interpretation of the scope of the protection of
fundamental rights under our constitution. Subba Rao J recognised
that there can be overlapping of the rights conferred by Part III and
that the guarantee of fundamental rights was to be through protection
of the rights in the hands of the individual. He accordingly held that
where a law is challenged as infringing the right to freedom of
movement under Art.19 (1) (d) and the liberty of the individual under
Art.21, it must satisfy the tests laid down in Art.19 (2) as well as the
2
Kharak Singh v State of UP –A. 1963 SC 1295
requirements of Art.21. He also found that the midnight knocks
violated the right to privacy of the petitioner, which was an ingredient
of his personal liberty.

The majority view in Gopalan was, however, formally departed from

only in RC Cooper & Ors vs UOI3 where a 11 judge bench opined that
under our Constitution, protection against impairment of the
guarantee of fundamental rights is determined by the nature of the
right, the interest of the aggrieved party and the degree of harm
resulting from state action. Impairment of the right of the individual,
and not the object of the state in taking the impugned action, is the
measure of protection. It is the effect of the law and of the action
upon the right that attracts the jurisdiction of the court to grant relief
(The effects doctrine). On this line of reasoning, the court could hold
that when a person approached the Court alleging infringement of his
fundamental rights, the court could look into whether the state action
was within the limits permitted by the Constitution and, in that
process, whether the law that authorised the state action was one that
was in consonance with the extent of protection guaranteed to the
various fundamental rights under Part III of the Constitution. Thus,
even if the deprivation of liberty was in accordance with a procedure
established by a law validly enacted by the legislature, the effect of the
deprivation on the individual had to be one that satisfied the test of a
“reasonable” restriction of his guaranteed right. The effect of the
deprivation had also to be fair to the individual in that it could not
have been the result of an arbitrary exercise of power or
discriminatory to the individual.

It was this view that was re-iterated by the Supreme Court in Maneka
Gandhi Vs UOI4 and is presently the one that guides our
interpretation of Part III of the Constitution. The clear shift in
approach becomes apparent when we read the judgment in a case
that was factually similar to Kharak Singh, and involved the same

3
Rustom Cavasjee Cooper v UOI – 1970 (1) SCC 248
4
Maneka Gandhi v UOI – 1978 (1) SCC 248
issues, but was decided after Maneka Gandhi. In Gobind Vs State of
MP5, a case involving domiciliary visits by policemen who had opened
a history sheet against the petitioner by treating him as a habitual
offender, the Supreme Court, after considering the majority and
minority views in Kharak Singh, chose to follow the latter and
recognise a right to privacy as a right of an individual to a place of
sanctuary where he can be free from societal control. It was observed
that rights and freedoms of Citizens are set forth in the Constitution
in order to guarantee that the individual, his personality and those
things stamped with his personality, shall be free from official
interference except where a reasonable basis for intrusion exists.
After recognizing the right to privacy as a fundamental right, and
striking down the impugned regulations as offending that right, it was
acknowledged that the right would have to go through a process of
case-by-case development and that the right should be subject to
restriction on the basis of compelling public interest.

The question that is often asked today is “Has the approach in

Gopalan been abandoned by our courts or does the ghost of Gopalan
still haunt our constitutional jurisprudence?” It is my view that, while
for the most part, the Gopalan view has been abandoned while
considering protection of fundamental rights, for reasons that are not
entirely clear we cant seem to let go of Gopalan when dealing with
cases impugning preventive detention laws.

One would assume that, having steered away from the path of
recognizing controls on state action as the means for protection of
fundamental rights, and deciding to look at the effect of state action
on the individual, to determine whether judicial intervention is
required, the courts would look to the effect of the detention on the
rights of the detenue to test the validity of the law authorizing the
detention. After all, the majority view in Gopalan, that held Art.22 to
be a self contained code on the subject of preventive detention law in
our country, was premised on the finding that since Art.21 only
5
Gobind v State of MP -1975 (2) SCC 148
required that the deprivation of personal liberty had to be through a
procedure established by law and that there was no requirement that
the law itself had to be a fair or reasonable one, the substantive and
procedural safeguards against illegal detention, whether punitive or
preventive, had to be separately provided through Art.22. Decided
case law on preventive detention, however, shows otherwise. While
deciding cases questioning the validity of preventive detention laws,
there has been a strange adherence to the silos theory in that the
validity of the law is tested only against the provisions of Art.22 of the
Constitution, and the question asked is whether the state action was
within the limits prescribed under the said article? The effect of the
detention on the rights of the detenue under Arts. 14, 19 and 21 have
seldom been considered. The decisions in Kartar Singh (1994) where
the validity of the TADA Act was questioned and Dropdi Devi (2012)
that involved a challenge to the validity of the COFEPOSA Act are
cases on the point. The said state of affairs is truly disappointing. The
transformative approach that was rung in through RC Cooper cannot
exclude preventive detention laws from its scope. The same test of
“effect of state action on the rights guaranteed to the individual” has
to be applied even while testing the constitutional validity of a
preventive detention law. What is sauce for the goose must also be
sauce for the gander!

In present times, when it is well settled in our jurisprudence that the

rights guaranteed under Art.21 cannot be suspended even during an
emergency, can we afford to look askance when a detenue comes
knocking on the doors of justice? Do we turn him away by assuring
him that the State Executive, who is supposedly in possession of all
relevant facts, including confidential information, knows what it is
doing in the interests of the security of the State? Surely the answer to
these questions must be in the negative. As sentinels on the qui vive,
our courts must be vigilant to the inaction and excesses, of the
legislature and the executive, so as to uphold the fundamental rights
guaranteed under our Constitution.