A.K. Gopalan

A.K. Gopalan case is landmark case in the judicial history of India. It was also one of early case that was heard after promulgation of constitution. This was a case related to personal liberty of a person in Indian republic and case arose when an application under Article 32 of the constitution of India for a writ of habeas corpus was filed against the detention of the A.K. Gopalan who was in the madras jail in pursuance of an order of detention made under the ‘Preventive Detention Act 1950’. The act is not in force now but present act on preventive detention ‘National Security Act, 1980’, is pare materia to the Preventive Detention Act, 1950.

In the petition petitioner had given various dates showing how he had been under detention since December, 1947. The petitioner, it was said, was initially arrested in Malabar on 17th of December, 1947, and prosecution was started against him on various charges for having delivered certain violent speeches. While these criminal cases were going on, he was served with an order of detention under the Madras Maintenance of Public Order Act on 22nd April, 1948. That order of detention was held to be illegal by the Madras High Court, but on the same day that the judgment was pronounced, a second order of detention was served upon him. On his moving the High Court again for a writ of habeas corpus in respect to the subsequent order, his application was dismissed on the ground that as he was not granted bail in one of the three criminal cases that were pending against him, the detention could not be said to be unlawful.

Liberty, however, was given to him to renew his application if and when his detention under the criminal proceedings ceased. In two out of the three criminal cases the trial before the magistrate ended on February 23, 1949, and the petitioner was sentenced to rigorous imprisonment for 6 months in each of the cases. These sentences, however, were set aside in appeal on 26th September, 1949. As regards the third case, he was tried by the Sessions Judge of North Malabar and sentenced to rigorous imprisonment for 5 years but this sentence was reduced to 6 months’ imprisonment by the Madras High Court on appeal.

The petitioner made a fresh application to the High Court praying for a writ of habeas corpus in respect of his detention under the Madras Maintenance of Public Order Act and this application, which was heard after he had served out his sentences of imprisonment referred to above, was dismissed in January, 1950.

On 25th February, 1950, the Preventive Detention Act was passed by the Parliament and on the 1st of March following, the detention of the applicant under the Madras Maintenance of Public Order Act was cancelled and he was served with a fresh order of detention under section 3 (1) of the Preventive Detention Act, 1950.

He challenged the legality of the order as it is contended that Act IV of 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. He had also challenged the validity of the order on the ground that it was issued mala fide.

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 supreme court.

[We have published the analysis of National Security act, 1980, and its clause to clause analysis by supreme court too, therefore, in this article we are not touching those issues which challenge the validity of preventive detention act, we will just mention important law set by supreme court in this case about personal liberty.]

Right to move throughout the territory of India (Article 19(1)(d))

The first question for consideration is whether article 19 (1) (d) and (5) was applicable to the present case.

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). The Court was thus enjoined to inquire whether the restrictions imposed on the detained person are reasonable in the interests of the general public.

The court answered that this position is made quite clear when clause (5) is read along with this sub-clause. It permits the imposition of reasonable on the exercise of such right either in the interest of general public or the protection of the interest of any Scheduled Tribe. It is difficult to conceive of a reasonable restriction necessary in the interests of the general public for confining a person in a cell. Such restriction may be appropriate to prevent a person from going from one Province to another or one area to another, having regard to local conditions prevailing in particular areas.

The procedure under Detention law

The Attorney-General on behalf of the sate contended that the subject of preventive detention does not fall under article 21 at all and is covered wholly by article 22. According to him, article 22 is a complete code.

But, the court refuse to accept this contention and said that, it is obvious that in respect of arrest and detention, article 22(1) and (2) provide safeguards. These safeguards are excluded in the case of preventive detention by article 22 (3), but safe- guards in connection with such detention are provided by clauses (4) to (7) of the same article. It is therefore clear that article 21 has to be read as supplemented by article 22. Reading in that way the proper mode of construction will be that to the extent the procedure is prescribed by article 22 the same is to be observed; otherwise article 21 will apply.

On the points of procedure which expressly or by necessary implication are not dealt with by article 22, the operation of article 21 will remain unaffected. It is thus necessary first to look at article 22 (4) to (7) and next at the provisions. The impugned Act to determine if the Act or any of its provisions are ultra vires. Preventive detention in normal times, i.e., without the existence of an emergency like war, is recognised as a normal topic of legislation in List I. Entry 9, and List III, Entry 3, of the Seventh Schedule. Even in the Chapter on Fundamental Rights article 22 envisages legislation in respect of preventive detention in normal times.

The provisions of article 22(4) to (7) by their very wording leave unaffected the large powers of legislation on this point and emphasize particularly by article 22 (7) the power of the Parliament to deprive a person of a right to have his case considered by an advisory board. Part III and. article 22 in particular are the only restrictions on that power and but for those provisions the power to legislate on this subject would have been quite unrestricted. Parliament could have made a law without any safeguard or any procedure for preventive detention. Such an autocratic supremacy of the legislature is certainly cut down by article 21.

Therefore, if the legislature prescribes a procedure by a validly enacted law and such procedure in the case of preventive detention does not come in conflict with the express provisions of Part III or article 22 (4) to (7), the Preventive Detention Act must be held valid notwithstanding that the Court may not fully approve of the procedure prescribed under such Act.

The extent of Personal Liberty

Justice Fazl Ali, in his separate judgment wrote that, the expressions “personal liberty” and “personal freedom” have, as we find in several books, a wider meaning and also a narrower meaning. In the wider sense, they include not only immunity from arrest and detention but also freedom of speech, freedom of association, etc. In the narrower sense, they mean immunity from arrest and detention.

I have shown that the juristic conception of “personal liberty,” when these words are used in the sense of immunity from arrest, is that it consists in freedom of movement and locomotion. I have also pointed out that this conception is at the root of the criminal law of England and of this country, so far as the offences of false imprisonment and wrongful confinement are concerned.

The gravamen of these offences is restraint on freedom of movement. With these facts in view, I have tried to find out whether there is any freedom of movement known in England apart from personal liberty used in the sense of immunity from arrest and detention, but I find no trace of any such freedom.

In Halsbury’s Laws of England (2nd Edition, volume 6, page 391), the freedoms mentioned are the right to personal freedom (or immunity from detention or confinement), the right to property, the right to freedom of speech, the right of public meeting, the right of association, etc. Similar classifications will be found in Dicey’s “Introduction to the Study of the Law of the Constitution” and Keith’s “Constitutional Law” and other books on constitutional subjects, but there is no reference anywhere to any freedom or right of movement in the sense in which we are asked to. construe the words used in article 19 (1) (d). In the Constitutions of America, Ireland and many other countries where freedom is prized, there is no reference to freedom or right of movement as something distinct from personal liberty used in the sense of immunity from arrest and confinement.

The Honourable Judge finally concluded that,

“I also realize that those who run the State have very onerous responsibilities, and it is not correct to say that emergent conditions have altogether disappeared from this country. Granting then that private rights must often be subordinated to the public good, is it not essential in a free community to strike a just balance in the matter? That a person should be deprived of his personal liberty without a trial is a serious matter, but the needs of society may demand it and the individual may often have to yield to those needs. Still the balance between the maintenance of individual rights and public good can be struck only if the person who is deprived of his liberty is allowed a fair chance to establish his innocence, and I do not see how the establishment of an appropriate machinery giving him such a chance can be an impediment to good and just government.”


A.K. Gopalan v. Union of India, (1950)