A K GOPALAN Vs. STATE OF MADRAS OPPOSITE PARTY; UNION OF INDIA

JUDGEMENT

(1.) This is a petition by the applicant under article 32(1) of the Constitution of India for a writ of habeas corpus against his detention in the Madras Jail. In the petition he has given various dates showing how he has been under detention since December, 1947. Under the ordinary Criminal Law he was sentenced to terms of imprisonment but those convictions were set aside. While he was thus under detention under one of the orders of the Madras State Government, on the 1st of March, 1950, he was served with an order made under section 3(1) of the Preventive Detention Act, IV of 1950. He challenges the legality of the order as it is contended that Act IV of 1950 contravenes the provisions of articles 13, 19 and 21 and the provisions of that Act are not in accordance with article 22 of the Constitution. He has also challenged the validity of the order on the ground that it is issued mala fide. The burden of proving that allegation is on the applicant. Because of the penal provisions of section 14 of the impugned Act the applicant has not disclosed the grounds, supplied to him, for his detention and the question of mala fides of the order therefore cannot be gone into under this petition.

(2.) The question of the validity of Act IV of 1950 was argued before us at great length. This is the first case in which the different articles of the Constitution of India contained in the Chapter on Fundamental Rights has come for discussion before us. The Court is indebted to the learned counsel for the applicant and the Attorney-General for their assistance in interpreting the true meaning of the relevant clauses of the Constitution.

(3.) In order to appreciate the rival contentions it is useful first to bear in mind the general scheme of the Constitution. Under article 53 of the Constitution the executive power of the Union is vested in the President and is to be exercised by him in accordance with the Constitution either directly or through officers subordinate to him. The legislative powers of the Union are divided between the Parliament and Legislatures of the States. The ambit and limitations on their respective powers are found in article 246 read with article 245, Schedule VII, Lists 1, 2 and 3 of the Constitution. For the Union of India the Supreme Court is established and its powers and jurisdiction are set out in articles 124 to 147. This follows the pattern of the Government of India Act, 1935, which was the pervious Constitution of the Government of India. Unlike the American Constitution, there is no article vesting the judicial power of the Union of India in the Supreme Court. The material points substantially altering the edifice are first in the Preamble which declares India a Sovereign Democratic Republic to secure to all its citizens justice, liberty and equality and to promote among them all, fraternity. Part III of the Constitution is an important innovation. It is headed "Fundamental Rights". In that Part the word "State" includes both the Government of the Union and the Government of the States. By articles 13 it is expressly provided that all laws in force in the territory of India, immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of this Part, to the extent of such inconsistency, are void. Therefore, all laws in operation in India on the day the Constitution came into force, unless otherwise saved, to the extent they are inconsistent with this Chapter on Fundamental Rights, become automatically void. Under article 13(2) provision is made for legislation after the Constitution comes into operation. It is there provided that 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. Therefore, as regards future legislation also the Fundamental Rights in Part III have to be respected and, unless otherwise saved by the provisions of the Constitution, they will be void to the extent they contravene the provisions of Part III. Under article 245(1) the legislative powers conferred under article 246 are also made "subject to the provisions of this Constitution," which of course includes Part III dealing with the Fundamental Rights. The term law in article 13, is expressed to be wide enough to include Acts, Ordinances, Orders, Bye-laws, Rules, Regulations and even custom or usage having, in the territory of India, the force of law. The rest of this Part is divided in seven divisions. "Right to Equality" is found in articles 14-18, "Right to Freedom" in articles 19-22, "Right against Exploitation" in articles 23 and 24, "Right to Freedom of Religion" in articles 25-28, "Cultural and Educational Rights" in articles 29 and 30, "Right to Property" in article 31 and "Right to Constitutional Remedies" in articles 32-35. In this case we are directly concerned only with the articles under the caption "Right to Freedom" (19-22) and article 32 which gives a remedy to enforce the rights conferred by this Part. The rest of the articles may have to be referred to only to assist in the interpretation of the above-mentioned articles.