A.K. Gopalan case: A landmark Supreme Court judgment on preventive detention, its constitutional challenges, and the dissenting voice of Justice Fazal Ali.Good morning to all. So listen, this judgment carefully. That judgment was pronounced by the Supreme Court in 1950, 75 years ago. But the interpretation of judges, I mean interpretation of judges of that case, are still relevant. And this is the first case for you. So not only students, but the CLAT aspirants must listen to it. So first, I will tell you who was A.K. Gopalan and why did the state detain him under a preventive detention law. First, A.K. Gopalan was a Marxist, a radical leftist. And you know that in 1947, when India became an independent state, then some radical leftists refused to accept that independence from British rule, and they were fighting for a radical Marxism that to be established in India. So government decided to take on. So A.K. Gopalan was detained under Preventive Detention Act. That was the first Preventive Detention Law. Article 22 of the Constitution empowers the state to enact such preventive detention law. Recently, you have seen there, one Victor Das and other person is probably some Phukan, they both were detained under National Security Act. And you can also remember one Khalistani supporter who is also a MP from Khadoor Sahib, Punjab, I think Mr. Amritpal Singh. So he was detained under National Security Act in 2023, last maybe in December, and since then he has been in Dibrugarh jail. So Preventive Detention Act is a draconian law. And now like Preventive Detention Act 1950, at present we have NSA. Few weeks ago, you try to remember Sonam Wangchuk, a Ladakhi activist, was detained by the police, I mean central police, and he was also detained under the National Security Act 1980, and now he is in Jaipur of Rajasthan. So in 1950, we had that Preventive Detention Act. Later it was replaced by MISA, Maintenance of Internal Security Act, and subsequently it was also replaced by NSA, I mean the National Security Act 1980. Now after his detention, I mean A.K. Gopalan's detention, his lawyer, maybe Nambiar, a famous lawyer of his time, challenged that detention order before the Supreme Court. And in 1950, there were six judges at that time. Chief Justice was Harilal Jekisundas Kania, then Patanjali Sastri, Mukherjea, Mehr Chand Mahajan, Fazal Ali, and S.R. Das. They were the six judges and all were brilliant judges. So a bench of six judges was constituted to hear the entire argument and later Supreme Court pronounced judgment. So counsel, I mean advocate for A.K. Gopalan contended, I mean he argued that A.K. Gopalan's detention contravened, I mean violated Article 21 of the Constitution and it was void. Why? You try to remember Article 21 which says that no person shall be deprived of his life and personal liberty except according to the procedure established by law. That that was one of the most important article. So without that article, our democracy shall always be at stake. So first point was that, I mean his lawyer's first point which was raised before Supreme Court was that the personal liberty of Article 21 included the freedoms conferred by Article 19(1)(a) to (e) and (g) and that law which was challenged, I mean the Preventive Detention Act, did not satisfy the test of Article 19(2) to (6). You try to remember the reasonable restriction. Second point was that the Preventive Detention Act directly violated Gopalan, I mean A.K. Gopalan's right to move freely throughout the territory of India because once a person is detained, his freedom of movement is curtailed and Article 19(5), I mean clause five, provide some sections and that clause did not satisfy. Third point was also important that Article 19(1) and Article 21 should be read together because Article 19 deals with, I mean deal with the substantive right, remember the substantive right, and Article 21 deals with the procedural right. Fourth point, reference to Article 21 to procedure established by law mean the due process of law. Remember, he attempted to argue that the procedure established by law under Article 21 mean due process of law. And fifth point is the most important that the word law in Article 21 which says that no person shall be deprived of his life and personal liberty except according to the procedure established by law. So law mean not only the enacted law but just natural, the principles of natural justice. That means any law which authorizes detention must include the principles of natural justice and without the principles of natural justice, the laws are always void. So you see he attempted to connect the interrelation between fundamental rights. First he attempted to interlink, interlink Article 19 with Article 21. Then you see he attempted to raise or establish that the procedure established by law mean due process of law, an American principle or British principle, and any law must include the principles of natural justice. So he challenged it. Now judgment in this case, I am going to tell you briefly the judgment. H.L. Kania, Chief Justice, he held that the Preventive Detention Law does not fall under Article 21 because Article 22 is a independent article, independent article. So rejected the point. Patanjali Sastri also held that the Article 21 did not apply to the preventing, preventive detention because the conditions about preventive detention was mentioned in Article 22 clause four to clause seven. S.R. Das, the learned held that learned Attorney General has any state of his argument are good that Article 21 has nothing to do with preventive detention. So he also agreed. Mukherjea also held that it is also unnecessary to enter into the discussion and Mehr Chand Mahajan also held that that mean mean this five judges rejected the lawyer's argument and they held that the argument that preventive detention infringe the right conferred under Article 19(1)(a) to (e) and it was made by H.L. Kania by saying that if it were accepted, I mean if he had accepted the A.K. Gopalan lawyer's argument then it must equally be accepted that in case of punitive offenses, I mean punitive detention for offenses under the Penal Code, again I am telling you the differences between punitive detention and preventive detention. Punitive detention means the person has committed some offense, I mean offenses and he was punished accordingly by the state. But in case of preventive detention, so a person may be detained before committing any offense. You see in case of Victor Das, the government justified that he might, I mean Victor Das might incite a popular revolt like what happened in Nepal. So he was detained and Mr. Amritpal Singh, a Khalistani radical, very young and he was also detained on the same charge because he might encourage Sikh youth to join Khalistani movement because Punjab had seen such violent movement in past especially in 1980, the decade of 80. So many Sikh youth joined that Khalistani movement. So basically the this five judges rejected, I mean rejected A.K. Gopalan lawyer's argument. But they were apprehensive on one point that if the state was empowered to enact law to detain a person, what is called preventive detention, they apprehended that state might enact or any law that would violate the basic humanitarian principles, I mean basic human rights principles which were followed. So they were apprehensive if they conceded that state had unlimited powers to enact a law to detain a person or to take a person into preventive custody. So state might use, I mean abuse it. So they were in that case they were slightly hesitant to concede that state had unlimited power. But they did not actually raise, I mean they did not mention and that point specifically rather they only express, I mean they expressed their apprehension. But one judge, probably the greatest judge of his time, Justice Fazal Ali delivered a dissenting judgment. He was the lone dissenter who held that no calamitous or untoward result would follow even if the provisions of the Penal Code become, I mean became justiciable. That mean he held that if the Indian Penal Code which is now known as BNSS, at that time that was Penal Code, if the entire Penal Code was made subject of judicial review then nothing would happen, nothing will happen. The provisions of Penal Code may be reviewed by the judicial. Even today also entire act, I mean the Criminal Amendment Act, yes may be reviewed by the judiciary. But touchstone is the Constitution. You may challenge before the Supreme Court that the entire BNSS, Bharatiya Nyaya Sanhita or the Sakshya Sanhita, these these three laws have violated the constitutional provision. These are draconian. You can challenge it, entire law. And Fazal Ali at that time held and next Fazal Ali was also right, I am telling you, he was the best judge of his time. He rightly held that any law which did not contain the principles of natural justice, I mean suppose a law is enacted by Parliament and that law authorize any person to be detained under preventive detention law. But that law exclude the principles of natural justice and the principles of natural justice you know that there are two principles which are now part of Article 14 of the Constitution, then that law would be struck down. So he was right. A, say Fazal Ali rightly held that each and every preventive detention law must include the principles of natural justice without providing an opportunity to be defended by lawyers of, I mean lawyer or lawyers of his choice, then such laws are always unconstitutional. So that was Fazal Ali point. And remember Fazal Ali was right. Fazal Ali was perfectly right. Unfortunately the five other judges, their judgment, majority judges judgment became the law of the land and the Fazal Ali dissenting judgment remain in book. But after 20 years, a larger bench of Supreme Court, an 11 judge bench of Supreme Court in 1970 held that Fazal Ali was right. 10 out of 11 judges held that Fazal Ali was right. So few years after that judgment, Fazal Ali retired who later became the Governor of Assam. And I am telling you that Fazal Ali was born in Bihar, a very royal family, I mean a very elite family. Now come to this judgment. So unfortunately the A.K. Gopalan judgment remain in force for 20 years. The majority ruling of A.K. Gopalan was mercilessly criticized by today's jurist that it was criticized as the high water mark of legal positivism. But all have great regards for this man Fazal Ali. That's why you see in 2021, a famous judge of Supreme Court, I mean son of that number one jurist of the Supreme Court and he rightly held that Fazal Ali dissenting judgment simply hold our breath. And who was he? He is a Parsi judge. He is a Parsi judge who retired in 2021. His name is R.F. Nariman, Rohinton Nariman. So I will go on, I will be discussing with you judgment.

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Again if article 21 conferred only procedural rights then the most precious right the Right to life was nowhere found in our Constitution. Therefore the majority held that Article 21 also conferred substanrive rights also. It may be observed that far from holding that fundamental rights were mutually exclusive, Mukherjee held that a substantive law authorizing the deprivation of life must conform to the requirements of Article 20.[10/10/2024, 8:51 PM] Sisir Kumar Gogoi: CJI Kania, Justices Mukherjee and SR Das held that law in Article 21 had been used in the sense of State made law and not in the embodying the Principle of Natural Justice, and Procedure established by law meant a law made by Union Parliament or by State legislatures. Justice Shastri held that the law meant Positive or state made law and did not mean jus naturale, but the procedure meant well established criminal procedure. Justice Fazl Ali dissented by holding that whatever Procedure established by law may mean, and must include 1 . Notice 2.opportunity to be heard 3.impartial tribunal 4.orderly procedure. So according to fazl Ali a positive law must include jus naturale.[10/10/2024, 8:51 PM] Sisir Kumar Gogoi: The majority judges held that the Procedure established by law didnot mean due process of law as understood in United States of America. The report of Drafting Committe showed that the words Procedure established by law were substituted for the words without due process of law. Our founding fathers were well aware of its abuse by American judges during the New Deal period.[10/10/2024, 8:51 PM] Sisir Kumar Gogoi: So in this case, different views were expressed by different judges, so no common points emerged on the correlation of articles 19 to 20,21 and 22 or the meaning of the expression personal liberty.[10/10/2024, 8:51 PM] Sisir Kumar Gogoi: But Justice Fazl Ali dissenting points are regarded as one of the greatest dissents of all time. Justice R Nariman paid a rich tribute to Fazl Ali foresight by saying "simply takes our breath away".

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