Case comments or case analysis, Assignments of Criminal Justice

Download Case comments or case analysis and more Assignments Criminal Justice in PDF only on Docsity! 1 UNIVERSITY OF KASHMIR SCHOOL OF LAW CASE ANALYSIS A.K. GOPALAN v. STATE OF MADRAS AIR 1950 SC 27;1950 SCR 88;(1950) 51 Cri LJ 1383 SUBMITTED BY SYED SHAHDAB SHUJAT 17042122031 10TH SEMESTER B.A LLB (2017) SUBMITTED TO MR. HAKIM YASIR ABBAS 2 BACKGROUND Ayillyath kuttiari Gopalan, a communist leader was detained in madras jail under preventive Detention Act, 1950. every time his sentence was being set aside. He was under detention since 1947.This case was first of its kind, where different articles of the Constitution of India were discussed thoroughly. And while he was still under detention, be filed a petition before the Supreme court under Article 32 of the constitution, to grant him writ of habeas corpus. The petitioner ‘s contention was that on 1st March, 1950, he was served with a fresh order of detention under preventive Detention Act, 1950 by the madras government and which seemed unjustifiable to him. He questioned the validity of this particular act in his petition and contended that provisions of this Act are in contravention to his rights under Article 13, 19, 21 and Article 22. He also questioned that his detention was violating his right to freedom of movement under Article 19(1)(d) of the constitution, which itself is a essence of Article 21 which is right to life and personal liberty. But the court took narrower view in this judgement and held that the petitioner's detention was not abridging his any right under Article 19 and 21 either, and these two rights are not linked or connected. And in the same judgment, court held that a “law" cannot be declared unconstitutional merely on the ground that it lacks natural justice or due procedure. And it was first case where court said that the phrase “Procedure established by law" mentioned under Article 21 is different from “due process of law" which is phrase from American constitution, this was discussed because the provision of life and liberty is taken from American constitution and drafters of Indian constitution used the phraseology of procedure established by law instead of due process by law, because it is quite vague. this judgement was delivered by the first chief justice of independent India that is Harilal Kania. The Supreme Court overruled it ‘s decision after almost thirty years in Maneka Gandhi's case. INTERNATIONAL LAWS REGARDING LIFE AND PERSONAL LIBERTY As Indian constitution guarantees protection of life and liberty under Article 21. Life and personal liberty have different meanings from the view point of international and foreign laws. Article 21 of the Indian constitution is in correspondence with the Magna Carta of 1215, the Fifth Amendment of the American constitution and Constitution of japan, 1946 which grants it under Article 40(4). 5 people of India. The Clause states that Indian citizen can move throughout Indian territory without any restriction. However, this right has been limited under clause 5 of the Article 19, where two restrictions are provided firstly, in the interest of general public this right can be curtailed and secondly, in the protection of Scheduled Tribes, this right can be curtailed. In the case of Kharak Singh v. State of Uttar Pradesh [1963] AIR 1295(SC) Supreme court of India held that the right of being able to move freely means the right to locomotion, which simply means that the one has right to move freely wherever one likes, however one likes. Another case related to Freedom of movement is State of Uttar Pradesh v. Kaushalaya [1964] AIR 416(SC) in this case, Supreme court held that the right to move freely can be restricted if it is about prostitutes, and certain restrictions can be imposed upon them concerning public health and the interest of the public morals. ARTICLE 13 OF INDIAN CONSTITUTION This Article talks about four principles relating to fundamental rights. Article 13(1) is about pre-constitutional laws, laws which are inconsistent with fundamental rights will be void. It provides two doctrines; these are doctrine of severability or separability and doctrine of eclipse. DOCTRINE OF SEVERABILITY OR SEPARABILITY According to this doctrine if in any act some part is constitutional while other part is unconstitutional, then, the part which is unconstitutional should be stricken off and constitutional part should be preserved. In the judgement of A.K. Gopalan, in this the preventive detention act, 1950 was challenged by the petitioner. In this act, there is one particular section, which is, section 14, according to this section, a person who is detained could not disclose his grounds of detention in the court. So, this section was against fundamental rights. In the light of doctrine of severability, Section 14 of preventive detention act, 1950 was declared invalid and remaining act was valid. DOCTRINE OF ECLIPSE The literal meaning of eclipse is to hide. In the case of Bhikaji v. State of Madhya Pradesh [1955] AIR 781(SC) , Berar motor vehicle Act was challenged, in this act there were certain provisions which empowered state government to take over entire motor transport business. So after the enforcement of fundamental rights, these provisions became violative of Article 19 of the Indian Constitution. According to doctrine of eclipse, these provisions of Motor Vehicle Act became inoperative, and doctrine lead prevalence of fundamental rights over these 6 provisions. But after some time, certain amendments were made under Article 19, in which government was authorised to monopolise certain businessmen which again made those provisions active. Article 13(2) is about post-constitutional laws, state is prohibited to make laws which are inconsistent with fundamental rights, if they are so, they will be void. In the case of State of Gujarat. Ambica Mills [1974] AIR 1300(SC) The respondent was a company, in this labour welfare fund was challenge, and Supreme court held that fundamental rights are not granted to a company, these sections will still be operative for non-citizens. Article 13(3) is about law and laws in force, this article covers by laws, notifications, ordinances, regulations under the definition of law. Exceptions to this article are, firstly, generally administrative and executive orders, comes under Article 13 but if in case their nature is to instruct or to provide guidelines then they will not be covered under Article 13(3). Secondly, personal laws are not governed under Article 13(3). Article 13(4) is if any amendment has come into being through article 368, then it cannot be challenged under Article 13. Even if, it is violative of fundamental rights. PROTECTION FROM ARREST AND DETENTION Article 22 of the Indian constitution guarantees protection from arrest and detention in certain cases. Clause 1 and 2 of this article talks about punitive detention, clause 3 is about exception, and clause 4 to 7 of are about preventive detention. Arrest is a technical term which means “to restrain” whoever the person is arrested, that person's liberties are confined in arrest. And, that person has to remain in the custody of law. Two kinds of detention are mentioned: 1) Punitive Detention: this kind of detention’s objective is to punish a person, who has committed an offence. It happens in ordinary laws. 2) Preventive Detention: the objective of such kind of detention is to stop a person from committing a crime by taking that person into custody. In some of the foreign countries, provision related to punitive detention can be found while provisions related to preventive detention are only applied in emergency situation. India is the only democratic country where the provisions concerned with preventive detention remain enforced even in normal days. Article 22(1) provides two safeguards, which are: Right to be informed of grounds of detention, it is a direction to detaining authority to disclose grounds of detention to the arrested person. 7 Right to consult a legal practitioner, in the case of Hussainara Khatoon v. Home Secretary, State of Bihar [1979] AIR 1369 (SC) , the supreme court held that if the accused person is not able to afford or appoint a legal practitioner then, he has this constitutional right to demand a legal practitioner from the state. Article 22(2) it discusses two things, first, right to be produced before a magistrate, the individual who is in custody has to be produced before magistrate within 24 hours, travel and necessary time remain excluded. Second, no detention beyond 24 hours, if arrested person is not being produced before the magistrate within 24 hours, then, that person must be released from custody. • Centre and state both has powers to make laws related to preventive detention. Further, Article 22(4) provides safeguards against preventive detention. An advisory board is formulated, to hear such cases. • No detention should be more than 3 months unless advisory board has opopinion to exceed this time. • Maximum time limit of the act, cannot be extended under which the person was detained. Article 22(5) provides two rights those are right to be informed and right to representation. Article 22(6) provides that if any information which can compromise public interest, that information need not be provided to the detained person. Article 22(7) this clause is about, in which cases the detention time can be extended, the procedure followed by the Advisory Board for the inquiry and it also provides that the parliament will decide the maximum time of detention in different - different laws related to preventive detention. PRINCIPLE OF NATURAL JUSTICE Natural Justice is an English common law expression, it is originated from roman term “Jus Natural" which means law of nature. It is not derived from any constitution or any statute. The oxford dictionary defines the word “Just" person as one who typically “does what is morally right" and is disposed to “giving everyone his or her due", offering the word “fair" as a synonym. The concept of justice is based on various aspects of morals, ethics, nationality, law, religion, equity and fairness. Most of the times, the concept of justice is divided into two parts, social justice and procedural justice. 10 JUDGEMENT IN BRIEF • Due process of law is an American concept and is different from procedure established by law, An Indian concept. • Section 14 of the preventive detention Act was declared void as it violates fundamental rights. Other Act will remain legal. • Preventive detention does not violate detenu's right to freedom under Article 19 of the constitution. • Article 22 of the constitution empowers the parliament to make legislations on the subject of preventive detention. • Article 21 and Article 19 of the constitution are not related to each other, has separate consequences. OVERVIEW OF THE JUDGEMENT Supreme Court of India took a very conservative and narrow view of person liberty guaranteed under Article 21 of the constitution. The apex court held that the validity of the preventive detention cannot be questioned o the basis of due process of law as Article 21 is inly concerned with the procedure established by law rather than its reasonability. And court also observed that the protection under Article 21 is only against the arbitrary executive action and not against the legislative action. Court also held that court cannot declare whole Preventive Detention Act unlawful, because only section 14 of this Act was abridging the fundamental rights. So, by taking doctrine of separability into consideration, court declared section 14 unconstitutional and remaining Act was legal. While taking a narrow view of the Article 21, court held that Article 19 and Article 21 are separate and does not share any relation, Violation of any right under Article 19 does not mean there is Violation of Article 21 as argued by the petitioner. Although, Justice Fazl Ali disagreed with this view of the majority, his view was that the Articles granting fundamental rights of the constitution must be read together. Different Article of the constitution were discussed. Court held that “Due process of law" is an American concept and it cannot be seen as a synonym of “procedure established by law" which is an Indian concept, they have separate meanings and are different from each other. Article 21 is only concerned about the procedure which is to be followed, it does not concern the fairness and reasonability. The applicability of the natural justice was completely rejected by the apex court. Hence, the preventive detention of the petitioner was held lawful. and Writ of habeas corpus was not granted. 11 CONCLUSION AND SUGGESTIONS It can be concluded that Right to life and personal liberty is not only guaranteed under Indian Constitution but also internationally recognized on the basis of principles of natural justice. A.K. Gopalan judgement is considered as one of the landmark judgements in the history of Indian judiciary, because it was the first case of its kind just after the independence. There was a questioned raised over Article 21 of the constitution. But the Supreme court of India took very narrow interpretation of the Article 21 and held that procedure established by law should be followed, Court refused to consider that if the appliance of procedure established by law suffers from any deficiencies. But, after almost three decades, Court overruled this decision in the Maneka Gandhi Case of 1978. Court reinterpreted Article 21 by taking wider view and also held that procedure established by law must be just, fair and reasonable. It can be suggested that court must give provide proper legal representation to the person whose right to life and liberty has been restricted by way of preventive detention. In the present Scenario, ignorance of any one's freedom and anybody’s rights may lead to serious repercussions such as protests by the public, so, court must sometimes be flexible while delivering such kind of judgements.