A.K Gopalan v. State of madras

By:- Nimitt Porecha


Citation:1950 SCR 88: AIR 1950 SC 27: (1950) 51 Cri LJ 1383
Court:Hon’ble Supreme Court of India
Decided on:May 19, 1950
Petitioner:A.K Gopalan
Respondent:State of Madras
Bench/judges      :Constitutional Bench (Hiralal Kania CJ and Saiyid Fazl Ali, M. Patanjali Sastri, Meher Chand Mahajan, B.K. Mukherjee and S.R. Das, JJ.)
Important Sections/Articles:Article 3 of Preventive Detention Act, 13,19,21,22 of the Indian Constitution and 5th and 14th Amendment of United States Constitution.


This case deals with the fundamental rights of the person where the charges on the accused who was the communist leader of the communist party of India. He was detained under prevention detection and 1947 and then till 1950 he was still in custody without trial. So, the one who reads the case gets to know how the fundamental rights got violated and the judgement of the supreme count for the same. One can also get more wider score with help the jurisprudential analysis also.


A.K. Gopalan v. the State of Madras was marked as one of the main rulings of the Supreme Court of India. People remember that this was the first ruling handed down by the Supreme Court of India after its creation in 1950. In this ruling, the Honorable Supreme Court of India accurately reviewed and interpreted the key components of the Indian Constitution, namely, the stipulated fundamental rights. in article 19. 21. However, the Supreme Court did not attract people’s attention after issuing this ruling, because the judicial department later considered that the sentence was a failure. The Supreme Court at that time had a limited view of the fundamental rights stipulated in Articles 19 and 21.

Background of the case

In this case, Mr. A.K. Gopalan, commonly known as AKG, is the leader of the Communist Party of India and serves the Communist Party of India. According to article 3 (1) of the Preventive Detention Act of 1950, he was detained “preventively”. According to Mr Gopalan, he has been detained in Madras prison without trial since December 1947. Under ordinary criminal law, he was sentenced to prison, but these sentences were shelved. On March 1, 1950, he was served with an order from the Madras state government, and at that time he was still in custody.

Mr. Gopalan filed a petition under Article 32(1), of the Constitution of India, requesting a habeas corpus against the order made under Article 3(1), which was served in accordance with the provisions of the Preventive Detention Act of 1950 For him. In the habeas corpus, he challenged the legality of Law No. 4 of 1950 and notified the order accordingly. He argued that the provisions of the Pre-trial Detention Act of 1950 were violated and therefore constituted a violation of the fundamental rights stipulated in Articles 13, 19, 21 and 22 of the Indian Constitution. He also questioned the order, claiming that it was issued to him out of malice.

Facts of the case

In AK Gopalan v. Madras State (AK) Gopalan was a Communist Party leader. He was imprisoned in Madras State (Madras) in 1947 under ordinary criminal law, but these convictions were overturned. While in prison, he obtained another arrest warrant under the Preventive Detention Act No. IV of 1950. AK Gopalan challenged the constitutionality of the law and submitted a written petition through article 32 (1), alleging the violation of his rights under articles 19, 21 and 22 of the Constitution.

Issues raised in the court

  • Does the detention act contravene the provision of Article 19 and 21 of the constitution?
  • Is the act’s provision in accordance with Article 22 of the constitution?

Arguments of the Petitioner

Advocate M.K. Nambiar appeared as petitioner.

The petitioner’s lawyers debated mainly the legality and validity of the provisions of the 1950 Preventive Detention Law, which they considered violated the basic rights of Articles 13, 19, 21 and 22.

  1. They are so because: The provisions of the Preventive Detention Law of 1950 violated the freedoms granted to all citizens in Article 19 (1) (a) to (e) and (g) and were sanctioned under Law No. 4 of 1950. meets the criteria of Article 19(2) to (6). The author was deprived of his right to freedom of expression.
  2. Article 19 also grants personal freedom as a basic right, and the infringed order violates the rights of the detainee.
  3. They consider that article 19(1), and article 21 should be read together because article 19(1), refers to the substantive rights of citizens and article 21 refers to the procedural aspects of personal liberty. Personal freedom outside of prescribed procedures.
  4. The arrest warrant issued by the government violated the petitioner\u2019s freedom of movement under Article 19(1)(d) because it explicitly granted the right “to move freely throughout the territory of India”. Therefore, the State of Madras must prove that the controversial legislation restricts such detentions or restrictions must be reasonable restrictions on the public interest.
  5. They believe that the term “Indian territory” mentioned in Article 19(1)(d) is redundant and unnecessary in Article 19(1)(d) because the Parliament is Establish the highest authority that can enforce the law. Only in India.
  6. Therefore, preventive detention limits the right to freedom of movement. The term “procedure established by law” does not refer to or represents any form of legislation (law), but its meaning is nothing more than the legal “due process” (law) that must be followed, thus violating Article 21 of the law.
  7. The Indian constitutional petitioner relied on the US Constitution, and the corresponding provisions can be found in Articles 5 and 14 of the amendment.
  8. It does not meet the requirements of Article 22(4) to (7), on this basis, it is pointed out that Article 3 of the above-mentioned law does not carry out any objective test and is defined by the authorities if the person is under the leadership of the legislature.

The Supreme court in the majority held that the contention put forward from the petitioner side do not make sense and are not valid.

Arguments of the Respondent

Advocate K. Rajah Aiyar, Advocate-General of Madras is representing the State of Madras.

Advocate M.C. Setalvad, Attorney-General of India is representing the Union of India.

The defendant argued that Section 19 and Section 21 should not be read together, but should be read separately. Article 19 (1) (a) to (g) must also be viewed from a different perspective than the similar rights of another citizen. They urged the Japanese Constitution to adopt the term “legal procedure” to avoid using the term “due process”, so the two terms have different meanings. Therefore, it does not violate Article 21. The interpretation of the term “due process” of the law, like the Constitution of the United States of America, is assumed to be a law that includes both substantive rights and procedural law, but this is not the case. Need to consider. There is no sufficient reason for adoption in Indian courts. Reference was also made to the discussions of the Drafting Committee and the wording of this article was discussed based on the respondents in order to eliminate any ambiguities.

Related Provisions

Understanding the case more deeply the Article 3 of preventive detention act say Power to Make Orders Detaining Certain Persons. –

  1. The Central Government or the State Government may-
    1. if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to-
      1. the defence of India, the relations of India with foreign persons, or the security of India, or
      2. the security of the State or the maintenance of public order, or
      3. the maintenance of supplies and services essential to the community; or
    2. if satisfied with respect to any person who is a foreigner within the meaning of the Foreigners Act, 1946-(31 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.

Article 3(1) say Execution of Detention Orders. – A detention order may be executed at any place in India in the manner provided for the execution of warrants of arrest under the Code of Criminal Procedure.

Article 13 of Indian constitution say

  1. All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
  2. The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
  3. In this article, unless the context otherwise requires,
    1. “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
    2. “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. 
  4. Nothing in this article shall apply to any amendment of this Constitution made under article 368.

Article 19 of Indian constitution Protection of certain rights regarding freedom of speech etc.

  • All citizens shall have the right
  • to freedom of speech and expression;
  • to assemble peaceably and without arms;
  • to form associations or unions;
  • to move freely throughout the territory of India;
  • to reside and settle in any part of the territory of India; and
  • omitted
  • to practise any profession, or to carry on any occupation, trade or business

Article 21 of Indian constitution says Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.  

Article 22 of Indian constitution say Protection against arrest and detention in certain cases

No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:

  • When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order
  • Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose
  • Parliament may by law prescribe
    • the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);
    • the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
    • the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4) Right against Exploitation.

The 5th and 14th Amendments of the United States Constitution limit the power of the federal and state governments to discriminate. The private sector is not directly constrained by the Constitution.

The 5th Amendment has an explicit requirement that the Federal Government not deprive individuals of “life, liberty, or property,” without due process of the law and an implicit guarantee that each person receive equal protection of the laws.

The 14th Amendment explicitly prohibits states from violating an individual’s rights of due process and equal protection. Equal protection limits the State and Federal governments’ power to discriminate in their employment practices by treating employees, former employees, or job applicants unequally because of membership in a group, like a race, religion or sex. Due process protection requires that employees have a fair procedural process before they are terminated if the termination is related to a “liberty,” like the right to free speech or property interest.

Judgement By The Supreme Court

The judgement of A.K. Gopalan v State of Madras was delivered by the then Chief Justice of India Hiralal Kania, CJ. In the above case, the court ruled by a three-fourths majority that the term “law” used in article 21 of the Indian Constitution only means due process, and due to the preventive nature of Gopalan’s arrest under the law Detention law is an effective law. Gopalan’s detention is legal, even if the law may violate some of his other basic rights, such as the right to freedom of movement under article 19, or the detention under article 14 is arbitrary.

” In the Supreme Court, most justices believe that the same words in two different articles cannot be understood from the same perspective and that the two words have the same meaning. Regarding the petitioner’s argument for the violation of the fundamental rights of Article 21, the meaning and use of the term “procedure established by law” does not amount to “due process.” If the legislature wants to say that these two words have the same meaning or refer to the same thing, then the framers of the constitution will express it clearly. The meaning of the word law is lex, and not only that, they cannot be abbreviated and violate article 21.

Jurisprudential Analysis

In Indian law, especially in the Indian Constitution, it has had a huge influence, and 19 has been widely interpreted in India, especially the interpretation of 21 by the Indian judiciary. In addition, the basic rights conferred by the Indian Constitution have a great foundation in the theory of natural law. Since the time of the Greeks, the thinkers of natural law theorists have influenced Indian law to a large extent. Not only the basic rights but also more clauses of the Indian Constitution have been influenced by the theory of natural law.

Natural law is known as superior law or law of nature, it has always dominated the entire foundation of political, legal, religious and social philosophy. Natural law is known to be such an unwritten legal system with appropriate principles published by human nature and reason, or derived from God. The laws of nature are universal to all mankind. It transcends differences in the various expressions of culture, religion, and moral law. The provisions of Articles 19 and 21 are widely interpreted in India as a particularly important influence of the theory of natural law and are widely interpreted by Indian judicial authorities.

If one analysis the Judgment, one would find a reference to Locke’s theory whereby the natural right of men such as the right to life, liberty and property remained with him, so in A.K. Gopalan’s case also the Natural law theory principle could be evolved.


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