A.K. Gopalan Case- The Starting phase of doctrine

A. K. Gopalan’s case was the earliest’ decision of Supreme Court on the subject, following almost immediately upon the commencement of the Constitution. The argument which arose for consideration in this case was that the preventive detention order results in the detention of the applicant in a cell and hence it contravenes the fundamental rights guaranteed under clauses (a), (b), (c), (d), (e) and (g) of Article 19(1).

This argument was negatived by Kania, C. J., who pointed out that:

“The true approach is only to consider the directness of the legislation and not what will be the result of the detention, otherwise valid, on the mode of the detenu’s life-Any other construction put on the article-will be unreasonable”.

Approval of AK Gopalan Case in Subsequent Rulings

These observations were quoted with approval by Patanjali Sastri, J; speaking on behalf of the majority in Ram Singh and Ors. v. State of Delhi (1951). There, the detention of the petitioner was ordered with a view, to preventing him from making any speeches prejudicial to the maintenance of public order and the argument was that the order of detention was invalid as it infringed the right of free speech and expression guaranteed under Article 19(1) (a).

The Court took the view that the direct object of the order was preventive detention and not-the infringement of the right of freedom of speech and expression, which was merely consequential upon the detention of the detenu and upheld the validity of the order.

The decision in A. K. Gopalan’s case, followed by Ram Singh’s case, gave rise to the theory that the object and form of State action determine the extent of protection which may be claimed by an individual and the validity of such action has to be judged by considering whether it is “directly in respect of the subject covered by any particular article of the Constitution or touches the said article only incidentally or indirectly”.

The test to be applied for determining the constitutional validity of State action with reference to fundamental rights is: what is the object of the authority in taking the action: what is the subject-matter of the action and to which fundamental right does it relate?

This theory that “the extent of protection of important guarantees, such as the liberty of person and right to property, depend upon the form and object of the State action and not upon its direct operation upon the individual’s freedom” held away for a considerable time and was applied in Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra & Anr.(1966) to sustain an order made by the High Court in a suit for defamation prohibiting the publication of the evidence of a witness.

The Court, after referring to the observation of Kania, C.J., in A. K. Gopalan’s case and noting that they were approved by the Full Court in Ram Singh’s case, pointed out that the object of the impugned order was to give protection to the witness in order to obtain true evidence in the case with a view to do justice between the parties and it incidentally it operated to prevent the petitioner from reporting the proceedings of the court in the press, it could not be said to contravene Article 19(1) (a).

The formulation of the test of direct and inevitable effect

But it is interesting to note that despite the observations of Kania, C.J., in A. K. Gopalan’s case and the approval of these observations in Ram Singh’s case, there were two decisions given by Supreme Court prior to Mirajkar’s case, which, seemed to deviate and strike, a different note.

The first was the decision in Express News Papers (P) Ltd. & Anr. V. The Union of India & Ors.(1959) where N. H. Bhagwati, J., speaking on behalf of the Court, referred to the observations of Kania, C.J., in A. K. Gopalan’s case and the decision in Ram Singh’s case, but ultimately formulated the test of direct and inevitable effect for the purpose of ad- judging whether a statute offends a particular fundamental right.

The learned Judge pointed out that all the consequences suggested on behalf of the petitioner’s as flowing out of the Working Journalists (Conditions of Service) and Miscellaneous Act, 1955, namely,

“the tendency to curtail circulation and thereby narrow the scope of dissemination of information, fetters on the petitioners’ freedom to choose the means of exercising the right, livelihood of the independence of the press being undermined by having to seek government aid, the imposition of penalty on the petitioners’ right to choose the instruments for exercising the freedom or compelling them to seek alternative media etc.”, would be remote and depend upon various factors which may or may not come into play.

“Unless these were the direct or inevitable consequences of the measures enacted in the impugned Act”, said the learned Judge, “it would not be possible to strike down the legislation as having that effect and operation. A possible eventuality of this type would not necessarily be the consequence which could be in the contemplation of the Legislature while enacting a measure of this type for the benefit of the workmen concerned.”

Then again, the learned Judge observed the intention or the proximate effect and operation of the Act was such as to bring it within the mischief of Article 19(1) (a), it would certainly be liable to be struck down. The real difficulty, however, in the way of the petitioners is that neither the intention nor the effect and, operation of the impugned Act is to take away or abridge the right of freedom of speech and expression enjoyed by the petitioners”.

Here we find the germ of the doctrine of direct and inevitable effect, which necessarily must be effect intended by the legislature or in other words, ‘what may conveniently and appropriately be described as the doctrine of intended and real effect.

So also in Sakal Papers (P) Ltd. & Ors. v. The Union of India (1962) while considering the constitutional validity of the Newspaper (Price and Page) Act, 1956 and Daily Newspaper (Price and Page) Order, 1960, Supreme Court applied the test of direct and immediate effect.

The Court, relying upon the decision in Dwarkadas Shrinivas v. The Sholapur & Weaving Co. Ltd.(1954) pointed out that,

“it is the substance and the practical result of the act of the State that should be considered rather than its purely legal aspect” and “the correct approach in such cases should be to enquire as to what in substance is the loss or injury caused to the citizen and not merely what manner and method has been adopted by the State in placing the restriction.”

Since “the direct and immediate effect of the order” would be to restrain a newspaper from publishing any number of pages for carrying its news and views, which it has a fundamental right under Article 19 (1) (a) to do, unless it raises the selling price as provided in the Schedule to the Order, it was held by Supreme Court that the order was violative of the right of the newspapers guaranteed by Article 19(1) (a).

Here again, the emphasis was on the direct and inevitable effect of the impugned action of the State rather than on its object and form or subject-matter.

RC Cooper Case- AK Gopalan Case was overruled

However, it was only R. C. Cooper’s case that the doctrine that the object and form of the State action alone determine the extent of protection that may be claimed by an individual and that the effect of the State action on the fundamental right of the individual is irrelevant, was finally rejected.

Likeness of the doctrine to the pith and substance test

It may be pointed out that this doctrine is in sub-stance and reality nothing else than the test of pith and substance which is applied for determining the constitutionality of legislation where there is conflict of legislative powers conferred on Federal and State Legislatures with reference to legislative Lists. The question which is asked in such cases is: what is the pith and substance of the legislations; if it “is within the express powers, then it is not invalidated if incidentally it effects matters which are outside the authorised field”.

Mathew, J., in his dissenting judgment in Bennett Coleman & Co. & Ors. v. Union of India & Ors.(1972) recognised the likeness of this doctrine to the pith and substance test and pointed out that “the pith and substance test, although not strictly appropriate, might serve a useful purpose” in determining whether the State action infringes a particular fundamental right. But in R. C. Cooper’s case, which was a decision given by the Full Court consisting of eleven judges, this doctrine was thrown overboard and it was pointed out by Shah, J., speaking on half of the majority:

“it is not the object of the authority making the law impairing the right of a citizen, nor the form of action that determines the protection he can claim; it is the effect of the law and of the action upon the right which attract the jurisdiction of the Court to grant relief. If this be the true view, and we think it is, in determining the impact of State action upon constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of the Legislature nor by the form of the action, but by its direct operation upon the individual’s rights.

we are of the view that the theory that the object and form of the State action determine the extent of protection which the aggrieved party may claim is not consistent with the constitutional scheme-“

“In our judgment, the assumption in A. K. Gopalan’s case; that certain articles in the Constitution exclusively deal with specific matters and in determining whether there is infringement of the individual’s guaranteed rights, the object and the form of the State action alone need be considered, and effect of the laws on fundamental rights of the individuals in general will be ignored cannot be accepted as correct.”

The Rejection of Pith and Substance Theory

The majority in Bennet Coleman Case took the view that it was not the object of the newsprint policy or its subject matter which was determinative but its direct consequence or effect upon the rights of the newspapers and since “the effect and consequence of the impugned policy upon the newspapers” was direct control and restriction of growth and circulation of newspapers, the newsprint policy infringed freedom of speech and expression and was hence violative of Article 19(1) (a).

The pith and substance theory was thus negatived in the clearest terms and the test applied was as to what is the direct and inevitable consequence or effect of the impugned State action on the fundamental right of the petitioner. It is possible that in a given case the pith and substance of the State action may deal with a particular fundamental right but its direct and inevitable effect may be on another fundamental right and in that case, the State action would have to meet the challenge of the latter fundamental right.

The pith and substance doctrine looks only at the object and subject-matter of the State action, but in testing the validity of the State action with reference to fundamental rights, what the Court must consider is the direct and inevitable consequence of the State action. Otherwise, the protection of the fundamental rights would be subtly but surely eroded.

It may be recalled that the test formulated in R. C. Cooper’s case merely refers to ‘direct operation’ or ‘direct consequence and effect’ of the State action on the fundamental right of the petitioner and does not use the word ‘inevitable’ in this connection. But there can be no doubt, on a reading of the relevant observations of Shah, J., that such was the test really intended to be laid down by the Court in that case.

If the test were merely of direct or indirect effect, it would be a open-ended concept and in the absence of operational criteria for judging ‘directness’, it would give the Court an unquantifiable discretion to decide whether in a given case a consequence or effect is direct or not.

Some other concept-vehicle would be needed to quantify the extent of directness or indirectness in order to apply the test. And that is supplied by the criterion of ‘inevitable’ consequence or effect adumbrated in the Express Newspaper’s case. This criterion helps to quantify the extent of directness necessary to constitute infringement of a fundamental right is direct and inevitable, then a fortiori it must be presumed to have been intended by the authority taking the action and hence this doctrine of direct and inevitable effect has been described by some jurists as the doctrine of intended and real effect.


Maneka Gandhi v. Union of India (1978)