DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW 2019

JURISPRUDENCE

Pedestal of justice in the light of A.K. Gopalan Case

SUBMITTED TO: SUBMITTED BY:

Dr. Manwendra Kumar Tiwari HARDIK SINGH
Assistant Professor (Law) Enrolment No. 170101060
Dr. Ram Manohar Lohiya National Section ‘A’
Law University, Lucknow B.A.L.L.B. (Hons.) SEMESTER V
ACKNOWLEDGEMENT

The successful completion of this project is the result of constant and rigorous hard work of weeks,
browsing through the different websites and consulting various books of renowned authors and
reading different journals by eminent scholars of related subject.

First and foremost, I would like to thank my Subject professor Dr. Manwendra Kumar Tiwari
who was always there to guide me with the project outlines and whose effective sense of
understanding of the subject and imparting the same to me goes a long way down to the eventual
compilation of the project.

I would also like to thank other college staff, notably the print out department and my friends who
were ever present. Eventually I would also like to thank my parents whose constant blessing is
indispensable for any activity I undertake.

Mistakes have the habit of creeping in advertantly into the human nature but I sincerely hope that
the Teachers would find this Project acknowledgeable in every way.

Hardik Singh
Contents
Introduction................................................................................................................................................... 4
Background of the case ................................................................................................................................. 5
Name of the case ....................................................................................................................................... 5
Bench ........................................................................................................................................................ 5
Majority Opinion ........................................................................................................................................... 6
Minority Opinion ........................................................................................................................................... 7
Conclusion ..................................................................................................................................................... 9
Introduction

It is evident from the history that society develops and the views which are embraced by the
society may also change. The belief which is considered as significant may turn out to be a social
evil or unjust. This projects deal with the interpretation of “Right to life and Personal liberty”
enshrined under Article 21 of the Constitution of India vis-à-vis A.K. Gopalan v. State of
madras. It is noteworthy to embrace the fact that dissent have a very important role to play in a
judgement as in it open platform for debates and makes assertion supported by a reasoning. It
describes the subjectivity of the judges may have while deciding the case and further opens the
debate whether law is open or close. It defines the Era in which the case was commenced and
highlights the political and social development the society had evolved from time to time. The
approaches provide by Bentham and Austin, both being positivist, are very strict approach
towards law and shows that the scope of morality, ethics, natural justice and sociological aspects
of law need not be taken into consideration by the legislator while enacting a law. Also it
provides us with the belief that the Supreme Court can choose to judge the Right in accordance
with any of the approach which it pleases to follow. The shift in jurisprudence of the apex court
is to be addressed in the project.

Law while being interpreted also deals with the legislative intent of the command. The
Constituent Assembly while framing the present Article 21 (Article 15 of the Draft Constitution),
took into account the fluctuations in the interpretations of liberty and due process of law clause
appearing in the Fifth and the Fourteenth Amendments of the Constitutions of the United States.
1t did not want to leave the terms vague, requiring a judicial interpretation as in the United
States. 1No doubt, the Constitution of India in its draft stage followed the American liberty
clause but later on the Constituent Assembly inserted the word liberty in order to differentiate

1
Manoj Mittal, Case studies: Supreme Court's landmark shifts, The Times of India(Jan 23, 2010, 1:49 IST)
http://timesofindia.indiatimes.com/articleshow/5490306.cms?utm_source=contentofinterest&utm_medium=text&utm_
campaign=cppst.
between the two types of rights and to ensure that the word liberty was not misconstrued so as to
include even those freedoms already dealt with in Article 13 which is present Article 19 of the
Constitution. Consequently, the import of the word liberty in Article 21 of our Constitution is
narrowed down to the meaning given in the English Law to the expression liberty of the person
or personal freedom, i.e. the right not to be subject to imprisonment, arrest or other physical
coercion in any manner that does not admit of legal justification.
Article 21 further makes it clear that life or personal liberty can only be deprived according to
the procedure established by law. The Assembly believed that this provision taken from Article
31 of the Japanese Constitution was more specific and would help avoid the repetition of the
history of the American due process clause.2 In Maneka Gandhi case the Supreme Court
expanded the ambit of both personal liberty and the procedure established by law. Interpretation
by the Supreme Court: It is the judiciary which defines the scope and limits of the basic rights
and liberties, and the other branches of State are constitutionally required not to encroach on the
rights that are given Constitutional protection. The A.K. Gopalan presents the tussle of one of the
oragan of the constitution with that of judiciary and therefore the case are to be studied with
respect to time and era in which they took place.

Background of the case

Name of the case

A.K Gopalan v. State of Madras, AIR 1950 S.C. 27.

Bench
Harilal J. Kania, Fazl Ali, Patanjali Sastri, M.C. Mahajan, B.K. Mukherjea, S.R. Das.

The Supreme Court was called upon to define the scope of personal liberty in A.K. Gopalans
case. A.K.Gopalan, a communist leader, was detained in the Madras jail. In act, he had been in
detention since 1947. He was sentenced to various terms of imprisonment under the ordinary
criminal law but every time the sentence was set aside. When he was still under the detention

2
Ms Jayeeta Ray, Mr Prashant Singh, Supreme Court the Final Pedestal of Justice: Its Efficacy vis-a-vis Right to
Life and Liberty, Legal Services India, http://www.legalservicesindia.com/articles/sc_c.htm.
under the orders of the state government, he was served with a fresh order of detention under the
Preventive Detention Act, 1950. Gopalan contended that detention deprived him of his right to
personal liberty guaranteed under Article 21; that personal liberty under Article 21 included all
the freedoms conferred by Article 19(1) (a) to (g); that it included the right of free movement
conferred by Article 19 (1) (d) because freedom of movement was the essence of personal liberty
and, therefore, the Prevention of Detention Act of 1950 should also satisfy the requirements of
Articles 19(1); and that Article 19(1) dealt with substantive rights and Article 21 with
procedural rights.

In Gopalans case, the court took a highly conservative view of personal liberty. It gave a
restricted meaning to the expression personal liberty and viewed it only as an antithesis of
physical restraint or coercion. Justice Mukherjea adopted Diceys definition of personal liberty
and observed that it was a personal right not to be subjected to imprisonment, arrest or physical
coercion in any manner that does not admit of legal justification.3 It was, in his opinion,
this negative right of not being subjected to any form of physical restraint or coercion without the
sanction of law that constituted the essence of personal liberty and not mere freedom to move to
any part of the Indian territory.

Majority Opinion
In a different way, Chief Justice Kania and Justice Das interpreted personal liberty not only as
freedom from bodily restraint but also as those rights which are necessary or the growth of the
human personality. Some of these rights are separately dealt with in the Constitution. But in the
context of the language and scheme of arrangement of fundamental rights in the Constitution, the
judges were of the opinion that Article 21 regulated only such attributes and contents of personal
liberty as were not protected by Article 19. The majority of judges opined that the right to move
freely throughout the territory of India referred to in Article 19(1) (d) of the Constitution was
entirely different from the right to personal liberty referred to in Article 21 and, therefore, Article
19 should not be read as controlled by the provisions of Article 21. In other words, the Court

3
Avani Bansal, The Power of Dissent And the Silence Within, The Wire, (JAN 27, 2018)
https://thewire.in/government/power-dissent-silence-within.
held that the detention could not claim procedural fairness as a fundamental right. The court
further held that the rights conferred by Article 19(1) were by their very nature rights of a person
assumed to be in full possession of his personal liberty. According to Justice Das, Article 19(1)
postulated a legal capacity to exercise the rights guaranteed by it and, if the citizen lost the
freedom of his person because he was lawfully detained on a conviction for an offence or
otherwise, he could not claim the rights under Article 19(1) (a) to (e) and 19(1) (g). For a long
time after Gopalan’s case, the implication of the term personal liberty remained the same.
Further, the court rejected the contention that the law abridging personal liberty is against the
principle of natural justice. They did literal interpretation of the provision “except procedure
established by law” under Article 21 of the Constitution.

The Court opined the expression as any procedure which was laid down in the statute by the
competent legislature to deprive a person of his life or personal liberty, and that it was not
permissible to read in the Article any such concept as natural justice, or the due process of law or
reasonableness. The conservative court accepted the procedural process of making law and had a
blind eyes over substantive due process of law. The provision under Article 14, 19 and 21 are to
be protected but not in accordance with due process rather through procedural due process. They
did not go behind the legislative intent of the framers. And, hence showed the parliamentary
supremacy over law making it conservative decision. They further opined the view that
Preventive detention is under article 22 of the Constitution and Article 14, 19, and 21 are
mutually exclusive from each other.

Minority Opinion

Fazl ali in his dissent put forward two issues before the court, firstly, whether the Preventive
Detention Act, 1950 (Act IV of 1950), is wholly or in part invalid and secondly, whether the
petitioner who has been detained under that Act is entitled to a writ in the nature of habeas
corpus on the ground that his detention is illegal. He further considered that the question is a pure
question of law and can be decided without referring to a long chain of facts which are narrated
in the petitioner's application to this Court and which have a more direct bearing on the alleged
mala fides of the authorities who have detained him than on the validity of the Act. He further
refered the two key section in the case in hand i.e. section 12 which states the arbitrary nature of
the act wherein opinion of advisory board is not required and section 14 it restricts the court to
make any sentence or mandate. Both the provision of the act were stated as invalid by Fazl ali J.

The view that freedom of movement is the essence of personal liberty will also be confirmed by
reference to any book on the criminal law of England dealing with the offence of false
imprisonment or any commentary on the Indian Penal Code dealing with the offences of
wrongful restraint or confinement. Russell in his book on "Crimes and Misdemeanours" (8th
Edition, volume 1, page 861). He also refered Bird v. Jones 7 Q.B. 742, Coleridge J. judgement
that "it is one part of the definition of freedom to be able to go whithersoever one pleases". A
similar opinion has been expressed by several authors including Sir Alfred Denning in his book
entitled. "Freedom under the Law." hence he concluded that there can therefore be no doubt that
freedom of movement is in the last analysis the essence of personal liberty, and just as a man's
wealth is generally measured in this country in terms of rupees, annas and pies, one's personal
liberty depends upon the extent of his freedom of movement.

He derived the link between Article 19 and 21 of the Constitution considering freedom of
movement and personal liberty interconnected to each other. He further stated the Preventive
Detention Act violates the Fundamental right and is hence against the provision of Article 13(2).
In his words “In my opinion, it cannot be said that articles 19, 20, 21 and 22 do not to some
extent overlap each other. The case of a person who is convicted of an offence will come under
articles 20 and 21 and also under article 22 so far as his arrest and detention in custody before
trial are concerned. Preventive detention, which is dealt with in article 22, also amounts to
deprivation of personal liberty which is referred to in article 21, and is a violation of the right of
freedom of movement dealt with in article 19(1)(d).” the key notions presented by him while
considering the case are that the legislature does not take away the right of citizen by a mere
enactment and the procedure to be followed must be substantive due process i.e. it must be
reasonable. While deciding on the issue whether the detention is reasonable restriction he stated
“It seems obvious to me that preventive detention amounts to a complete deprivation of the right
guaranteed by article 19(d). The meaning of the word "restriction" is to be considered with
reference to the second question and I think that it will be highly technical to argue that
deprivation of a right cannot be said to involve restriction on the exercise of the right. In my
opinion, having regard to the context in which the word "restriction" has been used, there is no
antithesis between that word and the word "deprivation." As I have already stated, restraint on
the right to move can assume a variety of forms and restriction would be the most appropriate
expression to be used in clause (5) so as to cover all those forms ranging from total to various
kinds of partial deprivation of freedom of movement.”

Conclusion

The important thing to note about this case was the timeline. It was founding stage of courts
jurisprudence. The initial year of independence were more of legislative domination and less of
judiciary. It highlighted the tussle between organs of democracy. The way the court interpreted
the law was more driven from British jurisprudence whereas the law adopted by the Indian
constitution were from a number of constitution. For instance, the fundamental rights were
adopted from American charter and the way they were interpreted by the court signifies strict
literal meaning of the act and court do not find it relevant to go to the validity of the Act.
Therefore, the timeline and the nature of the society describes the jurisprudence which played a
key role for the conclusion at which judge confirms.

On the other hand, Fazl Ali’s interpration of the issues shows a more charismatic reasoning for
its conclusion. For this reason, In Right to Privacy Case4, Justice Rohinton Nariman termed the
dissent as one of the ‘three great dissents’. The other two are deservedly Justice Khanna’s

dissent in the ADM Jabalpur Case 5and Justice Fazl Ali’s dissenting opinion in the case of AK
Gopalan v. State of Madras6

“Before I part with the case, I may observe that the consciousness that the view expressed by
me is at variance with that of the majority of my learned brethren has not stood in the way of
my expressing the same. I am aware of the desirability of unanimity, if possible. Unanimity
obtained without sacrifice of conviction comments the decision to public confidence.

4
Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. WRIT PETITION (CIVIL) NO 494 of
2012.
5
ADM Jabalpur v Shivkant Shukla, (1976) 2 S.C.C 521.
6
A.K Gopalan v. State of Madras, A.I.R 1950 S.C. 27.
Unanimity which is merely formal and which is recorded at the expense of strong conflicting
views is not desirable in a court of last resort. As observed by Chief Justice Hughes Prophets’;
with Honor by Alan Earth 1974 Ed. p. 3-6 judges are not there simply to decide cases, but to
decide them as they think they should be decided, and while it may be regrettable that they
cannot always agree, it is better that their independence should be maintained and recognized
than that unanimity should be secured through its sacrifice. A dissent in a court of last
resort… is an appeal to the brooding spirit of the law, to the intelligence of a future day, when
a later decision may possibly correct the error into which the dissenting judge believes the
court to have been betrayed.”

The minority do dies an unfortunate and unheard death, but it do resurrect in future making
people intelligent enough to enact the depressed voice in the past. The power of rightfulness is
it do find its place somehow and forms the majority opinion with a full of reasoning in it. For
this reason, the principle led in this case had been overruled. For instance, Argument of
exclusiveness is refused in Rustom Cowasjee case7, Scope of personal liberty was broadened in
Kharak Singh v. State of U.P.8 and Right to ‘Personal Liberty’ had been broadly interpreted in
Maneka Gandhi case9.

7
Rustom Cavasjee Cooper v. Union Of India, A.I.R. 1970 S.C. 564.
8
Kharak Singh v. State of U.P. and Others, A.I.R. 1963 S.C. 1295.
9
Maneka Gandhi v. Union of India, A.I.R 1978 S.C. 597.