ALIGARH

MUSLIM UNIVERSITY
FACULTY OF LAW SUBJECT – CONSTITUTIONAL
SESSION 2021-2022

LAWPROJECT WORK

TOPIC- CASE ANALYSIS OF A.K GOPALAN v/s STATE OF

MADRAS AIR 1950 SC 27

SUBMITTED TO;
Dr. SAIM FAROOQI
ASSISTANT PROFESSOR
DEPARTMENT OF LAW

SUBMITTED BY;
FIDA FATHIMA S
BA LLB (HONS) IVth SEM
SEC; A ROLL NO:21BALLB-34

ENROLLMENT NO.GM9001

DATE OF SUBMISSION; 18/04/2023

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ACKNOWLEDGMENT

I am overwhelmed in all humbleness and gratefulness to acknowledge all those who

have helped me to put these ideas well above the level of simplicity and into
something concrete. I would like to express my sincere gratitude to my Professor
Dr. SAIM FAROOQI sir who gave me this wonderful opportunity to do this splendid
assignment on the topic CASE ANALYSIS OF A.K GOPALAN v/s STATE OF
MADRAS AIR 1950 SC 27 which helped me in doing a lot of research through which
I came to know about various new facts. I shouldn’t have successfully completed this
assignment without his guidance, dedication, sincerity, and motivation. Besides, Sir
had left no stones unturned in arranging the classes and giving out the lectures.
Moreover, any attempt at any level can't be satisfactorily completed without the
support and help of my friends and family.

Thank you to everyone who helped me in completing this assignment on time .

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TABLE OF CONTENTS

TOPIC- CASE ANALYSIS OF A.K GOPALAN v/s STATE OF MADRAS AIR 1950
SC 27
1.1 INTRODUCTION
1.2 INTERNATIONAL LAWS ON LIFE AND PERSONAL LIBERTY
1.3 FACTS IN ISSUE
1.4 PETITIONER’S ARGUMENT
1.5 RESPONDENT’S ARGUMENT
1.6 PROTECTION OF LIFE AND PERSONAL LIBERTY
1.7 FREEDOM OF MOVEMENT
1.8 ARTICLE 13 OF THE INDIAN CONSTITUTION
i. THE DOCTRINE OF SEVERABILITY
ii. THE DOCTRINE OF ECLIPSE
1.9 PROTECTION FROM ARREST AND DETENTION
1.10 PRINCIPLE OF NATURAL JUSTICE
1.11 HABEAS CORPUS
1.12 DISSENTING OPINION OF JUSTICE SAIYID FAZL ALI
1.13 OVERVIEW OF THE JUDGEMENT
1.14 CONCLUSION
1.15 BIBLIOGRAPHY
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A communist leader named Ayillyath Kuttiari Gopalan was held in the Madras jail under the
preventive Detention Act of 1950. Each time his sentence was overturned. He had been detained
since 1947. This was the first case of its kind, and several articles of India’s constitution were
thoroughly discussed. And while he was still in custody, a petition for a writ of habeas corpus was
filed with the Supreme Court in accordance with Article 32 of the Constitution. The petitioner argued
that the Madras government served him with an unjustifiable new order of detention on March 1,
1950, under the preventive Detention Act of 1950. He scrutinized the legitimacy of this specific
demonstration in his request and fought that arrangements of this Act are in repudiation to his
privileges under Article 13, 19, 21 and Article 22.

Additionally, he questioned whether his detention was in violation of his right to freedom of
movement under Article 19(1)(d) of the Constitution, which is a fundamental component of Article
21—right to life and personal liberty. In any case, the court took smaller view in this judgment and
held that the applicant’s detainment was not compressing his any right under Article 19 and 21
either, and these two rights are not connected or associated. Additionally, the court ruled in the same
judgment that a “law” cannot be declared unconstitutional simply because it lacks natural justice or
due process. Also, this was the first case in which the court said that the phrase “Procedure
established by law” in Article 21 is different from “due process of law,” which comes from the
American constitution. This was talked about because the right to life and liberty comes from the
American constitution, and the Indian constitution’s drafters used the phrase “procedure established
by law” instead of “due process by law” because it was so vague. Harilal Kania, the first chief justice
of an independent India, handed down this verdict. The High Court overruled it ‘s choice after very
nearly thirty years in Maneka Gandhi’s case.

INTERNATIONAL LAWS REGARDING LIFE AND PERSONAL LIBERTY

Because Article 21 of the Indian constitution guarantees protection for life and liberty. From the
perspective of international and foreign laws, the terms “life” and “personal liberty” mean different
things. The Indian constitution’s Article 21 is in line with Magna Carta, the Fifth Amendment to the
United States Constitution, and the 1946 Constitution of Japan, which grants it under Article 40(4).

FACTS IN ISSUE
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A communist leader named Ayillyath Kuttiari Gopalan submitted the petition for the writ of habeas
corpus to the Supreme Court in accordance with Article 32 of the Constitution. He claimed that his
detention under the preventive detention Act of 1950 violated his right to freedom under Article 19,
which violates his right to life and personal liberty under Article 21 of the Indian constitution. As a
result, he requested this writ. The petitioner argued that the term “LAW” as used in Article 21
encompasses not only the laws that have been passed, but also the natural justice principle and laws
that violate an individual’s rights to life and liberty. The petitioner also argued that the Indian
constitution’s use of the phrase “Procedure established by law” and the American constitution’s use
of the phrase “Due process of law” are identical. The only difference between the two is that the
Indian constitution only guarantees protection of procedural laws, while the American constitution
guarantees protection of both procedural and substantive laws. Additionally, the petitioner argued
that the Preventive Detention Act violated his rights under Indian Constitutional Articles 13, 19, 21,
and 22.

PETITIONER’S ARGUMENT

Because he was restricted in his movement, the detention order violated his rights under Article
19(1) (Right to freedom).

2. Confinement was encroaching his right under Article 21 (Right to life and individual
freedom).

3. As arbitrary detention, the order of detention also violated Article 22 of the Constitution’s
right against arrest and detention.

4. According to Article 13, which states that “law inconsistent with interrogation of
fundamental rights shall be void,” Section 14 of the preventive Detention Act violated his
fundamental right. Accordingly, this Act shall be declared null and void.

RESPONDENT’S ARGUMENT

1. According to Article 22 of the Constitution, detention is not arbitrary. The legal

procedure has been followed correctly.
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2. Petitioner’s rights under Articles 19, 21, and 22 are not violated by detention.

3. The 1950 Prevention of Detention Act is not arbitrary.

4. The petitioner should not be granted a Writ of Habeas Corpus.

PROTECTION OF LIFE AND PERSONAL LIBERTY

This right is revered under part – III of the Indian constitution that is Major privileges. In particular
under Article 21. This Article peruses as “No individual will be denied of his life or individual
freedom besides as per the method laid out by regulation” . This right is available to both citizens
and non-citizens due to the use of the term “person” in this article. Despite the fact that Article 19(1)
(d) states that this right does not grant the right to reside and settle in India, Individual freedom can
not be removed except if the technique laid out by regulation has been followed.

Due process of law and procedure established by law were originally included in the Indian
constitution. However, B.N. Rau, who was a member of the constitution’s drafting committee, met
Justice Frankfurter and changed this phrase to the actual phrase that is used in Article 21: procedure
established by law.

The Supreme Court’s interpretation of Article 21 in A.K. Gopalan v. State of Madras was narrow
and literal. By stating that the protection of one’s bodily parts is all that is meant by the term
“Personal Liberty,” the state cannot harm an individual’s body. The court also decided that there is
no connection between Article 19 and Article 21. It also ruled that while the American expression
“due process of law” implies that the procedure should be fair and reasonable, the Indian expression
“procedure established by law” only refers to the procedure that is followed. It basically implies that
anything the methodology, the parliament or governing body indicates, in the event that that
technique isn’t followed really at that time the courts can strike it down. However, this decision was
overturned in Maneka Gandhi v. Union of India nearly 30 years later. The court took a more
expansive approach to Article 21 and stated that Article 19 and Article 21 are connected to one
another and belong to the same class of rights. It held that personal liberty encompasses all aspects of
liberty and that there is no distinction between the two. It also said that any law that aims to take
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someone’s life or liberty must be fair and reasonable if it is passed by the legislature. As a result, the
court interprets the phraseology of Article 21 of the American Constitution, which states “due
process of law.”

FREEDOM OF MOVEMENT

The Indian Constitution’s Article 19 (1) (d) guarantees this right. The introduction of this clause was
primarily motivated by the desire to foster a sense of nationality and unity among Indians. According
to the Clause, Indian citizens have unrestricted mobility throughout Indian territory. However, this
right has been restricted by clause 5 of Article 19, which stipulates two restrictions: first, this right
may be restricted for the protection of Scheduled Tribes and second, for the benefit of the general
public.

In the case of Kharak Singh v. State of Uttar Pradesh, the Supreme Court of India ruled that the right
to locomotion, or the freedom to move wherever and however one pleases, includes the right to move
freely. State of Uttar Pradesh v. Kaushalaya is another case that has to do with freedom of
movement. In this case, the Supreme Court said that the right to move freely can be restricted if it
involves prostitutes, and that certain restrictions can be imposed on them in the interest of public
morals and public health.

ARTICLE 13 OF THE INDIAN CONSTITUTION This section discusses four fundamental rights
principles. In accordance with Article 13(1), laws that violate fundamental rights will be null and
void. The doctrine of severability, also known as separability, and the doctrine of eclipse are the two
doctrines it provides.

DOCTRINE OF SEVERABILITY or SEPARABILITY In accordance with this doctrine, if a portion

of an act is constitutional while another portion is unconstitutional, the unconstitutional portion ought
to be struck out, while the constitutional portion ought to be preserved. The petitioner challenged the
preventive detention act of 1950 in A.K. Gopalan’s decision. In this demonstration, there is one
specific segment, which is, segment 14, as per this part, an individual who is confined couldn’t
unveil his grounds of detainment in the court. Thus, this part was against principal freedoms. Section
14 of the preventive detention act of 1950 was deemed invalid in light of the doctrine of severability,
but the remaining act remained in effect.
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The literal meaning of the word “eclipse” is “to hide.” On account of Bhikaji v. Province of Madhya
pradesh , Berar engine vehicle Act was tested, in this demonstration there were sure arrangements
which engaged state government to assume control over whole engine transport business. As a result,
these provisions became in violation of Article 19 of the Indian constitution after fundamental rights
were upheld. The doctrine of eclipse holds that these parts of the Motor Vehicle Act no longer apply,
and that fundamental rights should take precedence over them. However, certain amendments were
made to Article 19 over time, allowing the government to monopolize certain businessmen and
reactivating those provisions.

Article 13(2) is about post-sacred regulations, state is disallowed to make regulations which are
conflicting with essential freedoms, assuming they are along these lines, they will be void. In the
case of Gujarat State. Ambica Mills The respondent was a business. In this labor welfare fund
challenge, the Supreme Court ruled that a business does not receive fundamental rights and that these
sections will continue to apply to non-citizens.

Article 13(3) is about regulation and regulations in force, this article covers by regulations, notices,
mandates, guidelines under the meaning of regulation. First, administrative and executive orders fall
under Article 13 in most cases; however, if their nature is to instruct or provide guidelines, they will
not be covered by Article 13(3). Second, Article 13(3) does not apply to personal laws.

According to Article 13(4), no amendment can be challenged under Article 13 if it was authorized by
Article 368. Despite the fact that it goes against fundamental rights.

In certain circumstances, protection from arrest and detention is provided by Article 22 of the Indian
constitution. Provision 1 and 2 of this article discusses correctional detainment, condition 3 is about
special case, and statement 4 to 7 of are about preventive confinement. The technical term “arrest”
means “to restrain,” and when someone is arrested, their freedoms are restricted. Additionally, that
individual must remain in law enforcement custody. Two sorts of confinement are referenced: 1)
Penal Punishment: The purpose of this type of detention is to retaliate against an offender. It occurs
in typical laws.
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2) Detention preventative: By taking someone into custody, this kind of detention aims to prevent
them from committing a crime.

Provisions for punitive detention can be found in some other nations, whereas provisions for
preventive detention are only used in an emergency. India is the only democratic nation where
preventive detention laws are still in effect even on business days.

There are two safeguards provided by Article 22(1): Right to be educated regarding grounds of
confinement, it is a course to keeping position to unveil grounds of detainment to the captured
individual. Right to consult a lawyer In the case of Hussainara Khatoon v. Home Secretary, State of
Bihar, the supreme court ruled that the accused has the right under the constitution to demand a
lawyer from the state if he cannot afford or hire one.

Article 22(2) talks about two things: first, the right to be presented before a magistrate. The person
who is in custody must appear before a magistrate within 24 hours, but they are not allowed to travel
or spend the necessary time. Second, no detention for more than 24 hours: If an arrested person fails
to appear before a magistrate within that time frame, they must be released from custody.

Focus and state the two has abilities to make regulations connected with preventive detainment.

Additionally, safeguards against preventive detention are provided in Article 22(4). In order to hear
such cases, an advisory board is established.

• Unless approved by the advisory board, no detention should last longer than three months.

• The act’s maximum time limit, for which the person was detained, cannot be extended.

Right to be informed and Right to representation are two rights outlined in Article 22(5).

According to Article 22(6), the detained person need not be informed of any information that could
compromise the public interest.
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Article 22(7) specifies that the parliament will determine the maximum length of detention in various
preventive detention-related laws, as well as the circumstances in which the detention period may be
extended and the Advisory Board’s procedure for conducting the inquiry.

PRINCIPLE OF NATURAL JUSTICE The English common law term “natural justice” comes from
the Latin “jus natural,” which means “law of nature.” It is not based on any statute or constitution.
The oxford word reference characterizes “Only” individual as one who normally “does common
decency” and is arranged to “offering everybody his or possibly some respect”, offering “fair” as an
equivalent. Several aspects of morality, ethics, nationality, law, religion, equity, and fairness serve as
the foundation for the idea of justice. The concept of justice is typically broken down into two parts:
procedural justice and social justice.

The collection of fundamental human rights with the intention of naturally bringing about justice for
both parties is known as natural justice. Two principles guide natural justice: • Nemo in propria
causa judex, esse debet: Neither the rule against bias nor the individual’s own case can be used as
judges.

• We make a change: This standard gives that,there ought to be fair hearing or a possibility being
heard ought to be conceded to party, it just means no individual ought to be denounced unheard.

In addition to the preamble, Articles 14, 21, 22, 32, 226 and 136 of the Indian constitution guarantee
natural justice and provide remedies in the event of unfairness.

In the case of Joginder Kumar v. State of Uttar Pradesh, the supreme court noted that the arrested
person has the right to inform his or her known ones of his or her arrest and the right to consult with
lawyers privately. These rights are inherent in the Indian constitution and are spelled out in Articles
21 and 22. What’s more, court likewise held that, capture and confinement of an individual might
hurt his standing or his confidence, so for that, the cop should have the option to fulfill that the
grounds of capture or detainment are sensible.
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The Supreme Court made the observation in Delhi Transport Corporation v. DTC Mazdoor Union
that the rule of Audi alteram partem basically enforces equality under Article 14 of the constitution.
The Supreme Court made it clear that this clause applies not only to quasi-judicial bodies but also to
administrative orders that hurt the party in question until the rule of Audi alteram partem is changed
by the relevant Act. In the Maneka Gandhi case, which was one of the most important decisions
made by the Indian judiciary, the supreme court held that Article 14 of the constitution is itself an
authority that holds the proposition that the principles of natural justice are very integral for
safeguarding equality. Article 14 provides an assurance that an order that deprives a person of his
civil liberty or civil right being violated by not giving him an opportunity to be heard, causes severe
harm to the natural justice. This opinion was similar to what was observed in one of the landmark

HABEAS CORPUS

This writ is cherished Article 32 of the constitution, this Article is primarily worried about the two
sorts of freedoms and powers. First, an individual can directly petition the Supreme Court if their
fundamental right is being violated. Second, High court is enabled to give five sorts of writs to
safeguard the major privileges and in light of this specific component of high court, it is otherwise
called the “Defender and Underwriter” of the principal freedoms. Dr. B.R. Ambedkar referred to
Article 32 as the constitution’s “heart and soul.”

Habeas Corpus is a writ. A writ is anything that is issued under authority. It could be a letter of law
that a court sends to an official under its seal to make him do something. It is a formal order written
down. Before 1950, only the high courts in Madras, Bombay, and Calcutta had the authority to issue
writs; however, Article 226 of the constitution now grants this authority to all high courts.

In the event that an individual is unlawfully confined ,, the kept individual or any of his delegates has
the option to request the writ of habeas corpus in the high courts or high court. The court will request
the authority to produce the detained person’s body when this writ is issued. Habeas Corpus simply
refers to possessing a body. From that point, court will do the assessment of the confinement and in
the event that it is found unlawful, the kept individual will be delivered. Individuals are protected
from being arbitrarily detained by Habeas corpus. It can be used against a person or an authority
figure. In Sheela Barse v. State of Maharashtra, the traditional locus standi doctrine was relaxed, and
the supreme court ruled that if a detained person is unable to petition for a writ of habeas corpus on
his or her own, someone else can petition on his or her behalf. According to the preceding decision,
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the writ of habeas corpus helped a lot of people, and the judiciary has used it well to free people from
illegal custody and protect their personal liberties.

DISSENTING OPINION OF JUSTICE SAIYID FAZL ALI Justice Ali stated in his dissent that the
fundamental rights protect a common threat to liberty and freedom rather than being distinct from
one another. His view was that central privileges which are cherished under Indian constitution,
doesn’t go about as isolated codes, they should be perused together, at whatever point there is
circumstance of covering. His viewpoint was a minority one, so it was not taken into account in A.K.
Gopalan’s decision, but it was taken into account when the supreme court accepted his interpretation
in the well-known Bank Nationalization case.

• The American concept of “due process of law” differs from the Indian concept of “procedure
established by law.”

• Because it violates fundamental rights, Section 14 of the Preventive Detention Act was deemed null
and void. The Other Act will not be changed.

• According to Article 19 of the Constitution, the detainee’s right to freedom is not violated by
preventive detention.

• The parliament is authorized by Article 22 of the constitution to pass legislation regarding

preventive detention.

• The constitution’s Articles 21 and 19 have no connection to one another and have their own
consequences.

Outline OF THE Judgment

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High Court of India took an extremely moderate and restricted perspective on individual freedom
ensured under Article 21 of the constitution. The supreme court ruled that due process of law cannot
be used to challenge the preventive detention’s legality because Article 21 is primarily concerned
with the legal procedure rather than its rationality. Furthermore, court additionally saw that the
security under Article 21 is just against the erratic leader activity and not against the official activity.
The court also decided that it could not invalidate the Preventive Detention Act as a whole because
only section 14 violated fundamental rights. Therefore, taking into account the separability doctrine,
the court ruled that section 14 was unconstitutional and that the remaining Act was valid. The court
narrowly interpreted Article 21, concluding that Article 19 and Article 21 are distinct and have no
relationship. According to the petitioner, a violation of any right under Article 19 does not
necessarily result in a violation of Article 21. In spite of the fact that, Equity fazl ali contradicted this
perspective on the larger part, his view was that the Articles giving principal privileges of the
constitution should be perused together. Different Constitutional Articles were discussed. That’s
what court held “Fair treatment of regulation” is an American idea and it shouldn’t be visible as an
equivalent word of “technique laid out by regulation” which is an indian idea, they have separate
implications and are not quite the same as one another. Article 21 does not address fairness or
reasonability; rather, it is only concerned with the procedure that must be followed. The supreme
court completely rejected the natural justice’s applicability. Consequently, the preventive
confinement of the candidate was held legal. What’s more, Writ of habeas corpus was not conceded.

Conclusion and recommendations It is possible to draw the conclusion that the Indian Constitution
guarantees the right to life and personal liberty, which is also recognized internationally on the basis
of natural justice principles. Because it was the first case of its kind shortly after independence, the
A.K. Gopalan judgment is regarded as one of the most significant decisions in the history of the
Indian judiciary. There was an addressed raised over Article 21 of the constitution. However, the
High court of India took exceptionally slender understanding of the Article 21 and held that system
laid out by regulation ought to be followed, Court wouldn’t think about that assuming the apparatus
of method laid out by regulation experiences any inadequacies. However, in the Maneka Gandhi
Case of 1978, the Court reversed this decision almost three decades later. The court also ruled that
the procedure established by law must be just, fair, and reasonable in its reinterpretation of Article 21
from a broader perspective. The person whose right to life and liberty has been restricted by
preventive detention may require proper legal representation from the court. In the current scenario,
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ignorance of any individual’s freedom and rights may result in serious consequences, such as public
protests; consequently, courts must sometimes be flexible when rendering such judgments.

REFERENCES

A.K. Gopalan v. State of Maharashtra [1950] AIR 27 (SC)

Maneka Gandhi v. Union Of India [1978] AIR 597(SC)

Kharak Singh v. State of Uttar Pradesh [1963]AIR 1295(SC)

State of Uttar Pradesh v. Kaushalaya [1964] AIR 416(SC)

Bhikaji v. State of Madhya Pradesh[1955] AIR 781(SC)

State of Gujarat v. Ambica Mills [1974] AIR 1300(SC)

Hussainara Khatoon v. Home secretary, state of Bihar [1979] AIR 1369(SC)

Joginder Kumar v. State of Uttar Pradesh [1994] AIR 1349(SC)

Delhi Transport corporation v. DTC Mazdoor union [1991] AIR 101 (SC)

Sheela Barse v. State of Maharashtra, [1983] AIR 378(SC)