The preventive detention act of 1950 was one of the biggest moves made by the Indian government after the Indian independence. Preventive detention comes into play when the security of the state and the society is at stake. In simple language, it means to take someone into custody. The word ‘preventive’ is of great significance here. It denotes the prevention of any crime or brutality or even the possibility of such things. Before prevention comes ‘knowledge’ and ‘apprehension’. An official can only take actions against those crimes of which he has the ‘accurate’ knowledge that they are certainly going to take place if he does not take the accused into his custody. In cases, where ‘accuracy’ is missing from the knowledge, it becomes ‘apprehension’. Even if the concerned authority is not sure about the crime and has some uncertain apprehensions regarding it, he can take the apprehended individual (accused) into his custody and detain him for a specific period. This is known as preventive detention.
The sole aim of “preventive detention” is to ‘stop’ crime from taking place and not to punish an accused person for the crime he already committed. In the latter case, the role is played by ‘punitive detention’. In such detention cases, a person is detained as punishment for something wrong which he has already done. Preventive detention is completely different. According to the supreme court, “preventive detention aims to impede a person before he does something wrong and deter him from doing so and not to punish him from doing something.”To endorse the true work of precautionary detention, the Indian government passed an act in the year 1950, with the name preventive detention act (PDA, 1950). Though the act had a special purpose, many people believed that it is a breach of fundamental rights. The act was finally challenged in a case named A.K. Gopalan v. The State of Madras and the apex court of India passed one of its landmark judgments in the year 1950. The entire article is an analysis of the supreme court ruling in the same case with satisfactory reasoning.
FACTS OF THE CASE
A petition under Article 32 of the Indian constitution seeking the writ of habeas corpus was filed in the apex court by the applicant, Ayillyath Kuttiari Gopalan, a communist leader. He in his petition stated how he had been detained since December, 1947. At first, he was convicted under ordinary criminal laws and sentenced to imprisonment but later these convictions were revoked by the court. As his sentence was nullified on 1st march 1950, A.K. Gopalan, under section 3(1) of PDA, was given an order by the Madras government. This particular order was challenged by A.K Gopalan in the supreme court. According to him, the preventive detention act, 1950 and especially its section 14 was against the provisions mentioned in articles 13, 19, 21 and 22 of the Indian constitution. He also contended that the order of detention was a mala fide one. This became the first case which gave an opportunity to the supreme court to decrypt so many articles related to the fundamental rights in a single case.
Section 3(1) of PDA, 1950: this section confers upon the state or the central government, the power to detain an individual under certain circumstances if they have apprehensions or knowledge that by not detaining an individual:
- There is a threat to the defense mechanism of the nation, its security, and foreign relations.
- There will be an injury to the public order.
- Disturbance in materials and services that are crucial to run a community can be raised.
- If the individual is a foreigner under the meaning of the “foreigners act, 1946” and it becomes necessary for the state to regulate his presence.
Article 32 of the constitution: this article states that a person can file a petition directly in the apex court if any of his guaranteed fundamental rights are violated. Dr. B.R. Ambedkar, who drafted the Indian constitution, acknowledged this article as the “heart and soul of the Indian constitution.”
- Habeas corpus: the actual meaning of this phrase is “to have the body of”. The key purpose of this writ is to guard a person from being detained illicitly. The legality or illegality of the grounds is based on the court’s elucidation. On determining the grounds illegal, court can ask the concerned authority to release the body of the confined individual.
ISSUES DISCUSSED BY THE COURT
1) Does the preventive detention act of 1950 violate article 13, which defines law and its relation with fundamental rights within the constitution?
2) Is the act an infringement to article 19, which guarantees freedom to the people?
3) Does this act oppose the right to life and individual freedom guaranteed under article 21?
4) Is section 14 of the act contradictory to article 22 of the constitution?
JUDGEMENT IN BRIEF
Following judgements were delivered by the court:
- The act of preventive detention was valid and Intra Vires. This means it was considered to be within the constitutional capacity.
- It did not infringe on article 21.
- It was in consonance with articles 13, 19 and 22 as well.
- Section 14 of PDA was considered to be Ultra Vires, means beyond the constitutional capacity and were thus, repealed.
Article 13 of the Indian constitution: according to this article, if any part of the laws that were enforced before the beginning of the constitution is contradictory to the fundamental rights guaranteed to the Indian citizens under article 12-35 of the constitution, the inconsistent portion of the laws will be held void. The government does not have the power to make laws that are contradictory to the essential rights. If they do so, the laws will be declared void up to their inconsistency. This is known as the doctrine of the eclipse where fundamental rights overshadow the contradiction of some law.
Article 13(3) defines ‘law’. In a case named, Golak Nath v. The State of Punjab, the apex court held that any amendment made to the constitution under article 368 of the same will be known as law and thus will be under the capacity of being repealed if violated the fundamental rights. After this case, the 24th constitutional amendment in 1971 was brought up by the parliament, and the 4th clause was added to article 13. According to this clause, an amendment done to the constitution will not be considered as law and thus it cannot be reviewed. The validity of this modification was upheld by the supreme court in 1973 in a case named, Keshavananda Bharti v. The State of Kerala. The only limitation attached to it was that the amendment should not harm the ‘basic structure’ of the constitution.
As held by the court, article 13 is immaterial in determining the level up to which the fundamental rights can be curtailed as even if they were not added to the constitution, the courts would have the complete right to nullify certain enactments if they overstepped any fundamental right. To determine this infringement, it is very crucial to understand the degree of the rights given under any article and the limitations offered by it. Hence, the addition of article 13(1) and (2) to the constitution was done for caution purpose.
Article 19: the petitioner stated that his freedoms guaranteed under Article 19(1) (a), (b), (c), (d), (e), and (g) have been dishonored. This particular article guarantees basic freedom to the Indian citizens for example that of speech and expression; to move and reside in any part of India and so on. It also talks about “reasonable restrictions” on which the people can be barred from using these freedoms by the government. The supreme court rebuked the petitioner’s claim with the reasoning that these freedoms are only guaranteed to people who are free and not to ones who are detained either punitively or preventively through a legal process. Thus, the concern was beyond the provision’s scope.
However, a greater debate was held over clause (d) of the article which confers upon the citizens, the freedom to move freely in the Indian territory. Its limitations are stated in clause 5 of article 19, which states that this right can be expelled with reasonable restriction. These restrictions can be done to promote the interest of scheduled tribes in some regions or endorse the general people’s interest . The preventive detention act directly curtails the freedom of movement of an individual. Thus, the court asked for the accounts on which A.K. Gopalan was held. Their reasonability was determined and upheld by the court.
Article 21: the length of the provision mentioned under article 21 is very trivial, but its portrayal is contradictory to its length. It is a very simple article which states, “no person shall be deprived of his life and personal liberty except according to the procedure established by the law.” It contains in itself around 20 hidden subclauses for example those of ‘right to privacy, ‘to live with dignity, education, and so on.
While announcing its verdict of this case, the apex court lessened down the interpretation of article 21 to a greater extent. The petitioner argued that as article 19 and article 21 are related to each other, they should be read together but the court denied this claim and stated that they both have separate meanings and zones. Thus, both should be read discretely. As the procedure established by the law was validly followed, it was contended by the court that article 21 has not been violated by the detention. Due process of law was not taken into concern as the article did not talk about it. A very strict meaning of “personal liberty” was stated by the court, in which it was only equivalent to the safety of one’s body parts. Thus, the officials could not injure or harm the detainee’s body.
- The procedure established by the law means that the procedure specified by the parliament, lawmakers, and the government should be fulfilled. It has no scope of reasonability and fairness involved.
- Due process of law: it means that the procedure established by the authorities should be fair and reasonable only then it should be followed.
Article 22: this article guarantees protection against illegal imprisonment and detention. It lays down certain process which includes:
- A person’s right to be informed about the grounds on which he has been taken into custody. The officials cannot deny him to acquire a lawyer for himself.
- The arrested individual has the basic right to be taken before the magistrate within twenty-four hours of his capture exclusive of the time spent traveling.
- The above-mentioned provisions do not apply to the individual who is under preventive detention.
- a person can be incarcerated for 3 months, which can be stretched on the instructions of an advisory committee entailing high court judges or people eligible to become high court judges.
- 22(5) talks about the proper and early representation of the held individual.
Section 14 of PDA, 1950: it was a part of the prototype or the original version of the act but was repealed by the supreme court in this case. This section restricted a person to disclose the ground of his detention even in the court proceedings in the case, where disclosing such things could disturb public harmony. The supreme court held this section to be violative of Article 22(5) as it constrained the appropriate presentation of an incarcerated individual in the court. Court also deciphered it to be against the right to remedy mentioned in article 32 of the Indian constitution.
CORRECTION OF THE ABOVE JUDGEMENT
After a huge period of around 28 years, the supreme court finally overruled this judgment in a very famous case named Maneka Gandhi v. The Union of India, 1978. In this case, the supreme court amplified the impact of article 21 and endorsed the doctrine of the due process of law. The court upheld the relationship between articles 19 and 21 of the constitution and accepted that there is a special relationship between the two. The right to travel abroad also became a part of article 21. The court stated that the right to life and liberty is not given by the state. They are universal rights and the state has no right to snatch them away in any condition. Therefore, Article 20, and 21 are considered to be the absolute provision in the fundamental rights. This case stunningly filled all the gaps among the fundamental rights.
Article 20: this article of the constitution highlights the principle of natural justice. They are the rights conferred upon the accused individual. It highlights three very basic principles:
- A person cannot be punished retrospectively.
- He cannot be punished for the same offense twice.
- He cannot be forced to become a witness in his own case as he has a right to remain silent.
Some verdict made by the court in Gopalan’s casewere laudatory but not all. It was right on the court’s part to upheld the validity of PDA, 1950. Few points to be appreciated in the judgement were:
- The way in which article 13 of the constitution was deciphered.
- The clause that ensured freedom to move freely in the Indian territory was also well exposed.
- The annulment of monstrous section 14 of the act was also an impressive move.
- Doctrine of eclipse and the rule of severability was also highlighted when court separated the faulty section 14 from the flawless act without abolishing the complete act.
Supreme court went wrong in analyzing the impact of article 21 where it did not take into concern the “due process of law” and the special relationship between article 19 and 21. it narrowed down the meaning of “personal liberty” to bodily injury. Though, it went erroneous here, it altered itself in Maneka Gandhi case which was a remarkable change.
 Union of India v. Paul Manickam, AIR 2003 SC 4622.
 A.K. Gopalan v. The State of Madras, AIR 1950 SC 27.
 Preventive detention act, 1950, § 3(1), No. 4, Acts of Parliament, 1949 (India).
 INDIA CONST. art. 32, cl. 1.
 A.K. Gopalan, supra note 2.
 INDIA CONST. art. 13, cl. 1.
 Id. cl. 2.
 Golak Nath v. State of Punjab, AIR 1967 SC 1643.
 INDIA CONST. art. 13, cl. 4, amended by The Constitution (Twenty Fourth Amendment) Act, 1971.
 Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461.
 A.K. Gopalan, supra note 2.
 INDIA CONST. art. 19, cl. 1(d).
 Id. cl. 5.
 INDIA CONST. art. 21.
 A.K. Gopalan, supra note 2.
 INDIA CONST. art. 22, cl. 5.
 A.K. Gopalan, supra note 2.
 Maneka Gandhi v. Union of India, AIR 1978 SC 597.
 INDIA CONST. art. 22, cl. 3.
Ayushi Srivastva (Batch of 2020 – 2025)
Rajiv Gandhi National University of Law, Patiala