A.K. Gopalan v. State of Madras
AIR 1950 SC 27: 1950 SCR 88: 1950 SCJ 174
JUDGES: M.H. Kania C.J. and Saiyid Fazl Ali, M. Patanjali Sastri,
Mehr Chand Mahajan, B.K. Mukherjea and S.R. Das, JJ.
Date of Decision: 19-5-1950
FACT
This was a petition by the applicant under article 32 of the Constitution of India for a writ of habeas corpus against his detention in the Madras jail. In the petition he had given various dates showing how he had been under detention since December 1947. He had been sentenced to imprisonment but the convictions were set aside. While he was thus under detention under one of the Orders of the Madras State Government, on 1st March, 1950 he was served with an Order of the Madras State Government under section 3(1) of Preventive Detention Act, 1950. He challenged the legality of the Order as it was contended that 1950 Act contravenes the provisions of articles 13, 19 and 21 and provisions of that Act were not in accordance with article 22 of the Constitution. He had also challenged the validity of the Order on the ground that it had been issued mala fide. The burden of proving that allegation was on the applicant. Because the applicant had not disclosed the grounds, supplied to him for his detention and the question of mala fides of the Order, therefore, could not be gone into under the petition.
The question of the validity of the Preventive Detention Act was argued before the Supreme Court at a great length. This was first case in which different articles of the Constitution of India contained in the Fundamental Rights Chapter had come for discussion.
ISSUE
Whether the Preventive Detention Act, 1950 ultra vires Fundamental Rights under Constitution.
Held
It was held that the Preventive Detention Act, 1950 was intra vires the Constitution of India with the exception of section 14 which is illegal and ultra vires. The validity of section 14 does not affect the rest of the provisions in the Act. Section 12 of the Act also does not conform to the provisions of the Constitution of India and is therefore ultra vires. It was further held that article 21 is applicable to preventive detention and Preventive Detention Act, 1950 permits detention beyond a period of three months and excludes the necessity of consulting an Advisory Board if the opening words of clause (7) of article 22 are complied with sub-clause (b) of said article is permissible. It is not obligatory on the Parliament to prescribe any maximum period.
