A) ABSTRACT / HEADNOTE

The Supreme Court of India, in S. Krishnan and Others v. The State of Madras, [1951] SCR 621, examined the constitutional validity of the Preventive Detention (Amendment) Act, 1951, which extended the operation of the Preventive Detention Act, 1950, and altered key provisions relating to the maximum period and the procedure of detention. The case emerged from habeas corpus petitions filed by individuals detained under the 1950 Act. They argued that the amendments violated Article 22(4)(a) of the Constitution by allowing detentions exceeding three months without Advisory Board review and exceeding the maximum one-year period fixed earlier.

The constitutional bench comprising five judges analyzed whether Sections 9 and 12 of the Amending Act were ultra vires of the Constitution. The majority upheld the Act, concluding that the changes complied substantially with Article 22(4)(b) and were enacted in line with Article 22(7). The court ruled that the detentions were valid even though the amendment did not set an express maximum period of detention, reasoning that the amended law itself was temporary and would lapse in a year. Justice Bose dissented, holding that the lack of a maximum detention period violated constitutional safeguards.

This landmark case marked a crucial interpretation of preventive detention laws in post-independence India, balancing civil liberties with state security, and highlighted the judiciary’s role in evaluating legislative actions in the context of Part III of the Constitution.

Keywords: Preventive Detention, Constitutional Validity, Article 22, Advisory Board, Habeas Corpus, Fundamental Rights, Personal Liberty, Judicial Review.

B) CASE DETAILS

i) Judgement Cause Title
S. Krishnan and Others v. The State of Madras

ii) Case Number
Petitions Nos. 303, 617 to 619, 621 to 631, 561 to 571, 592, 594, 596 and 600 of 1950

iii) Judgement Date
7 May 1951

iv) Court
Supreme Court of India

v) Quorum
Shri Harilal Kania C.J., Patanjali Sastri J., Mehar Chand Mahajan J., S.R. Das J., Vivian Bose J.

vi) Author
Majority opinions by Kania C.J., Patanjali Sastri J., Mahajan J., Das J.; Dissenting opinion by Bose J.

vii) Citation
S. Krishnan and Others v. The State of Madras, [1951] SCR 621

viii) Legal Provisions Involved

• Article 22(4)(a) & (b) and 22(7) of the Constitution of India

• Section 3(1)(a)(ii), 9, 10, 11, and 12 of the Preventive Detention Act, 1950

• Preventive Detention (Amendment) Act, 1951

ix) Judgments Overruled by the Case (if any)
None

x) Case is Related to which Law Subjects
Constitutional Law, Criminal Law, Civil Liberties and Human Rights, Preventive Detention Law

C) INTRODUCTION AND BACKGROUND OF JUDGEMENT

The present case arose in the wake of India’s newly enacted Constitution, particularly Part III which enshrines Fundamental Rights. In 1950, Parliament enacted the Preventive Detention Act, allowing detention without trial for up to one year. Subsequently, the Preventive Detention (Amendment) Act, 1951 extended the Act’s operation till 1st April 1952 and made significant changes. These included section 9, mandating reference to an Advisory Board within six weeks, and section 12, which provided that detentions under the 1950 Act would be treated as under the amended law.

Numerous detainees who had completed one year under the 1950 Act filed habeas corpus petitions under Article 32, claiming that continued detention under the new law without fresh orders or a set maximum period contravened Article 22(4)(a), which requires Advisory Board scrutiny within three months unless Parliament has made special provisions under Article 22(7). The State contended that the new law satisfied these requirements.

The Supreme Court, faced with interpreting the complex interaction between fundamental rights and national security laws, delivered a detailed and layered judgment.

D) FACTS OF THE CASE

The petitioners were individuals detained under section 3(1)(a)(ii) of the Preventive Detention Act, 1950, by the Government of Madras. Their detentions had extended close to or beyond one year by early 1951. Before their release could materialize, the Preventive Detention (Amendment) Act, 1951 came into force on 22nd February 1951.

This amendment extended the operation of the original 1950 Act till 31st March 1952, amended section 9 to allow for Advisory Board reviews in all cases within six weeks from a newly defined date (such as the date of the amendment’s commencement), and stated in section 12 that existing detentions would be deemed as under the amended law. As a result, the detention of the petitioners continued beyond one year, without fresh orders being passed and without any maximum time-limit being statutorily prescribed under the amended Act.

The petitioners argued that this infringed their fundamental rights under Article 22(4)(a) which permits preventive detention beyond three months only upon Advisory Board approval, and in no case beyond the maximum period prescribed by Parliament under Article 22(7)(b). The detainees filed writ petitions under Article 32, seeking habeas corpus for their immediate release.

E) LEGAL ISSUES RAISED

i. Whether sections 9 and 12 of the Preventive Detention (Amendment) Act, 1951 contravene Article 22(4)(a) of the Constitution of India.

ii. Whether the continued detention of the petitioners for more than one year violates the maximum period permitted under the original Preventive Detention Act and Article 22(7)(b).

iii. Whether the amended Act’s failure to prescribe a maximum period of detention renders it unconstitutional and void.

iv. Whether the new Act effectively permits indefinite detention at the government’s discretion, violating the right to personal liberty under Article 21.

v. Whether section 11(1) of the new Act violates Article 22(4) by empowering the executive to fix the duration of detention without upper limits.

F) PETITIONER / APPELLANT’S ARGUMENTS

i. The counsels for Petitioner / Appellant submitted that

The petitioners, represented by eminent counsels including M.K. Nambiyar, Bawa Shiv Charan Singh, and Basant Chandra Ghose (amicus curiae), advanced multifaceted arguments. They assailed the constitutional validity of the Preventive Detention (Amendment) Act, 1951, primarily Sections 9, 11, and 12, on the grounds of violation of Articles 21 and 22 of the Constitution. Their legal reasoning focused on interpreting these articles in a manner that preserves the fundamental right to personal liberty and safeguards against arbitrary detention.

First, the petitioners argued that Section 9(2)(a) of the amended Act infringed Article 22(4)(a). They pointed out that under the original 1950 Act, their detention would end after one year, as per Section 12. However, the amendment deemed these old detentions as if they were made under the new Act and calculated the period from the commencement of the amended Act—thus restarting the detention clock without fresh orders or any effective review. This, they argued, led to prolonged detention beyond three months without timely reference to an Advisory Board, violating Article 22(4)(a), which clearly mandates that no preventive detention shall continue beyond three months unless a Board recommends so within that period[1].

Second, they emphasized that the maximum period of detention under the original law was one year, as per Section 12 of the 1950 Act, which was passed in accordance with Article 22(7)(b) of the Constitution. Therefore, they contended that this maximum period became a part of their fundamental rights under Article 22(4). Extending detention beyond one year without fresh statutory prescription was impermissible and unconstitutional[2]. Since the amending Act failed to prescribe a fresh maximum period in lieu of the one-year limit, continued detention of the petitioners was void ab initio.

Third, the petitioners challenged Section 11(1) of the amended Act which authorized the government to continue detention “for such period as it thinks fit.” They contended that this conferred arbitrary and unlimited discretion upon the executive, contradicting Article 22(4) and rendering the provision ultra vires the Constitution. Allowing detention without any fixed outer limit was tantamount to empowering the government to impose indefinite detention, which not only violates Article 22, but also Article 21, which guarantees personal liberty except by procedure established by law[3].

Fourth, the petitioners argued that there had been a procedural shift in the legal basis of their detention. If the detentions were now deemed to be under the amended law, then new grounds for detention and new procedural formalities under the amended statute were required. Without this, the continued detention was procedurally irregular and invalid under Article 22(5) which requires communication of grounds and an opportunity for representation[4]. The legal fiction introduced under Section 12 could not override constitutional safeguards. It could not obscure the factual reality that these petitioners had already spent over a year in detention without Advisory Board review.

Fifth, it was further contended that the Parliament had no power to amend the maximum period prescribed in the original Act once the petitioners had been detained under that law. Their liberty could not be affected retrospectively by new legislative provisions that extended detention without affording fresh procedural protection. In short, the petitioners argued that the amended Act cannot retrospectively validate illegal detention, and if the original maximum period had expired, they were entitled to immediate release under Article 32 by way of habeas corpus.

The petitioners relied on judicial interpretations that underscore strict adherence to procedural safeguards in preventive detention cases. They placed emphasis on A.K. Gopalan v. State of Madras, [1950] SCR 88, where the Supreme Court had already ruled that Article 22(4)(a) imposed substantive limitations on legislative powers to authorise detention beyond three months. They contended that the amendment indirectly circumvented these limitations by backdating the effect of the amended provisions and disregarding the period already undergone by the detainees.

Lastly, the petitioners stressed that Section 9(2)(a) of the amended Act created a fictional new commencement date for detention which was legally and constitutionally impermissible. The Constitution did not allow such retrospective transformations of real, completed periods of detention into notional fresh detentions just to fit them within a new statutory framework. Such an interpretation rendered the guarantees under Article 22 illusory and allowed the State to manipulate procedural safeguards, which the Constitution intended as mandatory and substantive[5].

G) RESPONDENT’S ARGUMENTS

i. The counsels for Respondent submitted that

The State of Madras, represented by V.K.T. Chari (Advocate General of Madras) and Fakhruddin Ahmed, along with the Attorney General for India, M.C. Setalvad, advanced a robust defense. They justified the legality of the Preventive Detention (Amendment) Act, 1951 and refuted all constitutional objections raised by the petitioners.

First, the respondents asserted that the new law was not unconstitutional because it was enacted in conformity with Article 22(7). They emphasized that Article 22(4)(b) allows Parliament to prescribe special procedures for detention longer than three months without Advisory Board review in particular classes of cases. The amendment, by restructuring sections 9, 10, 11, and 12, operated within this constitutional framework. They maintained that the classification of cases and modification of procedure for Advisory Board reference under the amendment fell squarely within Parliament’s power under Article 22(7)[6].

Second, the respondents argued that section 12 of the amendment, which allowed existing detentions to be treated as detentions under the new Act, was legally valid. The provision was crafted “for the avoidance of doubt” and merely confirmed what was otherwise legally implied—that ongoing lawful detentions should continue under the new procedural framework. They submitted that the legal fiction did not create a fresh detention but rather continued an existing lawful process under a new procedural regime, which granted greater procedural safeguards than the original Act[7].

Third, the respondents emphasized that section 9 now allowed all detentions—including those earlier excluded—to be reviewed by an Advisory Board within six weeks from the date of the amended Act. Therefore, rather than curtailing rights, the amendment enhanced constitutional safeguards. This, they said, reflected legislative intent to liberalize the original detention framework. The transition from section 12 of the 1950 Act to section 12 of the 1951 amendment did not result in loss of liberty or arbitrary extension of detention, but merely changed the mode of review[8].

Fourth, the respondents rebutted the argument that the amendment allowed indefinite detention. They stated that the amended Act itself was temporary, operating only until 1 April 1952. Hence, even if section 11(1) allowed the government to fix the period of detention, no detention could extend beyond the Act’s life. This served as a de facto maximum period of detention, satisfying the requirements of Article 22(7)(b) without needing to spell out a fixed term. They cited judicial commentary from Craies on Statute Law to argue that temporary statutes expire automatically, thereby rendering all detentions legally time-bound[9].

Fifth, the respondents distinguished between the “substantive legality” and “procedural transition” of detention. They pointed out that the original detention orders were passed legally under the 1950 Act. With the 1951 amendment, only the mode and manner of continuation changed. There was no need to issue fresh grounds or detention orders, as there was no change in the substance of the allegations against the detainees. Accordingly, the procedural safeguards under Article 22(5) had already been satisfied or were no longer required in this context.

Sixth, the Attorney General contended that Article 22(4)(a) and (b) must be interpreted harmoniously with Article 22(7). The law passed by Parliament need not rigidly adhere to three-month limits, provided it satisfies the overall constitutional structure. Since the 1951 amendment substantially complied with Article 22(4)(b) and was enacted under Article 22(7), its constitutionality could not be impeached merely because it allowed a change in procedural timelines for pending cases[10].

Lastly, the respondents strongly rejected the notion that the one-year limit in section 12 of the 1950 Act had become a part of fundamental rights. They clarified that Parliament can always amend a law it previously enacted under Article 22(7). The Constitution did not prevent Parliament from changing the maximum period of detention, and such change did not violate Articles 21 or 22. As long as the new law conformed to Article 22(7), it remained valid.

H) RELATED LEGAL PROVISIONS

i. Constitution of India – Article 21

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

This fundamental right forms the cornerstone of personal liberty in India. The petitioners claimed that the procedure for their continued detention under the amended Act violated this Article, since no new detention order or procedural safeguards under the new regime had been triggered. The respondents countered that the amended Act itself constituted the new “procedure established by law,” satisfying the requirement of Article 21. This debate emphasized that preventive detention cannot bypass due procedure, and that arbitrariness or indefinite discretion contradicts the rule of law protected under this provision[1].

ii. Constitution of India – Article 22(4), (5), and (7)

Article 22(4):
“No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless—
(a) an Advisory Board … has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7).”

Article 22(5):
“When any person is detained … he shall be informed … of the grounds … and shall be afforded the earliest opportunity of making a representation against the order.”

Article 22(7):
Parliament may by law prescribe—
(a) 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 without the opinion of an Advisory Board,
(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention.

These provisions lie at the heart of the legal issues in this case. Petitioners alleged violations of Article 22(4)(a) due to failure to refer their cases to an Advisory Board within three months of actual detention. They also argued that no maximum period of detention was fixed under the amended Act, violating the proviso to clause (4)(a) and sub-clause (b) of clause (7)[2].

Respondents maintained that the amendment was enacted under clause (7) and that the fixed expiration date of the Act itself provided the maximum period, satisfying Article 22(7)(b). They also asserted that new reference to Advisory Boards within six weeks (section 9 of the amended Act) extended safeguards to previously excluded detainees, thereby aligning with Article 22(5).

iii. Preventive Detention Act, 1950 (Act IV of 1950) – Sections 3, 9, 10, 11, and 12

Section 3(1)(a)(ii):
Empowered the government to detain individuals with a view to preventing them from acting in any manner prejudicial to the security of the state or public order.

Section 9 (after amendment):
Mandated reference to an Advisory Board within six weeks from the “date” specified, which for continuing detentions was taken as the date of commencement of the amended Act.

Section 10 (after amendment):
Obligated the Advisory Board to submit its report within ten weeks from the reference date.

Section 11(1):
Allowed the government to continue detention “for such period as it thinks fit” if the Advisory Board supported detention—without prescribing a statutory maximum.

Section 12:
Created a legal fiction by deeming all detentions in force on the date of the amendment as detentions under the amended Act, thus continuing them without fresh orders or procedural triggers.

These sections represented the legislative architecture challenged by the petitioners. Their critique centered on Section 11(1)’s arbitrariness and Section 12’s retrospective continuation of detention, while the government defended them as lawful extensions operating within constitutional allowances under Article 22(7).

iv. Preventive Detention (Amendment) Act, 1951

This Act substituted the year “1952” for “1951” in Section 1(3) of the original 1950 Act and amended multiple provisions to introduce uniform application of Advisory Board review, to remove earlier exemptions, and to permit continuation of ongoing detentions under the new procedure.

The petitioners challenged the constitutional vires of this amendment, asserting that the procedural switch and indefinite detention mechanism transgressed Articles 21 and 22, while the respondents viewed it as a progressive, rights-enhancing update within the constitutional mandate.

I) JUDGEMENT

a. RATIO DECIDENDI

The Supreme Court, by a majority of 4:1, upheld the constitutional validity of the Preventive Detention (Amendment) Act, 1951, specifically Sections 9, 10, 11, and 12. The majority—Kania C.J., Patanjali Sastri J., Mahajan J., and S.R. Das J.—held that the Act did not contravene Article 22(4) or Article 21 of the Constitution. They reasoned that Parliament had enacted the amended law substantially in line with the provisions of Article 22(7), and that the continuation of detention under Section 12 was not a violation of constitutional safeguards, as it effectively amounted to a fresh detention under a new law[1].

The Court held that the amendment operated as a new statute, not a mere continuation of the old Act, and thus, the detentions were lawfully treated as fresh ones commencing under the new regime. Therefore, the six-week window to refer cases to an Advisory Board under Section 9 was not unconstitutional even though it began from the amendment date, not the original detention date. The Court asserted that legal fictions—like those introduced in Section 12—can be validly employed by the legislature if they do not defeat substantive constitutional rights[2].

On the contentious Section 11(1), the majority held that even though it used the phrase “for such period as it thinks fit”, this did not authorize indefinite detention, because the amended Act itself was temporary, expiring on 1 April 1952. Hence, even the longest detention permissible under the Act was inherently time-bound by the Act’s lifespan, satisfying Article 22(7)(b)[3].

The majority also found that the amended Act enhanced procedural protections by requiring Advisory Board review in all cases, thus aligning with the liberal objectives of Article 22(5). The Court emphasized that Parliament was competent to fix or alter maximum detention periods and had impliedly done so by fixing the expiration date of the statute.

Justice Mahajan, concurring separately, noted that the amendment substituted the earlier statute and therefore detention under it was not a continuation, but a fresh legal basis, thereby avoiding constitutional violations. He concluded that Articles 21 and 22 had not been infringed since the detentions now operated under a new law that adhered to constitutional norms[4].

Thus, the Court dismissed all writ petitions for habeas corpus on the grounds that the detentions were legally valid, procedurally sound, and did not violate fundamental rights.

b. OBITER DICTA 

Justice Vivian Bose, in his powerful dissenting opinion, provided the most compelling obiter dicta of the judgment. He asserted that Section 11(1) of the amended Act was unconstitutional because it empowered the government to detain individuals “for such period as it thinks fit” without any maximum time-limit being prescribed by Parliament. This violated Article 22(4) and the proviso thereto, which clearly require that detention must not exceed the maximum period prescribed under a valid law made by Parliament[5].

He held that Parliament must fix a maximum period under Article 22(7)(b) if it wishes to authorize detention beyond three months. In the absence of such a period, he declared, no preventive detention law can be valid. The notion that a temporary Act satisfies the requirement of a maximum detention period was, according to him, unsustainable, since it permits executive authorities to decide, on an ad hoc basis, the fate of individual liberty—an abdication of legislative responsibility[6].

Justice Bose further cautioned against the use of legal fictions to evade fundamental rights. He said, “Constitutional provisions regarding fundamental rights cannot be circumvented by resorting to legal fictions.” In his view, such reasoning undermines the sanctity of constitutional guarantees, especially in a post-colonial democracy like India where liberty was hard-won.

He rejected the argument that detentions under the amended Act could be construed as “fresh detentions” simply because the law had changed. He stressed that detention is a real and continuous physical fact, not a notional construct that could be reset to suit the State’s convenience. Hence, the three-month limit must be calculated from the actual date of detention, not from the date of a new statute[7].

Finally, Justice Bose emphasized the importance of interpreting fundamental rights liberally, stating that in any ambiguous or doubtful case, the interpretation that favours liberty must prevail. His dissent remains a powerful and often cited articulation of civil liberties jurisprudence in Indian constitutional law.

c. GUIDELINES 

While the Court did not lay down formal guidelines in the manner of issuing binding directions, the following principles emerged as judicially recognized standards from the majority and dissenting opinions:

✅ From the Majority (Per Patanjali Sastri J., Mahajan J., Kania C.J., and Das J.):

1. A preventive detention law enacted under Article 22(7) must not necessarily prescribe a maximum period if the statute is temporary and its duration is inherently limited.

2. Legal fiction can be used by Parliament to treat continuing detentions under an old Act as if made under a new Act, provided such fiction does not violate fundamental rights.

3. Reference to an Advisory Board under preventive detention laws can be made within six weeks from a legally redefined “date of detention”, such as the commencement of a new law, so long as the law ensures eventual review and a time-bound process.

4. Section 11(1) empowering the State to detain a person for such period as it thinks fit does not amount to indefinite detention if the statute has a definite expiration date, thereby providing an implied maximum limit.

5. Parliament is not constitutionally mandated to fix a specific maximum period of detention unless it chooses to do so under Article 22(7)(b). The absence of such a provision does not render the statute unconstitutional per se.

🚫 From the Dissent (Justice Bose):

1. Every preventive detention law must fix a statutory maximum detention period. Failure to do so violates the proviso to Article 22(4)(a) and Article 22(7)(b).

2. Executive discretion to decide the period of detention “as it thinks fit” without Parliamentary oversight is unconstitutional. It allows unfettered delegation, which subverts constitutional safeguards.

3. The Court should adopt a liberal interpretation of fundamental rights and resolve all ambiguities in favour of individual liberty.

4. Legal fictions cannot override constitutional timelines. A detention period cannot be recalibrated merely because a new statute comes into force.

5. Personal liberty is real and continuous. A person already detained for one year cannot be notionally considered as “freshly detained” under a new law without violating their rights.