Topic: A.K.Gopalan vs State of Madras
A.K. Gopalan vs The State Of Madras
Equivalent citations: 1950 AIR 27, 1950 SCR 88 - Bench: Kania, Hiralal J. (Cj), Fazal Ali, Saiyid, Sastri, M. Patanjali, Mahajan, Mehr Chand, Das, Sudhi Ranjan, B.K Mukherjea - Date of Judgment: 19/05/1950
Preventive Detention Act (IV of 1950), ss. 8, 7, 10-I4.--Validity--Constitution of India, 1950, Arts. 13, 19 to 22, 32--Law relating to preventive detention--Whether infringes Fundamental Right as to freedom of movement--Whether subject to judicial review as to reasona- bleness under Art. 19 (5)--Scope of Art. 19--Right of free movement and Right to personal liberty, nature and incidents of--Art. 22, whether complete code as to preventive deten- tion--Scope and applicability of Art.. 21--"Law," "proce- dure established by law," meanings of--Whether include rules of natural justice--Construction of Art. 21--American deci- sions on "due process of law," value of-Omission to provide objective standard for satisfaction of authorities, to provide for oral hearing or leading of evidence, to fix maximum period of detention, and to specify "circumstances" and "classes of cases" where period of detention may be extended over 3 months, prohibiting detenu from disclos- ing grounds of detention--Validity of law--Construction of Constitution --Reference to debates and Report of Draft- ing Committee-Permissibility.
The petitioner who was detained under the Preventive Detention Act (Act IV of 1950) applied under Art. 32 of the Constitution for a writ of habeas corpus and for his release from detention, on the ground that the said Act contravened the provisions of Arts. 13, 19, 21 and 22 of the Constitution and was consequently ultra rites and that his detention was therefore illegal:
Held, per KANIA C.J., PATANJALI SASTRI, MUKHERJEA and DAS JJ. (FAZL ALI and MAHAJAN JJ. dissentinq)--that the preventive Detention Act, 1950, with the exception of Sec. 14 thereof did not contravene any of the Articles of the Constitution and even though Sec. 14 was ultra rites inas- much as it contravened the provisions of Art. 9.9, (5) of the Constitution, as this section was severable from the remaining sections of the Act, the invalidity of Sec. 14 did not affect the validity of the Act as a whole, and the detention of the petitioner was not illegal. FAZL ALl and MAHAJAN JJ.--Section 12, of the Act was also ultra vires, and since it contravened the very provi- sion in the
Constitution under which the Parliament derived its compe- tence to enact the law, the detention was illegal. Held, by the Full Court (KANIA CJ., FAZL ALI, PATANJALI SASTRI, MAHAJAN, MUKHERJEA and DAS JJ.)--Section 14 of the Preventive Detention Act, 1950, contravenes the provisions of Art. 9.9. (5) of the Constitution in so far as it prohibits a person detained from disclosing to the Court the grounds on which a detention order has been made or the representation made by him against the order of detention, and is to that extent ultra vires and void.
Per KANIA C.J., PATANJALI SASTRI, MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting).--Article 19 of the Consti- tution has no application to a law which relates directly to preventive detention even though as a result of an order of detention the rights referred to in sub-cls. (a) to (e) and (g) in general, and sub-cl. (d) in particular, of cl. (1) of Art. 19 may be restricted or abridged; and the constitution- al validity of a law relating to such detention cannot therefore, be judged in the light of the test prescribed in el. (5) of the said Article.
DAS J.--Article 19 (1) postulates a legal capacity to exercise the rights guaranteed by it and if a citizen loses the freedom
of his person by reason of lawful detention as a result of a conviction for an offence or otherwise he cannot claim the right s under- sub-cls. (a) to (e) and (g) of Art. 19 (1); likewise if a citizen's property is compulsorily ac- quired under Art. 31, he cannot claim the right under sub- el. (f) of Art. 19 (1) with respect to that property. In short the rights under sub-cls. (a) to (e) and (g) end where lawful detention begins and therefore the validity of a preventive detention Act cannot be judged by Arc. 19 (5). MAHAJAN J.---Whatever be the precise scope of Art. 19 (1) (d) and Art.19(5) the provisions of Art. 19(5) do not apply to a law relating to preventive detention, inasmuch as 'there is a special self-contained provision in Art. 22 regulating it.
FAZL ALI.J.--Preventive detention is a direct infringe- ment of the right guaranteed in Art. 19 (1) (d), even if a narrow construction is placed on the said sub-clause, and a law relating to preventive detention is therefore subject to such limited judicial review as is permitted by Art. 19 (5).
Per KANIA C.J., PATANJALI SASTRI, MUKHERJEA and DAS JJ. (FAZL ALl J. dissenting).--The concept of the right "to move freely throughout the territory of India" referred to in Art. 19 (1) (d), of the Constitution is entirely differ- ent from the concept of the right to "personal liberty" referred to in Art. 21, and Art. 19 should not, therefore, be read as controlled by the provisions of Art. 21. The view that Art. 19 guarantees substantive rights and Art. 21 prescribes the procedure is incorrect. DAs J.--Article 19 protects some of the important attributes of personal liber- ty as independent rights and the expression "personal liber- ty" is used in Art. 21 as a compendious term 90
including within Rs meaning all varieties of rights which go to make up the personal liberties of men. FAZL ALl J.--Even if it be assumed that Art. 19 (1) (d) does not refer to " personal liberty" and that it bears the restricted meaning attributed to it,that is to say, R signi- fies merely the right to move from one locality to another, preventive detention must be held to affect this limited right of movement directly and substantially. One of the objects of preventive detention is to restrain a person detained from moving from place to place so that he may not spread disaffection or indulge in dangerous activities in the places he visits. The same consideration applies to the cases of persons who are interned or externed. Hence, externment, interment and certain other forms of restriction on movement have always been treated as kindred matters belonging to the same group or family, and the rule which applies to one must necessarily apply to the others. Per KANIA C. J ,, PATANJALI SASTRI and DAS 35. (MAHAJAN
3. dissenting).--Article 22 does not form a complete code of constitutional safeguards relating to preventive detention. To the extent that provision is made in Art. 9.9, it cannot be controlled by Art. 9,1; but on points of procedure which expressly or by necessary implication are not dealt with by Art. 22, Art. 9.1 will apply. DAS J.--Art. 21 protects substantive rights by requiring a procedure and Art. 9.9. lays down the minimum rules of procedure that even the Parliament cannot abrogate or overlook. MAHAJAN J.--Art. 99. contains a self-contained code of constitutional safeguards relating to preventive detention and cannot be examined or controlled by the provisions of Art. 21. The principles underlying Art. 21 are however kept in view in Art. 22 and there is no conflict between these articles. MUKHERJEA J. --Even assuming that Art. 22 is not a self-contained code relating to preventive detention and that Art. 21 would apply, it is .not permissible to supplement Art. 22 by the application of rules of natural justice. FAZL ALI J.--Art.
22. does not form an exhaustive code by itself relating to preventive detention. Parliament can make further provi- sions and if it has done so Art. 19 (5) may be applied to see if those provisions have transgressed the bounds of reasonableness.
Per KANIA C.J., MUKHERJEA and DAS JJ. (FAZL ALI J. dis- senting).--In Art. 9.1 the word 'law" has been used in the sense of State-made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice; and "procedure established by law" means procedure established by law made by the State, that is to say, the Union Parliament or the Legislatures of the States. It is not proper to construe this expression in the light of the meaning given to.the expression "due process of law" in the American Constitution by the Supreme Court of America. FATANJALI SASTRI cl.-- "Law" in Art. 21 does not mean the jus naturale of civil law but means
positive or State-made law. "Procedure established by law" does not however mean any procedure which may be prescribed by a competent legislature, but the ordinary well-estab- lished criminal procedure, i.e., those settled. usages and normal modes of procedure sanctioned by the Criminal Proce- dure Code, which is the general law of criminal proce- dure in this country. The only alternative to this con- struction, if a constitutional transgression is to be avoid- ed is to interpret the reference to "law" as implying a constitutional 'amendment pro tanto, for it is only a law enacted by the procedure provided for such amendment that could modify or override a fundamental right without contra- vening Art. 13 (2).
FAZL, ALI J.--There is nothing revolutionary in the view that "procedure established by law "must include the four principles of elementary justice which inhere in and are at the root of all civilized systems of law, and which have been stated by the American Courts and jurists as consisting in (1) notice, (2) opportunity to be heard, (3) impartial tribunal and (4) orderly course of procedure. These four principles are really different aspects of the same right, namely, the right to be heard before one is condemned. Hence the words "procedure established by law ", whatever its exact meaning be, must necessarily include the principle that no person shall be condemned without hearing by an impartial tribunal.
Per KANIA C.J., FAZL ALI, PATANJALI SASTRI, MAHAJAN and DAS JJ.--Section 3 of the Preventive Detention Act, 1950, does not delegate any legislative power to an executive officer but merely confers on such officer a discretion to enforce the law made by the legislature, and is not there- fore invalid on this ground. The fact that the section does not provide an objective standard for determining whether the requirements of law have been complied with, is not a ground for holding that it is invalid. FAZL ALI J.---Section 3 is however a reasonable provision only for the first step, i.e., for arrest and initial detention and must be followed by some procedure for testing the so-called subjective satisfaction, which can be done only by providing a suitable machinery for examining the grounds on which the order of detention is made and considering the representations of the persons detained in relation to those grounds. Per KANIA C. J., MAHAJAN and DAS JJ.---Section 7 of the said Act is not invalid merely because it does not provide for an oral hearing or an opportunity to lead evidence but only gives right to make a representation. Right to an oral hearing and right to give evidence are not necessarily implied in the right to make a representation given by Art.
Per KANIA C.J., and MAHAJAN J.--The provision contained in Sec. 11 that a person may be detained for such period as the
State thinks fit does not contravene Art. 22 (7) and it is not therefore invalid.
Per KANIA. C.J., PATANJALI SASTRI, MUKHERJEA and DAS JJ. (FAZL ALI and MAHAJAN JJ. dissenting).--Article 22 (7) means that Parliament may prescribe either the circumstances under which, or the class or classes of cases in which, a person may be detained for a period longer than three months without reference to an advisory board. It is not necessary that the Parliament should prescribe both. The matters referred to in clauses (a) and (b) of sub-see. (1) of Sec. 12 constitute a sufficient description of such circumstances or classes of cases and Section 12 is not therefore open to the objection that it does not comply with Art. 22 (7) DAS J.--Parliament has in act and substance prescribed both in clauses (a) and (b) of sub-sec. (1) of Sec. 12. FAZL ALI and MAJAN JJ.--Article 22 (7) Means that both the circumstances and the class or classes of cases (which are two different expressions with different meanings and connotations) should be prescribed, and the prescription of one without the other will not be enough. The enumeration of the subjects for reasons connected with which a law of preventive detention could be made contained in els. (a) and (b) of sub-see. (1) of Sec.12 does not amount to prescribing the circumstances under which, or the class or classes of cases in which, a person can be detained for more than three months.
Per KANIA C.J.--While it is not proper to take into consideration the individual opinions of members of Parlia- ment or Convention to construe the meaning of a particular clause, when a question is raised whether a certain phrase or expression was up for consideration at all or not, a reference to the debates may be permitted. PATANJAYLI SASTRI J.--In construing the provisions of an Act, speeches made in the course of the debates on the bill should not be taken into consideration. MUKHERJEA J.--In construing the Constitution it is better to leave out of account the debates in the Constituent Assembly, but a higher value may be placed on the report of the Drafting Committee.
ORIGINAL JURISDICTION: Petition No. XIII of 1950. Application under Art. 32 (1) of the Constitution of India for a writ of habeas corpus against the detention of the appellant in the Madras jail in pursuance of an order of detention made under the Preventive Detention Act, 1950. The material facts of the case and arguments of counsel are set out in detail in the judgments. The relevant provisions of the Preventive Detention Act, 1950, are printed below. 93
1. Short title, extent and duration.--This Act may be called the Preventive Detention Act, 1950.
(2) It extends to the whole of India .....
(3) It shall cease to have effect on the 1st day of April, 1951, as respects things done or omitted to be done before that date.
2. Definitions.--In this Act, unless the context other- wise requires,--
(a) "State Government" means, in relation to a Part C State, the Chief Commissioner of the State; and (b) "detention order" means an order made under Section 3.
3. Power to make orders detaining certain persons.--(1) The Central Government or the State Government may---
(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to--
(i) the defence of India, the relations of India foreign power, or the security of India, or
(ii) the security of the State or the maintenance of public order, or
(iii) the maintenance of supplies and services to the community, or
(b) if satisfied with respect to any person who is a foreigner within the meaning of the Foreigners Act, 1946 (XXXI of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India
it is necessary so to do, make an order directing that such person be detained.
(2) Any District Magistrate or Sub-Divisional Magistrate, or Presidency-town, the Commissioner of Police, may, if satisfied provided in sub-clauses (ii) and (iii) of clause (a) of sub-section (1), exercise the power conferred by the said sub-section.
(3) When any order is made under this section by a Dis- trict Magistrate, Sub-Divisional Magistrate or Commissioner of Police, he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the necessi- ty for the order.
7. Grounds of order of detention to be disclosed to persons affected by the order.--(1) When a person is de- tained in pursuance of a detention order, the authority making the order shall, as soon as may be, communicate to him the grounds on which the order his been made, and shall afford him the earliest opportunity of making a representa- tion against the order, in a case where such order has been made by the Central Government, to that Government, and in a case where it has been made by a State Government or an officer subordinate thereto, to the State Government. 94
11. Confirmation of detention order.--In any case where the Advisory Board has reported that* there is in Rs opinion suffcient cause for the detention of the person concerned, the Central Government or the State Government. as the case may be, may confirm the detention order and continue the detention of the person concerned for' such period as it thinks fit.
12. Duration of detention in certain cases.--(1) Any person detained in any of the following classes of cases or under 'my of the following circumstances may be detained without obtaining the opinion of an Advisory Board for a period longer than three months, but not exceeding one year from the date of his detention, namely, where such person has been detained wish a view to preventing him from acting in any manner prejudicial to--
(a) the defence of India, relations of India with foreign powers or the security- of India; or (b) the security of a State or the maintenance of public order. * * *
14. Disclosure of grounds of detention, etc.--(1) No court shall, except for the purpose of a prosecution for an offence punishable under sub-section (9,), allow any state- ment to be made, or any evidence to be given. before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or of any representation made by 'him against such order; and notwithstanding anything contained in any other law, no court shall be entitled to require any public officer to produce before it, or to disclose the substance of, any such communication or representation made, or the proceedings of an Advisory Board or that par of the report of an Advisory Board which is confidential.
(2) It shall be an offence punishable with imprisonment for term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the case may be, any contents or matter purporting to be contents of any such communication or representation as is referred to in sub-section (1): Provided that nothing in this sub-section shall apply to a disclosure made' to his legal adviser by a person who is the subject of a detention order.
M. K. Nambiar (S. K. Aiyar and V.G. Rao, with him) for the petitioner.
K. Rajah Aiyar, Advocate-General of Madras (C. R. Pattabi Raman and R. Ganapathi, with him) lot the State of Madras.
M.C. Setalvad, Attorney-General for India (Jindralal, with him) for the Union of India.
1950. May 19. The following Judgments were delivered. KANIA C. J--This is a petition by the applicant under article 32 (1) of the Constitution of India for a writ of habeas corpus against his detention in the Madras Jail. In the petition he has given various dates showing how he has been under detention since December, 1947. Under the ordi- nary Criminal Law he was sentenced to terms of imprisonment but those convictions were set aside. While he was tires under detention under one of the orders of the Madras State Government, on the 1st of March, 1950, he was served with an order made under section 3 (1) of the Preventive Detention Act, IV of 1950. He challenges 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 Con- stitution. He has also challenged the validity of the order on the ground that it is issued mala fide. The burden of proving that allegation is on the applicant. Because of the penal provisions of section 14 of the impugned Act the applicant has not disclosed the grounds, supplied to him, for his detention and the question of mala fides of the order therefore cannot be gone into under this petition. The question of the validity of Act IV of 1950 was argued before us at great length. This is the first case in which the different articles of the Constitution of India contained in the Chapter on Fundamental Rights has come for discussion before us. The Court is indebted to the learned counsel for the applicant and the Attorney-General for their assistance in interpreting the true meaning of the relevant clauses of the Constitution.
In order to appreciate the rival contentions it is useful first to bear in mind the general scheme of the Constitution. Under article 53 of the Constitution the executive power of the Union is vested in the President and is to be exercised by him in accordance with the 96
Constitution either directly or through officers subordinate to him. The legislative powers of the Union are divided between the Parliament and Legislatures of the States. The ambit and limitations on their respective powers are found in article 246 read with article 245, Schedule VII, Lists 1,2 and 3 of the Constitution. For the Union of India the Supreme Court is established and its powers and jurisdiction are set out in articles 124 to 147. This follows the pat- tern of the Government of India Act, 1935, which was the previous Constitution of the Government of India. Unlike the American Constitution, there is no article vesting the judicial power of the Union of India in the Supreme Court. The material points substantially altering the edifice are first in the Preamble which declares india a Sovereign Democratic Republic to secure to all its citizens justice, liberty and equality and to promote among them all, frater- nity. Part III of the Constitution is an important innova- tion. It is headed "Fundamental Rights." In that Part the word "State" includes both the Government of the Union and the Government of the States. By article 13 it is expressly provided that all laws in force in the territory of India, immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of this Part, to the extent of such inconsistency, are void. There- fore, all laws in operation in India on the day the Consti- tution came into force, unless otherwise saved, to the extent they are inconsistent with this Chapter on Fundamen- tal Rights, become automatically void. Under article 13 (2) provision is made for legislation after the Constitution comes into operation. It is there provided that the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contraven- tion of this clause shall to the extent of the contraven- tion, be void. Therefore, as regards future legislation also the Fundamental Rights in Part III have to be respected and, unless otherwise saved by the provisions of the Consti- tution, they will be void to the extent they contravene the provisions of Part III. Under article 245 (1) the legisla- tive powers conferred under
article 246 are also made "subject to the provisions of this Constitution," which of course includes Part III dealing with the Fundamental Rights. The term law in article 13, is expressed to be wide enough to include Acts, Ordinances, Orders, Bye-laws, Rules, Regulations and even custom or usage having, in the territory of India, the force of law. The rest of this Part is divided in seven divisions. "Right to Equality" is found in articles 14-18, "Eight to Freedom" in articles 19-22, "Right against Exploitation" in articles 23 and 24, "Right to Freedom of Religion" in articles 25-28, "Cultural and Educational Rights" in articles 29 and 30, "Right to Property" in article 31 and "Right to Constitu- tional Remedies" in articles 32-35. In this case we are directly concerned only with the articles under the caption "Right to Freedom" (19-22) and article 32 which gives a remedy to enforce, the rights conferred by this Part. The rest of the articles may have to be referred to only to assist in the interpretation of the above-mentioned arti- cles.
It is obvious that by the insertion of this Part the powers of the Legislature and the Executive, both of the Union and the States, are further curtailed and the right to enforce the Fundamental Rights found in Part III by a direct application to the Supreme Court is removed from the legislative control. The wording of article 32 shows that the Supreme Court can be moved to grant a suitable relief, mentioned in article 32 (2), only in respect of the Funda- mental Rights mentioned in Part III of the Constitution. The petitioner is detained under a preventive detention order, made under Act IV of 1950, which has been passed by the Parliament of India. In the Seventh Schedule of the Constitution, List I contains entries specifying items in respect of which the Parliament has exclusive legislative powers. Entry 9 is in these terms: "preventive detention for reasons connected with Defence, Foreign Affairs or the Security of India; persons subjected to such detention." List III of that Schedule enumerates topics on which both the Union and the States have concurrent legislative 98
powers. Entry 3 of that List is in these terms: "Preventive detention for reasons connected with the security of a State, the maintenance of public order or the maintenance of supplies and services essential to the community; persons subjected to such detention." It is not disputed that Act IV of 1950 is covered by these two Entries in List I and List III of the Seventh Schedule. The contention of the peti- tioner is that the impugned legislation abridges or in- fringes the rights given by articles 19-21 and is also not in accordance with the permissive legislation on preventive detention allowed under articles 22 (4) and (7) and in particular is an infringement of the provisions of article 22 (5). It is therefore necessary to consider in detail each of these articles and the arguments advanced in respect thereof.
Article 19 is for the protection of certain rights of freedom to citizens. It runs as follows :-- "19. (1)--All citizens shall have the right-(a) to free- dom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the
territory of India;
(f) to acquire, hold and dispose of property; and
(g) to practise any profession, or to carry on any occupation, trade or business.
"(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relat- ing to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.
(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposts, or prevent the State from making any law imposing, in the interests of public order
reasonable restrictions on the exercise of the right con- ferred by the said sub-clause.
(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
(5) Nothing in sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restric- tions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub- clause shall affect the operation of any existing law in so far as it prescribes or empowers any authority to prescribe, or prevent the State from making any law prescribing or empowering any authority to prescribe, the professional or technical qualifications necessary for practising any pro- fession or carrying on any occupation, trade or business." Clause (2) specifies the limits up to which the abridge- ment- of the right contained in 19 (1) (a) may be permitted. it is an exception. Similarly clause (3) sets out the limit of abridgement of the right in 19 (1) (b) and clause (4) specifies such limits in respect of the right in 19 (1) (c). Clause (5) is in respect of the rights mentioned in 19 (1) (d), (e) and (f) and clause (6) is in respect of the rights contained in 19 (1) (g). It cannot be disputed that the articles collected under the caption "Right to Freedom" have to be considered together to appreciate the extent of the Fundamental Rights. In the first place it is necessary to notice that
there is a distinction between rights given to citizens and persons. This is clear on a perusal of the provisions of article 19 on the one hand and articles 20, 21 and 22 on the other. In order to determine whether a right is abridged or infringed it is first necessary to determine the extent of the right given by the articles and the limitations pre- scribed in the articles themselves permitting its curtail- ment. The inclusion of article 13 (1) and (2) in the Con- stitution appears to be a matter of abundant caution. Even in their absence, if any of the fundamental rights was infiringed by any legislative enactment, the Court has always the power to declare the enactment, to the extent it transgresses the limits, invalid. The existence of article 13 (1) and (2) in the Constitution therefore is not material for the decision of the question what fundamental right is given and to what extent it is permitted to be abridged by the Constitution itself.
As the preventive detention order results in the deten- tion of the applicant in a cell it was contended on his behalf that the rights specified in article 19 (1) (a), (b), (c), (d), (e) and (g) have been infringed. It was argued that because of his detention he cannot have a free right to speech as and where he desired and the same argument was urged in respect of the rest of the rights mentioned in sub-clauses (b), (c), (d), (e) and (g). Although this argu- ment is advanced in a case which deals with preventive detention, if correct, it-should be applicable in the case of punitive detention also to any one sentenced to a term of imprisonment under the relevant section of the Indian Penal Code. So considered, the argument must clearly be rejected. In spite of the saving clauses (2)to(6) permitting abridge- ment of the rights connected with each of them, punitive detention under several sections of the Penal Code, e.g., for theft, cheating, forgery and even ordinary assault, will be illegal. 'Unless such conclusion necessarily follows from the article, it is obvious that such construction should be avoided. In my opinion, such result is clearly not the outcome of the Constitution. The article has to be read without any pre-conceived notions. So read, it clearly means
that the legislation to be examined must be directly in respect of one of the rights mentioned in the subclauses. If there is a legislation directly attempting to control a citizen's freedom of speech or expression, or his right to assemble peaceably and without arms, etc., the question whether that legislation is saved by the relevant saving clause of article 19 will arise. If, however, the legisla- tion is not directly in respect of any of these subjects, but as a result of the operation of other legislation, for instance, for punitive or preventive detention, his right under any of these subclauses is abridged, the question of the application of article 19 does not arise. The true approach is only to consider the directness of the legisla- tion and not what will be the result of the detention other- wise valid, on the mode of the detenue's life. On that short ground, in my opinion, this argument about the in- fringement of the rights mentioned in article 19 (1) gener- ally must fail. Any other construction put on the article, it seems to me. will be unreasonable.
It was next urged that while this interpretation may meet the contention in respect of rights under article 19 (1) (a), (b), (c), (e) and (g), the right given by article 19 (1) (d) is left untouched. That sub-clause expressly gives the right "to move freely throughout the territory of India." It was argued that by the confinement of the peti- tioner 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 im- pugned 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 Sched- uled Tribe, under article 19 (5). The Court is thus en- joined to inquire whether the restrictions imposed on the detained person are reasonable in the interests of the general public. Article 14 of the Constitution gives the right to equality in these terms:
"The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."
It was argued that the words "within the territory of India" are unnecessary in that article because the Parlia- ment is supreme to make laws operative only within the territory of India. Without those words also the article will bear the same meaning. Similarly, it was urged that the words "territory of India" in article 19 (1) (d) may be treated as superfluous, and preventive detention would thus be an abridgement of the right to move freely. In my opin- ion, this rule of construction itself is faulty. Because certain words may be considered superfluous (assuming them to be. so in article 14 for the present discussion) it is quite improper to assume that they are superfluous wherever found in the rest of the Constitution. On the contrary, in my opinion, reading sub-clause (d) as a whole the words "territory of India" are very important. What is sought to be protected by that sub-clause is the right to freedom of movement, i.e., without restriction, throughout the terri- tory of India. Read with their natural grammatical.. mean- ing the sub-clause only means that if restrictions are sought to be put upon movement of a citizen from State to State or even within a State such restrictions will have to be tested by the permissive limits prescribed in clause (5) of that Article. Sub-clause (d) has nothing to do with detention, preventive or punitive. The Constitution men- tions a right to freedom of movement throughout the territo- ry of India, Every word of that clause must be given its true and legitimate meaning and in the construction of a Statute, particularly a Constitution, it is improper. to omit any word which has a reasonable and proper place in it or to refrain from giving effect to its meaning. This position is made quite clear when clause (5) is read along with this sub-clause. It permits the imposition of reasona- ble. restrictions 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 point however is made abundantly clear by the alternative, viz., for the protec- tion of the interests of any Scheduled Tribe. What protec- tion of the interests of a Scheduled Tribe requires the confinement of a man in a cell ? On the other hand, pre- venting the movement of a person from one part of the terri- tory of India to another and the question of reasonable restriction imposed to protect the interests of a Scheduled Tribe is clearly intelligible and often noticed in the course of the administration of the country. Scheduled Tribes have certain rights, privileges and also disabili- ties. They have their own civilization, customs and mode of life and prevention of contact with persons or groups with a particular Scheduled Tribe may be considered undesirable during a certain time or in certain conditions. The legis- lative history of India shows that Scheduled Tribes have been given a separate place on these grounds. Reading article 19 as a whole, therefore, it seems to me that it has no application to a legislation dealing with preventive or punitive detention as its direct object. I may point out that the acceptance of the petitioner's argument on the interpretation of this clause will result in the Court being called upon to decide upon the reasonableness of several provisions of the Indian Penal Code and several other penal legislations as abridging this right. Even under clause (5), the Court is permitted to apply the test of reasonable- ness of the restrictions or limits not generally, but only to the extent they are either in the interests of the gener- al public, e.g., in case of an epidemic, riot, etc., or for the protection of the interests of any Scheduled Tribe. In my opinion, this is not the intention of the Constitution. Therefore the contention urged in respect of article 19 fails.
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. Even so, on a true construction of article 19, it seems to me that both preventive and punitive detention are outside the scope of article 19. In order to appreciate the true scope of article 19 it is useful to read it by itself and then to consider how far the other articles in Part HI affect or control its meaning. It is the first article under the caption "Right to Freedom ." It gives the rights mentioned in 19 (1) (a) to (g) to all citizens of India. These rights read by them- selves and apart from the controls found in clauses (2) to (6) of the same article, specify the different general rights which a free citizen in a democratic country ordi- narily has. Having specified those rights, each of them is considered separately from the point of view of a similar right in the other citizens, and also after taking into consideration the principle that individual liberty must give way, to the extent it is necessary, when the good or safety of the people generally is concerned. Thus the right to freedom of speech and expression is given by 19 (1) (a). But clause (2) provides that such right shall not prevent the operation of a law which relates to libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State. Clause (2) thus only emphasizes that while the individual citizen has a free right of speech or expression, he cannot be permit- ted to use the same to the detriment of a similar right in another citizen or to the detriment of the State. Thus, all laws of libel, slander, contempt of Court or laws in respect of matters which offend against decency or morality are reaffirmed to be operative in spite of this individual right of the citizen to freedom of speech and expression. Simi- larly; that right is also subject to laws which prevent undermining the security of the State or against activities which tend to overthrow the State. A similar analysis of clauses f3) and (4) shows similar restrictions imposed on similar grounds. In the same way clause (5) also permits reasonable restrictions in the exercise of the right to freedom of movement throughout the territory of India, the right to reside and settle in any part of the 105
territory of India or the right to acquire, hold and dispose of property, being imposed by law provided such reasonable restrictions on the exercise of such right are in the inter- est of the general' public. The Constitution further pro- vides by the same clause that similar reasonable restric- tions could be put on the exercise of those rights for the protection of the interest of a Scheduled Tribe. This is obviously to prevent an argument being advanced that while such restriction could be put in the interest of general public, the Constitution did not provide for the imposi- tion of such restriction to protect the interests of a smaller group of people only. Reading article 19 in that way as a whole the only concept appears to be that the specified rights of a free citizen arc thus controlled by what the framers of the Constitution thought were necessary restric- tions in the interest of the rest of the citizens. Reading article 19 in that way it appears to me that the concept of the right to move freely throughout the territo- ry of India is an entirely different concept from the right to "personal liberty" contemplated by article 21. "Person- al 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 (men- tioned 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 limita- tion imposed by the word "personal"leads me 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 gener- al expression "procedure established by law." The Constitu- tion, in article 19, and also in other articles in Part III, thus attempts to strike a balance between individ- ual 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 individu- als.
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 sever- al 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. Therefore article 19 (5) cannot apply to a substantive law depriving a citizen of personal liberty. I am unable to accept the contention that the word "deprivation" includes within its scope "restriction" when interpreting article 21. Article 22 envisages the law of preventive detention. So does article 9.46 read with Schedule Seven, List I, Entry 9, and List III, Entry 3. Therefore, when the subject of preventive detention is specifically dealt with in the Chapter on Fundamental Rights I do not think it is proper to consider a legisla- tion ' permitting preventive detention as in conflict with the rights mentioned in article 19 (1). 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. I do not think that is the intention. It seems to me 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 arti- cle 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."
This article has been strongly relied upon by the peti- tioner in support of his contention that the impugned Act is ultra vires the Parliament as it abridges the right given by this article to every person. It was argued that under the Constitution of the United States of America the corre- sponding provision is found in the 5th and 14th Amendments where the provision, inter alia, is "that no person shall be deprived of his life or liberty or property except by due process of law." It was contended for the petitioner that the Indian Constitution gives the same protection to every person in India, except that in the 'United States "due process of law" has been .construed by its Supreme Court to cover both
substantive and procedural law, while in India only the protection of procedural law is guaranteed. It was contend- ed that the omission of the word "due" made no difference to the interpretation of the words in article 21. The word "established"' was not equivalent to "prescribed". It had a wider meaning. The word "law" did not mean enacted law because that will be no 'legislative protection at all. If so construed, any Act passed by the Parliament or the State Legislature, which was otherwise within its legislative power, can destroy or abridge this right. On the same line of reasoning, it was argued that if that was the inten- tion there was no necessity to put this as a fundamental right in Part III at all. As to the meaning of the word "law" it was argued that it meant principles of natural justice. It meant "jus", i.e., law in the abstract sense of the principles of natural justice, as mentioned in standard works of Jurisprudence, and not "lex", i.e., enact- ed law. Against the contention that such construction will leave the meaning vague, it was argued that four principles of natural justice recognised in all civilized countries were covered, in any event, by the word "law". They are: (1) An objective test, i.e., a certain, definite and ascer- tainable rule of human conduct for the violation of which one can be detained; (2) Notice of the grounds of such detention; (3) An impartial tribunal, administrative, judi- cial or advisory, to decide whether the detention is justi- fied; and (4) Orderly course of procedure, including an opportunity to be heard orally (not merely by making a written representation) with a right to lead evidence and call witnesses.
In my opinion, this line of approach is not proper and indeed is misleading. As regards the American Constitution its general structure is noticed in these words in "The Government of the United States" by Munro (5th Edition) at page 53: "The architects of 1787 built only the basement. Their descendants have kept adding walls and windows, wings and gables, pillars and porches to make a rambling structure which is not yet finished. Or, to change the metaphor, it has a fabric which, to use the words of
James Russell Lowell, is still being 'woven on the roaring loom of time'. That is what the framers of the original Constitution intended it to be. Never was it in their mind to work out a final scheme for the government of the country and stereotype it for all time. They sought merely to pro- vide a starting point." The same aspect is emphasized in Professor Willis's book on Constitutional Law and Cooley's Constitutional Limitations. In contrast to the American Constitution, the Indian Constitution is a very detailed one. The Constitution itself provides in minute details the legislative powers of the Parliament and the State Legisla- tures. The same feature is noticeable in the case of the judiciary, finance, trade, commerce and services. It is thus quite detailed and the whole of it has to be read with the same sanctity, without giving undue weight to Part III or article 246, except to the extent one is legitimately and clearly limited by the other.
Four marked points of distinction between the clause in the American Constitution and article 21 of the Constitution of India may be noticed at this stage. The first is that in U.S A. Constitution the word "liberty" is used simpliciter while in India it is restricted to personal liberty. (2) In U.S.A. Constitution the same protection is given to proper- ty, while in India the fundamental right in respect of property is contained in article 31. (3) The word "due" is omitted altogether and the expression "due process of law" is not used deliberately. (4) The word "established" is used and is limited to "Procedure" in Our article 21. The whole argument of the petitioner is rounded on the meaning of the word "law" given to it by the Supreme Court of America. It seems unnecessary to embark on a discussion of the powers and jurisdiction of the Supreme Court of the 'U.S.A. and how they came to enlarge or abridge the meaning of law in the expression "due process of law". Without going into details, I think there is no justification to adopt the meaning of the word "law" as interpreted by the Supreme Court of U.S.A. in the expression "due 110
process of law" merely because the word "law" is used in article 21. The discussion of the meaning of "due process of law" found in Willis on Constitutional Law and in Coo- ley's Constitutional Limitations shows the diverse meanings given to that expression at different times and under dif- ferent circumstances by the Supreme Court of U.S.A., so much so that the conclusion reached by these authors is that the expression. means reasonable law according to the view of the majority of the judges of the Supreme Court at a particular time holding office. It also shows how the meaning of the expression was widened or abridged in certain decades. Moreover, to control the meaning so given to that expression from time to time the doctrine of police powers was brought into play. That doctrine, shortly put, is that legislation meant for the good of the people generally, and in which the individual has to surrender his freedom to a certain extent because it is for the benefit of the people at large, has not to be tested by the touchstone of the "due process of law" formula.
Our attention was drawn to the debates and report of the drafting committee of the Constituent Assembly in respect of the wording of this clause. The report may be read not to control the meaning of the article, but may be seen in case of ambiguity. In The Municipal Council of Sydney v. The Commonwealth(1), it was thought that individu- al opinion of members of the Convention expressed in the debate cannot be referred to for the purpose of construing the Constitution. The same opinion was expressed in United States v. Wong Kim Ark(2). The result appears to be that while it is not proper to take into consideration the indi- vidual opinions of Members of Parliament or Convention to construe the meaning of the particular clause, when a ques- tion is raised whether a certain phrase or expression was up for consideration at all or not, a reference to the debates may be' permitted. In the present case the debates were referred to to show that the expression "due process of law" was known to exist in the American Constitution (1) (1904) 1 Com. L.R. 208. (2) (169) U.S 649 at 699.
and after a discussion was not adopted by the Constituent Assembly in our Constitution. In Administrator General of Bengal v. Premlal Mullick(1), a reference to the proceedings of the Legislature which resulted in the passing of the Act was not considered legitimate aid in the construction of a particular section. The same reasons were held as cogent for excluding a reference to such debates in construing an Indian Statute. Resort may be had to these sources with- great caution and only when latent ambiguities are to be resolved. See Craies' Statute Law (4th Edition) page 122, Maxwell on Interpretation of Statutes (9th Edition)pp. 28- 29 and Crawford on Statutory Construction (1940 Edition) p. 379, article 214. A perusal of the report of the drafting committee to which our attention was drawn shows clearly that the Constituent Assembly had before it the American article and the expression "due process of law" but they deliberately dropped the use of that expression from our Constitution.
No extrinsic aid is needed to interpret the words of article 21, which in my opinion, are not ambiguous.Normally read, and without thinking of other Constitutions, the expression "procedure established by law" must mean procedure prescribed by the law of the State. If the Indian Constitution wanted to preserve to every person the protection given by the due process clause of the Ameri- can Constitution there was nothing to prevent the Assembly from adopting the phrase, or if they wanted to limit the same to procedure only, to adopt that expression with only the word "procedural" prefixed to "law." However, the correct question is what is the right given by article 21 ? The only right is that no person shall be deprived of his life or liberty except according to procedure established by law. One may like that right to cover a larger area, but to give such a right is not the function of the Court; it is the function of the Constitution. To read the word "law" as meaning rules of natural justice will land one in (1) (1895)L.R. 221. A. 107. 15
difficulties because the rules of natural justice, as re- gards procedure, are nowhere defined and in my opinion the Constitution cannot be read as laying down a vague standard. This is particularly so when in omitting to adopt "due process of law" it was considered that the expression "procedure established by law" made the standard specific. It can not be specific except by reading the expression as meaning procedure prescribed by the legislature. The word "law" as used in this Part has different shades of meaning but in no other article it appears to bear the indefinite meaning of natural justice. If so, there appears no reason why in this article it should receive this peculiar meaning. Article 31 which is also in Part III and relates to the fundamental rights in respect of property runs as follows :-
"No person shall be deprived of his property save by authority of law."
It is obvious that in that clause "law" must mean enact- ed law. The object of dealing with property under a differ- ent article appears more to provide the exceptions found in article 31 (2) to (6), rather than to give the word "law" a different meaning than the one given in article 21. The world "established" according to the Oxford Dictionary means "to fix, settle, institute or ordain by enactment or agree- ment." The word "established" itself suggests an agency which fixes the limits. According to the dictionary this agency can be either the legislature or an agreement between the parties. There is therefore no justification to give the meaning of "jus" to "law" in article 21. The phrase "procedure established by law" seems to be borrowed from article 31 of the Japanese Constitution. But other articles of that Constitution which expressly pre- serve other personal liberties in different clauses have to be read together to determine the meaning of "law" in the expression "procedure established by law." These articles of the Japanese Constitution have not been incorporated in the Constitution of India in the same language. It is not shown that the word "law" means "jus" in the Japanese Constitution. In the Japanese Constitution these 113
rights claimed under the rules of natural justice are not given by the interpretation of the words "procedure established by law" in their article 31. The word "due" in the expression "due process of law" in the American Consti- tution is interpreted to mean "just," according to the opinion of the Supreme Court of U.S.A. That word imparts jurisdiction to the Courts to pronounce what is "due" from otherwise, according to law. The deliberate omission of the word "due" from article 21 lends strength to the conten- tion that the justiciable aspect of "law", i.e., to consider whether it is reasonable or not by the Court, does not form part of the Indian Constitution. The omission of the word "due", the limitation imposed by the word "procedure" and the insertion of the word "established" thus brings out more clearly the idea of legislative prescription in the expres- sion used in article 21. By adopting the phrase "procedure established by law" the Constitution gave the legislature the final word to determine the law.
Our attention was drawn to The King v. The Military Governor of the Hair Park Camp ('), where articles 6 and 70 of the Irish Constitution are discussed. Under article 6 it is provided that the liberty of the person is inviolable and no person shall be deprived of such except "in accord- ance with law" ......In article 70 it is provided that no one shall be tried "save in due course of law" and extraor- dinary Courts were not permitted to be established except the Military Courts to try military offences. The expres- sion "in accordance with law" was interpreted to mean not rules of natural justice but as the law in force at the time. The Irish Court gave the expression "due course of law" the meaning given to it according to the English law and not the American law. It was observed by Lord Atkin in Eshugbayi Eleko v. Officer Administering the Government of Nigeria C), that in accordance with British Jurispru- dence no member of the executive can interfere with the liberty or property of a British subject except when he can support the legality of his act before a Court of justice. (1)  2 Irish Reports K.B. 104. (2)  A.C. (62 at 670.