In the case of A.K. Gopalan, 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 deliberation of the court in this case is important to know because it set the way for interpretation of the scope of Article 19 and 21.
Relation between Article 19 and Article 21
It was argued that article 19 and article 21 should be read together as implementing each other. Article 19 gave substantive rights to citizens while article 21 prescribed that no person can be deprived of his life and personal liberty except by procedure established by law.
The court said the concept of the right to move freely throughout the territory of India is an entirely different concept from the right to “personal liberty” contemplated by article 21. “Personal liberty” covers many more rights in one sense and has a restricted meaning in another sense. For instance, while the right to move or reside may be covered by the expression, ‘personal liberty” the right to freedom of speech (mentioned in article 19 (1) (a)) or the right to acquire, hold or dispose of property (mentioned in 19 (1) (f)) cannot be considered a part of the personal liberty of a citizen. They form part of the liberty of a citizen but the limitation imposed by the word “personal” leads to believe that those rights are not covered by the expression personal liberty.
So read there is no conflict between articles 19 and 21. The contents and subject matters of articles 19 and 21 are thus not the same and they proceed to deal with the rights covered by their respective words from totally different angles. As already mentioned in respect of each of the rights specified in sub-clauses of article 19 (1) specific limitations in respect of each is provided, while the expression “personal liberty” in article 21 is generally controlled by the general expression “procedure established by law.” The Constitution, in article 19, and also in other articles in Part III, thus attempts to strike a balance between individual liberty and the general interest of the society. The restraints provided by the Constitution on the legislative powers or the executive authority of the State thus operate as guarantees of life and personal liberty of the individuals.
Deprivation (total loss) of personal liberty, which inter alia includes the right to eat or sleep when one likes or to work or not to work as and when one pleases and several such rights sought to be protected by the expression “personal liberty” in article 21, is quite different from restriction (which is only a partial control) of the right to move freely (which is relatively a minor right of a citizen) as safeguarded by article 19 (1) (d). Deprivation of personal liberty has not the same meaning as restriction of free movement in the territory of India. This is made clear when the provisions of the Criminal Procedure Code in Chapter VIII relating to security of peace or maintenance of public order are read.
Article 19 (1) does not purport to cover all aspects of liberty or of personal liberty. In that article only certain phases of liberty are dealt with. “Personal liberty” would primarily mean liberty of the physical body. The rights given under article 19 (1) do not directly come under that description. They are rights which accompany the freedom or liberty of the person. By their very nature they are freedoms of a person assumed to be in full possession of his personal liberty. If article 19 is considered to be the only article safeguarding personal liberty several well-recognised rights, as for instance, the right to eat or drink, the right to work, play, swim and numerous other rights and activities and even the right to life will not be deemed protected under the Constitution. It seems to improper to read article 19 as dealing with the same subject as article 21.
Article 19 gives the rights specified therein only to the citizens of India while article 21 is applicable to all persons. The word citizen is expressly defined in the Constitution to indicate only a certain section of the inhabitants of India. Moreover, the protection given by article 21 is very general. It is of “law”–whatever that expression is interpreted to mean. The legislative restrictions on the law-making powers of the legislature are not here prescribed in detail as in the case of the rights specified in article 19. In my opinion there- fore article should be read as a separate complete article. 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.”
In this connection it may be noticed that the articles in Part III deal with different and separate rights. Under the caption “Right to Freedom” articles 19–22 are grouped but each with a separate marginal note. It is obvious that article 22 (1) and (2) prescribe limitations on the right given by article 21. If the procedure mentioned in those articles is followed the arrest and detention contemplated by article 22 (1) and (2), although they infringe the personal liberty of the individual, will be legal, because that becomes the established legal procedure in respect of arrest and detention.
Inter-relation between Article 21 and 22
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.
A.K. Gopalan v. Union of India, (1950)