A.K. Gopalan vs State of Madras

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Not extracted

Decision Date: 19 May 1950

Coram: Hiralal J. Kania, Saiyid Fazal Ali, Mehr Chand Mahajan, B.K. Mukherjea

In the matter of A K Gopalan versus the State of Madras, with the Union of India intervening, the Supreme Court delivered its judgment on 19 May 1950. The opinion was authored by Chief Justice Hiralal J Kania, and the bench was completed by Justices Saiyid Fazal Ali, Mehr Chand Mahajan and B K Mukherjea. The petitioner was A K Gopalan and the respondent was the State of Madras; the Union of India appeared as an intervener. The decision was recorded in the official reports as 1950 AIR 27 and 1950 SCR 88. Subsequent citations of the decision appear in a long series of reports, namely F 1951 SC 157 (21), F 1951 SC 270 (5, 6), F 1951 SC 301 (10), F 1951 SC 332 (344), E 1952 SC 75 (45), RF 1952 SC 123 (6), F 1952 SC 181 (6, 27, 29, 33), D 1952 SC 196 (16), RF 1952 SC 252 (106), R 1952 SC 366 (16), E & F 1952 SC 369 (90, 93), F 1953 SC 451 (7), E & F 1954 SC 92 (5, 39), RF 1954 SC 119 (15), RF 1954 SC 728 (17), R 1955 SC 41 (6), F 1956 SC 108 (6), R 1957 SC 688 (6, 8, 9), R 1958 SC 163 (7, 8, 9, 25, 26, 33, 36, 38, 41), APL 1958 SC 578 (154, 223), D 1958 SC 731 (17), R 1959 SC 149 (27, 82), D 1960 SC 430 (10), D 1960 SC 1080 (25, 27, 28), RF 1961 SC 232 (55), R 1961 SC 1629 (5), R 1962 SC 1006 (67, 72, 79), R 1962 SC 1371 (32, 34, 35), R 1962 SC 1621 (73, 108), R 1963 SC 1047 (18), F 1963 SC 1295 (15, 31), F 1964 SC 381 (54), R 1965 SC 845 (29, 30, 44, 45), E 1966 SC 424 (2, 7), RF 1966 SC 1910 (34), R 1967 SC 1 (41, 42, 75, 158), APL 1967 SC 1639 (7, 10), R 1967 SC 1643 (22, 95, 230, 274), R 1967 SC 1836 (13, 23, 53, 58), E 1968 SC 1138 (14), E 1968 SC 1313 (10), RF 1969 SC 1100 (7), O 1970 SC 564 (48, 53, 54, 64, 149, 152, 153, 156), RF 1971 SC 481 (46), E 1972 SC 963 (35), R 1972 SC 1660 (7, 9), RF 1973 SC 106 (105), O 1973 SC 1425 (7, 18, 25, 27, 33, 37, 38, 39), RF 1973 SC 1461 (24, 30, 184, 310, 503, 648, 699, 790), RF 1973 SC 2555 (5), F 1974 SC 348 (24), R 1974 SC 613 (8, 10, 31, 32, 33, 34, 43, 50, 51), R 1974 SC 2154 (21), RF 1975 SC 550 (12), E 1975 SC 775 (3), RF 1975 SC 2213 (7), RF 1975 SC 2299 (135, 609, 610), E 1976 SC 1207 (53, 55, 57), RF 1976 SC 1750 (3), R 1977 SC 1027 (23, 30, 42), R 1978 SC 68 (89), R 1978 SC 215 (67), D 1978 SC 489 (1, 9), E & R 1978 SC 597 (5, 9, 10, 11, 12, 16, 40, 41, 54, 55), RF 1978 SC 1675 (55, 227), RF 1979 SC 478 (90, 159), RF 1979 SC 745 (71), RF 1979 SC 1925 (16), C 1980 SC 898 (30, 41, 43, 44, 47, 48, 50, 51, 54), RF 1982 SC 710 (17, 21, 71, 84, 114), MV 1982 SC 1325 (16, 80), RF 1983 SC 361 (2, 12, 13), F 1985 SC 1367 (33), F 1985 SC 1416 (103, 104), RF 1986 SC 555 (6), RF 1986 SC 1162 (5), R 1990 SC 231 (17), RF 1991 SC 564 (5), R 1992 SC 320 (51), RF 1992 SC 1701 (21, 26, 27). The case concerned the Preventive Detention Act (Act IV of 1950), specifically sections 8, 7 and 10-14, and examined the validity of the Act in light of the Constitution of India, 1950, particularly Articles 13, 19 to 22 and 32. The Court considered whether the law relating to preventive detention infringed the fundamental right to freedom, whether it was subject to judicial review for reasonableness under Article 19(5), the scope of Article 19 concerning the right of free movement, the completeness of the code under Article 22, the meaning of “law” and “procedure established by law” under Article 21, the inclusion of natural-justice principles, and the construction of constitutional provisions in reference to the debates and the Drafting Committee’s report on permissibility.

The Court was asked to consider a series of constitutional questions arising from the Preventive Detention Act, 1950. These questions included whether the right to move freely could be subject to judicial review for reasonableness under article 19(5); the overall scope of article 19; the nature and incidents of the right of free movement and the right to personal liberty; whether article 22 constituted a complete code governing preventive detention; the scope and applicability of article 21; the meanings of the terms “law” and “procedure established by law” and whether those meanings embraced the rules of natural justice; the construction of article 21 in light of American decisions on “due process of law”; the effect of the Act’s omission to provide an objective standard for satisfaction of the authorities, to mandate an oral hearing or the presentation of evidence, to fix a maximum period of detention, and to specify the circumstances and classes of cases in which detention may be extended beyond three months; the prohibition placed on a detainee from disclosing the grounds of his detention; the overall validity of the Act; the method of interpreting the Constitution; and the relevance of the debates of the Constituent Assembly and the Report of the Drafting Committee to the permissibility of the legislation.

The petitioner, who had been detained under the Preventive Detention Act (Act IV of 1950), filed a petition under article 32 of the Constitution seeking a writ of habeas corpus and his release, contending that the Act violated articles 13, 19, 21 and 22 and was therefore ultra vires, rendering his detention illegal. The majority of the Court, comprising Chief Justice Kania, Justice Patanjali Sastri, Justice Mukherjea and Justice Das, held that, except for section 14, the Act did not contravene any constitutional article. Although section 14 was declared ultra vires because it infringed article 19(5), the Court considered the provision severable from the remainder of the Act; consequently, the invalidity of section 14 did not affect the overall validity of the legislation and the petitioner’s detention was not illegal. Judges Fazl Ali and Mahajan dissented, holding that section 12 was also ultra vires, as it conflicted with the very constitutional provision that granted Parliament the competence to enact the law, thereby rendering the detention illegal. The Full Court subsequently affirmed that section 14, by prohibiting a detained person from disclosing the grounds of detention or the representations made against the order, violated article 19(5) and was therefore void. The Court further observed that article 19 does not apply to a statute dealing directly with preventive detention, even though such a detention necessarily restricts the rights enumerated in sub-clauses (a) to (e) and (g), and particularly sub-clause (d), of article 19(1); consequently, the constitutional validity of a preventive detention law cannot be assessed under the test prescribed in article 19(5).

The Court observed that a statute which deals with preventive detention could not be examined by applying the test prescribed in clause (5) of Article 19, because that article was not intended to govern such legislation. Justice DAS explained that Article 19(1) creates a legal capacity to enjoy the rights enumerated therein, but when a citizen is lawfully deprived of personal freedom—whether by conviction for an offence or by any other lawful detention—he can no longer invoke the rights under sub-clauses (a) to (e) and (g) of Article 19(1). Similarly, if a citizen’s property is taken compulsorily under Article 31, he cannot rely on the right under sub-clause (f) of Article 19(1) with respect to that property. In essence, the rights protected by sub-clauses (a) to (e) and (g) cease at the moment lawful detention begins, and consequently the constitutionality of a preventive detention statute cannot be assessed by reference to Article 19(5). Justice MAHAJAN added that irrespective of the precise ambit of Article 19(1)(d) and Article 19(5), the provisions of Article 19(5) do not apply to a law dealing with preventive detention, because Article 22 contains a special, self-contained code that regulates such detention. Justice FAZL ALI, dissenting, contended that preventive detention directly infringes the right guaranteed in Article 19(1)(d). Even with a narrow interpretation of that sub-clause, a law relating to preventive detention remains subject to the limited judicial review permitted by Article 19(5). The Court further explained that the right “to move freely throughout the territory of India” mentioned in Article 19(1)(d) is conceptually distinct from the right to “personal liberty” found in Article 21, and therefore Article 19 should not be read as being controlled by the provisions of Article 21. The view that Article 19 confers substantive rights while Article 21 merely prescribes procedure was rejected. Justice DAS clarified that Article 19 protects several important aspects of personal liberty as independent rights, and that the term “personal liberty” in Article 21 is a comprehensive expression encompassing all the various rights that together constitute personal liberty. Justice FAZL ALI further argued that even if Article 19(1)(d) were interpreted narrowly to mean only the right to move from one locality to another, preventive detention would still directly and substantially affect that limited right of movement. One of the purposes of preventive detention, he noted, is to restrain a detained person from travelling from place to place so that the individual cannot spread disaffection or engage in dangerous activities in the areas he might otherwise visit.

The Court observed that issues that are closely related, belonging to the same group or family, must be treated alike, and a rule that applies to one such issue must necessarily apply to the others. The Court, speaking through the Chief Justice and two other judges, held that Article 22 of the Constitution does not constitute a complete code of safeguards for persons held under preventive detention. According to them, where a provision is made in Article 22, that provision cannot be overridden by Article 21; however, on procedural points that are either expressly omitted or only implicitly covered by Article 22, the standards of Article 21 will be applicable. A separate judgment by another judge affirmed that Article 21 safeguards substantive rights by demanding a procedural guarantee, and that Article 22 lays down the minimum procedural rules that even Parliament may not disregard or set aside. Yet another judge opined that Article 99 contains a self-contained code of constitutional safeguards for preventive detention and therefore cannot be examined or controlled by the provisions of Article 21. He added that the principles underlying Article 21 are nevertheless taken into account in Article 22 and that there is no inherent conflict between the two articles. A further judge warned that, even if Article 22 were not a self-contained code and Article 21 were to apply, it would not be permissible to augment the provisions of Article 22 by importing the rules of natural justice. Another judge stressed that Article 22 does not exhaustively cover preventive detention; Parliament may enact additional provisions, and where it does so, the reasonableness test under Article 19(5) may be employed to determine whether those provisions exceed constitutional limits.

The Court, with the Chief Justice, another senior judge and a third judge concurring, explained that the expression “law” in Article 21 is intended to denote State-made law, not an abstract notion of law that embodies the principles of natural justice. They clarified that the phrase “procedure established by law” refers to procedures enacted by the State, that is, by the Union Parliament or the State Legislatures, and should not be interpreted in the same way as the American Constitution’s “due process of law” as explained by the United States Supreme Court. One judge further explained that “law” in Article 21 does not mean the natural law of civil society but means positive law created by the State. He added that “procedure established by law” does not refer to any procedure that a competent legislature might prescribe, but rather to the ordinary, well-established criminal procedure as embodied in the Criminal Procedure Code, which is the general law governing criminal proceedings in this country. The judge observed that the only alternative to this construction, if a constitutional breach were to be avoided, would be to interpret the reference to “law” as implying a constitutional amendment made according to the prescribed amendment procedure, because only a law enacted by such a procedure could modify or override a fundamental right without contravening Article 13(2). Finally, another judge remarked that there is nothing revolutionary in the view that “procedure established by law” should be understood in this limited, State-centric sense.

In this case, the Court observed that any procedure described as “procedure established by law” must contain the four fundamental principles of elementary justice that underlie every civilized legal system. These principles, as identified by American courts and jurists, are: (1) notice, (2) an opportunity to be heard, (3) an impartial tribunal, and (4) an orderly course of procedure. The Court explained that the four elements are essentially different aspects of a single right – the right to be heard before a person can be condemned. Consequently, regardless of the precise definition of “procedure established by law,” the principle that no individual may be condemned without a hearing before an impartial tribunal must be included.

Regarding Section 3 of the Preventive Detention Act, 1950, the Court held that the provision does not delegate legislative power to an executive officer but merely grants that officer discretion to enforce a law made by the legislature. Therefore the section is not invalid on that ground. Although the section lacks an objective standard for determining compliance with legal requirements, the Court said this absence does not render the provision invalid. Justice Fazl Ali, however, added that Section 3 is only a reasonable provision for the first step of arrest and initial detention. He stressed that it must be followed by a subsequent procedure that tests the subjective satisfaction of the authority, and that such testing can be achieved only by establishing a suitable mechanism to examine the grounds of detention and to consider the detainee’s representations concerning those grounds.

The Court further examined Section 7 of the Act. It ruled that the section is not invalid merely because it does not provide for an oral hearing or the opportunity to present evidence. Section 7 only grants a right to make a representation, and the Court held that the rights to an oral hearing and to give evidence are not necessarily implied by the right to make a representation under Article 22. Regarding Section 11, which permits detention for a period that the State deems fit, the Court found that this provision does not contravene Article 22(7) and is therefore valid.

Justice Khania, joined by Justices Mahajan and Das, interpreted Article 22(7) to mean that Parliament may prescribe either the circumstances, or the class or classes of cases, in which a person may be detained beyond three months without reference to an advisory board. It is not required that both be prescribed. The Court held that the matters listed in clauses (a) and (b) of sub-section (1) of Section 12 provide a sufficient description of such circumstances or classes, and consequently Section 12 is not invalid for failing to comply with Article 22(7). Justice Das emphasized that Parliament, in substance, has prescribed both the circumstances and the classes of cases in the two clauses. Justice Fazl Ali and Justice Mahajan dissented on this point, but the majority view was that the statutory provisions meet the constitutional requirements.

In this matter, the Court explained that Article 22 (7) requires that Parliament prescribe both the circumstances and the class or classes of cases in which preventive detention may be authorized. The Court observed that these two terms carry distinct meanings and that prescribing only one of them does not satisfy the constitutional requirement. Consequently, the Court held that the list of subjects set out in clauses (a) and (b) of sub-section (1) of Section 12 does not constitute a prescription of the circumstances or of the class or classes of cases that would permit a person to be detained for a period exceeding three months. The Court further noted, quoting the Chief Justice, that while it is generally improper to rely on the individual opinions of members of Parliament or a Convention to interpret a specific clause, reference to the parliamentary debates may be allowed when the question is whether a particular phrase or expression was ever open for consideration. The Court also recorded the view of another Justice that speeches made during the legislative debates should not be used for construing the provisions of an Act. Yet another Justice expressed that, in interpreting the Constitution, it is preferable to disregard the debates of the Constituent Assembly, although the report of the Drafting Committee may be afforded greater weight.

The Court proceeded to set out the factual and procedural background of the petition. The petition, numbered XIII of 1950, was filed under Article 32 (1) of the Constitution of India seeking a writ of habeas corpus on behalf of the appellant who was detained in the Madras jail pursuant to an order issued under the Preventive Detention Act 1950. The Court indicated that the material facts of the case and the arguments presented by counsel were detailed in the earlier judgments. For the purpose of the present order, the Court reproduced the relevant provisions of the Preventive Detention Act 1950. Section 1 states the short title, the territorial extent covering the whole of India, and provides that the Act would cease to have effect on the first day of April 1951 with respect to acts done or omitted before that date. Section 2 defines, unless the context requires otherwise, the “State Government” as the Chief Commissioner of a Part C State and “detention order” as an order made under Section 3. Section 3 confers power to the Central Government or a State Government to make a detention order if they are satisfied that the person concerned is likely to act in a manner prejudicial to (i) the defence of India, its foreign relations, or its security; (ii) the security of the State, the maintenance of public order; or (iii) the maintenance of supplies and services to the community, or, in the case of a foreigner as defined by the Foreigners Act 1946, to regulate his continued presence in India or to arrange for his expulsion.

When it becomes necessary to make arrangements for a person’s expulsion from India, the law requires that an order be made directing that the person be detained. Under the same provision, any District Magistrate, any Sub-Divisional Magistrate, or the Commissioner of Police of a Presidency town may, provided they are satisfied in accordance with sub-clauses (ii) and (iii) of clause (a) of sub-section (1), exercise the power conferred by that sub-section. Whenever an order of detention is issued by a District Magistrate, a Sub-Divisional Magistrate or a Commissioner of Police, the officer who made the order must immediately report the fact of the order to the State Government to which he is subordinate. The report must include the grounds on which the order was made and any other particulars that, in the officer’s opinion, bear on the necessity for the order. Section 7 requires that the authority making a detention order disclose the grounds of the order to the person affected as soon as practicable. The authority must also afford the detained person the earliest opportunity to make a representation against the order. If the order was made by the Central Government, the representation is to be addressed to the Central Government; if the order was made by a State Government or an officer subordinate thereto, the representation is to be addressed to the State Government. Section 11 provides that, where the Advisory Board reports that, in its opinion, there is sufficient cause for the detention of the person concerned, the Central Government or the State Government, as appropriate, may confirm the detention order and may continue the detention for such period as it deems fit. Section 12 deals with the duration of detention in certain cases. It states that any person detained in the classes of cases listed, or under the circumstances described, may be detained without first obtaining the opinion of an Advisory Board for a period longer than three months but not exceeding one year from the date of detention. This applies when the detention is intended to prevent the person from acting in any manner prejudicial to (a) the defence of India, the relations of India with foreign powers, or the security of India, or (b) the security of a State or the maintenance of public order. Finally, Section 14 imposes strict limitations on courts regarding disclosure of the grounds of detention. Except for the purpose of prosecuting an offence punishable under sub-section (9), no court shall allow any statement or evidence concerning the substance of any communication made under Section 7 about the grounds of a detention order, nor the substance of any representation made by the detained person against that order. Moreover, notwithstanding any other law, no court shall compel any public officer to produce or disclose the contents of such communications or representations.

Section (2) of the statute makes it a criminal offence for any person to disclose or publish, without prior authorisation from the Central Government or the State Government as appropriate, any material that is said to be part of a communication or representation referred to in sub-section (1). The punishment for such unauthorised disclosure may be imprisonment for a term that may extend to one year, a fine, or both. The provision expressly excludes from its operation a disclosure made to the legal adviser of a person who is the subject of a detention order. The prohibition also covers the release of any part of the proceedings of an Advisory Board or any portion of an Advisory Board report that is designated as confidential. The law therefore creates a protective barrier around the materials supplied to a detained individual and around the deliberations of the Advisory Board, permitting only authorised disclosure through the channels specified by the Government. The purpose of the provision is to safeguard the confidentiality of communications made under section 7 of the grounds for detention and to protect the integrity of the Advisory Board’s confidential report. It further prohibits courts from requiring public officers to produce or reveal the substance of such communications or representations, thereby ensuring that the content of any representation made by a detained person, as well as the internal deliberations of the Advisory Board, remain undisclosed unless the Government gives prior permission. The exception for legal advisers permits a detainee to seek confidential counsel while preserving the overall confidentiality regime, balancing the interests of national security with the rights of the detained individual.

M. K. Nambiar, assisted by S. K. Aiyar and V. G. Rao, appeared for the petitioner. K. Rajah Aiyar, the Advocate-General of Madras, assisted by C. R. Pattabi Raman and R. Ganapathi, represented the State of Madras. M. C. Setalvad, the Attorney-General for India, assisted by Jindralal, appeared for the Union of India. The judgments were delivered on 19 May 1950 and the Chief Justice, C. J. Kania, presided. The petition was filed under article 32 (1) of the Constitution of India for a writ of habeas corpus seeking release from detention in the Madras Jail. In the petition the applicant set out a series of dates showing that he had been detained since December 1947. Earlier convictions under ordinary criminal law had been set aside, and while he remained in detention under an order of the Madras State Government, on 1 March 1950 he was served with an order made under section 3 (1) of the Preventive Detention Act IV of 1950. The applicant challenged the legality of that order, contending that the Act contravened articles 13, 19 and 21 of the Constitution and was not in accordance with article 22. He further alleged that the order had been issued mala fide, placing the burden of proving bad faith on himself. Because the Act’s penal provisions in section 14 prevented the applicant from disclosing the grounds supplied for his detention, the Court could not examine the allegation of mala fide within the present petition. The validity of Act IV 1950 was therefore the subject of extensive argument before the Court, marking the first occasion on which the various articles of the Constitution contained in the Chapter on Fundamental Rights were considered in this forum. The Court expressed gratitude to the learned counsel for the applicant and to the Attorney-General for their assistance in interpreting the relevant constitutional clauses, and noted that a proper appreciation of the rival contentions required an understanding of the general scheme of the Constitution, beginning with article 53, which vests the executive power of the Union in the President.

The Constitution provides that executive power of the Union vests in the President and must be exercised by him in accordance with the Constitution, either directly or through officers subordinate to him. Legislative authority of the Union is divided between Parliament and the State Legislatures, and the scope and limits of their powers are contained in article 246 read with article 245, Schedule VII and the three Lists 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, following the pattern of the Government of India Act 1935, which was the previous constitution. Unlike the American Constitution, no article vests the judicial power of the Union in the Supreme Court. The most significant change in the constitutional edifice appears in the Preamble, which declares India a Sovereign Democratic Republic intended to secure justice, liberty and equality for all citizens and to promote fraternity among them. Part III of the Constitution, titled “Fundamental Rights,” represents a major innovation; in this part the term “State” includes both the Government of the Union and the Governments of the States. Article 13 expressly provides that any law in force in the territory of India immediately before the Constitution’s commencement, if inconsistent with the provisions of Part III, shall, to the extent of such inconsistency, be void. Consequently, all pre-existing laws that conflict with the Fundamental Rights chapter become automatically void unless saved by a specific provision. Article 13(2) makes provision for legislation after the Constitution takes effect, stating that the State shall not enact any law that takes away or abridges the rights conferred by Part III, and any law made in contravention of this clause shall, to the extent of the contravention, be void. Thus, future legislation must also respect the Fundamental Rights, and unless saved by the Constitution, such laws will be void to the extent they violate Part III. Article 245(1) further makes the legislative powers conferred under article 246 subject to the provisions of the Constitution, which of course includes Part III and its Fundamental Rights. The term “law” in article 13 is defined broadly to encompass Acts, Ordinances, Orders, Bye-laws, Rules, Regulations and even customs or usages having the force of law in India. The remainder of Part III is divided into seven divisions: “Right to Equality” in articles 14 to 18, “Right to Freedom” in articles 19 to 22, “Right against Exploitation” in articles 23 and 24, “Right to Freedom of Religion” in articles 25 to 28, “Cultural and Educational Rights” in articles 29 and 30, “Right to Property” in article 31, and “Right to Constitutional Remedies” in articles 32 to 35.

In this case the Court identified that the constitutional provision dealing with the right to property was found in article 31 and that the right to constitutional remedies was contained in articles 32 to 35. The matters before the Court directly concerned only the provisions grouped under the heading “Right to Freedom”, namely articles 19 to 22, together with article 32 which furnishes a remedy for enforcing the rights created by Part III of the Constitution. The remaining articles of Part III might be consulted only insofar as they assist in interpreting the articles expressly before consideration. The Court observed that by inserting Part III the Constitution limited the powers of both the Union and State legislatures as well as the executive, and it removed the possibility of invoking the Supreme Court directly for enforcement of fundamental rights, placing that authority instead within the jurisdiction of the courts under article 32. The language of article 32 indicated that a petition could be moved before the Supreme Court to obtain appropriate relief, as specified in article 32(2), but such relief could be granted only with respect to the fundamental rights enumerated in Part III. The petitioner was detained pursuant to a preventive detention order issued under Act IV of 1950, legislation that had been enacted by the Parliament of India. In the Seventh Schedule of the Constitution, List I enumerates subjects over which Parliament has exclusive legislative authority. Entry 9 of List I reads: “preventive detention for reasons connected with defence, foreign affairs or the security of India; persons subjected to such detention.” List III of the same Schedule sets out subjects on which both the Union and the States may legislate concurrently. Entry 3 of List III states: “preventive detention for reasons connected with the security of a State, the maintenance of public order or the maintenance of supplies and services essential to the community; persons subjected to such detention.” The Court noted that there was no dispute that Act IV of 1950 fell within the ambit of both of these entries in List I and List III. The petitioner contended that the impugned legislation curtailed or infringed the rights guaranteed by articles 19 to 21, and that it was not in conformity with the permissive scheme for preventive detention laid down in article 22, particularly sub-clauses (4), (7) and especially sub-clause (5). Consequently, the Court found it necessary to examine each of those articles and the arguments raised with respect to them. The Court then reproduced the text of article 19, which protects certain freedoms of citizens. Article 19(1) provides that all citizens shall have the right—(a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (f) to acquire, hold and dispose of property; and (g) to practise any profession, or to carry on any occupation, trade or business. Article 19(2) states that nothing in sub-clause (a) shall affect the operation of any

The Court observed that the provision relating to sub-clause (a) of Article 19 (1) does not disturb any existing law that deals with libel, slander, defamation, contempt of court, or any other matter that offends decency or morality, or that threatens the security of the State or tends to overthrow it. In other words, the clause does not prevent the State from enacting or maintaining any law that addresses such offences. Similarly, the Court noted that sub-clause (b) of the same article is subject to the existing legal framework that permits the State, in the interests of public order, to impose reasonable restrictions on the freedom of assembly. The clause therefore does not invalidate any law that already imposes, or that the State may enact, reasonable restrictions on peaceful assembly when such restrictions are necessary to preserve public order. The Court further explained that sub-clause (c) is likewise subject to existing legislation that allows the State, again in the interests of public order or morality, to impose reasonable constraints on the right of association. Consequently, the provision does not affect the operation of any law that already imposes, or that the State may make, such reasonable restrictions.

Regarding sub-clauses (d), (e) and (f) the Court held that these clauses do not interfere with any existing statutes that impose reasonable restrictions on the rights to move freely, to reside and settle, and to acquire, hold and dispose of property. Such restrictions may be imposed either in the general public interest or for the protection of the interests of any Scheduled Tribe. The Court then turned to sub-clause (g), where it observed that the provision does not invalidate any law that imposes reasonable restrictions in the public interest on the practice of any profession, occupation, trade or business. Moreover, the clause does not affect any existing law that prescribes or empowers an authority to prescribe the professional or technical qualifications necessary for practising a profession or carrying on an occupation, trade or business. The Court clarified that Clause (2) of Article 19 outlines the limits within which the right to freedom of speech and expression may be curtailed, representing an exception to the general rule. Likewise, Clause (3) sets the limits for the right of assembly, Clause (4) for the right of association, Clause (5) for the rights of movement, residence and property, and Clause (6) for the right to practice a profession or carry on a trade. The Court emphasized that all the rights grouped under the heading “Right to Freedom” must be read together to understand the full scope of the Fundamental Rights. Finally, the Court highlighted a distinction between rights granted to citizens and those granted to persons, a distinction evident when one compares the provisions of Article 19 with those of Articles 20, 21 and 22.

To decide whether a constitutional right has been curtailed or violated, the Court first examined what extent the right is granted by the relevant constitutional provisions and what limitations are expressly set out within those provisions for its possible restriction. The Court noted that the presence of article 13(1) and (2) in the Constitution was intended as a precautionary measure. However, the Court observed that even if those articles were not present, any legislation that infringed a fundamental right could still be declared invalid to the extent that it exceeded the permissible limits. Consequently, the existence of article 13(1) and (2) was not decisive for determining which fundamental right was conferred and how far the Constitution itself could permit that right to be limited.

The petitioner had been placed in a cell under a preventive detention order, and on his behalf it was argued that several rights listed in article 19(1)—namely clauses (a), (b), (c), (d), (e) and (g)—had been infringed. The argument asserted that because of his detention the petitioner could not freely speak wherever he wished, and the same contention was raised with respect to the other enumerated rights in sub-clauses (b), (c), (d), (e) and (g). Although this line of reasoning was raised in the context of preventive detention, the petitioner suggested that, if accepted, it should also apply to punitive detention of any person sentenced to imprisonment under the Indian Penal Code. The Court rejected this contention outright.

The Court explained that, notwithstanding the saving clauses (2) to (6) of article 19, which allow certain restrictions on the rights mentioned in each sub-clause, punitive detention imposed under various sections of the Penal Code—such as those dealing with theft, cheating, forgery or simple assault—would be unlawful. The Court cautioned that a construction of article 19 leading to such a result was not warranted by the Constitution and must be avoided. The provision must be read without preconceived notions, meaning that the legislation in question must directly relate to one of the rights enumerated in the sub-clauses. If a law directly attempts to control a citizen’s freedom of speech, expression, or the right to assemble peaceably without arms, the question arises whether that law falls within the relevant saving clause of article 19. Conversely, when legislation does not directly address any of those subjects but merely results in detention—whether preventive or punitive—the petitioner’s rights under the sub-clauses are considered abridged only as a consequence, and the applicability of article 19 does not arise. The Court therefore emphasized that the proper test is the directness of the legislation, not the eventual effect of a detention that may otherwise be lawful.

In this case, the Court observed that the argument that preventive detention infringes the rights enumerated in article 19(1) cannot succeed on such a slender basis. The Court held that any alternative construction of article 19 would be unreasonable. Counsel then contended that while the proposed interpretation might address the rights under article 19(1)(a), (b), (c), (e) and (g), it leaves untouched the right guaranteed by article 19(1)(d), which expressly provides the right “to move freely throughout the territory of India.” It was submitted that the petitioner’s confinement under a preventive detention order directly curtails this right, and consequently the State must demonstrate that the impugned legislation imposes only reasonable restrictions on the exercise of that right in the interest of the general public or for the protection of any Scheduled Tribe, as prescribed by article 19(5). The Court therefore found itself required to examine whether the restrictions placed on the detained individual are reasonable in the interest of the general public. The argument further invoked article 14 of the Constitution, which guarantees equality before the law and equal protection of the laws within the territory of India. It was argued that the phrase “within the territory of India” is redundant because Parliament’s legislative competence is confined to that territory, and that the same phrase in article 19(1)(d) could likewise be treated as superfluous, thereby rendering preventive detention an infringement of the freedom of movement. The Court rejected this line of construction, stating that deeming certain words superfluous in one provision does not permit a blanket dismissal of similar language elsewhere in the Constitution. In the Court’s view, the words “territory of India” in sub-clause (d) are substantive and essential. The purpose of the sub-clause is to protect the right of unrestricted movement throughout the whole of India. When read in its natural grammatical sense, the provision means that any restriction on a citizen’s movement from one State to another, or even within a State, must be justified under the permissible limits set out in article 19(5). The Court emphasized that sub-clause (d) does not concern detention, whether preventive or punitive. The Constitution specifically mentions a right to freedom of movement throughout the territory of India, and each word of that clause must be given its true and legitimate meaning. In construing a statute, particularly a constitutional provision, it is improper to omit any word that has a reasonable and proper place.

It would be improper to omit any word that has a reasonable and proper place in the provision or to refuse to give effect to its meaning. The Court explained that this principle becomes evident when clause (5) is read together with the sub-clause under discussion. Clause (5) allows the State to impose reasonable restrictions on the exercise of the right of movement, but only when such restrictions are made either in the interest of the general public or for the protection of the interests of any Scheduled Tribe. The Court found it difficult to imagine a situation in which a reasonable restriction in the interest of the general public would require confining a person in a cell. A restriction of this sort might be appropriate, for example, to prevent a person from travelling from one province to another or from one area to another when local conditions in a particular area justify such a measure. The alternative purpose, namely the protection of the interests of a Scheduled Tribe, was examined closely. The Court asked what protection of a Scheduled Tribe would necessitate the confinement of an individual in a cell. It observed that preventing a person from moving from one part of the territory of India to another, in order to protect the interests of a Scheduled Tribe, is a concept that is intelligible and frequently encountered in the administration of the country. Scheduled Tribes possess certain rights, privileges, and also specific disabilities. They maintain their own civilization, customs and way of life, and contact between members of a particular Scheduled Tribe and other persons or groups may at times be regarded as undesirable under certain circumstances. The legislative history of India shows that Scheduled Tribes have been accorded a separate status for these reasons. Consequently, when the whole of article 19 is read, the Court concluded that it does not apply to legislation whose direct object is preventive or punitive detention. The Court also noted that accepting the petitioner’s interpretation of the clause would obligate the Court to assess the reasonableness of many provisions of the Indian Penal Code and other penal statutes, thereby determining whether they abridge the right in question. Even under clause (5), the Court is empowered to apply the test of reasonableness to restrictions only to the extent that they are justified either by the interests of the general public—such as in cases of epidemic, riot, or similar emergencies—or by the protection of the interests of a Scheduled Tribe. In the Court’s view, this limited purpose was not the intention of the Constitution, and therefore the argument advanced concerning article 19 failed. The submission that articles 19 and 21 should be read together, with article 19 providing substantive rights and article 21 ensuring that no person is deprived of life or personal liberty except according to law, was also considered. Nevertheless, on a true construction of article 19, the Court held that both preventive and punitive detention lie outside its scope.

In this case, the Court explained that detention fell outside the ambit of article 19. To understand the true reach of article 19, the Court advised that it should first be read in isolation and then examined in relation to the other provisions of Part III that may affect or limit its meaning. Article 19 is the opening provision under the heading “Right to Freedom.” It confers the rights enumerated in clauses 19(1)(a) through (g) upon every citizen of India. When read by themselves, and apart from the limitations set out in clauses (2) to (6) of the same article, these provisions describe the various general liberties that a free citizen ordinarily enjoys in a democratic nation. After setting out these rights, each one is to be considered separately, taking into account the comparable right of other citizens and the principle that an individual’s liberty must yield, to the extent necessary, when the welfare or safety of the public at large is at stake. For example, the right to freedom of speech and expression is granted by clause 19(1)(a). However, clause (2) stipulates that this right shall not impede the operation of any law dealing with libel, slander, defamation, contempt of Court, or any matter that offends decency or morality, or that undermines the security of the State or tends to overthrow it. Clause (2) therefore emphasizes that, while a citizen possesses a personal right to speak freely, that right cannot be exercised in a manner that harms the corresponding right of another citizen or the interests of the State. Consequently, statutes relating to libel, slander, contempt of Court, and offences against decency, morality, or state security remain fully operative despite the individual’s freedom of speech.

The Court further observed that the same principle applies to other clauses. Similar analysis of clauses (3) and (4) reveals comparable restrictions based on analogous grounds. Clause (5) authorises reasonable restrictions on the exercise of the right to move freely throughout the territory of India, the right to reside and settle in any part of the territory, and the right to acquire, hold, and dispose of property, provided that such restrictions are imposed by law and are in the interest of the general public. The same clause also permits comparable reasonable restrictions to be placed on these rights for the purpose of protecting the interests of a Scheduled Tribe. This provision was intended to prevent an argument that, although the Constitution allows restrictions for the benefit of the public at large, it does not empower the State to impose restrictions solely for the benefit of a smaller segment of the population. In this way, the Court clarified how article 19, while guaranteeing fundamental freedoms, is subject to lawful, reasonable limitations designed to safeguard public welfare and the rights of specific groups.

In this case the Court observed that the Constitution treated the rights of a free citizen as subject to restrictions that the framers deemed necessary for the welfare of the remainder of the community. The Court explained that, when article 19 was read in this manner, the right to travel freely throughout the territory of India emerged as a concept wholly distinct from the “personal liberty” protected by article 21. The Court noted that “personal liberty” encompassed a broader collection of rights in one respect, yet bore a narrower meaning in another. For example, the ability to move or to reside might fall within the ambit of “personal liberty,” but the freedom of speech listed in article 19(1)(a) and the right to acquire, hold or dispose of property mentioned in article 19(1)(f) could not be classified as components of personal liberty. Although these rights formed part of a citizen’s overall liberty, the qualifier “personal” led the Court to conclude that they were not covered by that expression. Consequently the Court found no conflict between articles 19 and 21, because the subjects and scopes of the two provisions differed and each addressed the rights indicated by its own language from separate perspectives. The Court further observed that each sub-clause of article 19(1) contained its own specific limitations, whereas the term “personal liberty” in article 21 was generally governed by the phrase “procedure established by law.” Thus the Constitution, through article 19 and other provisions in Part III, sought to strike a balance between individual freedom and the collective interests of society. Restrictions imposed on the legislative and executive powers of the State therefore functioned as safeguards for life and personal liberty. The Court distinguished between deprivation—a total loss of personal liberty that includes fundamental activities such as eating, sleeping, choosing whether to work, and other rights protected by article 21—and restriction, which represents only a partial control over the comparatively minor right to move freely, as secured by article 19(1)(d). The Court clarified that deprivation of personal liberty did not carry the same meaning as a restriction on free movement within the nation. This distinction became evident when the provisions of the Criminal Procedure Code in Chapter VIII, dealing with the security of peace and maintenance of public order, were examined. Accordingly, the Court held that article 19(5) could not be invoked to support a substantive law that deprived a citizen of personal liberty, and it rejected the argument that the term “deprivation” should be interpreted to include “restriction” for the purpose of construing article 21.

The Court observed that the word “restriction” should not be incorporated into the meaning of article 21 when that article is interpreted. It noted that article 22 provides for the law of preventive detention, and that article 9.46 together with Schedule Seven, List I-Entry 9 and List III-Entry 3 also deal with preventive detention. Accordingly, because preventive detention is expressly addressed in the chapter on Fundamental Rights, the Court held that it is not proper to treat a statute authorising preventive detention as being in conflict with the rights enumerated in article 19(1). The Court explained that article 19(1) does not claim to cover every aspect of liberty or of personal liberty; it deals only with certain phases of liberty. In this context, “personal liberty” primarily refers to the liberty of the physical body. The rights listed in article 19(1) do not fall directly within that description; rather, they are rights that accompany the freedom of a person who is assumed to be in full possession of his personal liberty. The Court warned that if article 19 were regarded as the sole article protecting personal liberty, many well-recognised rights – such as the right to eat and drink, the right to work, to play, to swim and numerous other activities, and even the right to life – would fall outside constitutional protection. The Court said that this cannot be the intended result. It further stated that it would be improper to read article 19 as dealing with the same subject matter as article 21. Article 19 confers the rights it mentions only on citizens of India, whereas article 21 applies to all persons. The Constitution defines “citizen” to refer to a particular segment of the population, not to every inhabitant. Moreover, the protection afforded by article 21 is very general; it safeguards “law,” whatever that expression may be interpreted to mean. Unlike the rights in article 19, the legislative limits on the law-making powers of the legislature are not set out in detail within article 21. In the Court’s opinion, article 21 must therefore be read as a separate, complete provision. Article 21, also found in Part III under the heading “Right to Freedom,” states: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The petitioners relied heavily on this provision to argue that the impugned Act exceeded Parliament’s authority because it curtailed the right guaranteed by article 21 to every individual. The petitioners further argued that the comparable provision in the Constitution of the United States of America appears in the Fifth and Fourteenth Amendments, which provide that “no person shall be deprived of his life or liberty or property except by due process of law.” They contended that the Indian Constitution gives the same protection to every person in India, except that in the United States the phrase “due process of law” has been interpreted by its Supreme Court to cover

It was argued that the United States interpretation of due process includes both substantive and procedural law, whereas the Indian provision safeguards only procedural law. The petitioner contended that the absence of the word “due” in article 21 does not affect its meaning, and that the term “established” should not be equated with “prescribed” because it carries a broader sense. Further, it was maintained that the word “law” in article 21 should not be understood as enacted legislation; otherwise the clause would offer no legislative protection at all. Under that construction, any statute enacted by Parliament or a State Legislature, even when within constitutional competence, could defeat or limit the right guaranteed by article 21. The same reasoning led to the claim that, if this were the intention, there would be no reason to place the protection of life and personal liberty among the fundamental rights in Part III. Regarding the meaning of “law,” the argument advanced that it refers to principles of natural justice, that is, “jus” in the abstract sense of natural law, rather than “lex,” which denotes positive, enacted law. To counter the objection that such an interpretation renders the term vague, it was submitted that four universally recognised principles of natural justice are nonetheless encompassed by the word “law.” These principles are: (1) an objective, certain, and ascertainable rule of conduct whose breach can justify detention; (2) notice of the grounds for detention; (3) an impartial tribunal—administrative, judicial, or advisory—to determine the legality of the detention; and (4) a fair procedural process, including the opportunity to be heard orally, the right to present evidence, and the ability to call witnesses.

The Court expressed the view that this line of reasoning is improper and misleading. It noted that the American Constitution is described by Munro in “The Government of the United States” (5th edition, p. 53) as an evolving structure, likened to a building whose basement was laid in 1787 and whose walls, windows, wings, and porches have been added by successive generations, a fabric still being woven on “the roaring loom of time.” The author explains that the framers intended only a starting point rather than a final, immutable scheme for government. Similar observations are found in Professor Willis’s treatise on Constitutional Law and in Cooley’s work on Constitutional Limitations. By contrast, the Indian Constitution is characterised as highly detailed, specifying in minute terms the legislative powers of both Parliament and State Legislatures, as well as detailed provisions governing the judiciary, finance, trade, commerce, and services. This comprehensive approach, the Court noted, requires reading the Constitution with equal reverence throughout, without granting undue weight to any single part.

In this case the Court observed that the Constitution of India is a highly detailed instrument and that it must be read as a whole with the same degree of reverence, without assigning excessive importance to Part III or to article 246, except to the extent that one provision is legitimately and clearly limited by the other. The Court then identified four prominent differences between the clause that appears in the American Constitution and article 21 of the Indian Constitution. First, the American text employs the term “liberty” in a broad sense, whereas the Indian provision restricts the term to “personal liberty.” Second, the United States Constitution extends the same protection to the right of property, while in India the protection of property is found separately in article 31. Third, the word “due” does not appear at all in the Indian article, and the expression “due process of law” is deliberately omitted. Fourth, the word “established” is present in article 21 but is limited to the phrase “established procedure.” The petitioner’s entire contentions were centred on the meaning of the word “law” as it was given by the Supreme Court of the United States. The Court considered it unnecessary to launch a detailed discussion of the powers and jurisdiction of the United States Supreme Court or of the ways in which that Court has expanded or narrowed the meaning of “law” in the phrase “due process of law.” Without going into an exhaustive analysis, the Court expressed the view that there is no justification for adopting the United States Supreme Court’s interpretation of the word “law” in the expression “due process of law” merely because the word “law” occurs in article 21 of the Indian Constitution. The Court further noted that scholarly discussions of “due process of law,” such as those found in Willis on Constitutional Law and Cooley’s Constitutional Limitations, reveal a variety of meanings that have been applied at different times and under different circumstances by the United States Supreme Court. Those authors conclude that the expression has been understood to mean “reasonable law” as interpreted by the majority of the judges occupying the Court at a particular historical moment. The Court also pointed out that the meaning of the expression has been expanded or contracted during different decades. Moreover, the Court explained that the doctrine of police powers has been invoked to regulate the evolving meaning of the expression. In brief, the doctrine holds that legislation enacted for the general welfare of the people, which may require individuals to surrender a portion of their freedom for the benefit of the community as a whole, need not be subjected to the strict test of the “due process of law” formula. The Court’s attention was also drawn to the debates and the report of the Constituent Assembly’s drafting committee concerning the wording of the clause. The Court held that the report may be consulted not to rigidly control the meaning of the article, but to assist in interpreting the provision where an ambiguity exists. The Court then referred to the case of The Municipal Council of Sydney v. The Commonwealth(1), noting that in that decision it was thought that the individual opinion of members of the Convention expressed in

In this matter, the Court observed that the debates of the Constituent Assembly could not be invoked for the purpose of construing the Constitution. The same view had been expressed in United States v. Wong Kim Ark (169 U.S. 649 at 699). Consequently, it is not appropriate to take into account the personal opinions of Members of Parliament or of the Convention when determining the meaning of a particular clause. However, the Court allowed that when a question arises as to whether a certain phrase or expression was ever considered by the Assembly, reference to the debates may be permitted. The present case cited the debates to demonstrate that the expression “due process of law” was known to exist in the American Constitution and that, after discussion, the Constituent Assembly deliberately chose not to adopt that expression in our Constitution. In Administrator General of Bengal v. Premlal Mullick (1895 L.R. 221 A. 107), a reference to the legislative proceedings that led to the passage of an Act was held not to be a legitimate aid in construing a specific section. The same reasoning was applied to exclude reference to such debates in interpreting an Indian statute. The Court cautioned that recourse to these extrinsic sources should be exercised only with great care and only where latent ambiguities need to be resolved, referring to authorities such as Craies’ Statute Law (4th ed.) p. 122, Maxwell on Interpretation of Statutes (9th ed.) pp. 28-29 and Crawford on Statutory Construction (1940 ed.) p. 379, article 214. A review of the drafting committee’s report, which the Court had examined, made clear that the Constituent Assembly was aware of the American article and the phrase “due process of law,” but deliberately omitted that phrase from our Constitution. The Court therefore held that no extrinsic aid is required to interpret the words of Article 21, which, in its opinion, are not ambiguous. Read in ordinary terms and without reference to other constitutions, the expression “procedure established by law” must signify the procedure prescribed by the law of the State. If the Indian Constitution had intended to preserve the protection afforded by the American due-process clause, there was nothing to prevent the Assembly from adopting that expression; likewise, if the intention was to limit protection to procedure alone, the Assembly could have introduced the phrase with only the word “procedural” prefixed to “law.” The essential question, however, is what right Article 21 confers. The sole right is that no person shall be deprived of life or liberty except according to procedure established by law. While one might wish to expand that right to cover a broader area, such an expansion is not within the Court’s function but rather within the function of the Constitution itself. Interpreting the word “law” to mean the rules of natural justice would lead to difficulties, because the Constitution does not define those rules regarding procedure, and, in the Court’s view, it cannot be read as imposing a vague standard.

In this case the Court observed that the expression “procedure established by law” was intended to give the standard a concrete character, especially because the Constitution deliberately omitted the phrase “due process of law.” The Court explained that the phrase could be given precise meaning only by interpreting it as referring to procedures prescribed by the legislature. It noted that the word “law” as used in Part III of the Constitution carries several shades of meaning, but in no other provision does it acquire the indefinite sense of natural justice. Accordingly, there was no justification for attributing such a peculiar meaning to “law” in Article 21. The Court then turned to Article 31, also situated in Part III, which protects the right to property and provides: “No person shall be deprived of his property save by authority of law.” The Court held that in this clause the term “law” clearly denotes enacted legislation. The purpose of placing property rights in a separate article appeared to be the inclusion of the exceptions listed in clauses (2) to (6) of Article 31, rather than to assign a different definition to “law” than that employed in Article 21. Referring to the Oxford Dictionary, the Court pointed out that the word “established” means “to fix, settle, institute or ordain by enactment or agreement,” and that the agency effecting such establishment may be either the legislature or an agreement between parties. Consequently, the Court found no basis for interpreting “law” in Article 21 as the French concept of “jus.” The phrase “procedure established by law” appeared to be derived from Article 31 of the Japanese Constitution; however, the Court emphasized that other provisions of that Constitution, which expressly safeguard personal liberties, must be read together to ascertain the meaning of “law” in the expression “procedure established by law.” Those Japanese articles have not been incorporated into the Indian Constitution in the same language, and there is no indication that “law” in the Japanese text means “jus.” Moreover, the Japanese Constitution does not derive rights based on natural-justice rules from its own interpretation of “procedure established by law” in Article 31. Turning to the United States, the Court noted that the American phrase “due process of law” is interpreted by the U.S. Supreme Court to mean “just,” thereby granting courts the authority to decide what is due according to law. The deliberate omission of the word “due” from Article 21, the limitation introduced by the term “procedure,” and the insertion of “established” together underscore the intention that the standard be understood as a legislative prescription. By adopting the expression “procedure established by law,” the Constitution therefore conferred upon the legislature the ultimate authority to determine the law.

The Court’s attention was drawn to the decision in The King v. The Military Governor of the Hair Park Camp, a case that examined articles 6 and 70 of the Irish Constitution. Article 6 declares that personal liberty is inviolable and that no individual may be deprived of liberty except “in accordance with law.” Article 70 provides that no person shall be tried “save in due course of law” and limits the establishment of extraordinary courts to military courts for the trial of military offences. The Irish judges interpreted the phrase “in accordance with law” to refer not to the principles of natural justice but to the statutes that were in force at the time of the trial. Likewise, the expression “due course of law” was given the meaning attributed to it under English law rather than the American conception. The Court also cited Lord Atkin’s observation in Eshugbayi Eleko v. Officer Administering the Government of Nigeria, noting that, according to British jurisprudence, a member of the executive may not interfere with the liberty or property of a British subject unless the legality of his act can be supported before a court of justice. The citation reads (1) [1924] 2 Irish Reports K.B. 104. In addition, the judgment referred to The King v. The Secretary of State for Home Affairs, where Scrutton LJ remarked: “A man undoubtedly guilty of murder must yet be released if due forms of law have not been followed in his conviction.” These authorities illustrate that the requirement of compliance with established legal procedure is essential before depriving a person of liberty.

The Court then turned to the framework of Part III of the Indian Constitution, observing that the principles reflected in the Irish cases find their counterpart in article 21, which alone guarantees the protection of personal liberty. The Court considered it unnecessary to engage in an exhaustive analysis of the precise scope of article 21, because article 22 functions as a detailed code, particularly where provisions for preventive detention are involved. It was noted that the articles within Part III address distinct rights, and although articles 19 through 22 are grouped under the heading “Right to Freedom,” each carries its own marginal note. Article 22, in clauses (1) and (2), expressly limits the right conferred by article 21. The Court explained that if the procedures prescribed in article 22 are observed, the arrest and detention contemplated by those clauses, despite encroaching upon personal liberty, will be lawful because they constitute the established legal procedure for arrest and detention. Article 22 therefore provides safeguards against arrest and detention in certain circumstances and reads as follows: “22. (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time ….”

The Court explained that the period of detention could not be extended beyond twenty-four hours unless the time was required for the journey from the place of arrest to the magistrate’s court, and that no person could be retained in custody beyond that period without the authority of a magistrate. Clause (3) stated that the provisions of clauses (1) and (2) did not apply to a person who was an enemy alien at the time, or to any person who was arrested or detained under a law that provided for preventive detention, as noted in the earlier case citation (1923) 2 K.B. 361 at 382. Clause (4) provided that no law authorising preventive detention could permit detention for longer than three months unless one of two conditions was satisfied. First, an Advisory Board composed of persons who were, had been, or were qualified to be appointed as Judges of a High Court had to submit a report before the expiry of the three-month period stating that, in its opinion, there was sufficient cause for continued detention; however, this sub-clause could not permit detention beyond the maximum period prescribed by any Parliamentary law under sub-clause (b) of clause 17. Second, a person could be detained for a longer period if the detention was in accordance with the provisions of any Parliamentary law made under sub-clauses (a) and (b) of clause (7). Clause (5) required that when a person was detained pursuant to an order made under any preventive-detention law, the authority issuing the order had to, as soon as practicable, communicate to the detainee the grounds for the order and give the detainee the earliest opportunity to make a representation against it. The clause also specified that the authority need not disclose any facts it considered contrary to the public interest. Clause (7) empowered Parliament, by law, to prescribe: (a) the circumstances and the classes of cases in which a person could be detained for a period longer than three months under any preventive-detention law without obtaining the opinion of an Advisory Board as required by sub-clause (a) of clause (4); (b) the maximum period for which any person could be detained in any class of cases under any preventive-detention law; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4). The learned Attorney-General argued that the issue of preventive detention fell entirely outside article 21 and was covered wholly by article 22, describing article 22 as a complete code. The Court could not accept that argument. It observed that article 22 (1) and (2) provided safeguards for arrest and detention, that those safeguards were expressly excluded for preventive detention by article 22 (3), but that clauses (4) to (7) of the same article supplied safeguards for such detention. Consequently, the Court concluded that article 21 was supplemented, not displaced, by article 22.

In this case the Court explained that article 21 had to be read as being supplemented by article 22. According to that approach, whenever a procedure was specifically prescribed by article 22, that procedure had to be followed; only when article 22 was silent did the safeguards of article 21 become applicable. The Court further observed that if a constitutional provision expressly stated that certain procedural safeguards were not required, or if it laid down particular rules for a specific point of procedure, it would be improper to treat those points as falling outside the reach of article 22 and therefore subject to article 21. In other words, wherever article 22 dealt with a procedural matter—whether by inclusion or by explicit exclusion—it formed a complete code for that matter. For those procedural aspects that article 22 neither expressly covered nor implicitly addressed, the operation of article 21 continued to apply without interruption.

The Court then indicated that the proper analytical sequence required first a close examination of the provisions contained in article 22, clauses 4 through 7, and subsequently a review of the relevant sections of the impugned Act. This two-step approach would determine whether any part of the Act exceeded the powers granted by the Constitution. In doing so, the Court noted that neither the Constitution of the United States nor that of Japan contained any provisions authorising preventive detention, much less any limitations on such detention in ordinary circumstances, that is, when no emergency such as war had been declared.

The Court pointed out that, under the Indian constitutional scheme, preventive detention in ordinary times—meaning when no emergency exists—was recognised as a legitimate subject of legislation. This subject was listed in Entry 9 of List I and Entry 3 of List III of the Seventh Schedule. Moreover, even within the chapter dealing with Fundamental Rights, article 22 expressly contemplated legislation concerning preventive detention in normal times.

When analysing the wording of article 22, clauses 4 to 7, the Court observed that these provisions deliberately left the extensive legislative power on preventive detention untouched. In particular, article 22, clause 7, underscored the Parliament’s authority to deprive a person of the right to have his case examined by an advisory board. The Court emphasized that Part III of the Constitution, and article 22 in particular, constituted the only constitutional restraints on that legislative authority. Absent those restraints, the power to enact preventive-detention laws would have been virtually unrestricted, allowing Parliament to pass a law without any safeguard or procedural requirement.

The Court stressed that such an unfettered legislative supremacy would be curtailed by article 21, which imposes a general protection of life and personal liberty. Consequently, if Parliament enacted a law that prescribed a procedure for preventive detention, and if that prescribed procedure did not conflict with the explicit provisions of Part III or with article 22, clauses 4 through 7, then the Preventive Detention Act had to be regarded as constitutionally valid. This conclusion held even though the Court might not be fully satisfied with the particular procedure laid down by the Act.

The Court turned to a detailed interpretation of article 22, clause 4, noting that it began with a double negative. When expressed positively, the clause required that any law providing for preventive detention for a period exceeding three months must include a provision for the constitution of an advisory board. The members of such a board had to possess the qualifications specified in sub-clause (a). Moreover, the advisory board was obligated to submit its report before the expiry of the three-month period, stating whether, in its opinion, there was sufficient cause to continue the detention.

The Court observed that the clause requiring an advisory board to report on whether there is sufficient cause for detention would, if read in isolation and without the other provisions of article 22, apply equally to Parliament and to State Legislatures. The proviso attached to that clause further mandates that even when an advisory board is of the opinion that sufficient cause exists for detention beyond three months, such detention must not exceed any maximum period that Parliament may prescribe under article 22 (7)(b). The Court then noted that the entire sub-clause becomes inoperative by reason of article 22 (4)(b) when the preventive-detention law is enacted by Parliament under clauses (7)(a) and (7)(b). Because the impugned Act is presented as a parliamentary enactment, the Court held that article 22 (4) has no operative effect in the present discussion and may be set aside. Article 22 further requires that whenever a person is detained under any preventive-detention law, the authority issuing the detention order must, as soon as practicable, communicate to the detainee the grounds on which the order is based and must afford the detainee the earliest opportunity to make a representation against the order. This requirement is of general application to every detention order made under any law that authorises detention. Article 22 (6) allows the authority to withhold disclosure of certain facts when it considers that disclosure would be contrary to the public interest. The Court pointed out that this provision only permits non-disclosure of facts, and that, when read together with article 22 (5), a distinction is drawn between the factual basis of detention and the grounds that must be furnished to the detainee. Articles 22 (4) and 22 (7) do not deal solely with the length of detention; they also impose additional procedural requirements in cases of preventive detention, including the establishment of an advisory board, the obligation to provide the detainee with the grounds for detention, and the right of the detainee to make a representation. By reading clauses (4) and (7) together, the Court inferred that preventive detention for a period of less than three months may be carried out without an advisory board, provided that the legislation falls within the constitutional competence of Parliament or the relevant State Legislature. Article 22 (5) expressly permits the detained person to make a representation, but the Constitution remains silent on to whom such a representation must be addressed or the precise procedure for handling it. The Court stressed that this silence does not render a parliamentary law on preventive detention invalid; rather, the constitutional question is what rights the Constitution itself confers on a person detained under preventive-detention legislation. Consequently, the argument that the lack of provision on the person to receive the representation or on the procedure for handling it defeats the validity of the impugned Act was rejected.

The Court observed that the argument that a detained person must make a representation to an external body is unsupported by law. It noted that even in the Liversidge case the representation was required to be made to the Secretary of State, not to any other entity. After such a representation was filed, a separate advisory board was required to consider it, but the representation itself did not have to be addressed to a third party. The Court further explained that Articles 22 (4) and (7) expressly allow Parliament to enact legislation providing for preventive detention for periods exceeding three months without establishing an advisory board. Consequently, the Court questioned how a party could contend that the failure to set up an advisory board violates a fundamental right when the procedure prescribed by the Act passed by Parliament is itself authorized by the Constitution.

The Court turned its attention to Article 22 (7), noting that sub-clause (a) is the provision relevant to the present case. It held that, where Parliament passes a preventive detention law, this sub-clause within the Chapter on Fundamental Rights permits detention beyond three months and dispenses with the requirement of consulting an advisory board, provided the opening words of the sub-clause are satisfied. The Court described sub-clause (b) as merely permissive, stating that Parliament is not obligated to prescribe any maximum period of detention. The petitioner argued that this permissive language gives Parliament the power to detain a person indefinitely. The Court said that if that construction were correct, it would arise directly from the wording of sub-clause (7) itself, and the Court could not intervene to alter it. Sub-clause (c) was said to allow Parliament to prescribe the procedure to be followed by an advisory board in an inquiry conducted under sub-clause (a) of clause (4). The Court rejected the view that Article 22 (4) (a) constitutes the general rule and that Article 22 (7) is an exception. Instead, it read the two provisions as alternative methods offered by the Constitution for enacting preventive detention laws.

In interpreting these provisions, the Court considered the constitutional scheme set out in Article 22 together with Article 246 and the entries in Schedule VII. It concluded that Parliament is empowered to enact preventive detention legislation for reasons connected with defence, foreign affairs, and the security of India under List I, Entry 9, and, under List III, Entry 3, for reasons related to the security of a State, the maintenance of public order, or the maintenance of essential supplies and services. Counsel for the petitioner had challenged the validity of several provisions of the Act. The Court cited the observations of Lord Wright in James v. The Commonwealth of Australia (1936) A. 0. 578 at 614, where he warned that a Constitution must not be construed in a narrow and pedantic manner. It also referred to the remarks of Mr. Justice Higgins in Attorney-General of New South Wales v. Brewery Employees’ Union, who stated that while constitutional words are interpreted using the same principles applied to ordinary statutes, those principles require a broad and liberal approach rather than a rigid or literal one.

The Court stressed that interpretation of a constitutional provision requires regard to the document’s nature and scope, recalling that a Constitution functions as a mechanism for creating laws rather than a simple Act that merely declares what the law is. In the decision In re The Central Provinces and Berar Act XIV of 1938, Chief Justice Sir Maurice Gwyer, after adopting earlier observations, asserted that this principle is especially true of a federal Constitution because of its delicate balance of jurisdictions. He explained that a broad and liberal spirit should inspire those whose duty it is to interpret the Constitution, but cautioned that such a spirit does not give judges liberty to stretch or pervert the language of the enactment in order to advance any legal or constitutional theory, nor to supply omissions or correct supposed errors. Subsequent authority supports the proposition that courts are not at liberty to declare an Act void merely because, in their opinion, it conflicts with a spirit presumed to pervade the Constitution but not expressed in words. When the fundamental law has not expressly limited, either by its terms or by necessary implication, the general powers conferred upon the legislature, the judiciary cannot impose a limitation on the basis of a discovered constitutional spirit that is absent from the instrument. It is difficult for any general principle of law to curtail the sovereign legislative power by judicial interposition, except where the written Constitution’s express words grant that authority. Moreover, if the statutory language is positive and without ambiguity, there is no authority for a court to vacate or repeal a statute on that ground alone.

The Court further observed that only where the Constitution contains explicit provisions limiting legislative power and controlling the temporary will of a majority by a permanent and paramount law settled by the nation’s deliberate wisdom can courts find a safe and solid ground for declaring a legislative enactment void. Assuming a broader judicial authority would place excessive and indefinite power in the hands of the judiciary, thereby jeopardising its own security and the protection of private rights. The petitioners initially argued that Section 3 of the impugned Act delegated legislative power to an executive officer, allowing detention of a person upon the officer’s satisfaction of necessity, and contended that such satisfaction must derive from the legislative body. This contention of legislative delegation in preventive detention matters has been examined and rejected in numerous decisions of our Federal Court and of English courts. Although it is unnecessary to cite every case, a review of the speeches in Liversidge v. Anderson clearly repudiates the argument that Section 3 represents a delegation of legislative power. Consequently, Section 3 should be understood not as a delegation of legislative authority but as a conferral of discretion on the officer to enforce the law duly enacted by the legislature.

The Court observed that Section 3 of the impugned Act did not constitute a power to make law; rather, it merely bestowed discretion on the officer to enforce the law that had already been enacted by the Legislature. The petitioners further challenged Section 3 on the ground that it failed to supply an objective standard that a Court could employ to decide whether the statutory requirements had been met. The Court explained that an objective standard of conduct could not be prescribed except insofar as it set out conduct aimed at achieving or avoiding a particular purpose. In the context of preventive detention, the Court noted, action must be taken on the basis of a good suspicion, which constitutes a subjective test that depends on the cumulative effect of various acts, possibly occurring over a long period. Referring to the observation of Lord Finlay in The King v. Halliday, the Court held that a Court is the least suitable forum for examining whether the circumstances of suspicion justify restraining a person. The petitioners’ contention applied to preventive detention and not to punitive detention. The Court further explained that before a person can be held criminally liable, it must be clear that the person knew what conduct was prohibited, and an omission to act or refrain from acting could lead the State, as cited in (1) (1942) A.C. 2C6 and (2) (1917) A.C. 260 at 269, to deem the person guilty under the penal law. However, in preventive detention the objective is to stop the individual not merely from a particular act but from achieving a specific aim, as the sub-headings summarised earlier indicated. The Court said it would be impossible to list exhaustively every act that might lead to that aim. Consequently, the Court accepted that a punitive detention statute that clearly defines the objects the Legislature wishes to prevent provides a sufficient standard to avoid vagueness. In this view, the Court concluded that the petitioner’s argument against Section 3 of the challenged Act could not succeed.

The petitioners also argued that Section 3 failed to set a time limit for detention, rendering the legislation beyond the powers of the Parliament. The Court found the answer to this contention in Article 22(7)(b) of the Constitution. A review of the impugned Act revealed that Section 12 authorised detention for a period exceeding three months but not more than one year for clauses (a) and (b) of that section. The Court observed that for the remaining clauses listed in Section 3(1)(a), detention was not intended to exceed three months, and in such cases the Act contemplated a reference to the advisory board under Section 9. The Court then turned to Section 7, which was also challenged, and noted that it mirrored the provisions of Article 22(5) and (6) and, in the Court’s opinion, did not violate any constitutional provision. The petitioners contended that Section 7 allowed only a right to make a representation without the possibility of being heard orally or of presenting evidence, and therefore breached the requirements of natural justice. The Court, however, determined that the Act, by granting a right to receive the grounds for detention and to make a representation, satisfied the procedural safeguards required by Article 22(5), even though it did not explicitly guarantee an oral hearing.

In this case, the Court observed that an orderly course of procedure is required by the rules of natural justice. By means of the Act, Parliament expressly conferred on a person detained under a preventive detention order two rights: the right to receive the grounds for detention and the right to make a representation against the order. Accordingly, the Court held that the Act satisfies the requirements of article 22 (5) of the Constitution. That constitutional clause, which prescribes the procedural safeguards that must be observed as a fundamental right, makes no reference to a right of the detained person to be heard orally or to be represented by a lawyer. The Court noted that the Constituent Assembly, when it considered the provisions of clause (1) of the same article, dealt with the necessity of receiving grounds and of providing an opportunity to make a representation, but deliberately chose not to include a right to an oral hearing. Consequently, the Court said that clause (5) should not be read as guaranteeing an oral hearing right. The Court further explained that the expression “orderly course of procedure” is not confined to procedures sanctioned by settled usage; new forms of procedure may also constitute due process of law, provided they afford a person a fair opportunity to present his case, a view that has even been endorsed by the Supreme Court of the United States. The Court addressed the contention that article 22 (5) must necessarily include a right to be heard by an independent tribunal, arguing that without such a hearing the representation would be ineffective. The Court stated that it could not interpret clause (5) of article 22 as creating a fundamental right to be heard by an independent tribunal. The Constitution, the Court said, intentionally limits itself to granting a right of representation. This limitation is consistent with article 22 (7), which authorises Parliament to enact a law that may omit a reference to an advisory board. To read the right of representation as automatically encompassing a right to be heard by an independent judicial, administrative or advisory body would, the Court held, conflict directly with the explicit wording of article 22 (7). Finally, the Court referred to American jurisprudence, noting that even the Supreme Court of the United States has held that the right to a judicial trial is not absolute. In United States v. Ju Toy, the Court examined the exclusion of a Chinese individual claiming U.S. citizenship and, while assuming that the Fifth Amendment might apply, concluded that due process of law does not necessarily require a judicial trial in such a context. The Court cited the passage at page 263 of the United States Reports, emphasizing that the power of Congress to enact exclusion laws may be exercised without the decision being subject to a judicial trial, and that entrusting the decision to an executive officer can still satisfy due process requirements.

In this passage, the Court observed that an executive officer’s decision can constitute due process of law, a principle that had been affirmed and explained in several earlier judgments. The Court considered it unnecessary to repeat the well-known observations of Mr. Justice Curtis, speaking for the whole Court in Den Exden Murray v. Hoboken Land and Improvement Company (1), which demonstrate that the requirement of a judicial trial does not apply in every circumstance. The Court further expressed that it could not accept the argument that an oral right of hearing is an essential procedural right even under the rules of natural justice. While the right to make a defence may be recognised, there is no support for the proposition that an oral interview must be mandatory. The Court then discussed the case of Local Government Board v. Arlidge (2). In that case the respondent applied to the Board created under the Housing Act, seeking a special reference to the High Court and alleging that the Board’s order was invalid for two reasons: first, the Inspector’s report had been treated as a confidential document and had not been disclosed to the respondent; second, the Board had refused to give the respondent an oral hearing before the person or persons who would finally decide the appeal. The Board dismissed the application. Both grounds were subsequently raised before the House of Lords on appeal. Viscount Haldane, L.C., in his speech rejected the contention that an oral hearing was indispensable, stating that “it does not follow that the procedure of every tribunal must be the same. In the case of a Court of law the tradition in this country has prescribed certain principles to which, in the main, the procedure must conform. But what that procedure is to be in detail must depend on the nature of the tribunal.” Addressing the issue of disclosure of the Inspector’s report, the Lord Chancellor remarked that “it might or might not have been useful to disclose this report, but I do not think that the Board was bound to do so, any more than it would have been bound to disclose all the minutes made on the papers in the office before …” (see 18 HO.W. 272 at 280; (1915) A.C. 120). The Court identified what it regarded as a flaw in the majority judgment of the Court of Appeal, stating that the majority began by imposing the test applicable to the procedure of a court of justice rather than applying the alternative standard set out in Board of Education v. Rice (1). The Court concluded that the Board was not obligated to conduct an oral hearing provided that the respondent had been given the actual opportunities that were available to him. Finally, the Court expressed doubt about the view that the British Parliament, although supreme, legislates in a manner that contravenes the well-recognised principles of natural justice accepted in all.

The Court noted that the same principle applied in other civilized nations and that the United States also accepted it in Federal Communications Commission v. WJR The Goodwill Station (2). It observed that a right to lead evidence to rebut facts that are merely suspected is not regarded as essential in cases of preventive detention. The Court pointed out that Article 22(6) of the Constitution expressly permits the non-disclosure of facts and that this provision is one of the constitutional clauses dealing with fundamental rights. Consequently, the Court expressed that if the Constitution allows non-disclosure of facts, it could not also guarantee a right to contest those facts by the production of evidence, and that the omission of such a procedural right could not, by itself, render the impugned Act invalid. The Court then turned to the challenge to Section 10(3), which was criticized on the ground that it denied the detained person the right to appear personally or through counsel before the advisory board, an alleged infringement of a fundamental right. The Court observed that Article 22(1) grants a detained person the right to consult and be defended by his own legal practitioner, but that Article 22(3) expressly excludes this right where legislation pertains to preventive detention. Moreover, the Constitution expressly empowers Parliament under Article 22(7)(c) to prescribe the procedure to be followed in an inquiry by an advisory board, and this power forms part of Article 22 itself. In light of that authority, the Court asked how the failure to provide a right of audience could be said to violate constitutional rights. It further noted that Section 10(3) even prevents the disclosure of a portion of the advisory board’s report and opinion, as referenced in (1) (1911) A.C. 179 and (2) 337 U.S. 265 at 276. The Court rejected the argument that, because of this, a detained person could not present his case before a court and challenge the board’s conclusions, citing the earlier rejection of a similar contention in Local Government Board v. Arlidge (1). In the Court’s opinion, the answer lay in Article 22(7)(c) of the Constitution of India. The Court then considered the contention that Section 11 of the impugned Act was invalid because it allowed the Central or State Government to determine the length of detention, potentially for an indefinite period. The Court held that this argument lacked substance, because the Act must be read as a whole, and its entire duration was limited to one year, making the claim of indefinite detention untenable. The Court further explained that, under Article 22(7)(b), Parliament is under no duty to fix a maximum term of detention; it had not done so except through Section 12, and therefore Section 11 could not be said to contravene Article 22(7). Finally, the Court addressed the challenge to Section 12, which was alleged not to conform with Article 22(7). It observed that the contention was that Article 22(7) permits preventive detention beyond three months when Parliament prescribes “the circumstances in which, and” the relevant conditions for such detention.

The Court examined the wording of article 22 (7) of the Constitution, which states that a person may be detained “the class or classes of cases in which” a detention may be ordered. Counsel argued that both the circumstance and the class requirements must be satisfied before a detention could be authorized. The Court found this argument untenable because the language of article 22 (7) itself did not support a conjunctive reading. The Court observed that the word “which” appears twice in the first portion of the sub-clause, each followed by a comma, indicating that the legislature intended a disjunctive construction rather than a conjunctive one. The Court noted that such an interpretation might have been viable only if the constitutional text read “the circumstances and the class or classes of cases in which…,” which it did not. Accordingly, the Court concluded that the legislature, as expressed in the clause, intended that preventive detention beyond three months could be exercised either on the basis of the circumstances in which a person is suspected, or on the basis of the class or classes of cases in which the person is apprehended to be engaged in the prohibited activities mentioned in the section. This rendering rendered the petitioner’s contention ineffective.

The Court then turned to the challenge concerning section 12 of the impugned Act. Section 12 permitted a person to be detained for a period exceeding three months but not more than one year from the date of detention, without requiring the opinion of an advisory board, whenever the detention was intended to prevent the person from acting in any manner prejudicial to (a) the defence of India, the relations of India with foreign powers or the security of India, or (b) the security of a State or the maintenance of public order. The Court observed that section 12 omitted the contingency found in section 3 (1) (a) (iii), namely the maintenance of supplies and services essential to the community. Relying on the language of the two sub-sections of section 12, counsel argued that the Act merely copied the wording of Schedule VII, List I, Entry 9, and List III, Entry 3, except for the final portion, and therefore failed to specify either the circumstances or the classes of cases required by article 22 (7). The Court explained that “circumstances” generally refer to events or situations external to the individual’s conduct, whereas a “class of cases” denotes a determinable group based on the actions of individuals sharing a common objective or idea, which may be defined by the nature of the object. The Court recognized that classification can arise either from grouping the activities of persons or from specifying the objectives to be achieved or avoided. The Court rejected the petitioner’s argument because it presumed that the expressions in Schedule VII, List I, Entry 9, and List III, Entry 3 could never be treated as circumstances or classes of cases. In the Court’s opinion, that presumption was unfounded, especially when the context of preventive detention, rather than punitive detention, was considered.

In the matter of preventive detention, as distinguished from conviction and punitive detention, each expression employed in the relevant entries is capable of satisfying the constitutional requirement that statutes specify either the circumstances or the classes of cases to which they apply. The Court observed that when cases are classified with reference to a particular object, such classification may itself serve as a description of the circumstances surrounding the detention. It further noted that there is no dispute that every entry listed in the Legislative Lists contained in the Seventh Schedule possesses a specific legal meaning that is well understood and can be ascertained by reference to established law. Consequently, the Court found no justification for treating the same expressions, when they appear in section twelve sub-section one paragraphs (a) and (b) of the impugned Act, as lacking the requisite specificity; the same specific meaning should be attributed to them, thereby meeting the requirement that the statute prescribe either the circumstances or the classes of cases. On this ground, the Court rejected the petitioner's argument that the language failed to comply with the constitutional mandate.

The Court then turned to the challenge to section thirteen sub-section two, which the petitioner contended was defective because, even after a detention order was revoked, the State could issue another detention order under section three on the same grounds against the same individual. The Court explained that the provision was inserted to prevent the release of a person when a previous detention order was invalidated on a technical point, thereby safeguarding the State’s preventive detention power. The Court observed that nothing contained in the Chapter on Fundamental Rights, nor in articles twenty-one or twenty-two of the Constitution, bars the inclusion of such a clause in parliamentary legislation that authorises preventive detention. It added that article twenty sub-section two may be read as presenting a contrasting principle, but does not prohibit the provision under consideration.

Addressing the four fundamental principles of natural justice alleged by the petitioner, the Court held that, with respect to preventive detention, no objective standard of human conduct can be imposed. The Court conceded that, by the very nature of preventive detention, a notice prior to detention cannot be claimed. However, the Court accepted the petitioner's observation that, after detention, the Constitution, in article twenty-two sub-section five, requires that the detainee be informed of the grounds of detention, and that this requirement has been incorporated into the impugned Act.

Regarding the requirement of an impartial tribunal, the Court read article twenty-two together with sub-section seven as granting Parliament wide discretion in framing procedural safeguards for preventive detention. It noted that, where detention exceeds three months and falls within the specified circumstances or classes of cases, article twenty-two sub-section seven expressly permits the absence of an advisory board. By contrast, under article twenty-two sub-section four, the Court inferred that a provision for such a tribunal is not deemed necessary when the period of detention is less than three months.

On the issue of an opportunity to be heard, the Court stated that there is no categorical natural-law right to oral representation; the availability of oral hearing depends upon the nature of the tribunal concerned. Nevertheless, the Constitution, in article twenty-two sub-section five, affirms the right of a detainee to make a representation, and this right is reflected in the provisions of the impugned Act. Moreover, the Court observed that the right to an orderly procedural process, as guaranteed by article twenty-two sub-section four read together with article twenty-two sub-section seven clauses (c), (a) and (b), has also been incorporated into the Act.

Having considered all these aspects, the Court concluded that the petitioner's contentions on each of these points fail. Finally, the Court noted that section fourteen of the Act was vehemently attacked on the ground that it violated all principles of natural justice, a contention that the Court was prepared to examine in the subsequent discussion.

In this case the Court examined a statutory provision that appeared to violate the right guaranteed by article 22 (5) of the Constitution. Section 14 of the impugned Act was quoted in full: “(1) No Court shall, except for the purposes of a prosecution for an offence punishable under subsection (2), allow any statement to be made, or any evidence to be given, before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or of any representation made by him against such order; and, notwithstanding anything contained in any other law, no Court shall be entitled to require any public officer to produce before it, or to disclose the substance of, any such communication or representation made, or the proceedings of an Advisory Board or that part of the report of an Advisory Board which is confidential. (2) It shall be an offence punishable with imprisonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the case may be, any contents or matter purporting to be contents of any such communication or representation as is referred to in sub-section (1): Provided that nothing in this sub-section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order.” By this wording the provision bars the Court, apart from prosecution for unauthorised disclosure, from receiving any statement or evidence concerning the substance of the grounds communicated to a detained person under section 7, and also from receiving any representation made by that person against the order. The provision further prevents the Court from compelling any public officer to reveal the substance of those grounds or from producing the proceedings or any confidential part of the report of the Advisory Board. The Court observed that if this provision were to remain in force, the judiciary would be left without any material on which to assess whether a detention is proper. The objection is not limited to questioning the sufficiency of the grounds; the provision also obstructs the Court’s ability to determine whether the alleged grounds relate to the circumstances or classes of cases mentioned in section 12 (1)(a) or (b). The Court referred to the decision in Machindar Shivaji Mahar v The King, where the Federal Court held that a court may examine the grounds presented by the Government to see whether they are relevant to the legislative objective. Accordingly, the provisions of article 22 (5) do not remove the Court’s power to perform such scrutiny. The Court characterised Section 14 as a drastic measure that demands substantial justification to be upheld in a preventive detention statute. The learned Attorney-General argued that the sole purpose of the section was to prevent public disclosure of the grounds and representations, claiming it was merely an evidentiary rule within parliamentary competence. The Court rejected this argument, finding it inconsistent with the text of article 22 (5) and (6). Consequently, the Court concluded that permitting Section 14 to stand would defeat the constitutional guarantee that the detaining authority must communicate the grounds of detention and that those grounds must be connected to the detention order, otherwise the requirement of article 22 (5) would not be fulfilled.

In this case, the Court examined the argument that the prohibition on disclosing the grounds and the representations was merely a rule of evidence that Parliament could prescribe. The Court rejected that argument, holding that it could not be sustained when read in the context of article 22 clauses (5) and (6) of the Constitution. The Court observed that article 22 (6) gave the Government the right to withhold facts it deemed undesirable to disclose in the public interest, but that right did not extend to the withholding of grounds that fell within the ambit of clause (5). The Court cited the decision reported in (1) [1949-50] F.C.R. 827 to emphasize that the Constitution does not permit the Government to refuse to disclose such grounds on the ground of public interest or as a mere evidentiary rule.

The Court further explained that article 22 (5) expressly required the detaining authority to communicate to the detained person the specific grounds on which the detention order was made. Consequently, it was essential that those grounds be directly connected with the order of preventive detention. If the grounds were not so connected, the requirements of article 22 (5) would not be satisfied and the detention order would be invalid. The Court therefore held that a detained person was entitled to contend before a Court that the grounds articulated in the order bore no connection at all with the order, or with the circumstances or class of cases contemplated by section 12 of the Act.

To advance such a contention, the Court reasoned, the aggrieved party must be permitted to intimate to the Court the actual grounds provided for the alleged detention and any representation made by the detainee. The Court illustrated this with a hypothetical example: if a person were served with a paper containing three unrelated stanzas of a poem or three alphabets written in different styles, the validity of the detention order would hinge upon whether those printed items were indeed the grounds on which the order was based. If the detainee could not produce that paper before the Court, the Court would be unable to determine whether the requirements of article 22 (5) had been fulfilled, thereby depriving the detainee of a constitutional right guaranteed to every person.

Having established the constitutional requirement, the Court concluded that the provisions of section 14 of the impugned Act abridged the right guaranteed by article 22 (5) and were therefore ultra vires. The Court then considered the effect of declaring section 14 invalid on the remainder of the Act. It held that the Act could continue to operate without section 14, as the omission of that provision would not alter the nature, structure or object of the legislation. Accordingly, the decision that section 14 was ultra vires did not compromise the validity of the rest of the Act. In the Court’s opinion, Act IV of 1950, except for section 14, was not ultra vires, did not infringe any provisions of Part III of the Constitution, and the contention of the applicant against the validity of the Act was limited to the reach of section 14.

Justice Fazl Ali observed that the portion of the petition challenging section 14 could not be sustained; consequently the petition was dismissed. The core issue before the Court was whether the Preventive Detention Act, 1950 (referred to as Act IV of 1950) was wholly or partially unconstitutional, and whether a person detained under that statute was entitled to a writ of habeas corpus on the ground that his detention was illegal. The Court noted that this issue was a pure question of law and could therefore be decided without reference to the detailed factual narrative set out in the petitioner’s application, facts which bore more directly on the alleged bad faith of the officials who effected the detention than on the statutory validity of the Act itself.

The Court then turned to the legislative history and substantive provisions of the impugned statute. The Act had been passed by Parliament on 26 February 1950 and was stipulated to cease to have effect on 1 April 1951, except insofar as it affected actions taken or omissions made before that termination date. The principal operative provisions of the Act were contained in sections 7, 8, 9, 10, 11, 12 and 14. Section 1 authorized the Central Government or a State Government, whenever satisfied that a particular person posed a risk, to issue a detention order for one or more of the following reasons: (a) to prevent the person from acting in a manner prejudicial to (i) the defence of India, the country’s relations with foreign powers, or the security of India; (ii) the security of the State or the maintenance of public order; or (iii) the maintenance of supplies and services essential to the community; or (b) if the person was a foreigner as defined in the Foreigners Act, 1946, to regulate his continued presence in India or to make arrangements for his expulsion. Sub-sections 2 and 3 of section 1 empowered a District Magistrate, a Sub-Divisional Magistrate, or a Commissioner of Police in a Presidency Town to exercise the power conferred by subsection 1, subject to the condition that any order so made be reported immediately to the State Government to which the officer was subordinate, together with the grounds for the order and any other particulars that, in the officer’s opinion, were relevant to the necessity of the detention. Section 7 required that the authority issuing a detention order communicate the grounds of the order to the detained person as soon as possible and provide the earliest opportunity for the person to make a representation against the order; where the order originated from the Central Government, the representation was to be made to that Government, and where the order was made by a State Government or an officer subordinate thereto, the representation was to be made to the appropriate State Government.

The Court explained that Section 8 mandates the Central Government and each State Government, whenever they deem it necessary, to constitute one or more advisory boards for the purposes of the Act. The appropriate government is required to specify the qualifications that members of such a board must possess, thereby ensuring that the board is composed of persons suitably qualified to discharge its functions under the legislation.

Section 9 provides that where a detention order is made with the objective of preventing a person from acting in any manner that would be prejudicial to the maintenance of supplies and services essential to the community, or where the order concerns a foreigner as defined in the Foreigners Act for the purpose of regulating his continued presence in India or arranging his expulsion, the grounds on which the order was made and any representation offered by the detained person must be placed before an advisory board within six weeks from the date of detention. The Court noted that this provision does not extend to persons detained under Section 3(1)(a)(i) and (ii); those cases are not required to be placed before the advisory board under Section 9. Section 10 then lays down the procedure that the advisory board must follow when considering such matters. Section 11 further provides that if the advisory board reports that there is sufficient cause for the detention of the person concerned, the detention order may be confirmed and the detention may be continued for a period that the Central Government or the State Government, as the case may be, deems appropriate.

Section 12, which the Court described as a very important provision, allows a person detained in certain specified classes of cases or under certain circumstances to be detained without first obtaining the opinion of an advisory board for a period longer than three months, but not exceeding one year from the date of his detention. This extended period applies where the detention is intended to prevent the person from acting in any manner prejudicial to (a) the defence of India, the relations of India with foreign powers, or the security of India, or (b) the security of a State or the maintenance of public order. Sub-section 2 of Section 12 requires that every case of a person detained under an order to which sub-section 1 applies be reviewed within six months from the date of detention. The review must be conducted by the Central Government or the State Government that made the order, and where the order was made by an officer specified in sub-section 2 of Section 3, the review is to be carried out by the State Government to which that officer is subordinate, in consultation with a person who is, has been, or is qualified to be appointed as a Judge of a High Court, nominated for that purpose by the Central Government or the State Government, as appropriate.

The Court observed that the statutory provision, which constitutes a material section for the purposes of the present case, is expressed as follows: “(1) No Court shall, except for the purposes of a prosecution for an offence punishable under subsection (2), allow any statement to be made, or any evidence to be given, before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or of any representation made by him against such order; and, notwithstanding anything contained in any other law, no Court shall be entitled to require any public officer to produce before it, or to disclose the substance of, any such communication or representation made, or the proceedings of an Advisory Board or that part of the report of an Advisory Board which is confidential. (2) It shall be an offence punishable with imprisonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the case may be, any contents or matter purporting to be the contents of any such communication or representation as is referred to in sub-section (1): Provided that nothing in this sub-section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order.” The principal question raised before the Court is that the Act is invalid because it removes or abridges certain fundamental rights conferred by Part III of the Constitution of India, and the submission relies upon article 13 (2), which provides: “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.” The rights guaranteed under Part III are grouped into seven broad categories: (1) Right to equality; (2) Right to freedom; (3) Right against exploitation; (4) Right to freedom of religion; (5) Cultural and educational rights; (6) Right to property; and (7) Right to constitutional remedies. The majority of the articles alleged to have been ignored fall under the heading “Right to freedom,” specifically articles 19 (1)(d), 21 and 22. In addition, article 32 is claimed to have been infringed, as the present application for a writ of habeas corpus is framed under that article. The Court further noted the text of article 19 (1), which states: “All citizens shall have the right- (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (f) to acquire, hold and dispose of property; and (g) to practise any profession, or to carry on any occupation, trade or business.”

Article 19 of the Constitution enumerated the right to hold and dispose of property and, in sub-clause (g), the right to practise any profession or to carry on any occupation, trade or business. Clauses (2), (3), (4), (5) and (6) of the same article expressly provided that nothing in clause (1) should affect the operation of any existing law concerning the rights mentioned in that clause, subject to the conditions that were subsequently set out. The provision that was directly relevant to the present dispute was clause (5). Clause (5) read as follows: “Nothing in sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.” The petitioner advanced two principal submissions based on this article. First, the petitioner argued that the statute under which he had been detained stripped him, as a citizen of the Republic of India, of the constitutional right to move freely throughout the territory of India, a right guaranteed by article 19(1)(d). Second, the petitioner contended that clause (5) of article 19 empowered this Court to examine whether the restrictions imposed by the statute on the exercise of the right in article 19(1)(d) were reasonable, and accordingly to declare the restrictions unlawful if they were not.

Before addressing those submissions, the Court found it necessary to interpret the words used in article 19(1)(d) and to attain a clear understanding of the nature of the right it conferred. The petitioner’s position was that freedom of movement formed the very essence of personal liberty and that any limitation on that freedom must amount to an abridgment or a deprivation of personal liberty, depending upon the character of the limitation. After a careful examination, the Court concluded that this position was well-founded in law. The Court cited Blackstone’s “Commentaries on the Laws of England” (4th Edition, vol. 1, p. 134), which declared that “personal liberty consists in the power of locomotion, of changing ’situation or moving one's person to whatsoever place one's own inclination may direct, without imprisonment or restraint unless by due course of law.” The authority of that statement had never been challenged, and it had been incorporated by H. J. Stephen in his own “Commentaries on the Laws of England” and reproduced by Cooley in his noted treatise “Constitutional Limitations” (8th Edition, vol. 1, p. 710). Both counsel for the petitioner and counsel for the respondent quoted these authorities extensively during their arguments. The Court further observed that the identification of freedom of movement with the core of personal liberty was corroborated by any standard text on English criminal law dealing with false imprisonment, thereby reinforcing the legal foundation of the petitioner’s contention.

In examining the offence of false imprisonment and the provisions of the Indian Penal Code that address wrongful restraint or confinement, the Court referred to several respected commentaries. Russell, in his work entitled “Crimes and Misdemeanours” (eighth edition, volume 1, page 861), explained that false imprisonment consists of an unlawful and complete restriction of another person’s personal liberty. He stated that such restriction may arise from compelling a person to go to a particular location, confining him in a prison, a police station, a private premises, or detaining him against his will in a public place. Russell emphasized that the essential element of the offence is the unlawful detention of the person or the unlawful restraint on his liberty, and that any interference with another’s movements is unlawful unless it is justified by law.

Similarly, Dr Gour, discussing the offence of wrongful restraint in his treatise “The Penal Law of British India” (fifth edition, page 1144), observed that the principle underlying the law is that every individual’s body is sacred and free, and that the law imposes penalties on anyone who abridges a person’s personal liberty, even if the interference is brief. Gour argued that any control over a person’s movements, however short, constitutes an offence against the peace of the King, because no one has the right to molest another in his free movements. In the same volume, on page 1148, Gour further distinguished wrongful confinement as a subset of wrongful restraint. He explained that wrongful restraint involves a partial limitation of a person’s freedom of locomotion, whereas wrongful confinement entails a total suspension of liberty beyond certain prescribed limits.

Both authors treat the concepts of restraint on personal liberty, interference with the liberty of movement, suspension of liberty, and locomotion as interchangeable expressions. The Court also cited the judgment in Bird v. Jones (1), where Justice Coleridge observed that a component of freedom is the ability to go wherever one pleases. The same view has been echoed by several scholars, including Sir Alfred Denning in his book “Freedom under the Law.” From these authorities, the Court concluded that freedom of movement is, in the final analysis, the essence of personal liberty. It likened the measurement of personal liberty to the way wealth is measured in rupees, annas and pies; the extent of a person’s liberty is determined by the breadth of his freedom to move.

However, the State contended that the freedom of movement mentioned in article 19(1)(d) of the Constitution is not the same freedom described by Blackstone and the other authors. The State argued that the constitutional provision qualifies the freedom by the words “throughout the territory of India.” The State questioned how the phrase “throughout the territory of India” could qualify and possibly limit the meaning of the broader concept of freedom of movement discussed in the preceding authorities.

In this case, the Court observed that the precise meaning of many of the remaining words in article 19 was beyond its immediate grasp, but it formed a clear opinion about the phrase “throughout the territory of India.” The Court held that this phrase was intended to expand the scope of the constitutional guarantee of freedom of movement to the greatest possible extent within the limits of the nation’s territory. It explained that the Constitution could not purport to secure a right to move beyond the sovereign borders of India; therefore, the words were inserted to indicate that every citizen possessed the right to travel from any part of the country to any other part without obstruction. The Court described “throughout” as an amplifying term rather than a limiting one and expressed surprise that a phrase designed to give the widest possible meaning to the freedom of movement was being interpreted as a restriction on that freedom. Referring to the context in which the words appear, the Court said that they convey the same effect as Blackstone’s description of the right “to whatsoever place one’s own inclination may direct” and as Justice Coleridge’s statement in Bird v. Jones that freedom of movement means “the freedom to be able to go whithersoever one pleases.” The Court stressed that neither Blackstone nor Coleridge imagined that such a right would extend beyond the territorial limits of the jurisdiction to which it applied, whether British or Indian. The Court noted that the issue of whether preventive detention infringes article 19(1)(d) had been examined by the High Courts of Nagpur, Patna and Calcutta. Those courts, taken together, generally concluded that preventive detention does not violate the article-19 right, although at least five judges of the Calcutta High Court, in a detailed discussion, held the opposite view. The Court observed that the number of judges holding the contrary view was essentially equal to those holding the majority view, and because the majority opinion differed from the Court’s own inclination, it deemed it necessary to address the principal objections raised against a narrow construction of article 19(1)(d). Having already considered the objection based on the expression “throughout the territory of India,” the Court indicated that it would now examine the remaining objections one by one. It recalled that clause (5) of article 19, previously quoted in full, expressly provides that nothing in clause (1)(d) shall affect the operation of any law, present or future, that imposes reasonable restrictions on the exercise of the freedom of movement in the interests of the general public or

The Court observed that clause (5) of article 19 provides that nothing in clause (1)(d) shall affect the operation of any law, present or future, imposing reasonable restrictions on the exercise of the right of movement either in the interests of the general public or for the protection of the interests of any Scheduled Tribe. It was contended that the expression “interests of any Scheduled Tribe” in this clause indicates that the right guaranteed by article 19(1)(d) is a narrow right of movement, limited to visiting different localities and travelling from one place to another, and that it differs from the expression “freedom of movement” which Blackstone described as another name for personal liberty. The argument further pointed out that the restrictions contemplated here are mainly those that prevent undesirable outsiders from entering Scheduled Areas and exploiting Scheduled Tribes, and that if “freedom of movement” had been used in its broader sense, such a limited matter would not have been placed in clause (5) of article 19. The Court confessed that it could not accept this line of reasoning and could not hold that a mere reference to Scheduled Tribes alters the plain meaning of the words used in clause (1)(d) of article 19. The Court explained that the words in article 19(1)(d) are very wide and mean that a person may go at his will in any direction, to any locality, and for any distance. A restriction on such a wide-ranging freedom may assume many forms, including internment or externment of a person, confinement to a particular locality or to the walls of a prison, or being prevented from visiting or staying in a specific area. The framers of the Constitution intended to preserve all restrictive legislation affecting freedom of movement made in the interests of the general public, an expression that is synonymous with “public interests,” and the Court considered that the law on preventive detention is fully covered by the phrase “restrictions imposed in the public interests.” However, the framers also remembered that restrictive laws had been made in the interests of an important community and that similar laws might be required in the future; therefore they inserted the words “for the protection of the interests of any Scheduled Tribe.” The Court referred to the Fifth Schedule of the Constitution, the corresponding provisions of the Government of India Act 1935, and certain statutes made for Chota Nagpur, Santhal Parganas and other localities, noting that great importance has been attached in this country to the protection and preservation of Scheduled Tribes and to the maintenance of order in tribal areas, and that this suffices to explain the special mention of Scheduled Tribes in clause (5). Though the matter may appear relatively minor at first glance, the Court concluded that, in their desire to cover the entire field of restrictive laws made either in the public interest or in the interests of a particular community and to leave no loophole, the framers drafted the clause in its present form.

In this judgment the Court observed that, as far as it was aware, no restrictive law had been enacted for the benefit of any community other than the scheduled tribes, and therefore clause five was sufficiently wide to cover even the smallest and most extensive restrictions on the freedom of movement. The Court further expressed that merely mentioning scheduled tribes in clause five could not alter the plain meaning of the words of article nineteen-one-d, nor could it confine the provision to a special and limited freedom of movement that was unrelated to personal liberty and unknown in any familiar constitution. The Court then referred to Ordinance fourteen of 1943, an amendment to the Defence of India Act, 1939, which authorized the apprehension and detention of any person suspected, on reasonable grounds, of being of hostile origin or of acting, or likely to act, in a manner prejudicial to public safety, the defence of British India, the maintenance of public order, the relations of His Majesty with foreign powers or Indian States, the maintenance of peaceful conditions in tribal areas, or the efficient prosecution of the war. The ordinance also empowered the authority to prohibit such a person from entering, residing in, or remaining in any area, and to compel the person to reside in a designated area or to do or refrain from doing something. The Court noted four important aspects of the ordinance: first, it was specifically an ordinance for apprehension and detention; second, although it generally referred to acts prejudicial to public safety and order, it also specifically mentioned the maintenance of peaceful conditions in tribal areas; third, tribal areas and scheduled tribes were closely linked, as shown by the Fifth Schedule of the Constitution; and fourth, preserving peace in tribal areas could be a matter of public interest as well as the interest of the persons living there. From this, the Court concluded that preventive-detention law could occasionally be enacted for the benefit of scheduled tribes or scheduled areas, and therefore the mere reference to scheduled tribes in clause five did not automatically exclude preventive-detention statutes from the ambit of article nineteen-five. The Court indicated that the same observations applied to the Restriction and Detention Ordinance of 1944, which also empowered the central or provincial government to detain persons and impose movement restrictions in the interest of public safety, maintenance of public order, and the preservation of peaceful conditions in tribal areas.

The Ordinance dated 1944, identified as Ordinance No III of 1944, conferred upon the Central Government or, as the case may be, the Provincial Government the power to detain certain individuals and to issue orders that would restrict their movements. This power could be exercised in the interest of public safety, for the maintenance of public order, and also for the preservation of peaceful conditions in tribal areas, among other purposes. It was contended before the Court that, because preventive detention effectually amounts to a total deprivation of a person’s freedom of movement, it does not infringe the liberty guaranteed by article 19(1)(d) of the Constitution, the text of which employs the term “restriction” rather than “deprivation.” The Court found this line of reasoning unpersuasive. It identified two precise questions to be answered: first, whether preventive detention takes away the right to move freely that is secured by article 19(1)(d); and second, if that right is indeed taken away, what legal consequences, if any, should follow. The Court held that preventive detention unquestionably constitutes a complete deprivation of the right guaranteed by article 19(1)(d). The term “restriction,” as used in article 19(5), must therefore be interpreted in light of the second question. The Court considered it overly technical to argue that a deprivation of a right could not be described as a restriction on the exercise of that right. In the Court’s view, there is no inherent opposition between the words “restriction” and “deprivation” when they are read in context. A restraint on the right of movement can take many forms, ranging from total denial to various partial limitations, and the word “restriction” is the most suitable expression in clause (5) to encompass this entire spectrum. The Court indicated that it would later address this issue in more detail and would support the proposed construction with appropriate authority.

The Court also observed that several judges who had previously considered the matter were heavily influenced by the argument that, if the deprivation of personal liberty is deemed to be a deprivation of the right guaranteed by article 19(1)(d), then any conviction for an offence under the Indian Penal Code that carries a sentence of imprisonment would become subject to judicial review on the ground of the reasonableness of the statutory provision under which the conviction was recorded. Chief Justice Meredith of the Patna High Court voiced his apprehension about the ramifications of such a view. He warned that the claim was extremely sweeping, for it would open the door to judicial scrutiny of every law that authorises imprisonment, including all provisions of the Penal Code, on the basis of reasonableness. According to his observation, this would elevate the courts to the position of supreme arbiters over all such legislation, granting them the power to either reject or accept a law according to their own notions of what is reasonable. The Court noted this concern as part of the broader discussion on the interpretation of “restriction” versus “deprivation” within article 19.

The Court observed that ideas of what is reasonable differ greatly from one person to another. It gave the example of laws concerning prohibition and of the offence of adultery, which Indian law treats as a crime punishable by imprisonment while English law does not recognise it as a crime at all. From these examples the Court found it hard to accept that the makers of the Constitution intended to give the judiciary such a massive power over legislation. The Court cited the earlier decision in Rattan Roy v. The State of Biharl. and noted that the primary and strictly legal response to the argument advanced by the learned Chief Justice is that the consideration he raised is insufficient to diminish the plain meaning of the words used in article 19 (5) of the Constitution. As the Court recalled from several earlier decisions, when construing statutory language the courts are not to be guided by the policy behind the law or by the consequences, whether beneficial or harmful, that may result from giving effect to the words used, a principle illustrated in the case of King Emperor v. Benoari Lal Sharma and others (1)I.

Beyond that point, the Court concurred with a judgment of a Judge of the Calcutta High Court who had remarked that no disastrous or adverse result would follow even if the provisions of the Penal Code were made subject to judicial scrutiny. The Court expressed confidence that no court would interfere with a Code that has formed the law of the land for almost a hundred years and whose provisions do not conflict with the fundamental principles of any legal system. The Court warned that the Constitution’s guarantee of a fundamental right should not be set aside because of an uncertain and unsubstantiated fear that something catastrophic might occur. Although the Court initially proceeded on the assumption that the objection raised by Meredith C.J. was correct in law, it concluded that the objection was in fact misplaced.

The Court then turned to the definition of crime, noting that crime consists of acts or omissions that breach a duty for which the law attaches a sanction in the form of punishment or a monetary fine, a view supported by Russell’s “Crimes and Misdemeanours”. It pointed out that Section 2 of the Indian Penal Code, 1860, states that “every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within British India.” The Court emphasized that the Indian Penal Code does not primarily or necessarily impose restrictions on the freedom of movement; its main purpose is to punish criminal conduct, not to limit movement. While the punishment may be imprisonment or a fine, a fine does not restrict movement, whereas imprisonment does. The Court clarified that such restriction on movement arises not from a law that imposes a limitation on the right to move freely, but from a law that defines criminal conduct and prescribes punishment for it.

In this case, the Court observed that the Indian Penal Code defines offences and prescribes punishment for those offences. The punishment is linked directly to the violation of another person's right, not to any right of movement that the offender himself possesses. Consequently, the Court held that the Penal Code does not fall within the expression “law imposing restriction on the right to move freely.” During the arguments, the term “punitive detention” was repeatedly mentioned and was sometimes placed on the same level as preventive detention for the sake of certain arguments. However, the Court explained that punitive detention is fundamentally different from preventive detention. A person is subjected to punitive detention only after a trial for a crime, when a competent court has established his guilt. Such a convicted person retains the right to appeal to the State High Court and, on occasion, to this Court. Moreover, while his criminal proceedings are ongoing, he may raise any defence available to him, including challenges to the jurisdiction of the trial court or to the validity of the law under which he was prosecuted. The final judgment in the criminal trial therefore becomes a serious impediment if the convicted individual later claims that his right under article 19(1)(d) has been infringed. By contrast, a person who is placed under preventive detention does not encounter such an obstacle, regardless of any other barriers that may exist. The Court further noted that article 19 is limited to citizens, which creates an anomalous situation: in preventive detention cases, a citizen enjoys a relatively better position than a non-citizen because a citizen’s detention is subject to some form of judicial review under article 19(5), whereas a non-citizen’s detention is not. Some counsel argued that the entire preventive detention legislation could be declared void as unreasonable, even though it applies to both citizens and non-citizens. The Court expressed that this argument did not disturb it. It is a clear fact that the Constitution restricts all the rights mentioned in article 19(1) to citizens, and that any restrictions on those rights are, at least to a limited extent, open to judicial scrutiny. The same issue that arises with respect to article 19(1)(d) also arises with most of the other sub-clauses. A citizen has the right to assemble peaceably without arms, to form associations or unions, and so on. If a law imposes unreasonable restrictions on any of these rights, that law will be invalid as far as citizens are concerned, but it may remain valid as far as non-citizens are concerned. The Court concluded that there was no inherent anomaly in this distinction, especially regarding the right to free movement, which non-citizens also enjoy under articles 21 and 22. The additional protection afforded to citizens under article 19(1)(d) does not create an unreasonable discrimination, and a law could be void for citizens while remaining valid for non-citizens without contradicting the Constitution’s intent.

In this portion of the judgment the Court observed that there was no reason to treat the situation concerning the freedom of movement guaranteed under sub-clause (d) of article 19 as anomalous. The Court noted that non-citizens enjoyed certain safeguards under articles 21 and 22, whereas citizens received additional protection under article 19(1)(d). The Court held that this distinction did not create any inconsistency or unlawful discrimination. It further said that it was conceivable for a statute to be declared void when applied to a citizen but to remain valid when applied to a non-citizen, provided that such differential treatment was clearly within the contemplation of the framers of the Constitution. The Court then addressed an argument that the rights listed in article 19 applied only to a free citizen and that, once a person’s liberty was taken away under the circumstances described in articles 20, 21 and 22, it would be meaningless to claim that article 19 still conferred a right. After careful consideration, the Court found that the argument did not arise from the facts of the case. The Court pointed out that article 19 contains no language limiting its operation to situations that fall outside articles 20, 21 or 22. Focusing on preventive detention, the Court observed that any person placed under preventive detention must have been a free individual prior to the deprivation of liberty. The Court explained that such a detained person could assert, “As a citizen I have the right to move freely and you may not curtail that right beyond the limits set by clause (5) of article 19.” The Court stressed that this issue was the only one that needed resolution and should not be clouded by abstract or metaphysical reasoning. The Court acknowledged that detention inevitably prevents a person from moving and therefore temporarily bars the practical exercise of the right guaranteed by article 19(1)(d). However, the Court compared this physical impediment to the condition of a bedridden patient, noting that in law physical restraint does not extinguish the legal right to freedom of movement. Consequently, if a person is detained under a valid provision that lawfully restricts movement, the Court must examine whether the restriction is reasonable. If the detention occurs without any legal provision or under a provision that is invalid, the Court must order the person’s release. Finally, the Court concluded that the constitutional scheme of fundamental rights does not treat each article as an isolated code; rather, articles 19, 20, 21 and 22 overlap to some extent.

The Court observed that different constitutional provisions often intersect. A person convicted of an offence falls within articles 20 and 21, and also within article 21-A concerning his arrest and pre-trial detention. Preventive detention, addressed in article 22, likewise deprives a person of personal liberty referred to in article 21 and infringes the freedom of movement guaranteed by article 19(1)(d). The Court noted further examples of such overlap, for instance article 19(1)(f) and article 31, both of which protect the right to property and therefore intersect to some extent. It was pointed out that certain learned High Court judges, while considering the matter before this Court, were heavily influenced by a statement in the Drafting Committee’s report on article 15 (now article 21). That statement suggested that the term “liberty” should be qualified by inserting the word “personal” before it, otherwise the term might be interpreted too broadly to include the freedoms covered by article 13 (now article 19). The Court, however, declined to regard this observation as decisive for interpreting the plain words of article 19(1)(d), which can be understood without resort to extraneous material. The Court questioned whether the Drafting Committee’s report and the parliamentary debates should be used to interpret ordinary statutory language that is not technical, and whether such material could legitimately aid a construction that strains the clause’s language. Apart from these doctrinal questions, the Court considered whether the Committee’s suggestion adds anything beyond a merely plausible justification for a slight verbal amendment in article 21.

It became clear to the Court that inserting the word “personal” before “liberty” in article 21 does not alter the meaning of article 19, nor does it remove a matter inherently linked with personal liberty from its proper position. The terms “personal liberty” and “personal freedom,” despite the qualifier “personal,” are frequently employed in a broader sense in legal literature, encompassing freedoms such as speech and association. These freedoms constitute some of the most important components of liberty and remain unaffected by the addition of the word “personal.” Moreover, a general statement by the Drafting Committee referring to freedom in the plural cannot replace an authoritative exposition of the meaning of article 19(1)(d), which has not been specifically addressed by the Committee’s remarks and cannot be used to override reasoned interpretation. Consequently, the Court concluded that the words of article 19(1)(d) must be construed as they stand, and the question remains whether preventive detention infringes the right guaranteed by that provision.

The Court observed that an authoritative exposition of the meaning of the words used in article 19 (1)(d) had not been specifically cited, and that such an exposition could not be given such decisive weight as to force a construction that contradicted reason and established authority. Accordingly, the Court held that the words of article 19 (1)(d) must be interpreted according to their plain meaning, and that the question to be answered was whether, in the particular context of preventive detention, the right guaranteed by article 19 (1)(d) was infringed. The Court further noted that, even if the language of article 19 (1)(d) were read in its most literal sense and even if the meaning attached to those words were confined as narrowly as possible, the result could not be escaped: preventive detention amounted to a direct violation of the right protected by article 19 (1)(d). After addressing the principal objections raised, the Court returned to the central issue for consideration.

In addressing that issue, the Court explained that the expressions “personal liberty” and “personal freedom” have been described in legal literature as possessing both a broader and a narrower sense. In the broader sense, the terms encompass not only immunity from arrest and detention but also freedoms such as speech and association. In the narrower sense, they refer solely to immunity from arrest and detention. The Court traced the juristic conception of “personal liberty”—when understood as immunity from arrest—to the idea of freedom of movement and locomotion. It pointed out that this conception underlies the criminal law of England and of this country, particularly with regard to the offences of false imprisonment and wrongful confinement, whose essential element is the restraint of a person’s movement. Having set out these principles, the Court examined whether English law recognized any right of movement that was distinct from personal liberty understood as immunity from arrest and detention, and found no such distinct right. The Court referred to Halsbury’s Laws of England (second edition, volume 6, page 391), which lists freedoms such as personal freedom (or immunity from detention), property rights, freedom of speech, the right to public meetings, and the right of association, but makes no mention of a separate right of movement. Similar classifications appear in Dicey’s “Introduction to the Study of the Law of the Constitution,” Keith’s “Constitutional Law,” and other constitutional treatises, yet none of these sources refer to a freedom of movement in the sense required for interpreting article 19 (1)(d). The Court also observed that the constitutions of the United States, Ireland, and many other nations that value freedom do not contain any reference to a right of movement distinct from personal liberty understood as immunity from arrest and confinement. The Court concluded that, within legal doctrine, no independent freedom or right of movement exists apart from the concept of personal liberty.

In this case the Court observed that the term personal liberty already includes the notion of freedom of movement and therefore it was unnecessary to treat that freedom as a separate concept. The Court noted that the only constitution that expressly mentions freedom of movement as a distinct provision is the Constitution of the Free City of Danzig, which covers an area of 701 square miles, where article 75 states: “All nationals shall enjoy freedom of movement within the City.” No authoritative opinion exists to show that this freedom is different from what is generally called personal liberty. Consequently the problem of interpreting the right in article 75 of the Danzig Constitution is the same as the problem of interpreting article 10 (1) (d) of our Constitution. The Court affirmed its earlier view that the juristic understanding that personal liberty and freedom of movement are synonymous is the correct and accepted interpretation, and that the words of article 10 (1) (d) must be read in accordance with this universally accepted legal conception.

The Court further supported this conclusion by referring to wartime legislation in England and in India, which formed the basis of the law of preventive detention that has operated in this country since the war. During the First World War the British Parliament enacted the Defence of the Realm Consolidation Act of 1914, under which a series of regulations were issued, including regulation 14-B. Regulation 14-B authorized the Secretary of State to impose “obligations and restrictions” on any person because of his hostile origin or associations. Lord Atkin, commenting on this regulation in Liversidge v. Sir John Anderson (1), observed that the regulation “undisputedly gave to a Secretary of State unrestricted power to detain a suspected person.” The Court understood Lord Atkin’s remark to mean that the restriction contemplated by the Act encompassed preventive detention. Under that regulation the individual Arthur Zadig was interned; he sought a writ of habeas corpus from the King’s Bench, which was denied. The matter ultimately reached the House of Lords in Rex v. Halliday (2). The noble Lords proceeded on the premise that there was no distinction between internment and incarceration or imprisonment. Lord Shaw, while summarising the facts, stated: “… his person was seized, he has been interned … the appellant lost his liberty and was interned …” He then asserted that there was no difference between internment and imprisonment and quoted Blackstone: “The confinement of the person, in any wise, is an imprisonment. So that the keeping a man against his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprisonment.” Operating on this basis, which the Court found to be the common thread in the authorities, even though Lord Shaw delivered a dissenting judgment, Lord Finlay, while examining the provisions of the regulations, observed: “One of the …”

In reviewing the authorities, the Court observed that the most obvious method of protecting the nation from the dangers that had been enumerated was to place some restriction on the freedom of movement of persons who might be suspected of being inclined to assist the enemy. The Court quoted the passage in which Lord Atkinson, while addressing the merits of the case, remarked that if the legislature chose to enact a provision whereby a person could be deprived of his liberty and either incarcerated or interned for certain acts that he could not previously have been subjected to, such an enactment and the orders issued under it would, provided they were within the constitutional limits, not contravene the Habeas Corpus Acts nor remove any right granted by the Magna Carta. The Court explained that, when this observation was read together with the earlier passage, it became clear that both internment and incarceration were regarded as “restrictions on the freedom of movement,” and that the expressions “deprivation of liberty” and “restriction on freedom of movement” were used interchangeably to convey the same meaning.

The Court then turned to the regulations that had been framed during the last world war under the Emergency Powers (Defence) Act, 1939. It noted that Regulation 18-B dealt directly with detention orders, and that this regulation, together with a number of other regulations, had been grouped in Part I under the heading “Restrictions on movements and activities of persons.” The Court emphasized that this classification was significant because it supported the two principal arguments presented in the case: first, that detention constituted a form of restriction, and second, that it was specifically a restriction on movement. Observing that the term “movement” appeared in the plural and that the heading also referred to restrictions on activities, the Court reasoned that, given the subjects listed under the heading, “movement” unmistakably meant physical movement, encompassing actions such as entering a particular locality or traveling from one place to another—precisely the kinds of activities referred to in article 19(1)(d). Citing Liversidge’s case, the Court reproduced Viscount Maugham’s observation that the language of the 1939 Act made it clear beyond doubt that defence regulations could be made which, for the sake of public safety, must deprive the subject whose detention appeared to the Secretary of State to be expedient of all liberty of movement while the regulations remained in force. Consequently, Viscount Maugham also treated detention as synonymous with deprivation of liberty of movement. The Court further noted that the same classification appeared, with minor wording changes, in the Defence of India Rules, where rule 26, which dealt with preventive detention, was placed under the heading “Restriction of movements and activities of persons.” Finally, the Court pointed out that a comparable classification had been adopted in various provincial statutes and ordinances dealing with the maintenance of order, thereby demonstrating a consistent legislative approach to treating preventive detention, internment, externment, and related restrictions on movement as essentially the same category of legal measure.

In the passage under consideration, the Court listed a series of statutes that dealt with public order and security, namely the Public Order Act of 1949, the West Bengal Security Act of 1948 (section 16), the East Punjab Public Safety Act of 1949 (section 4), the Madras Maintenance of Public Order Act of 1947 (section 2), the Uttar Pradesh Maintenance of Public Order Temporary Act of 1947 (section 3), and the Bombay Public Security Measures Act of 1947 (section 2). In each of these enactments, the legislative provisions placed preventive detention together with other forms of movement restriction such as internment and externment, treating them in a similar manner and often situating them within the same provisions or clauses. In at least one of the statutes, the same advisory board was authorised to consider the case of a detainee as well as the case of an externed individual, and comparable provisions permitted both categories of persons to make representations to the Government.

The Court then proposed, for the sake of argument, to assume that the freedom of movement guaranteed by Article 19(1)(d) of the Constitution did not fall within the broader concept of personal liberty and that the expression should be given the narrow meaning advocated by the Attorney-General and certain members of the Court. Even under that restrictive assumption, the Court found it difficult to reach any conclusion other than the one already reached. The Court observed that preventive detention directly and substantially removed even the limited freedom of movement, and therefore, if that interpretation is accepted, it could not be argued that the right in Article 19(1)(d) remained uninjured. The Court posed the question: does a person who is detained retain any fraction of his freedom of movement, however narrowly the term might be understood, or does his right to travel freely from one place to another, or to visit any locality he chooses, inevitably disappear as a necessary consequence of his detention?

Continuing its analysis, the Court referred again to the Defence of the Realm Regulations and the Defence of India Rules, noting that preventive detention was placed under the heading “Restriction of movements and activities.” The term “movement” was used in the plural and was understood to denote the very kind of movement protected by Article 19(1)(d), namely moving from one State or place to another and visiting different localities. One of the purposes of preventive detention, the Court explained, was to restrain the detained person from moving from place to place so that he could not spread disaffection or engage in dangerous activities in the locations he might otherwise visit. The same rationale applied to persons who were interned or externed. Consequently, externment, internment and other similar restrictions on movement had always been treated as kindred matters belonging to the same group or family, and the rule that applied to one was deemed to apply to the others.

In this case, the Court observed that any principle which necessarily applies to externment must also be applied to preventive detention. It was considered difficult to maintain that the legal treatment of externment could be distinct from that of preventive detention. The Court noted that the Patna and Bombay High Courts had ruled that a person who was externed could successfully claim a violation of the right guaranteed by article 19(1)(d). That view had not been seriously challenged before this Court, and if it were correct, the Court could not see how preventive detention could be said not to directly invade the same article 19(1)(d) right. The Court then asked what kinds of laws the framers of the Constitution had in mind when they referred to restrictions in the public interest under article 19(5). It suggested that the wartime legislation and the provincial Acts and Ordinances previously mentioned were among those laws, because those statutes expressly purport to impose restrictions on movement. If that is so, the Court emphasized that preventive detention formed an inseparable part of those statutes and was classified as a form of restriction on movement. On careful consideration, the Court found that the interpretation advanced by the learned Attorney-General would attract article 13(2) as strongly and directly as the Court’s own interpretation, but the Court preferred its own view because it was legally unsound to treat a component that is inseparably bound up with the essential element of personal liberty as a wholly separate and unconnected entity. Nevertheless, for the purpose of the present case, the Court suggested that it was sufficient to ignore the broader concept of personal liberty and remember that detention, as has been pointed out by Viscount Maugham and other eminent judges, is simply another name for depriving a person of his liberty of movement. During the arguments, it was pointed out that preventive detention not only takes away the right under article 19(1)(d) but also takes away all the other rights guaranteed by article 19(1), except the right to hold, acquire and dispose of property. The Court could not discern the ultimate purpose of that argument, and it regarded it as a fallacy because it ignored the difference in the way preventive detention affects the right in sub-clause (d) compared with the other sub-clauses of article 19(1). The distinction, the Court explained, is that preventive detention directly and inevitably curtails freedom of movement, whereas its impact on the remaining rights is indirect, consequential and often merely theoretical. A person who is preventively detained is therefore instantly deprived of his right of movement.

The Court explained that a person who is detained loses his freedom of movement directly because of the detention itself. The other rights guaranteed by article 19(1) are lost only indirectly, as a consequence of the loss of movement. While the loss of movement is real and substantial, some of the remaining rights may not disappear until the detained person attempts to exercise them or shows an interest in doing so. A detained individual might have no interest in freedom of association, and he may not pursue any profession, occupation, trade, or business; in such circumstances those rights are lost only in theory, not in substance. The Court added that its earlier difficulty in grasping the full force of the argument arose from the concern that if preventive detention were to sweep away or affect almost all the rights guaranteed in article 19(1), the matter would require very serious consideration. It would therefore be improper to lightly conclude that article 13(2) does not come into operation. Fully aware that declaring a law enacted by Parliament unconstitutional is a grave step, the Court repeatedly asked itself what could be placed on the scale in favour of the view that preventive detention does not take away the freedom of movement protected by article 19(1)(d). The inevitable answer, the Court found, was that on one side there is plain, unambiguous constitutional language, the opinions of eminent jurists, high-authority judicial dicta, constitutional practice showing that no Constitution refers to any freedom of movement apart from personal liberty, and the way preventive detention has been treated in the statutes forming the basis of the present law. On the opposite side, the Court could cite only a vague apprehension that some distant, fearful object such as a revision of the Penal Code might be looming, the peculiar objection that mentioning scheduled tribes would alter the meaning of certain plain words, a highly technical and unreal distinction between restriction and deprivation, and an unsupported assumption that a person who is preventively detained cannot claim the right of freedom of movement because he is not a free man. Whether taken singly or collectively, the Court held that these considerations are too unsubstantial to carry any weight. Consequently, the Court was strongly of the view that article 19(1)(d) guarantees the right of freedom of movement in its widest sense, that freedom of movement is the essence of personal liberty, and that the right guaranteed by the article is essentially a right to personal liberty which is deprived by preventive detention. The Court also expressed the view that even according to the interpretation suggested by the Attorney-General, preventive detention must be regarded as a violation of the right conferred by article 19(1)(d).

In the discussion of article 19(1)(d), the Court observed that the interpretation advanced by the learned Attorney-General led to the conclusion that preventive detention inevitably infringed the freedom of movement guaranteed by that provision. Accordingly, the Court held that the law of preventive detention fell within the limited scope of judicial review permitted by article 19(5). The review, the Court explained, was confined to the question of whether any particular statute imposed an unreasonable restriction on the right. Because the restriction affected a highly valuable liberty, the Court noted that it was not extraordinary for the legislature to rely on the Supreme Court to examine whether an enactment that curtails the right remains within the bounds of reasonableness. Turning then to article 21, the Court set out the text of the clause: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The Court identified the phrase “procedure established by law” as the only term that raised interpretative difficulty. The learned Attorney-General argued that the word “law” in article 21 referred strictly to law enacted by the State. By contrast, counsel for the petitioner contended that the expression should be understood in a broader sense, akin to the phrase “due process of law” as interpreted in early American jurisprudence, and that it corresponded to what American writers describe as “procedural due process.” During the argument, the Attorney-General cited debates in the Constituent Assembly, showing that the original draft of the article contained the words “without due process of law,” which were later replaced by “except according to procedure established by law.” The Court opined that, although the Assembly debates were not determinative for construing plain and unambiguous language, they were relevant to demonstrate the Assembly’s intention to avoid the wording “without due process of law.” The Court further traced the historical roots of that phrase to the medieval expression “per legem terrae” (law of the land) in the Magna Carta of 1215, noting its later appearance in a statute of Edward III that prohibited deprivation of property, liberty, or life without being brought to answer by due process of law. The Court observed that the concept was subsequently incorporated into the United States Constitution and into several state constitutions, although some states preferred alternative formulations such as “in due course of law” or “according to the law of the land.”

The Court observed that in the early period of American jurisprudence the phrase “due process of law” was interpreted by the United States Supreme Court as referring solely to procedural matters. Over time, however, the meaning of the expression broadened to encompass substantive rights as well, an evolution that the Court attributed to the emphasis placed on the word “due.” The Court noted that the phrase had been employed so expansively that judges found it difficult to give a precise definition that would be both accurate and sufficiently wide to cover every possible case. In illustrating this difficulty, the Court cited a passage from the opinion of Mr. Justice Miller in the case of Davidson v. New Orleans, wherein the Justice stated that it is wiser to discern the intent and application of those words through a “gradual process of judicial inclusion and exclusion,” allowing the facts of each case to shape the doctrine. The Court further referred to the decision in Missouri Pacific Railway Co. v. Humes (1) to underscore the challenges involved in defining the term.

Turning to the Indian Constituent Assembly, the Court remarked that the Assembly deliberately avoided adopting the expression “due process of law” because of its elastic and indeterminate meaning. Instead, the Assembly chose the formulation “according to procedure established by law,” a wording that found its counterpart in the Japanese Constitution of 1946. To provide context, the Court outlined briefly how the Japanese Constitution came into being. On 11 October 1945, General Douglas MacArthur instructed the Japanese Cabinet to commence preparations for a new constitution, but little progress was made. Consequently, in February 1946, responsibility for constitutional reform was transferred to the Government Section of the Supreme Commander’s Headquarters. The chief of this Section and his staff drafted the constitution with assistance from American constitutional lawyers who were called upon to help in the task. A learned commentator has observed that the resulting document bears unmistakable signs of its Western origin on almost every page, a fact that is especially evident in the preamble, which closely resembles the American Declaration of Independence and, as noted by Ogg and Zink, could not have been conceived or written by a Japanese person and is difficult for many Japanese to understand. One prominent feature of the Japanese Constitution, reflecting direct American influence, is the extensive chapter titled “Rights and Duties of the People,” comprising thirty-one articles that constitute the first effective Bill of Rights for the Japanese people. Within this chapter, articles 33 and 34 provide safeguards against apprehension without a warrant and against arrest or detention without being informed of the charges or without adequate cause. The Court concluded that two points merit attention: first, that the Japanese Constitution was framed wholly under American influence; and second, that at the time of its framing, the prevailing trend in American judicial opinion favored limiting the meaning of “due process of law” to what some American writers described as “procedural due process.”

In this case, the Court noted that the Japanese Constitution was fashioned under the influence of American constitutional ideas and that, at the time it was drafted, the dominant tendency among American judges was to restrict the phrase “due process of law” to what certain scholars had termed “procedural due process.” The Court pointed out that this tendency could be demonstrated by citing a passage from Carl Brent Swisher’s work, The Growth of Constitutional Power in the United States (page 107), which explained the evolution of American due-process doctrine in three stages. The passage stated that during the first stage—approximately the first hundred years after the Constitution—due process was understood principally as a limitation on the procedures, especially judicial procedures, that the government could employ. In the second stage, extending roughly through the year 1936, the concept was broadened so that due process also constrained the substantive content of governmental actions. In the third stage, beginning in 1936 and continuing to the present, the substantive application of due process had been largely set aside, leaving the doctrine mainly as a procedural safeguard. From this historical outline, the Court inferred that the expression “procedure established by law,” as it appears in the Japanese Constitution, likely reflected the contemporary American judicial view of due process, and that, if this inference were correct, the Japanese provision should be understood to encompass the same ideas that American writers associated with procedural due process.

The Court, however, cautioned that it would not rely solely on conjecture and chose instead to examine the issue on its own merits. It observed that the term “law” can be employed in either an abstract or a concrete manner. Sometimes the word is preceded by articles such as “a” or “the,” or by quantifiers such as “any” or “all,” while at other times it appears without any modifier. Generally, when “law” is used in the abstract sense without an article, it carries a broader meaning. Consequently, the Court identified the core question as whether “law” should be interpreted merely as statute law. Although the precise meaning of “due process of law” remains unsettled, the Court recognized that the word “law” is common to both that expression and to the phrase “procedure established by law.” While not bound to adopt the American constructions of “law” or “due process of law,” the Court acknowledged that numerous distinguished American judges had extensively analyzed these concepts. It therefore rejected the notion that their opinions could be ignored entirely and resolved to begin its analysis by presenting selected quotations from several United States Supreme Court decisions that interpret the word “law” within the context of “due process of law,” particularly as it relates to legal procedure. The first quotation introduced was: “Although the legislature…”

The Court observed that while a legislature may, at its pleasure, create new remedies or modify existing ones, its authority is nevertheless limited by the principle that it cannot erase certain ancient landmarks or deprive individuals of fundamental rights that have historically been recognized and upheld in judicial procedures, as stated in Bardwell v. Collins (1). The Court then quoted the Dartmouth College case, explaining that “the law of the land” is most clearly intended to refer to the general law—a law that hears before it condemns, proceeds upon inquiry, and renders judgments only after a trial. The implication of that statement, according to the Court, is that every citizen is entitled to life, liberty, property, and immunities that are protected by the general rules governing society (2). Further, the Court cited Hovey v. Elliott (3) to emphasize that due process of law unquestionably signifies the right to be heard in one’s defence. It asked whether the legislative branch could enact a statute that authorises the condemnation of a citizen without any opportunity for that citizen to be heard, and answered that such an enactment would inevitably violate the Constitution. The Court reasoned that if a statute could lawfully impose such a penalty, then the judicial department, which is the source and fountain of justice, would lose the authority to deem such legislative action unconstitutional. Consequently, the Court warned that allowing courts to possess the power to enforce obedience to law and to administer justice would paradoxically grant them the right to inflict the very wrongs they were created to prevent. The Court also referred to Gatpin v. Page (4), reiterating the age-old rule that no person shall be personally bound until he has had his say in Court—meaning until he has been properly cited to appear and given a reasonable opportunity to be heard. A judgment rendered without such citation and opportunity, the Court explained, lacks the essential attributes of a judicial determination, constitutes judicial usurpation and oppression, and cannot be upheld where justice is properly administered. In summarising the American position, the Court concluded that the word “law” does not merely denote State-made or enacted law, nor does it exclude fundamental principles of justice inherent in every civilized legal system. The Court referenced Professor Willis’s analysis in his book on Constitutional Law, noting that the essential elements of due process are: (1) notice, (2) opportunity to be heard, (3) an impartial tribunal, and (4) an orderly course of procedure, as the learned author pointed out.

These essential requirements may take different shapes depending on the circumstances, and so long as the principles are respected in substance, the requirement of law is satisfied. For instance, a person cannot demand a specific form or method of hearing, but he may demand a reasonable chance to be heard. Likewise, an impartial tribunal does not always have to be a judicial body in every case. Regarding the “orderly course of procedure,” the author explains that it does not demand that a court meticulously weigh every piece of evidence; rather, it obliges the court to review the whole record, to identify the issues, to discover any facts that have not been reported, and to determine whether the law has been correctly applied to those facts. Other commentators reach a similar conclusion, although some do not expressly mention the fourth element of an orderly procedure. The crucial point is that these four elements represent different aspects of a single right – the right to be heard before one is condemned. On this right, English judicial opinion mirrors American views. In England, it would be shocking to suggest that a person could be deprived of liberty without a fair trial or hearing, except in rare emergencies where Parliament expressly removes the right, as it did in a limited number of cases during the two world wars. Several decisions illustrate that the fundamental principle that a person whose rights are affected must be heard applies not only to personal liberty cases but also to proceedings affecting other rights, even when they arise before administrative or quasi-judicial bodies. In Cooper v. The Wadsworth Board of Works (1), the district board, empowered by statute to order demolition of a house when the builder failed to give seven days’ notice before laying foundations, proceeded to demolish the building without notifying the builder; the court held this action illegal. Justice Byles, discussing the case, observed: “I conceive they acted judicially, because they had to determine the offence, and they had to apportion the punishment as well as the remedy.” He further noted that a long line of decisions, beginning with Dr. Bentley’s case and extending to recent authorities, shows that even where a statute does not expressly require a hearing, the common-law concept of justice supplies the missing protection. The judgment of Mr. Justice Fortescue in Dr. Bentley’s case, though expressed in an older style, remains applicable and has formed the law from that time to the present. He stated, “The objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any.” In the same case, Erie C.J. remarked that the principle that no one shall be deprived of property without an opportunity to be heard is not confined to judicial proceedings, adding, “I do not quite agree with that … the law, I think, has been applied to many exercises of power which in common understanding would not be at all more a judicial proceeding than would be the act of the District Board in ordering a house to be pulled down.” These observations were later quoted by Sir Robert Collier in Smith v. The Queen (2) and by Lord Campbell in Regina v. The Archbishop of Canterbury (3), reaching the same effect.

In the passage under discussion, the Court recorded that the principle that a party must be given notice before any deprivation of property had been consistently upheld from the earliest reported decisions up to the present day. The Court quoted the observation that “The objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any.” The same judgment also cited Erie C.J., who remarked that the maxim that no person shall be deprived of his property without an opportunity to be heard should not be confined merely to formal judicial proceedings. Erie C.J. expressed disagreement with the view that the principle applied only in courts, and he emphasized that the law had been applied to many exercises of governmental power that, in common understanding, were no less judicial than actions such as a district board ordering the demolition of a house. The observations of Erie C.J. were subsequently quoted and applied by Sir Robert Collier in the case reported as Smith v. The Queen (2), and similar reasoning was endorsed by Lord Campbell in Regina v. The Archbishop of Canterbury (3). The Court further noted that these authorities were supported by earlier authorities such as the decision reported in 14 C.B. (N.S.) 180 (1).

The Court then turned to the opinions expressed by Sir George Jessel in several earlier cases, namely Fisher v. Keane (1), Labouchere v. Earl of Wharncliffe (2), and Russell v. Russell (3). In Russell v. Russell, Sir George Jessel highlighted the statement in Wood v. Woad (4) made by the Lord Chief Baron, which affirmed that any body exercising adjudicatory functions is bound by the maxim “audi alteram partem,” meaning that no individual should suffer consequences without first having the chance to present a defence. Sir George Jessel stressed that this rule was not limited to strictly legal tribunals but extended to every committee or authority that had the power to affect civil rights. Lord Macnaghten later quoted this view with approval in the case of Lapointe v. L’Association etc. de Montreal (5), where the Board of Directors, without conducting any judicial inquiry, had refused an appellant’s pension claim on the ground that he had been required to resign. Lord Macnaghten condemned that procedure as contrary to societal rules and, more importantly, to the elementary principles of justice. The Court observed that these pronouncements were again relied upon in The King v. Tribunal of Appeal under the Housing Act, 1919 (6), a case concerning a company’s attempt to build a picture house that was prohibited by a local authority. In that matter, the Court affirmed that even when a statute permits an appellate body to dispense with a hearing, the requirement to give an opportunity to be heard remains indispensable, echoing the earlier passage from Wood v. Woad that had been endorsed by Lord Macnaghten.

The judgment listed several authorities that were relevant to the discussion. It cited H. Ch. D. 353, the case reported in 1874 at L.R. 9 Ex. 190, the decision recorded at 13 Oh. D. 346, the 1906 report at A.C. 535, the ruling in 14 Ch. D. 471, and the 1920 case at I.B. 334. It also referred to the Additional Powers Act of 1919, which contained a provision allowing that, in certain circumstances, an appeal could be decided without holding a hearing and that the appellate court might dispense with the hearing and determine the appeal summarily. The Court explained that the meaning of rule 7 was that the tribunal hearing the appeal could forego an oral hearing, but it could not dispense with any form of hearing altogether. Consequently, the tribunal was required to give the appellant an opportunity to present a case, even if that opportunity did not take the form of a full oral proceeding.

The Court noted that the Earl of Reading, delivering a judgment, observed that the principle of law applicable to such a situation had been well expressed by Kelly C. B. in Wood v. Woad, a passage later endorsed by Lord Macnaghten in Lapointe v. L’Association etc. de Montreal. The Court then turned to the case of Local Government Board v. Arlidge, reported at 1915 A.C. 120, where the Local Government Board dismissed an appeal against a closing order made under the Housing, Town Planning, & c. Act. In that case the Board had refused an oral hearing and had not permitted the appellant to see the report prepared by the Board’s inspector after a public local inquiry. The House of Lords did not overturn the order on the ground that it had been issued by an administrative authority whose duty was to enforce obligations in the public interest and which possessed executive functions. Nevertheless, the Court articulated a clear principle: when a body is charged with deciding an appeal, it must act in a judicial manner, must consider the matter without bias, must afford each party a chance to present its case, and must render its decision in the spirit and with the responsibility of a tribunal tasked with dispensing justice.

Commenting on this precedent, which was widely regarded as an extreme example, Mr Gavin Simonds—who later became a member of the House of Lords—stated that “I think you would agree that if the subject-matter of such proceedings as are here indicated was the liberty of the subject, or indeed his life, you would regard such a judicial procedure as outrageous” (see C.K. Allen’s Law and Orders, page 167). The Court explained that it had referred to cases before administrative tribunals because the matter at hand concerned preventive detention, an act described as executive in nature. The Court emphasized that even before executive authorities and administrative tribunals, an order that affects a person’s rights generally could not be issued without affording that person a hearing appropriate to the circumstances of the case.

In the passage under discussion, the author observes that after enumerating the most important liberties recognized in England—such as the right of personal freedom, the right to freedom of speech, and the right of public meeting—Halsbury adds that a further set of rights has become well established. The added rights, according to Halsbury, are “the right of the subject to have any case affecting him tried in accordance with the principles of natural justice, particularly the principles that a man may not be a judge in his own cause, and that no party ought to be condemned unheard, or to have a decision given against him unless he has been given a reasonable opportunity of putting forward his case …” (Halsbury’s Laws of England, 2nd Edition, volume 6, page 392). The author then frames the central question: whether the principle that no person may be condemned without a hearing before an impartial tribunal— a principle widely recognised in all modern civilized legal systems and placed on a par with fundamental rights by Halsbury—should be regarded as part of the law of this country. He confesses that it is difficult for him to answer this question in the negative. He points out that the principle, being an integral part of the British system of law and procedure that India inherited, has long been observed in this country and is deeply rooted in its ancient history, forming the basis of the panchayat system from the earliest times. The author further notes that the entire Criminal Procedure Code, whether it deals with the trial of offences or with preventive or quasi-administrative measures contemplated in sections 107, 108, 109, 110 and 145, rests upon this principle, making it hard to imagine that it has not become part of the “law of the land” and does not reside within our legal system. Consequently, if this assessment is correct, the author argues that the phrase “procedure established by law” must include this principle, irrespective of any other components it may or may not contain. He observes that the term “law” used in article 21 does not refer only to statutes, as shown by the fact that although no specific statute prescribes the complete procedure for contempt of Court cases that are not within the Court’s view, the prevailing procedure in such cases is nonetheless part of the law. He adds that the statutory framework governing trials and inquiries in criminal cases does not expressly provide for arguments in every circumstance, yet it has always been held that no decision should be rendered without hearing arguments. In several decisions, courts have read a requirement for notice into the law even when the statute itself is silent on the matter. Finally, the author acknowledges that some judges have expressed strong dislike for the expression “natural justice” on the ground that it is vague and elastic, but he contends that where well-known principles exist without vagueness—principles that all legal systems have respected and recognised—such principles cannot be discarded merely because they are ultimately grounded in natural justice.

In the judgment, the Court observed that principles which are clear and recognized by every legal system cannot be discarded simply because they are ultimately rooted in natural justice. The Court pointed out that the term “natural justice” is not alien to Indian law, as demonstrated by the Privy Council’s frequent pronouncement in criminal appeals from this country that it would intervene in the administration of criminal justice whenever there was a breach of natural-justice principles or a departure from the requirements of justice. The Court cited several authorities, including In re Abraham Mallory Dillet, Taba Singh v. King-Emperor, George Gfeller v. The King, and Bugga and others v. Emperor, to support this observation.

The Court then noted that, in the case before it, there was no uncertainty regarding the right asserted by the petitioner. That right was the right to have one’s guilt or innocence determined by an impartial tribunal, and the Court held that this right must be read into the words of Article 21. Article 21 is intended to protect life and personal liberty; the Court warned that such protection would be precarious and meaningless if the fundamental legal principle identified by Halsbury as being on a par with fundamental rights were ignored or excluded.

During the arguments, counsel for the petitioner repeatedly questioned whether the Constitution would allow a law to be enacted that abolished the existing mode of trial and reinstated archaic procedures such as trial by battle or trial by ordeal, practices once used in England. Although the Court considered the scenario highly unlikely, it recognized that the question raised a legal problem. The Court explained that if “procedure established by law” were interpreted to mean any procedure enacted by a statute, it would be difficult to answer the question negatively. However, if the word “law” is understood to include the broader meaning the Court has advocated, a negative answer could be justified.

The Court further asserted that there was nothing revolutionary in the doctrine that “procedure established by law” must encompass the four principles outlined in Professor Willis’s book. The Court reiterated that these principles represent different aspects of a single concept, are free of vagueness, and have been consistently recognized. While the principles are not absolutely rigid, the Court emphasized that they are adaptable to the circumstances of each case within certain limits. Moreover, the Court added that it has not been seriously contested that “law” in Article 21 refers to valid law and that “procedure” denotes definite procedural rules, not a mere pretense of procedure.

Finally, the Court declared its intention to proceed to examine Article 22 of the Constitution, which specifically deals with preventive detention, and referred to the authorities A.I.R. 1943 P.C. 211 and A.I.R. 1919 P.C. 108 in that context.

The Court first observed that Article 22 did not displace the operation of Articles 19 and 21, and therefore it had to be read in harmony with those two articles, just as Articles 19 and 21 had to be read subject to Article 22. The proper relationship, the Court held, was that the specific provisions of Article 22 concerning preventive detention prevailed where they applied, but in situations where Article 22 contained no provision, the protections afforded by Articles 19 and 21 continued to operate. The Court emphasized that the fact that different facets of the same right appeared in three separate articles did not render them mutually exclusive, except to the limited extent already indicated. Turning to the substantive content of Article 22, the Court identified four principal provisions. First, clause 4(a) barred any person from being detained for more than three months without a report from an advisory board. Second, clause 7(a) empowered Parliament to specify the circumstances and the classes of cases in which a person could be detained for a period exceeding three months without obtaining the advisory board’s opinion. Third, clause 5 required that when a person was preventively detained, the authority issuing the detention order must disclose the grounds for the order to that person and must give the person the earliest opportunity to make a representation against the order. Fourth, clause 7(b) allowed Parliament to prescribe the maximum period for which any person could be detained under any preventive-detention law in any class of cases; the Court noted that this fourth point was not relevant to the present case. The Court then turned to the first three points, which required consideration. Concerning the first point, the Court examined the precise meaning of the expression “such detention” at the end of clause 4(a). Two possible interpretations had been suggested. The first interpretation was that “such detention” referred to preventive detention itself; under that view the advisory board’s role would be to examine each individual’s case on its merits and simply report whether sufficient cause existed for his detention. The second interpretation was that “such detention” meant detention for a period longer than three months; under that reading the advisory board’s function would be to report to the government whether there was sufficient cause for the person to be detained beyond the three-month limit. After weighing the alternatives, the Court expressed a preference for the second interpretation. The Court reasoned that it was a serious matter to keep a person confined for a long period—more than three months—without any enquiry or trial. Clause 4(a) of Article 22 allowed such extended detention only on the basis of the advisory board’s report. Consequently, the report needed to address directly the question of whether prolonged detention was justified. If the advisory board were merely to consider the merits of the original preventive detention without evaluating the justification for the extension, the safeguard intended by the article would be substantially weakened.

It was observed that the protection intended by the constitutional provision, which required a report from the advisory board, would be rendered ineffective if the board did not examine the crucial question before the government—namely, whether detention lasting more than three months was justified. Under article 22(4)(a), the board was required to submit its report before the three-month period expired, which meant that it could submit the report as late as the eighty-ninth day of detention. The Court regarded it as somewhat absurd to allow an advisory board, after a person had already been detained for eighty-nine days, to merely comment on whether the original detention had been justified. Conversely, the Court held that determining whether prolonged detention was justified inevitably required an assessment of whether the detention itself was justified at all, and only this interpretation gave genuine meaning and effectiveness to the safeguard. Because the provision functioned as a protective measure, the Court naturally preferred the interpretation that favored the individual and aligned with the purpose of the clause. The next issue addressed concerned the meaning and scope of article 22(7)(a), which stated that Parliament could by law prescribe “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 obtaining the opinion of an Advisory Board.” The Court questioned what was meant by “circumstances” and “class or classes of cases” in this context. This question arose from the way those expressions had been interpreted and applied in the impugned legislation. To clarify, the Court referred to the relevant sections of the Constitution. List I of the Seventh Schedule granted Parliament power to legislate on preventive detention for reasons related to defence, foreign affairs, and the security of India. List III, the Concurrent List, allowed legislation on preventive detention for reasons concerning the security of the State, the maintenance of public order, and the maintenance of essential supplies and services. The impugned Act invoked all subjects mentioned in both lists as bases for preventive detention, and Section 3(1) of that Act embodied these subjects in its language.

In this case the Court reproduced the relevant provision of the Act word for word. The provision stated that the Central Government or the State Government could, if satisfied that any person needed to be prevented from acting in a manner prejudicial to (i) the defence of India, the relations of India with foreign powers, or the security of India; (ii) the security of the State or the maintenance of public order; or (iii) the maintenance of supplies and services essential to the community, make an order directing that such person be detained. The provision also allowed that if the government was satisfied with respect to any person who was a foreigner within the meaning of the Foreigners Act, 1946, and that it was necessary to regulate his continued presence in India or to make arrangements for his expulsion, it could issue an order directing his detention. The Court observed that the subjects listed in item 9 of List I of the Union List were grouped together in sub-clause (a)(i) of the provision; for convenience these three subjects were labelled A, B and C. The matters listed in sub-clause (a)(ii) corresponded to the two subjects in item 3 of List III of the Concurrent List, namely security of the State and maintenance of public order; these were labelled D and E. The matter in sub-clause (a)(iii) corresponded to the third subject in item 3 of List III, maintenance of supplies and services essential to the community, and was labelled F. Turning to the Constitution, the Court read Articles 22(4) and 22(7) together and concluded that, so long as Article 22(4)(a) applied and Parliament had not acted under Clause 22(7)(a), an advisory board was required in every case of preventive detention, that is, for all categories A through F. Article 22(7) created an exception, permitting Parliament by law to provide for preventive detention of more than three months without reference to an advisory board, provided that Parliament specified (1) the circumstances and (2) the class or classes of cases in which such a procedure was necessary. The Court noted that if the rule in clause 22(4)(a) represented the normal situation and the provision in clause 22(7)(a) represented the exception, then the circumstances and classes of cases covered by the exception had to be of a special or extraordinary nature, sufficient to remove them from the ordinary rule. The Court held that it was always possible to draw a line between ordinary and extraordinary cases, and that Parliament was expected to make that distinction under clause 22(7)(a).

In this case, the Court observed that under clause 7 (a) of Article 22 the Parliament was expected to prescribe the special and extraordinary circumstances and the particular classes of cases in which the normal requirement of an advisory board could be dispensed with. The Court said that it was never intended that Parliament could, at its own discretion, treat the ordinary situation as the abnormal one or invert the rule and the exception. Yet the Court found that the legislation under review had done exactly that. All the categories on which preventive detention could be legislated, namely categories A through E, were placed within the exception, while only category F – which dealt with the maintenance of supplies and services essential to the community – was kept within the ordinary rule. Consequently, the statute provided for an advisory board only for category F and made no provision for an advisory board for categories A to E, leading to the inference that the advisory board had been omitted for those categories. The Attorney-General argued that Parliament could have omitted the advisory board even for category F and that such a choice would not have affected the validity of the Act. While acknowledging that this argument was logically constructed to support his position, the Court expressed the view that the legislative scheme embodied in section 12 of the impugned Act was not contemplated nor permitted by clause 7 (a) of Article 22. The Court emphasized that the circumstances to be prescribed must be special and extraordinary, and the classes of cases must be of the same nature. It further held that the Constitution did not envisage a mechanical replication of the categories A to F without a careful assessment of the specific circumstances and classes of cases in which the safeguard of an advisory board could be legitimately set aside.

The Court then noted that two interpretative approaches were presented before it regarding the relationship between clauses 4 (a) and 7 (a) of Article 22. The first approach treated clause 4 (a) as laying down the general rule that any detention exceeding three months must be ordered after consultation with, and on the report of, an advisory board, while clause 7 (a) was seen as providing an exception that permitted Parliament to enact a law allowing detention beyond three months without reference to an advisory board. The second approach viewed the two clauses as independent, each establishing an alternative provision: one requiring the advisory board’s report for detentions over three months, and the other allowing such detentions without any reference to an advisory board. After examining the substance rather than the literal wording, the Court inclined itself toward the first view, holding that clause 7 (a) effectively inserts an exception into the rule that preventive detention for more than three months may be ordered only on the report of an advisory board. This interpretation guided the Court’s further analysis of the constitutional validity of the legislation in question.

The judgment began by noting that the analysis had been conducted on the basis that a preventive detention order exceeding three months ordinarily required the involvement of an advisory board. The judge observed, however, that the ultimate conclusion would remain the same regardless of whether the first or the second interpretive view of clauses 4(a) and 7(a) of Article 22 was adopted. Even if the second view were accepted, it was essential to recognise that any law made by Parliament under Article 22(7)(a) would be an exceptionally drastic measure. According to the principle that a law of such extraordinary severity must be intended for an extraordinary situation, every preceding observation made by the judge would continue to apply.

Clause 7(a) was described as merely an enabling provision. It was explained that the Constitution deliberately limits Parliament’s power to the extreme limit by obliging it to specify both the class or classes of cases and the circumstances in which the extreme law would operate. Consequently, those classes of cases and the accompanying circumstances must possess a special character that justifies the enactment of such legislation. The argument was raised that the word “and” linking “circumstances” with “class or classes of cases” should be read disjunctively, that is, as “or,” citing the ordinary usage that when a person may do “this and that,” he is free to choose either. The judge rejected this reasoning as unsound.

Instead, the judge paraphrased clause 7(a) as follows: “Parliament may dispense with an advisory board, but in that case it shall prescribe the circumstances and the class or classes of cases.” Under this interpretation, the conjunction “and” must be understood in its literal sense, not as “or,” and the permissive “may” must be read as a mandatory “shall.” The judge illustrated this by asking whether Parliament, if it may prescribe the time and place for an act, could be said to be optional about prescribing both; the answer was obvious – both must be prescribed.

The judgment further explained that the “class or classes of cases” must relate to the persons to be detained, their activities, movements, or a combination thereof. In contrast, “circumstances” refer to extraneous factors such as the surrounding environment, background, or prevailing conditions that could foster dangerous conduct. Therefore, the provision requires that both the circumstances and the class or classes of cases – two distinct concepts with different meanings – be expressly defined, and that specifying one without the other would be insufficient.

Finally, the judge reiterated that any law enacted under Article 22(7)(a) would inevitably have serious repercussions for those detained, because it would permit (1) prolonged detention beyond three months and (2) the deprivation of the safeguard of an advisory board.

Article 22 (7) (a) is presented as a protective provision, but the Court observed that it would fail to achieve its purpose unless it were given a reasonable interpretation. In the Court’s view, the provision contemplates that any law invoking it must not be overly general; rather, its scope must be confined by specifying both the “class or classes of cases” and the “circumstances” to which it applies. It was argued that the phrase “class or classes of cases” is sufficiently wide to permit Parliament to treat any of the categories listed in List I and List III, items 9 and 3 respectively — that is, any of the categories A through F — as a single class. While this argument initially appeared plausible, further reflection led the Court to deem it untenable. The Court emphasized repeatedly that a special or extreme type of legislation must be limited to special classes of cases together with particular circumstances. Under the Constitution, Parliament is required to prescribe the “class or classes” within the authority granted to it by List I and List III, and such prescription must be its own, crafted so that the very content of the class justifies the removal of an important constitutional safeguard. The act of prescribing is not a mere mechanical exercise; it demands a deliberate mental effort to select and adapt the subject matter so that it serves the intended objective. In the present context, what must be prescribed are the “class or classes” and the “circumstances”. The law also intends to effect two consequential outcomes: prolonged detention — which the Court defines as detention for more than three months — and the elimination of the advisory board. Consequently, the prescribed class or classes must bear a direct relationship to these outcomes and must be articulated in such a way that any observer could reasonably conclude, “That is why the law has authorized prolonged detention without involving an advisory board.” In other words, the class must embody an element of exceptional gravity or menace that cannot be quickly or easily neutralized, thereby justifying the need for extended detention, and must also demonstrate that referring the matter to an advisory board would be unnecessary, cumbersome, and wholly inappropriate for the extraordinary situation the law seeks to address. To illustrate the principle, the Court noted that the Constitution’s Lists empower Parliament to enact preventive-detention legislation on subjects such as “matter connected with the maintenance of public order”. The Act in question mirrors this language and, in Section 3, states that its purpose is “with a view to preventing him (the person to be detained) from acting in a manner prejudicial to the”.

In this case the Court observed that the wording “maintenance of public order” appearing in section 3 of the impugned Act might be acceptable, but that section 12 required a deeper analysis because an act described as prejudicial to the maintenance of public order could be either an ordinary act or an act of extraordinary seriousness. The Court explained that article 22(7)(a) appears to anticipate that the more serious and heinous conduct falling within the broader category of acts prejudicial to public order, or other similar heads, should be distinctly defined so that the scope of an exceptional piece of legislation is clearly limited. To illustrate how a sub-classification of the general categories A to F could be achieved, the Court referred to regulation 18-B of the British Defence of the Realm Regulations, which had been made under an Act of 1039 that authorised “the making of regulations for the detention of persons whose detention appears to the Secretary of State to be expedient in the interests of public safety or the defence of the realm.” The Court noted that the two matters, public safety and defence of the realm, correspond to some of the heads enumerated in Lists I and III of the Indian Constitution. It further observed that regulation 18-B, applied to those two heads, set out several sub-heads or classes of cases in which preventive detention could be ordered, and that these classes were substantially more specific than the language found in section a of the challenged Act, thereby reducing the likelihood of executive misuse of the detention power. The Court listed the classes prescribed under regulation 18-B as follows: first, where the Secretary of State has reasonable cause to believe a person is of hostile origin or associations; second, where the Secretary of State has reasonable cause to believe a person has recently been involved in acts prejudicial to public safety or the defence of the realm, or in the preparation or instigation of such acts; third, where the Secretary of State has reasonable cause to believe a person has been, is, or is likely to be a member of, or to be active in furthering the objects of, any organization described thereafter, which includes organizations subject to foreign influence or control or organizations whose controllers have, or have had, associations with or sympathies for a government or system of government of any power with which His Majesty is at war, thereby presenting a danger of being used for purposes prejudicial to public safety; and fourth, where the Secretary of State has reasonable cause to believe that a person’s recent conduct in a particular area or any words recently written or spoken expressing sympathy with the enemy indicate that the person is likely to assist the enemy. The Court used this illustration to underscore the need for precise sub-classification within preventive detention laws.

In this case, the Court observed that the power to enact preventive detention legislation in the country extends far beyond the limits set by the British statute on which Regulation 18-B was based. Consequently, the Parliament has a much wider latitude to define both the situations and the categories of cases that may fall under the challenged Act. The Court noted that the legislature merely incorporated terminology found in the constitutional Lists into the Act, without adding substantive new concepts. The same observation regarding the definition of categories of cases also applies to the circumstances that must be specified under article 22 (7) (a). These circumstances are intended to describe the background or setting in which the conduct of dangerous individuals could become especially harmful. The Court stressed that such circumstances must be of a special nature that justifies a drastic measure, and that involving an advisory board in those situations might defeat the purpose of preventive action. The plain meaning of article 22 (7) (a) appears to require that both the categories of cases and the special circumstances be identified. The Court mentioned that members of the Bar had debated the type of circumstances that ought to be listed. While not deciding that issue, the Court suggested that situations such as an impending rebellion or war, serious disorder in a region that has led a provincial government to declare it a “disturbed area,” tense communal tensions, widespread sabotage, or large-scale political dacoities could satisfy the purpose envisioned by the Constitution.

The Court then summarised the result of the extensive discussion it had undertaken to clarify the meaning of a crucial constitutional provision that, in its view, had been wholly misinterpreted by those who framed the impugned Act. It held that article 22 contemplates three distinct classes of preventive detention: (1) detention for a period of up to three months; (2) detention for a period exceeding three months where the matter is referred to an advisory board; and (3) detention for a period exceeding three months without any reference to an advisory board. For ease of understanding, the Court suggested that these classes could be labelled “dangerous,” “more dangerous,” and “most dangerous” respectively. Regarding the first two classes, the Court found that the Constitution does not require any further specifications. It appeared that the framers of the Constitution paid little attention to the first class and believed that, for the second class, the requirement of an advisory-board reference together with a Parliament-determined maximum period was sufficient. However, the Court emphasized that the Constitution makes a special provision for the third class, and that this provision is of utmost importance for protecting individual liberty and ensuring the proper functioning of the constitutional scheme.

For the protection of individual liberty as well as for the orderly operation of the Constitution, the provision under article 22(7)(a) was held not to be a matter for casual interpretation but to require a careful and reasonable construction. It was observed that the strictness of a law must correspond to the seriousness of the evil or danger it seeks to combat, and that the law which Parliament is authorised to enact under article 22(7)(a) may, with respect to rigor, reach the utmost limit. Consequently, the law was understood to be intended for situations of exceptional gravity and urgency. The Constitution therefore required Parliament, when drafting the applicable Act, to insert specific specifications so that the necessity for such a drastic measure would be evident on the face of the legislation and its operation would be limited to the classes and circumstances expressly mentioned. The Act was required to set out (1) the “class or classes of cases” that would identify the persons against whom the law would operate, together with their activities and movements, and (2) the “circumstances” that would bring to prominence the conditions and background against which dangerous activities would justify special measures. By prescribing these two elements, the scope of the law’s application would be confined to a particular type of case, would become less vague, less susceptible to abuse, and would enable the authorities who must enforce it to determine objectively when a condition had arisen that warranted the use of the power conferred by the law. This dual prescription was described as the true meaning and significance of article 22(7)(a), and any attempt to diminish it was warned would lead to deplorable consequences. After setting out this interpretation, the Court turned to examine whether section 12 of the impugned Act satisfied the requirements of that constitutional provision. The Court concluded that section 12 did not comply, because it failed to prescribe either the required circumstances or the class or classes of cases in the manner mandated by the Constitution. The provision did not set out any circumstances at all, and although it claimed to define classes, it did so in a way that demonstrated a failure to grasp the true meaning of the empowering provision. Having already addressed this portion of the case, the Court did not repeat earlier remarks, but it noted that even if the view advanced by the Attorney-General—that Parliament could treat any of the categories mentioned in items 9 and 3 of Lists I and III as constituting a class without any qualification or alteration—were accepted, the impugned section would still not be saved.

In this case the Court held that the challenged provision could not be upheld because it rested on two fundamental mistakes. First, the Court observed that the word “and” joining “class or classes” with “circumstances” in article 22(7)(a) had been incorrectly interpreted to mean “or,” thereby altering the constitutional requirement. Second, the Court noted that the distinction between “circumstances” and “class or classes” had been wholly ignored, and the two expressions were treated as interchangeable.

The Court considered the first mistake to be serious, since the Constitution explicitly demands that both the circumstance and the class be prescribed, yet section 12 was enacted on the assumption that prescribing only one of them would satisfy the requirement. The Court described the second mistake as even more serious because it struck at the core of the provision. It emphasized that “circumstances” and “class or classes” are distinct terms with different meanings, but the Act proceeded on the false premise that they were identical, as shown by the wording “any person detained in any of the following classes of cases or under any of the following circumstances.”

Having already explained the importance of specifying circumstances in legislation of such a drastic nature, the Court concluded that confusing “classes” with “circumstances” and omitting any reference to “circumstances” altogether constituted grave errors. Consequently, the Court found that section 12 of the Act, which removed a crucial constitutional safeguard, could not be considered a valid provision because it violated the very constitutional article that gave Parliament authority to legislate.

Turning to article 22(5), the Court briefly explained that this clause obliges the authority ordering preventive detention to inform the detained person of the grounds for the order and to provide the earliest possible opportunity to make a representation against it. The Court stressed that this provision is meant to protect the detainee and must not be read as limiting any other rights the person enjoys under law or the Constitution. Even though article 21 guarantees that before liberty is taken away a person must be allowed to establish innocence before an impartial tribunal, that right remains unaffected. The Constitution contains no express exclusion of this right, nor does it forbid the creation of an impartial tribunal. Moreover, the right to make a representation, as granted by the Constitution, necessarily includes the right to have that representation considered by an impartial person or persons. Accordingly, the Court held that some mechanism must exist to examine the cases of detainees properly and to determine whether they have been detained without justification.

In this case, the Court observed that if the Constitution had expressly removed the right to make a representation, the matter would have been settled, but the Constitution had not done so, and the Court was not willing to infer an implicit denial of such an important right. The Court further held that a simple reference to an advisory board in article 22(4)(a) did not, according to the Court’s interpretation, prevent the establishment of an appropriate mechanism for examining the merits of a detainee’s case. The Court distinguished between the creation of an advisory board that reports on whether detention should exceed three months and the creation of a board that would decide whether a person should be detained for a single day; the two functions were fundamentally different. According to the Court, Parliament could, under clause 7(a) of article 22, eliminate the advisory board contemplated in clause 4(a), but it could not eliminate the essential machinery, whatever its name, required for scrutinising the merits of a detention. The Court rejected the argument that article 22 constituted a self-contained code encompassing the entire law of preventive detention, finding the statement overly sweeping. While acknowledging that the article addressed certain procedural aspects, the Court noted that it did not exhaustively prescribe them. The article was said to provide for notice, an opportunity for the detainee to present his case, an advisory board to consider the case, and a maximum period beyond which detention could not continue; these elements had been mentioned, but the Court held that they had not been treated exhaustively. The Court explained that the Constitution granted the right of representation, yet left it to the legislature to devise the machinery for handling such representations. Likewise, the advisory board mentioned in the article served only to protect detentions exceeding three months. Consequently, the Court observed that Parliament retained considerable latitude, and if that latitude were exercised unreasonably, article 19(5) could allow the Court to examine whether the limits of reasonableness had been crossed. Having reached these conclusions, the Court proceeded to evaluate the Act. Regarding section 3 of the Act, it was argued that the provision was unreasonable because it placed a citizen at the mercy of certain authorities who could, at their own discretion, order detention, and whose subjective satisfaction could not be inspected. The Court declined to accept this argument, stating that administrative authorities tasked with their responsibilities must make swift decisions and therefore must be permitted to act on their own judgment.

The Court observed that the principle in question was not unreasonable and that it formed the basis of all preventive or quasi-administrative measures contained in the Criminal Procedure Code. Under section 107 of that Code, the magistrate concerned was given discretion to decide, according to his opinion, whether sufficient grounds existed to proceed against any person who was likely to cause a breach of the peace. Section 145 similarly required the magistrate’s initial action to depend on his personal satisfaction. Accordingly, the Court found no infirmity or constitutional defect in section 3 of the Act. However, the Court pointed out that section 3 was reasonable only for the first step—namely, arrest and initial detention—and that it had to be followed by a procedure for testing the so-called subjective satisfaction. Such testing could be achieved only by providing an appropriate mechanism to examine the grounds on which a detention order was made and to consider the representations of the detained persons with respect to those grounds. The Court also held that section 7 of the Act did not contain any fundamental flaw. Section 7 required the authority concerned to communicate to a detainee the grounds of the order and to afford him the earliest possible opportunity to make a representation against that order. Section 10, which mandated that the advisory board report within ten weeks from the date of the detention order, was held to be in conformity with article 22(4)(a) of the Constitution; the only observation was that Parliament was not compelled to fix such a lengthy period and could have provided a shorter time-frame for ordinary cases. The Court identified sections 12 and 14 as the provisions that appeared to offend the Constitution. Having already examined the principal objection to section 12 in the context of article 22(7)(a), the Court concluded that section 12 did not conform to the constitutional provisions and was therefore ultra vires. Even if it were held to technically satisfy article 22(7)(a), the Court thought Parliament had acted unreasonably in exercising its discretionary power without due consideration of essential matters, thereby depriving detainees of the safeguard of an advisory board that the Constitution provides in normal cases. Concerning section 14, all the other judges had held it ultra vires, and the Court agreed, choosing not to repeat their well-expressed reasoning. The Court noted that section 14 might be severable from the remaining provisions of the Act and that it might not be possible to grant relief to the petitioner on the ground that section 14 was invalid, though the Court indicated further thoughts on the matter.

Section twelve struck at the very foundation of the legislation because it removed from a detained person a protection that the Constitution regarded as essential, and the Court held that the petitioner therefore deserved a writ of habeas corpus on the basis that a fundamental constitutional requirement had not been observed. The Court further explained that the issuance of such a writ would not affect any criminal proceedings that the authorities might have initiated or might initiate against the petitioner under the penal law. This qualification was necessary because allegations had been made that the petitioner was involved in certain criminal matters, yet the factual basis of those allegations had not been clearly established before the Court. The Court then indicated that only a few concluding observations remained to be added to the judgment. In examining the provisions of the challenged Act, the Court found it unavoidable to compare them with similar statutes that had been enacted in England during the two world wars. It was also noted that, although the Act under review presented itself as a peacetime measure, the English legislation that was referenced had been created in times of war. During both the first and the second world wars, numerous individuals had been detained and many cases had been brought before the courts concerning those detentions, but the two leading decisions that continued to be cited were Rex v. Halliday and Liversidge v. Sir John Anderson. The Court further observed that in the United States certain standards, which did not conform to ordinary peaceful law, had been applied by judges during wartime and were sometimes described as part of a “war power.” The two English cases also illustrated the same principle, as shown by two brief extracts that the Court reproduced. In Rex v. Halliday, Lord Atkinson remarked that however valuable personal liberty might be, it could to some extent be sacrificed by legislation for the sake of national success in war or to avoid national plunder or enslavement. In Liversidge v. Sir John Anderson, Lord Macmillan expressed a similar sentiment, stating that liberty, being a gift of law and capable of forfeiture or limitation under the Magna Carta, could be curtailed when the law required citizens to be conscripted or requisitioned to give up their lives and possessions for the country’s cause, and that it should not be surprising for the Secretary of State to possess discretionary power to enforce the relatively mild precaution of detention. These passages represented the majority view in the two cases, and the Court noted that the elaborate judgments of Lord Shaw in Rex v. Halliday and of Lord Atkin in Liversidge v. Sir John Anderson demonstrated that there was room for differing opinions as well as for a more dispassionate treatment of the issues involved.

The Court observed that the opinions expressed by Lord Halliday and Lord Atkin in the earlier cases illustrate that judges were able to hold differing views and to adopt a more detached approach when analysing the matters before them. It noted that Lord Atkin’s celebrated statement – that even in the midst of armed conflict the law does not fall silent and that the same legal principles govern both war and peace – rests on a solid foundation of sound legal doctrine. The Court then turned to the regulatory framework that had been established in England during both the First World War and the Second World War. In each of those periods the legislation contained a comprehensive provision for an advisory board to be appointed in every case without exception, thereby creating a wartime safeguard for any individual whose liberty was taken away. Moreover, the 1939 Act obliged the Secretary of State to submit a report at least once each month, detailing the actions taken under the regulations and indicating the number of persons detained pursuant to orders made thereunder. The Court found that these reports were indeed printed and made accessible to the public. It further pointed out that, on 28 January 1943, the Secretary of State informed the House of Commons that a general directive would permit British subjects detained under the Regulation to consult their legal advisers away from the hearing of an officer. This directive covered consultations with both barristers and solicitors, but it excluded situations where a solicitor sent a clerk – who was not an officer of the High Court – to interview a detained person.

The Court then compared the impugned Act with the earlier wartime safeguards and concluded that, because it lacked comparable provisions, it was deficient in certain respects. Nevertheless, the Court expressed the view that the absence of an advisory board or similar mechanism was unlikely to cause serious injury, given that a system of either administrative or judicial authorities could be established to examine the cases of detained persons and thereby fulfil the essential requirements of fairness and justice. The Court also noted that later Provincial Acts explicitly incorporated the safeguard of an advisory board, a feature missing from the Act under consideration. While Section 12(2) of the Act provides for a review of each detainee’s case after six months, the Court stressed that such a review differs from a substantive examination of the merits; its purpose is merely to determine whether any change in circumstances warrants revisiting the original order. The Court added that its remarks on the shortcomings of the Act should not be misunderstood. It acknowledged that, in England, the United States and many other jurisdictions, traditional concepts of individual liberty are gradually yielding to broader notions of social control. At the same time, the Court recognised that the State bears heavy responsibilities, and it would be inaccurate to claim that extraordinary conditions have entirely vanished from the country.

The Court observed that it could not be assumed that all emergency conditions had vanished from the country. It recognized that, while private rights often had to yield to the public good, a free community was required to achieve a just equilibrium between individual liberty and collective interests. The Court highlighted that depriving a person of personal liberty without a trial was a grave matter, yet acknowledged that societal necessities might sometimes compel such deprivation, obliging the individual to submit to those needs. Nevertheless, the Court asserted that a proper balance could be maintained only if the person whose liberty was taken away was given a genuine opportunity to prove his innocence. The Court further expressed the view that creating an appropriate mechanism to provide that opportunity did not conflict with the objectives of good and just governance.

Turning to the specific petition, the Court noted that the present application was filed under article 32 of the Constitution of India, seeking the release of the petitioner from detention in jail without trial. The detention order had been issued under directions that purported to emanate from the Government of Madras in exercise of powers granted by the Preventive Detention Act, 1950. The Court pointed out that this petition was the first of its kind in which the Supreme Court was approached to protect fundamental rights against an alleged violation of the petitioner’s right to freedom of movement.

The Court described the contours of the case as involving matters of great public importance and representing a novel legal question. Both sides had presented their arguments with thoroughness, invoking comparable provisions from the constitutions of foreign jurisdictions, particularly the Constitution of the United States of America. The petitioner had earlier been detained pursuant to orders issued under the Madras Maintenance of Public Order Act, 1947. However, after the adoption of the new Constitution, several High Courts had examined the validity of that Act and other similar local public-safety statutes, raising doubts about their continued force.

In response to those doubts, Parliament had enacted the comprehensive Preventive Detention Act, 1950, hereinafter referred to as the impugned Act, which applied throughout India except for a limited exclusion that was not material to the present dispute. The Act became operative on 25 February 1950. Two days later, on 27 February, the Government of Madras, claiming authority under the impugned Act and superseding the earlier orders, directed the petitioner’s detention. The detention order was served on the petitioner on 1 March.

The petitioner contended that the impugned Act, specifically sections 3, 7, 10, 11, 13, 14 and 19, either removed or abridged the fundamental right to freedom of movement, thereby violating article 13(2) of the Constitution. Accordingly, he argued that the Act was void to the extent of that contravention. The Court noted that article 13 formed part of a series of articles constituting Part III of the Constitution, titled “Fundamental Rights.” This part, described by the Court as a new feature of the Constitution, functions as the Indian “Bill of Rights” and was modeled on the first ten amendments of the United States Constitution, which enumerate the fundamental rights of American citizens.

In this case, the Court explained that Part III of the Constitution, which contains the fundamental rights, was modelled on the first ten Amendments of the American Constitution that set out the basic rights of American citizens. The Court noted that Article 12, the opening article of Part III, defined “the State” to include the Governments and Legislatures of the Union and the States as well as all local and other authorities against which the fundamental rights could be enforced. The Court then set out the text of Article 13. Clause (1) of that article declared that any existing law inconsistent with the provisions of Part III would, to the extent of the inconsistency, be void. Clause (2), which formed the basis of the petitioner’s contention, 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.” The Court observed that because the constitutional restriction concerned only “the rights conferred by this Part,” it was first necessary to determine the nature and scope of the right that the petitioner claimed Part III had granted to him, and second, to decide whether that right had been taken away or abridged by the impugned Act or any of its provisions. The first issue required a proper interpretation of the relevant constitutional articles, while the second required an examination of the provisions of the Act. The petitioner’s counsel, Mr Nambiar, advanced three principal arguments. First, he argued that the right to move freely throughout the territory of India, as articulated in Article 19(1)(d), formed an essential component of personal liberty, and that the detention authorized by the Act was not a “reasonable restriction” within the meaning of clause (5) of that article; consequently, the Act should be held void. Second, he submitted that the petitioner possessed a fundamental right under Article 21 not to be deprived of personal liberty except in accordance with a procedure established by law, and that the Act, by authorizing detention without following proper procedure, infringed that right and was therefore void. Third, he claimed that the provisions of the Act that had been invoked were ultra vires and inoperative because Parliament, by enacting them, had exceeded the limitations on its legislative power set out in Article 22 clauses (4) to (7). The Court then identified the first question for consideration as whether Article 19(1)(d) and clause (5) applied to the present facts. The Court quoted John Stuart Mill, stating that “Liberty consists in doing what one desires. But the liberty of the individual must be thus far limited—he must not make himself a nuisance to others.” The Court observed that, as rational beings, individuals have many desires, but in a civil society those desires must be regulated and reconciled with the desires of others. Accordingly, liberty must be limited in order to be meaningfully possessed, and therefore Article 19, while guaranteeing certain essential aspects of liberty to every citizen as civil rights, also provided for their regulation for the common good by the State through the imposition of “reasonable restrictions.”

In this case the Court observed that the Constitution, by granting the most valued phases or elements of liberty to every citizen as civil1 rights, also provides for the regulation of those rights for the common good by allowing the State to impose certain “restrictions” on their exercise. The power of locomotion, the Court said, is undeniably an essential component of personal liberty because it signifies freedom from bodily restraint, and confinement in a prison represents a grave invasion of that liberty. The Court then examined whether article 19, as placed in Part III of the Constitution, addresses the deprivation of personal liberty in the form of imprisonment. Sub-clause (d) of clause (1) does not merely speak of freedom of movement in a simple sense but guarantees the right to move freely “throughout the territory of India.” Likewise, sub-clause (e) guarantees the right to reside and settle in any part of the territory of India. Clause (5) empowers the State to impose “reasonable restrictions” on these rights in the interests of the general public or for the protection of the interests of any Scheduled Tribe. When these provisions are read together, the Court found it reasonably clear that they were primarily intended to emphasize the factual unity of the Indian territory and to secure the right of a free citizen to travel from one place in India to another and to reside and settle anywhere in India without being hindered by narrow-minded provincialism. The Court noted that the use of the word “restrictions” in the various sub-clauses suggests, in the context, that the rights guaranteed by the article remain exercisable, and that the term is meant to exclude the notion of incarceration, even though “restriction” and “deprivation” are sometimes used interchangeably, with a restriction potentially reaching a point where it amounts to deprivation.

Reading article 19 as a whole and in the setting of the group of provisions (articles 19-22) that relate to the “Right to Freedom,” the Court concluded that article 19 appears to presuppose that the citizen who is granted these fundamental rights retains the substratum of personal freedom upon which the enjoyment of those rights necessarily depends. The Court addressed the argument that sub-clause (f) might undermine this view because the enjoyment of the right “to acquire, hold and dispose of property” does not depend on the owner’s personal freedom. The Court rejected this assumption as incorrect for movable property, and even for immovable property, noting that a person could not acquire or dispose of property from behind prison bars, nor could he “hold” it in the sense of exercising possession and control, which is the meaning intended in that context. Consequently, where a citizen is lawfully deprived of his freedom as a penalty for committing a crime or otherwise, there can no longer be any question of his exercising or enforcing the rights mentioned in clause (1). The Court held that such deprivation of personal liberty falls outside the scope of article 19 and is therefore not covered by its provisions.

The Court observed that the matters concerning deprivation of personal liberty are not addressed by article 19 but are dealt with by the succeeding articles 20 and 21. In other words, article 19 secures to citizens the enjoyment of certain civil liberties only while they remain free, whereas articles 20 through 22 provide constitutional guarantees that apply to all persons, whether citizens or non-citizens, in relation to punishment and the prevention of crime. The two sets of provisions are therefore measured by different criteria. To interpret article 19 as covering imprisonment that is imposed either as punishment for a crime that has been committed or as a preventive measure against a threatened crime would, in the Court’s view, render the provision meaningless, a reductio ad absurdum. If imprisonment were treated as a “restriction” of the right mentioned in article 19 (1)(d), the same reasoning would extend that restriction to the rights enumerated in the other sub-clauses of clause (1). Consequently, every penal law that employs imprisonment as a mode of punishment would have to satisfy the tests laid down in clauses (2) to (6) before its validity could be upheld. For example, a law that imposes imprisonment for theft would, under that view, need to be justified under clause (2) as a restriction on freedom of speech and expression, an absurd result that the Court found unacceptable.

The Court then referred to a recent unpublished decision of a Division Bench of the Allahabad High Court, which had applied the test of whether an act undermines the security of the State or tends to overthrow it in order to assess the validity of the impugned legislation. The judges in that case construed article 19 as encompassing cases of deprivation of personal liberty and logically concluded that, because the impugned Act authorized preventive detention and thereby infringed the right to freedom of speech and expression, its validity should be examined against the reservations contained in clause (2). Since the Act failed that test, the High Court held it unconstitutional and void. Counsel for the respondent, however, did not press that line of argument as far. He drew a distinction between the right conferred by sub-clause (d) and those conferred by the other sub-clauses, invoking Blackstone’s Commentaries to define personal liberty as “in moving one’s person to whatever place one’s inclination might direct.” He argued that any law depriving a person of the power of locomotion directly invaded the right in sub-clause (d), while it only indirectly and consequentially affected the rights in the other sub-clauses. The Court found no substance in that distinction. It would be illogical, the Court held, to interpret article 19 so that one sub-clause had a scope and effect entirely different from the others or to treat one right in the group as distinct from the rest. All the rights listed in clause (1) are equally essential elements of individual liberty in any civilized and democratic community, and imprisonment extinguishes all of them equally. Accordingly, it could not be said that deprivation of personal liberty infringes only the right in sub-clause (d) while leaving the other rights untouched.

In this case the judges of the Allahabad High Court correctly observed that the constitutional validity of any statute which authorises deprivation of personal liberty or imposes imprisonment must be examined not only under clause five of article nineteen but also under the other sub-clauses of that article, including clause two. Their principal contention, however, that the removal of personal liberty constituted a “restriction” within the meaning of article nineteen, was held by the Supreme Court to be mistaken. The High Court had reasoned that preventive detention, being a severe limitation on the freedom to move, fell within the ambit of article nineteen-one-d read with clause five, and that it did not fall under article twenty-one, which deals with offences, their punishment and the prevention thereof. The Supreme Court found that invoking the doctrine of “pith and substance” was inappropriate in this context. As the Privy Council explained in Prafulla Kumar Mukherjee v. The Bank of Commerce Ltd., Khulna, and as the Federal Court had earlier affirmed in Subrahmanyam Chettiar v. Muttuswamy Goundan, the pith-and-substance rule is designed to determine whether an impugned enactment truly relates to matters within the jurisdiction of one legislature or another in a system of divided legislative powers. No such jurisdictional question arose here. What the Court needed to determine was the true scope and meaning of article nineteen as it appears in Part Three of the Constitution, in order to decide whether the removal of personal liberty is covered by that article. Applying the pith-and-substance test would therefore be more confusing than helpful. Article nineteen, as the Court reiterated, provides protection for the most important civil liberties of citizens who are enjoying their freedom, while simultaneously setting out the permissible restrictions that the legislature may impose on the exercise of those rights. It does not pertain to the deprivation of personal liberty or to imprisonment, matters that are exclusively dealt with by the three articles that follow article nineteen. A further point supporting this conclusion was the report of the Drafting Committee of the Constituent Assembly, which both sides cited during the arguments. The Committee had recommended that the word “liberty” be qualified by inserting the term “personal” before it, lest the phrase be interpreted so broadly as to encompass freedoms already covered by article thirteen (now article nineteen). The fact that this suggestion was accepted indicates that, despite the generally accepted meaning of “personal liberty,” the framers used the expression in article twenty-one with a sense that excludes the freedoms enumerated in article nineteen. Consequently, “personal liberty” within the context of Part Three of the Constitution must be understood as distinct from the freedom to move freely throughout the territory of India.

In this matter, the Court observed that the freedom to move freely throughout the territory of India was a distinct constitutional guarantee. It was further submitted that Article 19 declared the substantive rights of personal liberty, whereas Article 21 supplied the procedural safeguard against the deprivation of those rights. This perspective on the relationship between the two articles had received approval from several judges of the High Courts when they examined the constitutional validity of the impugned Act. Nevertheless, the Court noted that Article 19 conferred the rights enumerated therein solely upon citizens of India, while Article 21 extended protection of life and personal liberty to every person, including both citizens and non-citizens. Consequently, the two articles did not operate within a co-terminous field, and this fact served as one reason to reject the suggested correlation between them. Moreover, if Article 21 were to be understood merely as providing procedural safeguards, the Court asked where the substantive right to personal liberty of non-citizens could be located in the Constitution. It questioned whether non-citizens were entirely denied such a right, and, if they possessed no personal-liberty right, why the procedural safeguard of Article 21 was nevertheless extended to them. The Court also inquired where the most fundamental constitutional right—the right to life—was to be found for non-citizens. The Court then explained that Article 21, akin to its American counterpart in the Fifth and Fourteenth Amendments of the United States Constitution, exemplified a fusion of procedural and substantive rights within a single provision. The right to life, though the most basic of rights, was described as difficult to define, and its protection typically took the form of a declaration that no person shall be deprived of it except by due process of law or by the authority of law. In this context, the terms “process” or “procedure” signified both the act and the manner of proceeding to deprive a person of life or personal liberty. The Court further stated that the initial and essential step in any law-established procedure for such deprivation required a statute enacted by a competent legislature that authorized the deprivation. Turning to Articles 21 and 22, which had occupied the greater part of the debate at the Bar, the Court reproduced their text. Article 21 provided: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Article 22, clause (1), stipulated: “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.” Clause (2) required that every person arrested and detained in custody be produced before the nearest magistrate within twenty-four hours of such arrest, excluding the time necessary for travel from the place of arrest to the magistrate’s court, and that no such person be detained in custody beyond the said period.

Article 22 states that a person may not be detained beyond the prescribed period without the authority of a magistrate. Clause (3) clarifies that the provisions of clauses (1) and (2) do not apply to a person who is presently an enemy alien, nor to a person who is arrested or detained under any law that provides for preventive detention. Clause (4) imposes a strict limit on the duration of preventive detention, providing that no law may authorize detention for a period longer than three months unless an Advisory Board, composed of persons who are, have been, or are qualified to be appointed as judges of a High Court, reports before the expiry of the three-month period that, in its opinion, sufficient cause exists for continued detention. This sub-clause further provides that nothing in it shall authorize detention beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7), or when the person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7). Clause (5) requires that when a person is detained pursuant to an order made under any preventive detention law, the authority issuing the order must, as soon as possible, communicate to the detainee the grounds of the order and must afford the detainee the earliest opportunity to make a representation against the order.

Clause (6) adds that the requirement in clause (5) does not compel the authority to disclose any facts that it considers contrary to the public interest. Clause (7) empowers Parliament to enact law that may: (a) specify the circumstances and the classes of cases in which a person may be detained for a period longer than three months under any preventive detention law without obtaining the opinion of an Advisory Board as required by sub-clause (a) of clause (4); (b) set the maximum period for which any person may be detained in any class or classes of cases under any preventive detention law; and (c) prescribe the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4). Mr. Nambiar argued that the word “law” in article 21 should not be interpreted merely as a legislative enactment but should signify the immutable and universal principles of natural justice, the jus naturale of civil law. He further contended that the phrase “procedure established by law” corresponds to the American constitutional expression “due process of law” in its procedural aspect. To support this view, he cited numerous American decisions that articulate the phrase as implying four basic requirements: an objective and ascertainable standard of conduct, notice to the party of the accusation, a reasonable opportunity to establish innocence, and the presence of an impartial tribunal capable of delivering an unbiased judgment. Mr. Nambiar conceded that these requirements might need to be adapted to the specific nature and objectives of the proceeding, such as in cases of preventive detention where prior notice could be waived to prevent the detainee from evading capture.

The counsel argued that the requirements for a fair procedure might need to be altered or tailored to fit the specific nature of the proceeding and the purpose it sought to achieve. He illustrated this with the example of a preventive detention case, where giving prior notice could cause the individual concerned to go underground, and therefore such notice might be lawfully omitted. Nonetheless, he maintained that these requirements formed the very core of the principles of natural justice, which rose above all statutes, and therefore any law that regulated the deprivation of life or personal liberty had to substantially observe them, except where the Constitution itself expressly permitted their relaxation or waiver for a particular case or class of cases.

He further appealed to the Constitution’s Preamble, describing it as the guiding star for interpretation, and sought to support his thesis that, because the people of India had fashioned a democratic Constitution that guaranteed citizens certain fundamental rights which were justiciable, the provisions of Part III must be construed as prevailing over the will of the legislature. He warned that, if they were not, the allegedly fundamental right to life and personal liberty would lack protection against legislative action, and article 13 12) would become nugatory. He asserted that there was no doubt that the people of India, exercising their sovereign will as expressed in the Preamble, had adopted a democratic ideal that assured each citizen the dignity of the individual and other cherished human values as a means for the full evolution and expression of his personality. In delegating powers to the legislature, the executive, and the judiciary, the Constitution reserved to itself certain fundamental rights, which he apprehended were retained by the people and made paramount to the delegated powers, much like the American model.

He cited James Madison, who had played a prominent part in framing the First Amendment of the American Constitution, to highlight the historical distinction between the American and British methods of securing “the great and essential rights of the people.” Madison observed that “Here they are secured not by laws paramount to prerogative but by Constitutions paramount to laws,” a statement recorded in the Report on the Virginia Resolutions and quoted in Near v. Minnesota (1). (1) 283 U.S. 697. He noted that this principle had been translated into positive law in Part III of the Indian Constitution and agreed that, when construing these provisions, the high purpose and spirit of the Preamble as well as the constitutional significance of a Declaration of Fundamental Rights should be borne in mind. However, he cautioned that this did not mean the language of the provisions should be stretched to fit any constitutional theory in disregard of the cardinal rule of interpretation of any enactment, constitutional or otherwise, which requires that its spirit, as well as its intendment, be derived primarily from the natural meaning of the words used. While giving full effect to these principles, he concluded that he could not agree that the term “law” in article 21 meant anything other than a positive, State-made law.

The Court held that the expression “law” used in article 21 does not refer to the immutable and universal principles of natural justice. Instead, the phrase “procedure established by law” must be understood to mean a procedure that has its source in legislation, because no procedure can be said to be founded upon vague and uncertain concepts such as “the immutable and universal principles of natural justice.” In the Court’s view, “law” in article 21 signifies “positive or State-made law.” The Court noted that American judges have embraced a different meaning when interpreting the due-process clause of the Fifth and Fourteenth Amendments of the United States Constitution, which declares that no person shall be deprived of life, liberty or property without due process of law. However, the Court observed that that clause possesses an evolutionary history. The phrase was traced back to the Statute of 28 Edward III, chapter 3, and Sir Edward Coke, in his Institutes, identified the term with the expression “the law of the land” found in the Great Charter of John. Even in England, where Parliament’s legislative supremacy is now firmly established, Coke understood those terms to imply an inherent limitation on all legislation. He ruled in Dr Bonham’s Case that “the common law will control Acts of Parliament and sometimes adjudge them to be utterly void when they are against common right and reason.” Though later English authorities discarded this doctrine as merely a warning rather than binding authority, as noted by Willes J. in Lee v. Dude and Torrington Railway, the idea gained traction in America. Initially it served as a weapon for revolutionists to resist Parliamentary statutes and later became an instrument for judges to assert judicial supremacy, as reflected in Calder v. Bull. In the latter half of the nineteenth century, the doctrine of a transcendental common law or natural justice was incorporated into the meaning of “due process of law” in the Fifth and Fourteenth Amendments. By emphasizing the word “due,” interpreting “law” as the fundamental principles of natural justice, and giving the words “liberty” and “property” a broad meaning, American judges turned the due-process clause into a general restriction on all legislative authority. When that legislative power seemed threatened by the expansive reach of due process, the equally vague doctrine of “police power”—the governmental authority to regulate private rights in the public interest—was developed to counterbalance it. This development has been criticized for creating great uncertainty in the legal system of that country, because no one could be sure how due process of law would affect a particular enactment. A century after the phrase became a subject of judicial interpretation, a learned judge in 1877 remarked that it was incapable of precise definition and that its intent and application could only be discerned through “the gradual process of inclusion and exclusion” (Davidson v. New Orleans). More recently, in 1948, another judge highlighted the difficulty of “giving definiteness to the vague contours of due process” and of “spinning judgment upon State action out of that gossamer concept” (Haley v. State of Ohio). Consequently, the Drafting Committee of the Indian Constituent Assembly recommended replacing the phrase “without due process of law”—which appeared in the original draft—with the expression “except according to procedure established by law” taken from the Japanese Constitution of 1946, because the latter was deemed more specific. The Committee explained that it had attempted to make the fundamental rights and their necessary limitations as definite as possible, anticipating that courts would have to interpret them (para 5). In light of these considerations, the Court found it difficult to accept the suggestion that “law” in article 21 should be understood as referring to the immutable principles of natural justice.

The Court observed that, following a decision reported from New Orleans, and as recently as 1948, a judge had warned of the difficulty of giving definiteness to the vague contours of due process and of forming judgments about State action from that “gossamer” concept, as noted in Haley v. State of Ohio. Consequently, it was not surprising that the Drafting Committee appointed by the Constituent Assembly of India recommended replacing the phrase “without due process of law” that appeared in the original draft with the expression “except according to procedure … established by law.” The new wording was taken from the Japanese Constitution of 1946 and was considered more specific. In the Committee’s report, it was recorded that the members had “attempted to make these rights (fundamental rights) and the limitations to which they must necessarily be subject as definite as possible, since the Courts may have to pronounce upon them” (para 5). In light of this background, the Court found it difficult to accept the suggestion that the term “law” in article 21 should be understood as the jus naturale of civil law and that the phrase “according to procedure established by law” ought to be treated as equivalent to due process of law in its procedural dimension. Accepting such a view, the Court noted, would introduce into the Constitution the “subtle and elusive criteria” implied by the phrase, a result that the framers had deliberately sought to avoid. Conversely, the Court also rejected the interpretation advanced by the Attorney-General on behalf of the intervener, which asserted that the expression merely meant any procedure prescribed by a competent legislature. The Attorney-General explained that “established” meant “prescribed,” and therefore any procedure enacted by Parliament or a State Legislature—however novel or ineffective in providing the accused a fair chance of defence—would suffice to deprive a person of life or personal liberty. He further contended that the Constituent Assembly had expressly rejected the doctrine of judicial supremacy when it discarded the phrase “due process of law” and rendered the legislative will unchallengeable, provided only that “some procedure” was laid down. By preferring the English doctrine of parliamentary supremacy, the Constitution, the Attorney-General argued, required that the phrase “procedure established by law” be construed in line with the English view of due process, that is, any procedure that Parliament may choose to prescribe. Counsel for the intervener drew the Court’s attention to speeches made by several members of the Assembly on the floor of the House, describing them as providing a “historical background.” The Court observed, however, that a speech delivered during a bill debate could at most indicate the subjective intent of the individual speaker and could not reflect the collective, often inarticulate, mental processes of the majority that carried the bill. Moreover, it was unreasonable to assume that all legislators shared a uniform mindset. The Court therefore concluded that the objective intent of the legislature must be sought primarily in the words of the enacted provision, supported, where appropriate, by historical material such as committee reports and preambles, rather than in the disparate speeches of individual members.

The Court explained that it could determine the legislature’s objective intent only by examining the actual words of the enacted provision, and by consulting historical material such as reports of statutory committees and pre-ambles, but it would not give any weight to the speeches made by some members of the Constituent Assembly during the debate on what was then article 15 and is now article 21. It said that the principal problem with accepting the construction proposed by the Attorney-General was that such a view would utterly neutralise article 13(2) and undermine the very concept of a fundamental right, which the Constitution is intended to protect against infringement by ordinary legislation. The Court rejected the contention that the Constitution had embraced a doctrine of parliamentary supremacy; rather, at least with respect to Part III, it observed that the Constitution had adopted the American approach to fundamental rights, a position made clear by articles 13 and 32. Consequently, the Court questioned whether the framers could have intended that the most important rights to life and personal liberty should be left at the mercy of legislative majorities, as would follow if the term “established” were interpreted merely as “prescribed”. It cited an American judge’s remark that a constitutional prohibition such as article 13(2) would amount to no more than a hollow statement that “you shall not take away life or personal freedom unless you choose to take it away”. The Court held that it was not correct to argue that, if article 21 conveyed no immunity from legislative intrusion, there would be no breach of article 13(2); such reasoning presupposes the very absence of immunity it seeks to establish. The Court noted the claim that article 21 offered no protection against competent legislative action in substantive criminal law because it lacked a provision for judicial review on reasonableness, unlike the rights in article 19, and pointed out that even assuming that claim, the Attorney-General’s construction would render the procedural safeguards intended by article 21 wholly ineffective and illusory. The Court further rejected the analogy that “law” in article 31, which declares that no person shall be deprived of his property “save by authority of law”, must mean only enacted law, and that a legislative taking of property would consequently permit a similar taking of life or liberty without greater protection. It clarified that clause (2) of article 31 provides for the payment of compensation and is justiciable, except in the two transitional situations mentioned in clauses (4) and (6). Thus, the constitutional safeguard of the right to property under article 31 was not as illusory or ineffective as clause (1) might appear if “law” were read solely as ordinary legislation.

In this case, the Court observed that the provision in question should not be regarded as merely illusory or ineffective simply because clause (1) might suggest such a view, even if the term “law” is interpreted to refer solely to ordinary legislation. The judgment noted that considerable reliance had been placed on an Irish decision, The King v. The Military Governor of Hare Park Camp, in which the Court interpreted the word “law” in article 6 of the Irish Constitution of 1922— which guarantees that “the liberty of the person is inviolable and no person shall be deprived of his liberty except in accordance with law”— to mean a statute enacted by Parliament. Accordingly, the Court held that the Public Safety Act of 1924 did not offend the Constitution. The Irish Court’s reasoning was said to have been followed in The King v. Halliday, where the House of Lords, by a majority, concluded that the Defence of the Realm (Consolidation) Act, 1914, and the regulations made under it did not contravene the Habeas Corpus Acts or the Magna Carta, because “the Act and the Orders become part of the law of the land.” The judgment explained that this conclusion was drawn because, as Lord Dunedin observed, the British constitutional framework confers upon the two Houses of Parliament an absolute legislative authority, subject only to the royal assent, and that authority is not limited by any written instrument that a court could enforce. By contrast, the Irish Constitution imposes limits on legislative power through a formal declaration of fundamental rights and by providing for judicial review of statutes that conflict with the Constitution, notably article 65. The Court noted that this crucial distinction had been overlooked. The Attorney-General further argued that, even under his reading, article 21 would protect against violations of the rights by both the executive and private individuals, and that such protection would be sufficient to treat the article as a fundamental safeguard. The Court rejected that suggestion as lacking substance. Referring to the decision in Eshugbayi Eleko v. Government of Nigeria (Officer Administering), the Court observed that the executive may act only pursuant to powers granted by law, and therefore a separate constitutional shield against executive action is unnecessary. The Court also cited the historical resolution of the conflict between prerogative and law in Britain, noting Lord Atkin’s statement that, under British jurisprudence, no executive officer may interfere with a British subject’s liberty or property unless he can demonstrate the legality of his action before a court of justice. Regarding protection against private individuals, the Court stressed that constitutional guarantees are generally aimed at the State and its organs, not at private persons, and that remedies for violations by individuals must be sought in ordinary law. Consequently, the Court found it difficult to accept the premise that article 21 was intended solely to guard against infringements by the executive or by private individuals. The Court then turned to the broader context of the inclusion of a declaration of Fundamental Rights …

The Constitution places fundamental rights at the very front of the legal order and expressly forbids any legislative encroachment upon those rights by means of article 13. Moreover, article 32 supplies a constitutional mechanism for enforcing that prohibition through judicial review. In the view expressed, and citing the authority from 1931 A.C. 662, this combination unmistakably signals that the fundamental rights are intended to outrank ordinary statutes made by the State.

After a thorough and careful examination of the issue, the conclusion reached was that only two possible approaches were available. The first approach seeks a middle ground between the two extreme positions advanced by the parties. This can be achieved by emphasizing the meaning of the term “established” as used in the phrase “procedure established by law.” The word suggests a certain firmness, permanence and general acceptance, yet it does not rule out the possibility that such a procedure may have its origin in legislation. Accordingly, “procedure established by law” may be understood, as the Privy Council explained in King Emperor v. Benoari Lal Sharma (1), to denote “the ordinary and well-established criminal procedure.” In other words, it refers to the settled usages and normal methods of conduct that are sanctioned by the Criminal Procedure Code, which constitutes the general law governing criminal proceedings throughout the country.

The Privy Council’s reference contrasted the conduct of trials before special courts created by a Governor-General’s Ordinance with trials before ordinary courts that operate under the Criminal Procedure Code. It is not unreasonable to accept that the Code does not prescribe a single, uniform procedure applicable to every type of case; rather, it provides different procedural schemes for various classes of cases. Nevertheless, certain basic principles emerge as constant factors that are common to all of those schemes, and these principles form the core of the “procedure established by law.” The analysis further recognises that, even under this interpretation, the life and liberty of an individual would not be completely insulated from legislative action. A competent legislature retains the power to amend the procedure in order to diminish the protection if it wishes to do so. However, as indicated, such a change should not be an ad-hoc alteration for a specific purpose or occasion; it must be a change effected in the general law of procedure embodied in the Code. So long as no such amendment is made, the protection afforded by article 21 remains operative.

The various degrees of constitutional protection that the fundamental right to life and personal liberty may enjoy under article 21, as interpreted in the three ways previously mentioned (see 1945 F.C.R. 161, 175), can be illustrated by a concrete scenario. Imagine that article 22(1) did not exist and that Parliament, as a temporary measure, enacted a statute withdrawing, in certain circumstances, the right of an accused person to be represented by a legal practitioner. According to the counsel for the petitioner, that statute would be void because it would contravene the immutable principles of natural justice entrenched in article 21. By contrast, the construction advocated by the Attorney-General would deem the statute perfectly valid, while, on

In the view expressed above, the statute in question would be invalid, yet if the denial of a right to legal defence were incorporated as an ordinary feature of criminal procedure by repealing section 340(1) of the Code, Article 21 would lack the power to shield against such legislative action. Nevertheless, in a free democratic republic, a change of that magnitude in the ordinary law of procedure, although theoretically feasible, would be extremely difficult to achieve; that practical difficulty, the Court observed, constitutes the actual safeguard provided by Article 21. It had been suggested that the protections contained in clauses (1) and (2) of Article 22 are essentially duplicated by the provisions of the Criminal Procedure Code, and that such overlap would disappear if Article 21 were intended to be interpreted as previously indicated. That argument, however, neglects the distinction that while the Code’s provisions may be amended by a competent legislature, the safeguards in clauses (1) and (2) of Article 22 are constitutional in nature and therefore cannot be altered in the same way; this distinction adequately explains why those safeguards are expressly placed in the Constitution. The only alternative to the interpretation advanced above, if a constitutional breach is to be avoided, would be to read the reference to “law” as implying a constitutional amendment to the extent necessary, because only a law enacted pursuant to the amendment procedure prescribed in Article 368 can modify or override a fundamental right without violating Article 13(2). The discussion then turned to the extent to which the protection afforded by Article 21, as it has been understood, applies to persons held under preventive detention. The learned Attorney-General argued that Article 21 does not pertain to preventive detention at all, contending that clauses (4) to (7) of Article 22 constitute a complete code of constitutional safeguards for preventive detention and that, provided those provisions are obeyed, the validity of any law relating to preventive detention could not be challenged. The Court was unable to accept this position. The language of Article 21 is broadly framed and embraces deprivation of personal liberty or incarceration, whether for punitive or preventive purposes. Had the framers intended to exclude the operation of Article 21 in cases of preventive detention, they could have simply inserted a reference to Article 21 in clause (3) of Article 22, which already stipulates that clauses (1) and (2) shall not apply to a person arrested or detained under any law providing for preventive detention. Moreover, nothing in the wording of clauses (4) to (7) of Article 22 necessarily leads to the conclusion that Article 21 is inapplicable to preventive detention; those clauses address only specific aspects such as the period of detention, the composition of an advisory board to review the detention order, the communication of grounds for detention, and the opportunity for the detained person to make a representation against the order.

In the case, the Court described the safeguards contained in clauses (4) to (7) of article 22 as providing, among other things, the communication of the grounds of detention to the person detained and the opportunity for that person to make a representation against the order. The Court observed that these provisions could not be said to form an exhaustive code dealing with every aspect of preventive detention, nor could they be said to cover the whole area of protection that article 21, as interpreted earlier, would afford to a detained individual. Accordingly, the Court held that article 21 was applicable to preventive detention as well. The Court then turned to examine whether the impugned Act or any of its provisions, under which the petitioner had been ordered to be detained, removed any of the rights conferred by articles 21 and 22 or otherwise infringed the protection afforded by those articles.

The Court noted that a striking fact was that preventive detention had been given a constitutional status. It described this feature as appearing “sinister-looking” and strangely out of place in a democratic constitution that invested personal liberty with the sacrosanctity of a fundamental right and that seemed incompatible with the promises of the preamble. The Court explained that the purpose of this provision was doubtless to prevent an abuse of freedom by anti-social and subversive elements that might imperil the national welfare of the young Republic. In that spirit, the Court said that clauses (3) to (7) of article 22 should be construed and harmonised, as far as possible, with article 21 so that the protection afforded for the legitimate exercise of personal liberty would not be unnecessarily diminished.

First, the Court reiterated that clause (3) of article 22 excluded a person detained under any law providing for preventive detention from the benefit of the safeguards contained in clauses (1) and (2). The Court acknowledged that clause (5) of the same article attempted to compensate for the loss of those safeguards by requiring that the grounds of detention be communicated to the detained person and by providing an opportunity to make a representation against the order. However, the Court pointed out that the important right to consult and be defended by a legal practitioner of one’s choice was omitted. Similarly, the Court observed that the prohibition against detention in custody for more than twenty-four hours without the authority of a magistrate had also been removed in cases of preventive detention.

The Court further noted that it was not disputed that, to the extent that the express provisions of clauses (4) to (7) authorised the abrogation or abridgement of safeguards provided under other articles, or substituted other safeguards in a modified form, those express provisions must prevail. Regarding the four essentials of due process on which counsel Nambiar insisted—principles that also formed part of the ordinary and established procedure under the Criminal Procedure Code, though the Court could not agree that they were immutable and beyond legislative change—the Court held that the requirements of notice and an opportunity to establish innocence were already provided for by clause (5) of article 22.

The Court observed that clause 5 of article 22 does not prescribe any particular standard of conduct that a person under preventive detention must meet, and the provision contains no explicit rule for such cases. Yet, the Court noted that if a safeguard could be inferred from the legal procedure established for preventive detention, that inferred safeguard could be invoked. The Court indicated that this question would be examined shortly in relation to the provisions of the Act that had been challenged. The Court then turned to the most fundamental requirement of due process, namely the need for an impartial tribunal capable of delivering an unbiased verdict. According to counsel for the petitioner, article 22 failed to provide for such a tribunal because the advisory board mentioned in clause 4(a) was, in his view, limited to deciding only the question of how long the detention should continue—that is, whether there was sufficient cause to retain the detainee for a period exceeding three months—and not to determine the innocence or guilt of the detained individual. He argued that a tribunal able to give an impartial judgment on that substantive issue was an essential component of the protection afforded by article 21, however that article might be interpreted, and he referred to the preventive provisions contained in Chapter VIII of the Criminal Procedure Code to support his point. The Court noted that the Act under review did not provide for any such tribunal, and consequently the Act, in the Court’s view, violated article 21 and was therefore void. The Court further explained that the entire argument rested on the premise that the advisory board contemplated in clause 4(a) of article 22 was not a tribunal intended to assess the justification of the detention. The Court asked whether that premise was correct. Counsel for the respondent advanced the proposition that the expression “sufficient cause for such detention” in sub-clause (a) of clause 4 referred specifically to detention beyond three months, a view supported by the wording of sub-clause (a) of clause 7, which authorises Parliament to prescribe the circumstances and categories of cases in which a person may be detained for a period longer than three months without the opinion of an advisory board. In other words, the learned counsel submitted, the combined effect of clauses 4 and 7 was that no individual could be detained for a period exceeding three months without first obtaining an advisory board’s opinion that there was sufficient cause for such extended detention, except where Parliament had enacted a law permitting such detention without the board’s opinion. Accordingly, those two clauses, the counsel argued, dealt solely with the duration of preventive detention, and the advisory board created by them was likewise limited to that purpose. The Court expressed its inability to accept this interpretation. It indicated an inclination to understand the phrase “such detention” in sub-clause (a) as referring back to the preventive detention mentioned in clause 4, rather than to detention for a period longer than three months. The Court further noted that an advisory board, as constituted, would be composed of judges or lawyers and would not be in a position to decide how long a person under preventive detention should be held, a matter that the Court held belongs exclusively to the executive authorities responsible for the defence of the country.

The Court observed that the advisory board, being composed of judges or lawyers, would hardly be in a position to determine how long a person under preventive detention—say, for reasons connected with defence—should be detained. Such a decision, the Court said, had to be made by the executive authorities, specifically the Department of Defence, because only that body was charged with the defence of the nation and possessed the necessary data to decide the appropriate period. The advisory board could, at most, be tasked with examining whether the detention was justified and not arbitrary or made in bad faith, serving as a safeguard against the misuse of power. The requirement that the board submit its report before the expiry of three months, perhaps a day or two earlier, could not be taken to mean that the board’s only concern was whether detention should continue beyond that period. Before the tribunal could file its report, a reasonable interval had to pass because the grounds for detention had to be communicated to the detainee, who then needed an opportunity to make a representation to the detaining authority, and those representations had to be forwarded to the board through the proper departmental channel. Each of these procedural steps could, in ordinary administrative practice, require some time, and the three-month period might therefore have been regarded as a reasonable interval before the board was required to submit its report. Even if the phrase “such detention” referred to the length of detention, there was no clear justification for limiting the advisory board’s inquiry to the question of duration beyond three months without also considering whether the detention itself was justified. In fact, it was difficult to imagine how a tribunal could fairly decide that a person should be detained for more than three months without simultaneously examining whether there was sufficient cause for the detention in the first place. The Court expressed the view that the advisory board mentioned in clause (4) constituted the constitutional mechanism intended to review preventive detention orders in certain cases, based on the representations submitted by the detained individuals. The Court noted that Parliament had adopted this interpretation when drafting the impugned Act, as evident from sections 9 and 10, and considered this interpretation to be correct. Consequently, the petitioner could not claim a right to have his case heard by any other impartial tribunal under article 21 or any other provision. The counsel for the petitioner objected that, under this interpretation, legislation could permit preventive detention for three months without any provision for review by a tribunal, and could allow even longer detention if Parliament enacted a law as contemplated in sub-clause (a) of clause (7). While that possibility might indeed be the case, and although such an outcome could be deplorable for the detained individual, the Court observed that…

The Court noted that if clauses (4) and (7) of the Constitution were read in a proper manner and it was concluded that the Constitution did not grant a higher safeguard for an individual’s personal liberty, then the detained person would have no remedy. Turning then to the provisions of the Act that had been challenged on constitutional grounds, the Court limited its examination to those sections that directly affected the petitioner in the present case. First, it considered the contention that section 3, which authorises the Central Government or a State Government to detain any person when the Government is “satisfied” that such detention is necessary to prevent the person from acting in any manner prejudicial to, among other things, the security of the State or the maintenance of public order, failed to satisfy the requirement of procedure established by law. The argument asserted that the section did not provide an objective and ascertainable standard of conduct, leaving the decision entirely to the will and pleasure of the concerned Government. The submission further proceeded on the premise that “procedure established by law” was identical to “due process of law.” The Court recalled that it had already explained that the two concepts are not synonymous. Moreover, the Court observed that the argument overlooked the practical difficulty, if not impossibility, of formulating precise objective rules of conduct whose breach would justify preventive detention. By its very nature, preventive detention is intended to stop a person from acting prejudicially to certain objectives contemplated by the legislation. It would not be feasible to pre-list every act or class of act that might be deemed prejudicial. Since the responsibility for the security of the State and the maintenance of public order rests with the executive, the power to order preventive detention must logically remain with the executive Government, to be exercised whenever it deems the situation warrants such action.

The Court then addressed the criticism directed at section 12 of the Act, which deals with the duration of detention. Section 12 provides that a person detained in the specified classes of cases or under the specified circumstances may be kept without the opinion of an Advisory Board for a period longer than three months but not exceeding one year from the date of detention, where the detention is intended to prevent the person from acting in any manner prejudicial to (a) the defence of India, the relations of India with foreign powers or the security of India, or (b) the security of a State or the maintenance of public order. The provision further mandates that the case of every person detained under a detention order falling within sub-section (1) must be reviewed within six months from the date of detention. The Court indicated that this provision had attracted considerable criticism, but it set out the exact wording of the section and the statutory requirement for a review within the specified six-month period.

The Court noted that the provision stipulated that when a detention order was issued by the Central Government or by a State Government, the same Government was responsible for the order, and that when the order was issued by any officer identified in sub-section (2) of section 3, the relevant State Government to which that officer was subordinate had to act in consultation with a person who was, had been, or was qualified to be appointed as a Judge of a High Court, and who had been nominated in that capacity by the Central Government or the State Government, as appropriate. It was submitted that this formulation failed to satisfy the requirements of clause (7) of article 22 because it merely reiterated the “matters” or legislative topics enumerated in Entry 9 of List I and Entry 3 of List III of the Seventh Schedule to the Constitution. The Court explained that what Parliament is required to do under clause (7) of article 22 is to specify “the circumstances under which and the class or classes of cases in which” a person may be detained for a period exceeding three months without obtaining the opinion of an advisory board. It was further argued that clause (4)(a) dealt with ordinary cases of preventive detention, where such detention could not extend beyond three months unless the opinion of an advisory board was obtained, whereas clause (7)(a) created a special category for detention beyond three months without the safeguard of the advisory board’s opinion in cases involving aggravated forms of prejudicial conduct. In other words, the argument portrayed clause (4)(a) as establishing the general rule and clause (7)(a) as forming an exception. Consequently, it was claimed that Parliament needed to point out, for the guidance of the detaining authority, the more aggravated forms of prejudicial activity, and that merely mentioning the subjects within which Parliament is empowered by the legislative lists to enact preventive-detention laws could not provide adequate guidance and therefore did not meet the requirements of clause (7). The Court identified a two-fold fallacy in this line of reasoning. First, the suggested correlation between clause (4)(a) and clause (7)(a) as a rule and an exception, respectively, was held to lack any basis in construction. When clauses (4) and (7) are read together, it is reasonably clear that preventive detention may be lawfully extended in two separate ways: (1) where the opinion of an advisory board is obtained, subject to a prescribed period as set out in sub-clause (a) of clause (4); and (2) where a person is detained under a law made by Parliament pursuant to sub-clauses (a) and (b) of clause (7), which corresponds to sub-clause (b) of clause (4). These two avenues represent distinct and independent provisions. The Court emphasized that sub-clause (b) of clause (4) is not framed as a proviso or an exception to sub-clause (a) of the same clause, which it would have been if it were intended to operate as such. Thus, the attempt to correlate clause (4)(a) and clause (7)(a) as a general rule and an exception respectively was contrary both to the language and to the structural arrangement of the provisions.

The Court observed that clause (7) concerns preventive detention, which is a wholly precautionary measure and, as Lord Atkinson explained in Rex v. Halliday, must inevitably proceed, at least in part, on suspicion or anticipation rather than on proof. The Court noted that the earlier comments regarding the lack of any objective rules of conduct in section 3 of the impugned Act are equally applicable to the criticism of section 12. It further stated that it would be difficult, if not impossible, to list exhaustively all the circumstances or to catalogue every class of cases in which a person might be detained for more than three months for preventive purposes; a broad outline must therefore suffice. For example, the Court imagined a person who belongs to an organisation whose policy endorses violent and subversive activity. Apart from his membership, the individual might have done nothing until his arrest and detention, yet upon release he could engage in anything from the relatively mild act of placing an objectionable handbill on a hoarding to the most extreme act of sabotage. The Court questioned how inserting a long series of categories of aggravated prejudicial activities, or enumerating the various situations in which such activities are likely to occur, would aid the detaining authority in deciding whether the individual should be held for three months or for a longer period. It concluded that the authority need only know that the person is a member of such an organisation and is likely to engage in subversive activities prejudicial to the security of the State or the maintenance of public order, which places him within class (b) of section 12. While detailed enumeration and classification could undoubtedly assist in grading punishment for offences, they would not substantially help in fixing the duration of preventive detention. The Court suggested that sufficient guidance could be provided by broadly indicating the general nature of the prejudicial activity a person is expected to undertake, and that Parliament had, in effect, done so in section 12. The Court also referred to Rule 34 of the Defence of India Rules, framed under the Defence of India Act 1939, where “prejudicial act’’ is defined by enumeration. However, those rules were also intended to prohibit such acts under Rule 38 sub-rule (1) and to create offences under sub-rule 5, and even there the definition concluded with a residuary clause covering acts likely “to prejudice the efficient prosecution of the war, the defence of British India or the public safety or interest.” Finally, the Court noted that Lists I and III of the Seventh Schedule to the Constitution mention six topics regarding which Parliament may enact preventive detention laws.

The Court noted that Parliament had authority to enact legislation for preventive detention and that section 12 of the challenged Act enumerated five categories which it described as the classes of cases or the circumstances in which a longer period of detention was permitted. The Court expressed that there was no reason to consider such enumeration incompatible with a broad classification of cases or a general description of circumstances where longer detention might be justified. It further explained that a class may be defined with reference to the purpose that the legislature intends to achieve, and that the matters identified as classes (a) and (b) of sub-section (1) of section 12 plainly reflected the objectives Parliament sought to secure by enacting the provision. Accordingly, the Court concluded that a classification based on such general aims did not offend article 22 (7). Counsel for the petitioner argued that, by enacting section 12, Parliament had failed to fulfill its duty to prescribe both the circumstances and the class or classes of cases in which detention without obtaining the advisory board’s opinion could extend beyond three months. The argument further pointed to the disjunctive word “or” placed between “circumstances” and “class or classes of cases,” asserting that this indicated Parliament’s intention to dispense with the requirement to prescribe both, thereby contravening article 22 (7), which employed the conjunctive “and.” The Court rejected this objection, observing that there was no substantive basis for it. In the Court’s reading, article 22 (7) permits Parliament to prescribe either the circumstances, the classes of cases, or both, and the language of section 12 demonstrated that Parliament considered the matters mentioned in clauses (a) and (b) of sub-section (1) to be sufficiently indicative of both the circumstances and the classes in which a person could be detained for a longer period. For example, stating that persons who are likely to act prejudicially to the defence of India may be detained beyond three months simultaneously prescribes a class of persons and the circumstances under which longer detention is permissible. Thus, the classification itself may serve as an adequate description of the circumstances contemplated by clause (7). The Court observed that the range of circumstances that might justify precautionary detention beyond three months without the advisory board’s involvement is so extensive that an exhaustive list would be impractical, and it saw no flaw in the validity of section 12 for not enumerating any circumstances beyond those set out in clauses (a) and (b) of sub-section (1). The Court warned that it would be unusual for the judiciary to strike down a parliamentary enactment merely because, in its view, a classification is imperfect or because certain circumstances are described in a manner that is not exhaustively specific. Finally, the Court recorded that counsel for the petitioner also challenged section 14, which bars the disclosure of the grounds of detention communicated to the detained person and of any representation made by him.

In this case, the provision under section 14 barred the disclosure of the grounds of detention except when such disclosure was required for a prosecution punishable under sub-section (2). Sub-section (2) makes it an offence for any person to disclose or publish the grounds of detention or a representation made against the detention order unless prior authorisation is obtained from the Central Government or the State Government, as appropriate. The petitioner complained that this provision effectively nullified the rights granted to him by clause (5) of article 22, which require that the grounds of his detention be communicated to him and that he be permitted to make a representation against the detention order. The petitioner argued that if the communicated grounds are so vague that he cannot prepare a meaningful representation, or if the grounds are irrelevant to the purpose of his detention, or if they reveal that the detention is not genuine, then he also possesses the further right to approach the Court, a remedy that is guaranteed by article 32. The petitioner submitted that these statutory rights and constitutional remedies cannot be meaningfully exercised if he is placed in danger of prosecution for disclosing the grounds to the Court. The argument was considered to have considerable merit. The Attorney-General, for the respondent, responded that assuming the remaining provisions of the Act are valid, the Court would not be entitled to scrutinise the sufficiency of the grounds upon which the executive authority was “satisfied” that detention was necessary, as established in Machindar Shivaji Mahar v. The King. Consequently, the Attorney-General contended that the petitioner could not claim an infringement of his rights on the basis of section 14, which merely instituted a rule of evidence. However, this submission overlooked the principle affirmed in the cited decision, namely that the Court may examine the grounds of detention to determine whether they are pertinent to the legislative object, such as preventing acts prejudicial to public safety and tranquillity, or whether they disclose that the detention is not bona fide. Section 14 makes such an examination impossible, thereby rendering the protection afforded by article 22(5) and article 32 ineffective. Accordingly, the Court found that section 14 contravenes article 22(5) and article 32 to the extent that it forbids the detained person from disclosing to the Court the grounds communicated by the detaining authority or the representation made against the order, and it also prevents the Court from examining those grounds for the purposes outlined. Consequently, under article 13(2), section 14 must be declared void. The Court noted that this declaration does not affect the remaining provisions of the Act, which are severable. Since the petitioner had not disclosed the grounds of his detention pending the Court’s decision on this issue, he will now be free to

He may now pursue his remedy, if counsel advises, on the basis of the grounds that were previously withheld. Consequently, the application was found to fail and the Court dismissed it. The judgment notes that the people of India, on 26 November 1949, solemnly resolved to establish India as a Sovereign Democratic Republic and adopted a Constitution that came into force on 26 January 1950. This case marks the first occasion on which the Supreme Court was asked to examine the extent to which the Constitution guarantees personal liberty to Indian citizens. The petitioner, A K Gopalan, was already detained in the Central Jail at Cuddalore when, on 27 February 1950, he received an order of detention issued under section 3(1) of the Preventive Detention Act, 1950 (Act IV of 1950). The order stated that the Governor of Madras was satisfied that detention was necessary to prevent the petitioner from acting in any way prejudicial to the security of the State or the maintenance of public order. On 20 March 1950, a petition was filed before this Court under article 32 of the Constitution, seeking a writ of habeas corpus that would require the State of Madras to produce the petitioner before the Court and to set him at liberty. The Court issued the writ in accordance with the petition. The State’s response to the writ asserted that the detention was lawful because it was authorized by Act IV of 1950, a statute enacted by Parliament. The petitioner argued that the Act infringes and abridges several provisions of Part III of the Constitution, rendering the legislation beyond the constitutional authority of the legislature and therefore void and unenforceable. The matter was regarded as of great importance both because the legislative power expressly granted by the Seventh Schedule was being challenged and because the fundamental liberty of the citizen was at stake. The Court identified two issues for resolution: first, the degree to which the Constitution has secured personal liberty for a citizen of India; and second, whether the impugned legislation has, in any manner, taken away or limited those rights and, if so, to what extent. Act IV of 1950 provides for preventive detention in specific circumstances and was enacted as a temporary measure, set to expire on 1 April 1951. The Act empowers both the Central Government and State Governments to issue detention orders with the purpose of preventing a person from acting in any manner prejudicial to the defence of India, India’s relations with foreign powers, or the security of India. It also authorises detention of any individual who acts in a way that threatens the security of the State, the maintenance of public order, or the provision of essential supplies and services to the community. The Act came into force on 26 February 1950 and was enacted by virtue of the powers conferred on Parliament by article 22 clause (7) of Part III of the Constitution, read with the entries in the Seventh Schedule.

In 1950 a law was enacted based on the authority that Parliament possessed under article 22, clause 7 of Part III of the Constitution, together with the entries contained in the Seventh Schedule. The Court observed that the legislative intention expressed in that statute would be binding and enforceable unless the legislature had transgressed the boundaries set by the Constitution. It further explained that a court does not have the power to declare a statute unconstitutional and void merely because its provisions appear unjust or oppressive, or because they are alleged to infringe natural, social or political rights, unless it can be demonstrated that such injustice is specifically prohibited or that those rights are expressly guaranteed or protected by the Constitution. The Court also noted that an Act cannot be struck down simply because, in the Court’s view, it conflicts with the spirit that is presumed to pervade the Constitution where that spirit is not articulated in clear constitutional language. The Court recognised the difficulty of limiting the sovereign power of the legislature by judicial intervention except to the extent that the written Constitution itself confers such authority. Article 13 (2) of the Constitution supplies that authority, stating that the State shall not enact any law that takes away or abridges the rights conferred by Part III, and that any law made in violation of this provision shall, to the extent of the violation, be void. The Court remarked that preventive-detention statutes are fundamentally at odds with democratic constitutions and are not found in any democratic nation. It was pointed out that no comparable law existed in the United States of America. In England, during the First World War, regulations enacted under the Defence of the Realm Act allowed preventive detention by the Home Secretary as a wartime measure, and those regulations ceased to operate when hostilities ended; a similar situation occurred in the Second World War. During the war in India, comparable regulations were introduced under the Defence of India Act. The Government of India Act 1935 gave the Central and Provincial Legislatures the power to legislate on this matter for the first time, and since that enactment such laws have become firmly established and now form a permanent part of the country’s statutory framework. Curiously, the subject of preventive detention also appears in the Constitution within the chapter on Fundamental Rights. Entry 9 of the Union List and Entry 3 of the Concurrent List in the Seventh Schedule delineate the scope of Parliament’s legislative competence on this issue, although the power to legislate remains subject to the provisions of Part III of the Constitution. Article 22 of that Part provides that no person who is arrested shall be detained in custody without being informed, as soon as may be appropriate, of the grounds of the arrest.

Article 22 stipulated that a person who was arrested must be informed, as soon as practicable, of the reasons for his arrest and must not be denied the right to consult and be represented by a legal practitioner of his own choosing. It further required that every arrested individual be produced before the magistrate nearest to the place of arrest within twenty-four hours, not counting the time needed for the journey to the magistrate’s court, and that no one could be kept in custody beyond that period without a magistrate’s authority. The article carved out two specific exceptions: the provisions did not apply to a person who, at the time, was classified as an enemy alien, nor to anyone arrested or detained under any law that provided for preventive detention.

Regarding preventive detention, the article imposed a limitation on the length of such detention. No law could authorize detention for more than three months unless an Advisory Board—composed of persons who were, had been, or were qualified to be appointed as judges of a High Court—had reported, before the expiration of the three-month period, that in its opinion there was sufficient cause for continued detention. A proviso clarified that nothing in this sub-clause permitted detention beyond the maximum period prescribed by any parliamentary law falling under sub-clause (b) of clause (7), and that detention could also proceed in accordance with provisions of any parliamentary law covered by sub-clauses (a) and (b) of clause (7).

The article required that, when a person was detained pursuant to an order made under any preventive-detention law, the authority issuing the order must, as soon as possible, communicate to the detained person the grounds on which the order was based and must give him the earliest opportunity to make a representation against the order. However, clause (5) did not oblige the authority to disclose any facts that it considered to be against the public interest.

Parliament was empowered, by law, to prescribe: (a) the circumstances and the categories of cases in which a person could be detained for a period longer than three months under a preventive-detention law without first obtaining the opinion of an Advisory Board as required by sub-clause (a) of clause (4); (b) the maximum period for which any person could be detained in any class or classes of cases under any preventive-detention law; and (c) the procedure to be followed by an Advisory Board in an inquiry conducted under sub-clause (a) of clause (4). The Court observed that the constitutional validity of the statute under challenge had to be examined with great caution in light of these constitutional provisions, and that any reasonable doubt should be resolved in favour of the legislative power.

In this case, the Court observed that preventive detention attracted special attention from the Constitution because it directly involved the deprivation of personal liberty, a matter that the Chapter on Fundamental Rights was intended to safeguard, and because of the circumstances prevailing in the newly formed Republic. The Court explained that preventive detention amounted to a total denial of freedom of movement and personal liberty, making it inherently incompatible with the very rights enumerated in Part III, yet it was nonetheless placed within that part of the Constitution. While acknowledging the necessity of laws authorising preventive detention, the Court noted that the Constitution introduced several safeguards designed to temper the harshness of such laws by imposing limits on the legislative authority that could be exercised in this field.

First, the Constitution provided that no law could authorise detention for a period greater than three months unless the adequacy of the grounds for detention was examined by an advisory board within those three months. This provision, the Court said, constrained legislative power with respect to the length of detention, rendering any law that permitted a longer period without the intervention of an advisory board void. Second, the Court pointed out that a State law could not authorise detention beyond the maximum period prescribed by Parliament under clause (7); this restriction prevented State legislatures from exceeding the temporal limits set by the national legislature. Third, the Court observed that Parliament itself could not enact a law allowing detention beyond three months without the involvement of an advisory board unless such a law complied with the conditions laid down in clause (7) of Article 22. The Constitution also empowered Parliament to prescribe the procedure to be followed by advisory boards, thereby protecting against any arbitrary procedure that might otherwise be introduced by State legislation.

Beyond these enabling and disabling provisions, the Court highlighted that Clause (5) of Article 22 expressly guaranteed certain procedural rights to a person detained under a preventive detention law. Specifically, the detained individual had a right to receive information about the grounds of his detention and a right to make a representation objecting to the order of detention. The Court stressed that this right existed irrespective of the length of detention and irrespective of whether an advisory board was constituted. Although the Constitution did not specify any particular machinery for handling such representations, the Court inferred that the conferral of a constitutional right implied the existence of a constitutional remedy for its enforcement; otherwise, the right would be merely illusory and any representation made could be relegated to “cold storage.”

In this case, the Court observed that a representation made under clause 5 of article 22 must be examined by an authority that is free from bias, and that such examination is an essential consequence of the guaranteed right itself. The Court explained that the purpose of conferring this right is to allow a person who has been detained to prove his innocence and to obtain justice; consequently, justice cannot be said to be achieved unless an impartial person evaluates the representation. The Court further stated that the interpretation it favoured for clause 5 of article 22 is supported by the solemn declaration found in the Preamble to the Constitution. That declaration, the Court noted, elevates the Constitution to a sublime document, and the guarantees set out in the chapter on Fundamental Rights render it one of the greatest charters of liberty, of which the people of this country may rightly be proud. The Court contrasted this charter with historic instruments such as the Magna Carta, pointing out that unlike a charter imposed by a sovereign, the Indian Constitution was granted by the people themselves through their Constituent Assembly. The Court warned that any reading of the provisions of Part III of the Constitution that ignores this solemn declaration is likely to lead to error. Accordingly, if the right of representation afforded to a detained person by clause 5 of article 22 is a guaranteed right intended to secure justice, then it follows that justice cannot be said to be secured for the detainee unless an unbiased person considers the merits of the representation and expresses an opinion on the detainee’s guilt or innocence. The Court emphasised that the right cannot be defeated or rendered illusory by assuming that the detaining authority itself will consider the representation with complete impartiality and dispense justice. To do so would, in effect, transform the prosecutor into a judge in the matter, a procedure the Court described as repugnant to all notions of justice. The Court also referred to clause 6 of article 22, which grants the detaining authority a privilege to withhold facts that it deems not to be in public interest for disclosure. While that privilege is intended to protect the security of the State and possibly the security of the Constitution itself, the Court held that, given these stringent provisions, no further obstacles may be placed on the proper consideration of the detainee’s representation by presuming that the detaining authority will automatically handle it appropriately. The Court further reminded that a person subjected to preventive detention is stripped of the rights that are available to individuals under punitive detention, as outlined in clauses 1 and 2 of article 22. Such a person is denied the right to consult or be defended by a lawyer and may be kept in detention without being presented before a magistrate. Having examined the provisions of article 22, the Court then proceeded to address the next question raised before it.

The Court examined the first issue raised by the Attorney-General, namely that Article 22 of the Constitution together with the entries in the Seventh Schedule constituted a complete code on preventive detention and that, consequently, the other provisions of Part III could not be used to test the validity of the challenged statute. The counsel for the petitioner admitted that wherever Article 22 contained explicit provisions dealing with preventive detention, those provisions would dominate and could not be overridden by the other provisions of Part III. Nevertheless, it was argued that on subjects where Article 22 made no specific provision, the remaining provisions of Part III, specifically Articles 10 and 21, would apply and that, to that extent, legislation on preventive detention remained subject to judicial review. The Court noted that to infer that the Constitution’s framers intended the provisions relating to preventive detention in Article 22 to be self-contained, a clear indication of such intent must be found. If the provisions in Article 22 addressed all principal procedural questions and the reasonableness of the period of detention, then the inference that the article was intended to be comprehensive would be unavoidable. The Court observed that, ordinarily, when a constitution deals with a subject in detail, it is presumed that the intention is to exclude the operation of more general provisions elsewhere; an express mention of one thing operates as an exclusion of the other, as expressed by the maxim “Expressio unius est exclusio alterius.” After reviewing the entire constitutional scheme, the Court was satisfied that the intention was to make Article 22 self-contained concerning laws on preventive detention. It was further contended that all constitutional articles should be read harmoniously and that no article should stand isolated from the others in the same part, the articles being described as supplementary to one another. In this context, it was argued that a law enacted under Article 22 would be invalid unless it conformed with Article 21, which provides that “no person shall be deprived of life or liberty’ except according to procedure established by law.” The argument advanced was that, in substance, Article 21 requires that no person be deprived of life or liberty without a fair trial or fair hearing, and that any preventive detention law lacking such a hearing would contravene Article 21 and therefore be void. For the sake of argument, and without expressing any opinion on its correctness, the Court acknowledged the counsel’s contention.

In this case, the Court examined whether any provision of article 22 of the Constitution negated the application of article 21 as previously interpreted to a law of preventive detention. The Court held that sub-clause (5) of article 22, read together with clauses (1) and (2), led to the conclusion that the argument advanced by counsel was untenable. Clause (5) requires that a person detained be given notice of the grounds of detention and affords a limited hearing by allowing the detainee an opportunity to prove his innocence. The Court observed that the consideration of a representation made by the detained person before an unbiased authority is implicitly contained in clause (5), thereby furnishing the detainee with the protections guaranteed by the principles of natural justice. The Constitution expressly denies the detained person the right to consult and be represented by counsel of his own choice and also denies him the opportunity to appear before a magistrate. By withdrawing certain rights ordinarily possessed by a detainee and substituting other procedural rights, the Constitution clearly intended to deprive the detainee of the elaborate procedure normally available in judicial proceedings. Clause (6) of article 22 strongly reinforces this conclusion. The Court reasoned that it would have been pointless to prescribe such detailed procedural rules for a law of preventive detention if the intention had been to subject that law to the requirements of article 21. Ultimately, the argument of counsel for the petitioner reduced to the claim that the impugned statute failed to provide an impartial tribunal for considering the detainee’s representation and thus violated article 21. The Court found, however, that the necessary protection is implicit within article 22 itself, and consequently the application of article 21 to a law enacted under article 22 was excluded. The Court then turned to the contention that a law of preventive detention infringed the right of freedom of movement guaranteed to a citizen by article 19(1)(d), and that, by virtue of sub-clause (5) of article 19, such a law should be subject to judicial review on the ground of reasonableness. While acknowledging that preventive detention is wholly incompatible with the freedom of movement guaranteed under article 19(1)(d), the Court noted that preventive detention does not merely restrict that freedom but effectively negates it. The remaining question for consideration, therefore, was whether the Constitution intended article 19 to govern a law made under the provisions of article 22.

In this case the Court examined whether the provisions of article 19 were meant to govern a law that was enacted under article 22. The Court explained that article 19(5) functioned as a saving and enabling clause that authorised Parliament to impose reasonable restrictions on the right of freedom of movement. By contrast, article 22(7) served as a separate enabling clause that permitted Parliament to enact legislation dealing with preventive detention under specified circumstances. The Court observed that if a law satisfied the conditions laid down in article 22(7), it would be regarded as a proper law, and it could not have been intended that the same law should also have to meet the requirements of article 19(5). One enabling provision could not be treated as a safeguard against another enabling provision, and article 13(2) did not apply in such a situation.

The Court further noted that, had the Constitution intended that a preventive-detention law be subject to the test of reasonableness under article 19(5), it would not have bothered to set out in article 22 the precise scope of the limitation that could be imposed, nor would it have detailed the procedural safeguards that the law must follow. Certain provisions of article 22 would then have become redundant. For example, article 22 provides that no detention may exceed three months without the necessity of the detention being examined by an advisory board. This provision negated the idea that a deprivation of liberty for three months without board consultation could be challenged on the ground of reasonableness. Similarly, article 22 safeguards that an advisory board may be dispensed with only by a law enacted by Parliament, which itself must satisfy certain conditions; such a safeguard would have been unnecessary if the law were open to judicial review under article 19(5).

The Court also pointed out that sub-clause (b) of clause (7) of article 22 expressly empowers Parliament to fix the maximum period for which a person may be detained under a preventive-detention law. Under this express authority Parliament could set any maximum period, even a term of five to ten years. The Court asked whether, in view of this constitutional provision, a preventive-detention law was intended to be justiciable under article 19(5). While the duration of detention was the principal matter that could potentially be examined for reasonableness, the Constitution expressly excluded such examination by providing detailed provisions in article 22.

Consequently, the Court concluded that a careful reading of article 22 demonstrated that the framers intended it to be a self-contained regime governing preventive detention. The Constitution, through article 22, laid down all essential safeguards, procedural requirements, and limits, thereby indicating that such laws were not to be subjected to the reasonableness test of article 19(5). The Court’s analysis therefore supported the view that preventive-detention legislation should be assessed solely on whether it complied with the conditions imposed by article 22, and not on the broader standards of reasonableness contained in article 19(5) or article 21.

The Court observed that the validity of any law dealing with preventive detention could not be examined or controlled by the provisions of article 21 or by the provisions of article 19(5). It reasoned that article 13(2) did not apply to such a situation and that article 22 was not subject to the limitations imposed by either article 21 or article 19(5). The Constitution, in article 22, went so far as to empower Parliament to enact, by law, the detailed procedure to be followed by an advisory board appointed under the preventive-detention scheme. Accordingly, on every important point that might arise in connection with preventive detention, article 22 supplied a specific provision. Because of this comprehensive scheme, the Court held that the proper method for assessing the validity of a preventive-detention law was to determine whether the law satisfied the requirements laid down in article 22 and whether, in any respect, it abridged or contradicted those requirements. If the law fulfilled the conditions of article 22, the Court said, it would be deemed valid; if the law failed to meet those conditions, it would be declared void. While expressing the view that article 22 was, in a sense, self-contained with respect to preventive detention, the Court cautioned that this observation should not be taken to mean that the framers of article 22 had ignored the safeguards provided in article 21.

The Court explained that article 21, in its opinion, established substantive protection of life and liberty by declaring that such rights could not be deprived except according to a procedure established by law. In other words, before any person could be stripped of his life or liberty, there must exist a substantive law conferring authority for that deprivation, and the same law must prescribe the procedural steps to be followed. Article 21 therefore gave complete immunity against the exercise of despotic power by the executive and also shielded individuals from laws that were invalid because they contravened the Constitution. Moreover, article 21 guaranteed that, in its true sense, some form of legal proceeding must precede any condemnation of a person with respect to his life or liberty, thereby rejecting any notion of arbitrary, fanciful, or oppressive proceedings. The Court noted that the principles underlying article 21 had been kept in view while drafting article 22. Consequently, a law properly made under article 22, which was valid in all respects and which laid down both substantive and procedural rules on preventive detention, would fully satisfy the requirements of article 21, and there would be no conflict between the two articles. The Court then turned to the next question for decision: whether any provision of Act IV of 1950 offended the provisions of article 22 of Part III of the Constitution. The petitioner’s counsel argued that section 3 of the Act was defective because it made the “satisfaction of the Government” the sole criterion for detention, thereby leaving no objective rule of conduct and granting the executive unchecked discretion.

The petitioner's counsel argued that the statute used the satisfaction of the Government as the sole criterion for detaining a person. It was asserted that section 3 of the Act did not contain any objective rule of conduct, and that ordinary people were not informed of the behaviour expected of them. Consequently, the counsel claimed that individuals could not know which acts they were required to avoid, nor could they discern which personal conduct would be considered prejudicial to the security of the State or to the maintenance of public order. In other words, the argument was that section 3 left the determination of a prejudicial act entirely to the arbitrary judgment of the Government, and that even the officer tasked with applying the law was supplied with no guide or standard of conduct for arriving at his own satisfaction that a particular act was prejudicial to the security of the State or to public order.

The Court found this criticism to be without merit. While it is true that a detention order depends upon the satisfaction of the Government, the Court observed that this provision conforms to article 22 of the Constitution, which, in the Court’s view, specifically contemplates detention based on the satisfaction of the executive authority. By its very nature, the subject of preventive detention implies that detention is effected on the judgment of the authority entrusted with making the order. The Court further explained that the entire purpose of preventive-detention legislation would be defeated if the satisfaction of the authority were required to meet an objective standard together with formal conditions of legal proof and procedure.

The Court noted that the Seventh Schedule of the Constitution confers jurisdiction to make laws on this subject for reasons connected with defence, the security of the State and the maintenance of public order. These matters are fundamental to the existence of the State. The Court presumed that every citizen knows what behaviour is prejudicial to the life of the State or to its existence as an ordered society. Assuming that the State has a government that acts reasonably and that its officers are ordinarily reasonable men, the Court held that using “satisfaction of the Government” as the standard for judging prejudicial acts under section 3 does not contravene article 22 of the Constitution.

Section 7 of the impugned Act was said to give full effect to article 22, sub-clause (5), by providing that a representation must be made to the Central or State Government, as applicable. The petitioner's counsel attacked this provision on the ground that the Act did not create any machinery to consider and adjudicate the merits of such representations. The Court agreed that, to that extent, the law is defective because it lacks a mechanism for investigating the contentions raised in the representation. Accordingly, the Court observed that, in the absence of a machinery for investigating those contentions, a detainee may approach the Supreme Court under article 32 for an appropriate remedy.

The Court observed that it was unnecessary to determine the exact remedy available to a person who was detained, but it held that the mere lack of a specific provision in the statute did not render the entire law void. Section 9 of the Act required that an advisory board be appointed in cases falling within sub-clause (iii) of clause (a) or clause (b) of sub-section (1) of section a, and that the board be constituted within six weeks of the detention order. The procedure to be followed by the advisory board was set out in section 10, and Parliament had been authorised to prescribe such a procedure in sub-clause (c) of clause (7). It had been argued that the legislation failed to provide a personal hearing before the advisory board and denied the detainee the right to lead evidence in support of his innocence. The Court rejected this criticism as unsound and stated that it did not invalidate the law. The advisory board, the Court noted, possessed the power to call for any information it deemed necessary, even from the detained person himself, and it was empowered to examine the material placed before it in the light of the facts and arguments contained in the representation. Although the opportunity afforded to the detainee was not as extensive as that which a person enjoys under ordinary judicial procedure, the Court emphasized that the Constitution itself contemplated a special procedure for preventive-detention cases, and therefore the validity of the law could not be attacked on the grounds raised.

Section 11 of the Act was also challenged on the contention that it violated the Constitution by allowing preventive detention for an indefinite period. The Court held that this provision had to be read in the context of sub-clause (3) of section 1 of the Act, which declared that the Act would cease to have effect on 1 April 1951. Moreover, the phrase “for such period as it thinks fit” did not conflict with article 22, because Parliament had been given the authority to fix the maximum period for preventive detention. The Court pointed out that Parliament had already fixed one year as the maximum period for detention where no advisory board was involved. Consequently, the Court concluded that section 11 did not exceed the constitutional limits of the supreme legislature’s powers. The Court then turned to section 12, which had been vigorously contested by counsel for the petitioner. Describing section 12 as controversial, the Court noted that it had been enacted under the authority of clause (7) of article 22 and began with the provision that any person detained in certain classes of cases or under specified circumstances could be detained without obtaining the opinion of an advisory board.

In this provision, detention could be ordered for a period longer than three months but not exceeding one year from the date of the detention, where the authority detained the person with a view to preventing him from acting in any manner prejudicial to (a) the defence of India, the relations of India with foreign powers, or the security of India; or (b) the security of a State or the maintenance of public order. Sub-section (2) required that the case of every person detained under a detention order falling within sub-section (1) be reviewed within six months from the date of his detention. The review was to be carried out by the same Government—either the Central Government or a State Government—that had issued the order, and where the order had been made by an officer specified in sub-section (2) of section a, the review was to be conducted by the State Government to which that officer was subordinate. The review had to be done in consultation with a person who was, had been, or was qualified to be appointed as a Judge of a High Court, and that judge was to be nominated for this purpose by the Central Government or the State Government, as appropriate. The section claimed to satisfy the conditions prescribed in clause (7) of article 22 of the Constitution. Nevertheless, counsel for the petitioner argued that, in substance and effect, the provision failed to meet any of those constitutional conditions. The argument was that the provision did not specify the circumstances or the classes of cases in which preventive detention could be exercised without referring to an advisory board. The central issue therefore was whether section 12 identified any circumstances or defined any classes of cases in which the authority conferred by clause (7) to dispense with an advisory board could be exercised. The Court observed that, according to the opinion of legal authors, a classification of cases must be linked to the object sought to be achieved by the classification. Consequently, the Court considered what objective the Constitution intended to achieve by inserting clause (7) in article 22. It concluded that the true purpose of clause (7) was to provide for a contingency in which the mandatory requirement of an advisory board might frustrate the purpose of preventive detention legislation. In the Court’s view, the Constitution incorporated this clause to address abnormal and exceptional situations, namely those in which an advisory board could not be consulted. The Court noted that the power to enact such drastic legislation was vested in the supreme legislature, but that this power was subject to a safeguard. The safeguard required that any law of such a severe nature must either prescribe the specific circumstances in which the power may be exercised, or alternatively, prescribe the classes of cases or a determinable group of cases where such power could be applied. The intention, as the Court explained, was to establish an objective standard that would guide the detaining authority when it considered ordering detention beyond the three-month period without consulting an advisory board.

The Court observed that clause (7) of Article 22 was intended to empower the detaining authority to order detention beyond three months without the consultation of an advisory board when the situation warranted such an extraordinary measure. In doing so, the Court recalled that the Constitution must have contemplated an abnormal circumstance involving dangerous groups of persons, which justified dispensing with an advisory board that operates in camera, is not obliged to grant a personal hearing to the detainee, and whose proceedings enjoy privilege. Consequently, any law dealing with preventive detention that seeks to bypass even this relatively innocuous institution could be justified only on the basis of specially defined circumstances or situations that are objectively laid down, which, in the Court’s view, is the purpose of clause (7). The Court explained that when the peculiarity lies in a condition that is outside the control or perception of the detained individual—such as a tense communal atmosphere, an anticipated internal rebellion, a crisis of imminent war, or similar events—such a description would constitute a prescription of the circumstances that justify detention for a period longer than three months without the intervention of an advisory board. Conversely, the Court noted that if the abnormality pertains to the conduct, character, or activities of a determinable group of persons, this would represent a class of cases contemplated by clause (7), and only in those cases could arbitrary detention be deemed legally permissible beyond the three-month limit. The counsel for the petitioner argued that the phrase “circumstances under which, and the classes of cases in which” in clause (7) should be read cumulatively, meaning both requirements must be satisfied. In contrast, the Attorney-General maintained that the word “and” in the provision should be understood in the same sense as “or,” allowing Parliament to prescribe either the circumstances or the classes of cases for a law permitting detention beyond three months without an advisory board. He further contended that even if “and” is not read as “or,” the proper construction permits Parliament to provide either set of criteria. The Court cited Full Bench Reference No 1 of 1950, where Justice Das Gupta of the Calcutta High Court held that the legislature intended that a preventive detention law authorising detention beyond three months without an advisory board must satisfy both requirements of clause (7), not merely one. The same position was expressed by Sir Fazl Ali, with whom the Court agreed. Nevertheless, the Court indicated an intention to examine the matter from an alternative perspective, assuming the Attorney-General’s contention to be correct, and began by addressing whether Section 12 of the relevant statute mentions any circumstances, insofar as…

The Court noted that section 12 did not prescribe any specific circumstances unless one could say that the prejudicial acts connected with the security of the State, the maintenance of public order and similar concerns were simultaneously the circumstances and the classes of cases. In the Court’s view this method of interpretation could not be accepted for construing clause (7) of article 22. The Court agreed with the Attorney-General that the expression “circumstances under which” referred to a situation external to the detainee’s own conduct – that is, an occurrence in the nation with which the detainee was not directly involved, such as tense communal feelings, an anticipated internal rebellion or disorder, a crisis of an impending war, or the threat of war. In such circumstances, the Court observed, the advisory-board mechanism could be omitted because it might become cumbersome or obstruct the exercise of necessary powers. Accordingly, the Court held without hesitation that section 12, despite its apparent wording, did not actually state any circumstances. If one were to speculate, the Court found that the drafter of section 12 merely repeated the words of clause (7) of article 22 without properly considering their meaning, and that the hurried passage of the legislation to address an emergency introduced the defects typical of hastily enacted statutes. The Court then turned to the question of whether section 12 had classified the cases in which a citizen could be detained for more than three months without the benefit of an advisory board. It observed that the section placed five subjects from the legislative list within its scope and described them as the “classes of cases.” The Court asked whether merely selecting any of the categories of these subjects, for reasons connected with which a preventive-detention law might be made under the Seventh Schedule, amounted to the classification of cases contemplated in clause (7) of article 22. The Court referred to Entry 9 of the Union List and Entry 3 of the Concurrent List of the Seventh Schedule, which defined Parliament’s legislative power over preventive detention concerning six subjects: (1) defence of India, (2) foreign affairs, (3) security of India, (4) security of the State, (5) maintenance of public order, and (6) maintenance of supplies and services essential to the community. Clause (4) of article 22 required that, for all six subjects, no law could provide for preventive detention longer than three months without reference to an advisory board. Clause (7) authorised Parliament to dispense with an advisory board by specifying both the circumstances and the classes of cases in which such a dispensation could be made.

The Court observed that the legislative competence granted under clauses four and seven of article twenty-two extended to all six subjects enumerated in the Constitution. It explained that the normal procedure for detaining a person beyond three months in any of those six subjects was set out in sub-clause four. The Court noted that an extraordinary and unusual procedure was intended to apply only in abnormal cases, which could be created by Parliament under clause seven. According to the Court, section twelve of Act IV of 1950 had effectively reversed this scheme, contrary to the Constitution’s intention. By virtue of that provision, the Act had removed the requirement of an advisory board in five of the six subjects while leaving it compulsory for only one subject. The Court said this result was achieved by interpreting the phrase “circumstances under which and the classes of cases in which” to be identical and co-terminous with the phrase “subjects of legislation.” In the Court’s view, such an interpretation violated the clear language of article twenty-two and rendered clause four practically meaningless. The Court argued that this construction would imply, in the same breath, that the Constitution forbids detention beyond three months without a board and simultaneously permits Parliament to ignore that safeguard for any subject. It further stated that if such a reading were correct, the constitutional safeguard would have been unnecessary because Parliament could simply legislate away it. The Court held that a sensible interpretation would permit Parliament to dispense with an advisory board only in serious classes of cases or where the persons involved were incorrigible or operating secretly. Such an exception, the Court said, would be justified by the interests of the State and thus narrowly confined. By contrast, the construction adopted by the framers of section twelve, the Court observed, suggested that the Constitution need not have conferred any authority on Parliament to make such a law. The Court concluded that, had Parliament been intended to have that power, article twenty-two clause four would have been drafted with the words “Unless otherwise provided by Parliament.” Such wording would have been consistent with the construction employed by the framers of section twelve.

Clause 7 of article 22, as interpreted by the Attorney-General and accepted by the drafters of Act IV of 1950, produces a striking inconsistency, according to the Court. The inconsistency can be understood by looking at the law of preventive detention that is intended to protect supplies and services essential to the community’s life, a matter placed under section 9 of Act IV of 1950. Imagine a situation of great tension in which there is a real threat that the railway network might be sabotaged, making it necessary to issue detention orders against certain individuals. Act IV of 1950 mandates that, in such a serious state of affairs, the involvement of an advisory board is compulsory. By contrast, if the perceived danger of public disorder arises from something as minor as an umpire’s erroneous decision in a cricket match or from the behaviour of people celebrating the festival of Holi, the law permits a detention exceeding three months without the need to refer the case to an advisory board. The Court questioned whether the framers of the Constitution could have intended such a contradictory outcome. The view favoured by the Court aligns the construction of the provision with the overall scheme of punitive detention law. For example, the offence of hurt under the Indian Penal Code, which falls within punitive detention, has been divided into several categories: simple hurt, grievous hurt, grievous hurt involving dangerous weapons, grievous hurt committed to obtain a confession, grievous hurt aimed at restraining a public officer, grievous hurt resulting from a rash act, and grievous hurt provoked by another party. Even simple hurt has further subdivisions. The offence of assault has been treated in a similar manner, with sections 352 to 356 classifying assaults according to their seriousness, such as simple assault, assault on a public servant, assault on women, assault in an attempt to commit theft, assault for unlawfully confining a person, and assault on grave provocation. Another illustration comes from the Criminal Procedure Code, where sections 107 to 110, which deal with preventive measures, separate persons into distinct groups: vagrants, habitual offenders, persons of bad character, and those who disturb the peace. The Court observed that the Constitution appears to have envisaged a classification of cases along lines comparable to these statutory schemes, leaving it to Parliament to define the classes, a step that has not yet been taken. Accordingly, the Constitution acknowledges varying periods of detention based on the nature of the suspected act: a standard three-month period for ordinary cases, a longer period that requires an advisory board’s intervention for more serious cases, and an even longer period for the most dangerous categories, the latter of which the Constitution allows without the board’s involvement.

In this case the Court observed that a period of three months of detention without the intervention of an advisory board could be permitted only for a still more dangerous class of offenders and for acts committed in extremely serious situations. The Court held that it could not be said that every case of preventive detention undertaken for the purpose of maintaining public order fell on the same level of seriousness and therefore warranted the same length of confinement. Likewise, the Court noted that matters relating to the supply of essential services and commodities to the community did not all possess an identical degree of gravity that would justify uniformly lenient treatment. While it was true that, in a broad sense, all individuals who acted against the defence of India might be grouped together, and similarly all persons whose conduct threatened essential supplies might form another broad category, the Court questioned whether the Constitution’s reference to “classes of cases” in clause (7) of article 22 was meant to be understood in such an all-encompassing manner or whether it was intended to denote a more limited and specific classification. The Court emphasized that clause (7) was enacted to permit detention for a longer period and that such a law necessarily curtailed personal liberty in a serious way; consequently, giving the expression a narrow and restricted meaning conformed to well-established principles of statutory interpretation. The Court warned that a liberal construction of clause (7) would bring every subject listed in the legislative list within its sweep, thereby imposing a severe restriction on personal liberty that could not have been contemplated by the framers of the Constitution. By contrast, a narrow interpretation fitted the scheme of the article and allowed the legislature to isolate particular portions of each subject that required stringent measures. The Court likened the effect of section 12 of the 1950 Act to classifying a lamb and a leopard together simply because both are quadrupeds, a classification that could not have been intended by the Constitution-makers. Accordingly, the Court concluded that section 12 of Act IV of 1950 failed to satisfy the requirements of clause (7) of article 22, did not fall within the scope of that provision, and was therefore void. As a result, the detention of the petitioner could not be justified under that section, and no other provision existed in the Act that could lawfully authorize his detention for any period. The Court further rejected the argument that it was impracticable to draw a precise classification for persons whose conduct was prejudicial to public order or the maintenance of essential services, observing that a definition of “prejudicial act” had already been provided in the rules under the Defence of India Act, and that difficulty in delineating categories could not excuse non-compliance with the clear statutory requirement of an advisory board.

The Court observed that the argument that preventive detention could not be justified on the grounds of protecting the security of the State or the defence of India was unsound. It noted that a similar classification had already been provided for under the rules made pursuant to the Defence of India Act, where regulation 34 expressly defined the term “a prejudicial act.” The Court held that the mere difficulty of precisely identifying the categories of persons involved, or of defining in an objective manner the conduct of such categories, does not excuse non-compliance with the clear statutory provisions, nor does it permit a party to disregard the law. The Court further stated that no difficulty would arise if a diligent effort were made to observe the requirements of clause (7). It could not conceive that the mandatory establishment of an advisory board would inevitably produce disastrous or calamitous consequences to such an extent that, in all cases or even in five out of six instances of legislation, the requirement would have to be abandoned. The Court emphasized that the advisory-board requirement aligns with the preamble of the Constitution and represents the minimal safeguard that can render a preventive-detention law at least partially compatible with a democratic constitutional order. While acknowledging that a law of this nature might possess some justification even in the absence of an advisory board when confronting clearly defined dangerous situations or dealing with a class of individuals who pose a threat to the State, the Court warned that without such a limitation the law would become destructive of the fundamental notion of personal liberty. The Constitution, the Court affirmed, has provided an adequate safeguard to its citizens by enacting the conditions contained in clause (7); it cannot be said that the Constitution offered no protection at all, nor that the words of clause (7) are merely illusory or devoid of real meaning. The Court then turned to the challenge to section 14 of Act IV of 1950, which had been attacked on the basis that it infringed articles 22(5) and 32 of the Constitution. Section 14 was reproduced as follows: “(1) No Court shall, except for the purposes of a prosecution for an offence punishable under subsection (2), allow any statement to be made, or any evidence to be given, before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or of any representation made by him against such order, and notwithstanding anything contained in any other law, no Court shall be entitled to require any public officer to produce before it, or to disclose the substance of, any such communication or representation made, or the proceedings of an advisory board or that part of the report of an advisory board which is confidential. (2) It shall be an offence punishable with imprisonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the case may be, any contents or matter purporting to be contents.”

Section 14 states that any disclosure or publication of the contents of a communication or representation referred to in sub-section (1) shall be punishable, except when such disclosure is made to the legal adviser of the person who is the subject of a detention order. The provision therefore erects an “iron curtain” around the acts of the authority that issues a preventive detention order. Although the Constitution guarantees a detained person the right to be informed of the grounds of detention and the right to make a representation under article 22 (5), section 14 bars a court from allowing the disclosure of those grounds or the substance of the representation and makes any breach liable to imprisonment. Article 32 (1) of the Constitution provides that “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.” Sub-section (4) adds that this right “shall not be suspended except as otherwise provided for by this Constitution.” Consequently, if an authority issues a preventive detention order on grounds that do not fall within any of the six subjects listed in the Seventh Schedule, the Supreme Court may declare the detention illegal and order release. However, the Court cannot perform that function if a statutory prohibition prevents it from examining the grounds that have been served on the detainee.

Only by scrutinising the grounds can the Court determine whether they lie within the legislative competence granted by the Constitution or exceed it. There may be instances where the authority serves the detainee with statements that are not genuine grounds at all. In such cases, the detainee’s right under article 32 to approach the Court for enforcement of article 22 (5)—the right to be given the true grounds of detention—becomes crucial. If the Court is barred from seeing the furnished grounds, it would be unable to exercise its powers under article 32 or to decide whether the stated grounds satisfy the constitutional requirement. The detained person is entitled to receive the actual grounds on which his detention is based, enabling him to make a representation that refutes those grounds and to prove his innocence. For the Supreme Court to protect this fundamental right and to grant appropriate relief, it is essential that the detainee is not subjected to a penalty for disclosing the grounds to the Court and that no legal injunction prevents the Court from examining those grounds.

The Court observed that the detained person is not subject to any penalty for disclosing the grounds of detention to the Court, and that no legal injunction may lawfully prevent the Court from examining those grounds. Section 14 of the Act, however, creates a substantive offence if the grounds are disclosed and imposes a duty on the Court not to allow such disclosure. The Court held that this provision effectively suspends a constitutional guarantee, because the stringent restriction makes it impossible for the Court to administer the law and at the same time deprives a detained individual of access to judicial justice. Accordingly, the Court opined that a provision which bars disclosure of the grounds infringes the rights guaranteed by Part III of the Constitution, and that it exceeds the legislative authority of Parliament. On the basis of this reasoning, the Court declared that Sections 12 and 14 of Act IV of 1950 are void, and that the decision in the detained person’s case must be made without regard to those two provisions. Deleting Sections 12 and 14 from the impugned legislation, the Court concluded, renders the petitioner’s detention unlawful, because the statute does not authorize detention for a period of three months or less in the manner contemplated by article 22 (4) of the Constitution. Consequently, the petitioner could not be lawfully detained even for three months, and the Court ordered his release. In light of this conclusion, the Court found it unnecessary to express an opinion on the other matters that had been extensively argued, namely the scope and true meaning of the expression “procedure established by law” in article 21 of the Constitution and the precise scope of articles 19 (1)(d) and 19 (5) of the Constitution.

The application before the Court was filed under article 32 of the Constitution, seeking a writ of habeas corpus against the respondents for the purpose of securing the petitioner’s release from the Central Jail at Cuddalore, Madras State. The petitioner had been arrested in Malabar on 17 December 1947, and criminal prosecutions were instituted against him on several charges for delivering violent speeches. While those criminal cases were pending, a detention order under the Madras Maintenance of Public Order Act was served on 22 April 1948. The Madras High Court subsequently held that this detention order was illegal; however, on the very day the judgment was delivered, a second detention order was issued. The petitioner then returned to the High Court, again seeking a writ of habeas corpus in respect to the subsequent order.

In the case before the High Court, the petitioner's application for a writ of habeas corpus concerning the later detention order was rejected because the petitioner had not obtained bail in one of the three criminal prosecutions pending against him; consequently, the Court held that his detention could not be characterized as unlawful. The Court, however, granted the petitioner permission to file a fresh application should his detention under the criminal proceedings come to an end. Regarding the first two criminal matters, the trial before the magistrate concluded on 23 February 1949, and the petitioner was sentenced in each case to six months of rigorous imprisonment. Both of these sentences were later set aside on appeal dated 26 September 1949. In the third case, the petitioner was tried before the Sessions Judge of North Malabar and was sentenced to five years of rigorous imprisonment; on appeal, the Madras High Court reduced this sentence to six months’ imprisonment. After having served the sentences imposed in the three cases, the petitioner filed a new application before the High Court seeking a writ of habeas corpus with respect to his detention under the Madras Maintenance of Public Order Act. That application was heard after the completion of his sentences and was dismissed in January 1950.

Subsequently, the Parliament enacted the Preventive Detention Act on 25 February 1950. On 1 March 1950, the earlier detention order issued under the Madras Maintenance of Public Order Act was cancelled, and the petitioner was served with a fresh detention order made under section 3(1) of the Preventive Detention Act, 1950. The respondents sought to justify the petitioner's continued detention on the basis of the provisions of the newly enacted Preventive Detention Act. In contrast, the petitioner contended that the Act was invalid because it exceeded the powers granted by the Constitution and conflicted with certain fundamental rights guaranteed by the Constitution. Accordingly, the petitioner argued that his detention under the Act was unlawful and that he ought to be released.

The counsel representing the petitioner presented four principal contentions. The first contention stressed that preventive detention, in substance, restricts a person's freedom of movement throughout the territory of India and therefore falls within the ambit of article 19(1)(d) of Part III of the Constitution, which guarantees the right to move freely. Under clause (5) of the same article, any restriction on this freedom must be reasonable and must be prescribed in the interests of the general public. The question of whether a particular restriction is reasonable is a matter for judicial determination. Relying on this legal principle, the counsel urged the Court to hold that the principal provisions of the impugned Act—specifically those contained in sections 3, 7, 10, 11, 12, 13 and 14—are wholly unreasonable and therefore should be declared invalid.

The learned counsel contended that several provisions of the impugned legislation, namely sections 3, 7, 10, 11, 12, 13 and 14, were wholly unreasonable and therefore had to be struck down. He further argued that the legislation conflicted with article 21 of the Constitution because it permitted deprivation of personal liberty without adhering to a procedure established by law. According to the counsel, the term “law” in article 21 does not refer solely to a specific legislative enactment; rather, it embraces the general law of the land, incorporating the principles of natural justice that are regarded as fundamental in all civilized legal systems. The counsel conceded that, where preventive detention is concerned, article 22 of the Constitution—situated within the chapter on Fundamental Rights—prescribes a specific procedure that must prevail over the general procedural rules contemplated by article 21. However, for matters not covered by article 22, the general provisions of article 21 must continue to apply. He identified the essentials of such a procedure and specifically pointed out that section 12 of the Preventive Detention Act conflicted with article 22(7) of the Constitution. Additionally, the counsel maintained that sections 3 and 14 of the Act were invalid because they effectively eliminated the constitutional remedy guaranteed by article 32, thereby nullifying the right to approach the Supreme Court for enforcement of fundamental rights. In discussing these arguments, the counsel emphasized the overall scheme of the Indian Constitution, which seeks to protect fundamental rights while imposing limitations on the legislative powers of the Government. The Constitution of India is a written document that, although it borrows many principles from the English parliamentary tradition, does not adopt the English doctrine of absolute parliamentary supremacy. Instead, it follows the model of the American Constitution and similar systems, wherein constitutional limits on both legislative and executive actions are deemed essential for preserving public and private rights. The American experience, as observed in the case of Hurtado v The People of California, warns that a government vested with unfettered control over life, liberty and property amounts to despotism. Accordingly, in India the Constitution occupies the supreme position, directing that Parliament and State legislatures must exercise their authority within the boundaries delineated by the Constitution, particularly the fundamental rights enshrined in Part III.

The Court observed that both Parliament and the State Legislatures are required to act only within the legislative territories that are set out in the three (1) 110 U.S. 516 lists found in the Seventh Schedule of the Constitution. In addition, Part III of the Constitution confers on every citizen a set of fundamental rights that the legislative bodies are absolutely prohibited from infringing. Consequently, any statute must, in every circumstance, conform to the constitutional mandates; it is the role of the judiciary to determine whether a particular enactment breaches the Constitution and is therefore unconstitutional. Article 13(2) makes this requirement explicit by stating that the State may not enact any law that takes away or diminishes a right granted by Part III, and that any law contravening this provision shall, to the extent of the inconsistency, be declared void. Similarly, Article 13(1) declares that all existing laws which are inconsistent with the provisions of Part III are invalid. The Court noted that the Constitution classifies the guaranteed fundamental rights into seven distinct categories: the right to equality, the right to freedom, the right against exploitation, the right to freedom of religion, cultural and educational rights, the right to property, and the right to constitutional remedy. Although this arrangement differs in many respects from that adopted in the American Constitution, it bears some resemblance to declarations of rights found in other countries’ constitutions. The Court explained that, for the present case, the principal concerns are the right to freedom—addressed in Articles 19 through 22—and the right to constitutional remedy embodied in Article 32. Article 10 lists various forms of liberty that the Constitution protects; Article 20 provides specific safeguards for persons accused of criminal offenses; Article 21 declares that no person shall be deprived of life or personal liberty except according to procedure established by law; and Article 22 adds further protections concerning arrest and detention, while also making special provisions for preventive detention. The first contention raised by counsel concerned whether the preventive detention provision, which is the subject of the impugned legislation, falls within the scope of Article 19(1)(d), which guarantees every citizen the right to move freely throughout India. If this right is engaged, the Court affirmed that Article 19(5) would apply, and it would be for the courts to assess whether the restrictions imposed by Parliament on this freedom are reasonable and fall within the permissible limits.

Preventive detention is governed by the limitation laid down in clause five of article twenty-one. Indian law does not contain an authoritative definition of the term “Preventive Detention.” Nevertheless, the expression appears as a description of a legislative subject in the Legislative Lists of the Government of India Act, 1935, and it is listed in Item nine of List I and Item three of List III in the Seventh Schedule to the Constitution. The phrase originates from the language employed by English judges and law lords when explaining the nature of detention under Regulation fourteen (B) of the Defence of the Realm Consolidation Act, 1914, which was enacted at the outbreak of the First World War; the same terminology was later repeated in connection with the emergency regulations made during the second World War. The adjective “preventive” is used in contrast to the word “punitive.” As Lord Finlay observed in Rex v. Halliday, “it is not a punitive but a precautionary measure.” The purpose, therefore, is not to punish a person for an act that has already been committed but to intercept him before the act is performed and to prevent it from occurring. No offence is proved, nor is any charge framed; the justification for such detention rests on suspicion or a reasonable probability rather than on a criminal conviction supported by legal evidence. Detention of this sort is unknown in the United States. It was employed in England only during wartime, and no other nation, to the knowledge of the Court, has incorporated it as an integral part of its Constitution as India has done. While that circumstance may be described as regrettable, the Court does not engage in speculation about policy considerations or attempt to explore the motives that led the people’s representatives to adopt such a drastic constitutional provision, which certainly represents a substantial encroachment on individual liberties. Detaining a person, even as a precautionary measure, deprives him of personal liberty; article twenty-one guarantees that no person, whether citizen or foreigner, shall be deprived of life or personal liberty except in accordance with the procedure established by law. Consequently, the requirements of article twenty-one must be satisfied for preventive detention to be lawful, and the Court will address those requirements later. Article twenty-two follows immediately after article twenty-one and secures to all persons certain fundamental rights relating to arrest and detention. By way of exception, article twenty-two includes specific provisions concerning preventive detention. The subject of preventive detention is enumerated as Item nine in the Union legislative List and also appears as Item three in the Concurrent List. Under article two hundred and forty-six of the Constitution, both Parliament and the State Legislatures are empowered to legislate on this subject within the scope of their respective authorities.

The Constitution authorises both the Parliament and the State Legislatures to enact legislation on preventive detention within the limits of their respective powers. Clause (3) of article 22 expressly provides that the protective provisions contained in clauses (1) and (2) of that article shall not apply to persons detained under any law that authorises preventive detention. The only fundamental rights that the Constitution guarantees in the context of preventive detention, and which therefore constrain the exercise of legislative authority, are those enumerated in clauses (4) to (7) of article 22. Vide Lord Macmillan in Liversidge v. Anderson [1942] A.C. 206 at p. 254. Clause (4) stipulates that no preventive-detention law may authorize the detention of a person for a period exceeding three months unless an advisory board, constituted as prescribed in sub-clause (a) of that clause, reports before the expiry of the three-month period that there is sufficient cause for continued detention. Moreover, the period of detention may not, in any event, exceed the maximum term that Parliament is empowered to prescribe under clause (7)(b). Parliament may also prescribe, under clause (7), the particular circumstances and classes of cases in which a person may be detained for a period longer than three months without obtaining the advisory board’s opinion. Clause (5) provides a further safeguard: the authority that issues the detention order must, as soon as practicable, communicate to the detained person the grounds of the order and must afford the person the earliest opportunity to make a representation against it. Nevertheless, the authority is not required to disclose facts that it deems contrary to public interest. The question before the Court is whether a law relating to preventive detention is subject to judicial review on the ground of reasonableness under article 19(5), insofar as such a law curtails the right to free movement guaranteed by clause (1)(d) of that article. It follows from the foregoing discussion that article 22 deals specifically with preventive detention and expressly removes the fundamental rights concerning arrest and detention set out in clauses (1) and (2) of that article from individuals detained under any law that may be enacted by Parliament or by State Legislatures acting pursuant to article 246 of the Constitution together with the relevant entries in the legislative lists. The Court will for the present set aside the issue of the extent to which it can examine the reasonableness of the procedure prescribed by a preventive-detention law, as that enquiry would require a detailed analysis of the precise scope and meaning of article 21; however, the point made up to this stage is clear.

The Court stated that it is indisputable that, with respect to substantive law, article 22 of the Constitution plainly empowers the legislature to deprive persons of the fundamental rights concerning arrest and detention that are secured by the first two clauses of that article. Accordingly, any law made on the subject need only satisfy the procedural requirements set out in clauses 4 to 7 of article 22; once those conditions are met, the wording of the article and the surrounding context provide no basis for suggesting that such legislation must be reasonable in character or that it is subject to judicial review on the ground of reasonableness. The Court noted that articles 19 and 22 are positioned in the same Part of the Constitution and each purports to define the fundamental rights guaranteed by the Constitution. It reiterated the well-established principle that the Constitution should be read broadly and liberally so as to give effect to all of its components, and that a presumption exists that the framers did not intend any internal conflict or repugnancy among its provisions. In interpreting constitutional language, the Court observed that the same rules applicable to statutory construction apply, but it also cited Lord Wright’s observation in James v. Commonwealth of Australia (1) that “the ultimate result must be determined upon the actual words used not in vacuo but as occurring in a single complex instrument in which one part may throw light on the other.” Lord Wright further described the Constitution as a federal compact whose construction must balance all its parts. Applying this reasoning, the Court found no conflict or repugnancy between the two constitutional provisions. An examination of the scheme and language of the series of articles dealing with freedom shows that clause 1(d) of article 19 does not contemplate freedom from detention, whether punitive or preventive; rather, it addresses a distinct aspect of civil liberty. Article 19, the first of this series, enumerates seven separate freedoms, beginning with the liberty of speech and expression and concluding with the right to practice any trade, profession or business. The rights set out in articles 19 to 22 do not exhaust the entire spectrum of liberties that individuals enjoy under law. The framers’ purpose, the Court explained, was to list and guarantee those liberties that fall within well-recognised categories identified by constitutional scholars as fundamental and vital to the community. The Court warned that an absolute, unchecked liberty without any restraints would inevitably lead to anarchy and disorder. It concluded by recalling the observation of the United States Supreme Court in Jacobson v. Massachusetts (1) that even the possession and enjoyment of all rights are subject to reasonable conditions deemed necessary for the safety, health, peace, order and morals of society.

The Court observed that the freedoms listed in the Constitution are subject to reasonable conditions that may be imposed by the governing authority when such conditions are deemed essential to the safety, health, peace, public order and morals of the community. Accordingly, a question arises in every case as to how the competing interests of the individual and those of society should be balanced. In certain situations, it becomes necessary to place restrictions on the free exercise of individual rights so that the interests of society are protected; conversely, the mechanisms of social control that exist for the public good must themselves be restrained so that they are not misused to the detriment of individual rights and liberties. Ordinarily, every person enjoys the liberty to organise his own life as he wishes, to speak as he chooses, to travel where he pleases, to pursue any trade, occupation or calling of his preference, and to engage in any other lawful activity without obstruction or interference by another individual. At the same time, for the very protection of these liberties, society must be equipped with certain powers. No liberty would have any real meaning if it could be violated with impunity by a wrong-doer or if a person’s property or possessions could be seized by a thief or marauder. Consequently, society must be empowered to arrest, search, imprison and punish those who break the law, as noted in the citation (1) 197 U. S. 11. When these powers are exercised properly, they become safeguards of freedom; however, they are also susceptible to abuse. The Court warned that the police might arrest a person and incarcerate him without stating any reasons, might search his belongings on the slightest pretext, and might subject him to a sham trial or even punish him for offences that are not defined by law. The Constitution, therefore, seeks to achieve a balance between individual liberty and social control. In the Court’s view, Article 19 of the Constitution provides a catalogue of individual liberties and, in its various clauses, prescribes the restraints that may be placed on those liberties by law so that they do not conflict with public welfare or general morality. By contrast, Articles 20, 21 and 22 deal primarily with penal statutes or other laws under which personal safety or personal liberty may be curtailed in the interest of society, and they delineate the limits within which State authority may be exercised. Article 19 uses the term “freedom” and enumerates the various forms and aspects of freedom that are secured to individuals, together with the limitations that may be imposed in the general interest of society. Articles 20, 21 and 22, however, do not employ the word “freedom”; instead, they set out the restrictions that must be placed on State action when an individual is to be deprived of life or personal liberty.

In this case the Court observed that the right to the safety of one’s life and limbs and the enjoyment of personal liberty, understood as freedom from any physical restraint or coercion, are inherent birth-rights of every individual. The essence of these rights, the Court explained, is to prevent others from interfering with them; consequently they cannot be described in terms of a “freedom” to do particular things, nor is there any question of imposing limits on the activities of individuals insofar as the exercise of these rights is concerned. For these reasons the Court held that such rights are not mentioned in article 19 of the Constitution. An individual may be deprived of his life or personal liberty only by the action of the State, either under the provisions of a penal enactment or through any other coercive process vested in the State by law. Accordingly, the Constitution places restrictions on the powers of the State for the purpose of protecting individuals. These restrictions on State authority function as guarantees of individual freedom and secure the people’s enjoyment of life and personal liberty, which are declared inviolable except in the manner indicated by the relevant articles. The Court further expressed the view that articles 20 to 22 together constitute the entire constitutional protection concerning deprivation of life and personal liberty, covering both substantive and procedural dimensions. It rejected the proposition, which the Court would later elaborate, that article 21 is confined solely to procedural matters. The Court stressed that a substantive law must exist under which the State is empowered to deprive a person of life or liberty, and that such a law must be a valid law enacted by a competent legislature within its constitutional competence and without transgressing any fundamental rights. Accordingly, a person cannot be convicted or punished under an ex-post-facto law, cannot be compelled to incriminate himself in a criminal trial, and cannot be punished twice for the same offence; these protections are embodied in article 20. Moreover, any law providing for arrest and detention must conform to the limitations prescribed in clauses (1) and (2) of article 22. Although those provisions have been expressly withdrawn in cases of preventive detention and replaced by weaker safeguards, the Court noted that such policy choices lie outside the scope of its present examination. Consequently, the Court concluded that, with respect to life and personal liberty, the Constitution guarantees protection to the extent that no person may be deprived of these rights except under a valid law passed by a competent legislature within the prescribed limits and in accordance with the procedure laid down by that law.

In this case, the Court observed that the Constitution requires any deprivation of life or personal liberty to be carried out strictly in accordance with the procedure prescribed by the law that authorizes such deprivation. Article 19, by contrast, sets out a number of distinct civil liberties that are largely independent of the rights protected under Article 21. Although many of the liberties mentioned in Article 19 may be related to or dependent upon personal liberty, they are not identical with it. The purpose of Article 19, the Court explained, is to delineate the boundaries within which the State may, by means of legislation, impose restrictions on the exercise of those individual rights. The Court further noted that the reasonableness of such legislative restrictions can be examined by the judiciary to the extent that the various clauses of Article 19 allow, but that no such judicial review is permitted for statutes that deprive a person of life or personal liberty. The Court suggested that this limitation may stem from the view that life and personal freedom are the most essential rights enjoyed by individuals under any State, and that, in matters concerning those rights, the Constitution prefers the clear and definite expression of legislative intent over the flexible standards that courts might otherwise apply. The Court then pointed out that similar protections for personal liberty appear in several foreign constitutions. It cited the Irish Constitution, which in Article 40(1)(4)(1) states that “no citizen shall be deprived of his personal liberty save in accordance with law.” It also referred to the Constitution of the Free City of Danzig, where Article 74 declares that “the liberty of the person has been declared to be inviolable and no limitation or deprivation of personal liberty may be imposed by public authority except by virtue of a law.” The Court observed that Article 31 of the Japanese Constitution closely parallels Article 21 of the Indian Constitution, with nearly identical wording. From this comparative perspective, the Court concluded that the constitutional scheme for handling fundamental freedoms requires that the test for judging the validity of any enactment that seeks to deprive a person of life or personal liberty should be sought not in Article 19 but in the three articles that directly address life and liberty—namely Articles 20, 21 and the relevant provisions of Article 21. The Court noted that Article 20 does not apply to preventive detention statutes. The Court then turned to the argument advanced by counsel for the petitioner, who had contended that Article 19(1)(d) taken together with Article 19(5) sets out the substantive rights of citizens concerning personal liberty, while Article 21 provides procedural protection. The Court rejected this view, stating that it misinterprets the constitutional provisions. It held that Article 19 cannot be said to concern only substantive law, nor can Article 21 be said to deal solely with procedure. Moreover, the Court asserted that the provisions of Article 19(1)(d) together with clause (5) and those of Article 21 are not complementary in the manner suggested. The content and subject matter of the two articles are distinct and operate on different principles.

The Court observed that Article 19 and Article 21 are not identical provisions and that they rest on entirely different principles. It noted that Article 19 contains no reference to any “right to life,” whereas the primary and most important purpose of Article 21 is precisely to protect that right. Consequently, if the counsel’s submission were accepted, the implication would be that the Constitution affords no substantive-law protection for the right to life. The Court further said that, although freedom of movement may be regarded as one component of personal liberty, the concept of personal liberty embraces other elements as well, and Article 19(5) does not contain any provision covering those additional forms of liberty. Moreover, the Court emphasized that Article 19 applies only to citizens, while the rights guaranteed by Article 21 extend to all persons, whether citizens or aliens. To avoid these inconsistencies, the Court held that the proper approach is to interpret the two articles as governing different subjects, consistent with the overall scheme of the constitutional provisions.

The Court then turned to the wording of Article 19(1)(d) to examine whether preventive detention falls within its scope. Article 19(1)(d) declares that all citizens shall have the right to move freely throughout the territory of India. The two sub-clauses that follow sub-clause (d) and are closely linked to it read as follows: “(e) To reside and settle in any part of the territory of India; (f) To acquire, hold and dispose of property.” Clause (5) applies to all three of these sub-clauses and provides that nothing in them shall affect the operation of any existing law to the extent that such law imposes, or permits the State to make, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses, either in the public interest or for the protection of the interests of any scheduled tribe. The Court agreed with the Attorney-General that, in construing Article 19(1)(d), emphasis must be placed on the expression “throughout the territory of India,” and that the provision seeks to secure a specific and special right – namely, the right of free movement throughout the Indian territory. Regarding the next sub-clause, the Court observed that the right to reside and settle “in any part of the territory of India” is granted, and that the material point is not a generic right of residence or settlement but the freedom to choose any part of India for residence or settlement. For an analogous provision, the Court referred to Article 301, which states that, subject to other provisions of that Part, commerce and intercourse throughout the territory of India shall be free. The Court concluded that the meaning of sub-clause (d) of Article 19(1) becomes clear when read together with sub-clauses (e) and (f), as these provisions have been grouped under Clause (5) and are subject to the same reasonable-restriction safeguards.

In explaining the scope of the freedoms listed in sub-clauses (e) and (f), the Court observed that these provisions, together with sub-clause (d), were grouped within clause (5) and that the same limitations applied to all of them, including those intended to protect the interests of any scheduled tribe. The Court stressed that such rights were granted only to persons who were citizens of India; no comparable guarantee was extended to aliens or foreigners. As a general rule, every citizen possessed the unrestricted right to travel from one part of the Indian territory to another. A citizen could therefore change his or her residence from any place to any other place of choice and could settle wherever desired. In addition, the Constitution secured the freedom of trade, commerce and intercourse throughout the whole territory of India. By providing these guarantees, the Constitution aimed to underscore that, although India was divided into several States, the entire Union functioned as a single unit for its citizens. Consequently, all citizens were to enjoy identical privileges and facilities for moving into any part of the country, and they could reside or conduct business wherever they wished without any inter-State or other restrictions being imposed between one region and another. The Court noted, however, that the right of free movement was subject to the conditions set out in clause (5), which allowed for reasonable limitations to be placed on these liberties in order to serve the general public’s interests or to protect any scheduled tribe. The Court listed the various public interests that could justify such restrictions, including measures to prevent pestilence or the spread of contagious diseases, the closure of certain areas for military purposes, and prohibitions on entry into zones that were actual or potential war zones or where disturbances existed. The Court emphasized that any restriction must be reasonable, meaning that it must be proportionate to the purpose for which it was imposed. Besides general public considerations, the Constitution expressly required that the protection of scheduled tribes be taken into account when formulating such restrictions. The Court explained that scheduled tribes are traditionally a backward and unsophisticated community, making them vulnerable to exploitation by cunning individuals. Accordingly, several constitutional provisions prevented members of scheduled tribes from alienating even their own property except under special conditions. In view of their vulnerability, the Court held that laws could be enacted that limited the ordinary right of citizens to enter, settle in, or acquire property in particular areas for the benefit of scheduled tribes. The reference to the interest of scheduled tribes made it clear that the free-movement right contemplated by the clause was not a blanket right of locomotion but rather the specific right to shift or

The Court explained that the phrase “moving from one part of the Indian territory to another, without any sort of discriminatory barriers” refers to a freedom of internal movement and not to any right of emigration. The Court noted that this interpretation receives support when analogous provisions in the constitutions of other nations are examined. It observed that sub-clauses (d), (e) and (f) of article 19(1) are expressed in almost identical language in a single article of the Constitution of the Free City of Danzig, namely article 75. The text of that article reads: “All nationals shall enjoy freedom of movement within the free city and shall have the right to stay and to settle at any place they may choose, to acquire real property and to earn their living in any way. This right shall not be curtailed without legal sanctions.” The Court pointed out that these several rights are grouped together in the same category, while the “liberty of the person” is described as inviolable except by virtue of a law in article 74, which precedes article 75. Similarly, the Court referred to article 111 of the Constitution of the German Reich, which states in slightly altered language: “All Germans enjoy the right of change of domicile within the whole Reich. Every one has the right to stay in any part of the Realm that he chooses, to settle there, acquire landed property and pursue any means of livelihood.” In that Constitution the right to personal liberty is dealt with separately in article 114. The Court then addressed a suggestion raised during the discussions that the expression “throughout the territory of India” in article 19(1)(d) might have been intended to preserve passport regulations or to emphasise that the Constitution does not guarantee a right of free emigration. The Court rejected that suggestion, observing that no State can guarantee its citizens the free right to do anything outside its own territory. This limitation applies to all the fundamental rights mentioned in article 19 and not only to the right of free movement. Moreover, the Court held that the words “throughout the territory of India” have nothing to do with rights of emigration. In both the Danzig Constitution and the German Constitution, where similar wording is used concerning the exercise of free movement throughout the territory, there are separate provisions that guarantee nationals the free right of emigration to other countries – article 76 of the Danzig Constitution and article 112 of the German Reich Constitution. Consequently, the Court concluded that preventive detention does not fall within either the express language or the spirit and intendment of clause (1)(d) of article 19 of the Constitution, which addresses a completely different aspect of civil liberty. It further recognised that, as a result of preventive detention, a person may be prevented from exercising the right of internal movement, but that limitation is incidental to the loss of liberty resulting from the detention order.

In this discussion, the Court observed that the restriction on the freedom of movement within India imposed by a preventive detention order was only incidental to the loss of liberty that resulted from the detention itself. The Court noted that, besides the right protected by clause (1) (d) of article 19, several other rights enumerated in the remaining sub-clauses of article 19 (1) could also be suspended for as long as the preventive detention continued. For example, a person who remained in detention might be unable to practice a chosen profession or to carry on any trade or business, yet the Court held that such consequences did not transform the preventive detention law into legislation that infringed the right guaranteed under article 19 (1) (g). The Court further considered it unreasonable to submit that the validity of the preventive detention statute should be examined solely under the test required by clause (6) of article 19, and that the only permissible limitations on a detained person’s right to engage in trade or profession were those expressly listed in that clause. Mr. Nambiar, appearing for the petitioner, acknowledged that the substance of the specific legislation had to be examined, and that the mere incidental encroachment on a different right was not decisive. However, he contended that the core purpose of any law providing for preventive detention was to deprive a person of the freedom of movement, and that “personal liberty,” as he understood it, was synonymous with unrestricted locomotion. To support this view, the counsel referred to passages in Blackstone’s Commentaries on the Laws of England, where Blackstone described three absolute rights of every Englishman: the right of personal security, personal liberty, and property. According to Blackstone, “personal security” comprised the uninterrupted enjoyment of one’s life, body, health and reputation, while “personal liberty” meant the power to move one’s person to any place of one’s choosing without imprisonment or restraint except as provided by law. The Court noted that Blackstone employed a relatively narrow conception of “personal liberty.” Later writers, especially in America, gave the term a broader meaning. In ordinary usage, “personal liberty” referred to the freedom concerning the individual’s body, opposing any physical restraint or coercion. The Court quoted Dicey, an acknowledged authority, who defined “personal liberty” as the personal right not to be subjected to imprisonment, arrest or any physical coercion that lacked legal justification. The Court concluded that this negative right—freedom from physical restraint or coercion—constituted the essence of personal liberty, rather than merely the freedom to move within Indian territory.

In this case, the Court observed that the essence of “personal liberty” is not merely the freedom to travel anywhere within Indian territory, but rather the protection against physical restraint. The Court noted that the Drafting Committee, whose recommendations were accepted by the Constituent Assembly, had specifically proposed inserting the word “personal” before “liberty” in the provision then known as article 15, which later became article 21. The Drafting Committee’s report explained that without the qualifier “personal,” the term “liberty” could be interpreted so broadly that it would encompass the freedoms already dealt with in article 13, which is presently article 19. Consequently, the Committee’s intention was to keep the subject matter of article 19 separate from the concept of “personal liberty” used in article 21. The Court recognized that the extent to which the meaning of constitutional words may be derived from Drafting Committee reports or from debates in the Assembly is not entirely settled, and the Court indicated that this issue might be examined later when interpreting the material-expression clause of article 21. At the present stage, the Court stated that if the Drafting Committee’s report is a proper source for constitutional interpretation, it directly contradicts the applicant’s argument and demonstrates that the expression in article 19(1)(d) does not carry the same meaning as “personal liberty” in article 21. The Court further observed that the United States Supreme Court has given the word “liberty” a very wide meaning, covering not only freedom from physical restraint but also the right to use one’s property and to enter into contracts. By contrast, the Indian Constitution deliberately confines “personal liberty” to protection against physical confinement or similar coercion. Apart from the Drafting Committee’s report, this narrow, grammatical meaning is what the Court had already explained. The Court also rejected the proposition that article 19 applies only to free citizens and that its rights are premised on the assumption of liberty. While deprivation of personal liberty may inevitably result in the loss or restriction of many rights enumerated in article 19, this occurs because the effective exercise of those rights depends on the existence of personal liberty.

In the discussion, it was noted that the right to hold and dispose of property, which is mentioned in sub-clause (f) of article 19(1), did not depend on the owner’s full personal liberty and therefore could remain unaffected even if the owner were imprisoned or detained. The Court considered this observation to be of little relevance to the matter at hand. Consequently, the Court held that the first contention raised by counsel for the petitioner could not succeed. The Court therefore concluded that it was not entitled to examine the reasonableness of the Preventive Detention Act nor to decide whether that Act fell within the limits prescribed in clause (5) of article 19.

The Court then turned to the second point raised by the petitioner’s counsel, an issue that had attracted extensive argument from learned counsel on both sides, displaying considerable scholarship and research. This point centered on the interpretation of article 21 of the Constitution, which provides that “no person shall be deprived of his personal liberty except according to procedure established by law.” On a plain reading, the provision appears to forbid deprivation of personal liberty unless the deprivation follows a law that authorises such action. The term “procedure” was explained to mean the manner and form of enforcing the law. The Court observed that, for a procedure to be legally established, the underlying law must be a valid law that the legislature is competent to enact under article 245 and must fall within the appropriate items of the legislative lists to which it relates. It was further noted that such a law could not contravene the fundamental rights enumerated in Part III of the Constitution. The Attorney-General argued that Parliament unquestionably possessed the competence to enact a preventive-detention law, because the subject matter was fully covered by Item 9 of List I and Item 3 of List III. He maintained that no question of the law’s reasonableness arose, since article 19(1)(d) was not applicable to the case, and therefore the legislation should be considered a valid enactment. He further contended that, provided the procedure prescribed by the law had been observed, the validity of the detention could not be challenged. The Attorney-General also submitted that article 22 expressly deals with preventive detention, setting out the requirements for legislation on that subject, and that the impugned Act satisfied those requirements; consequently, no additional question of validity under article 21 needed to be addressed.

In this case the Court observed that, as the learned counsel contended, article 21 of the Constitution does not arise at all in the matter before it, and that the latter aspect of his arguments would be considered later. The principal argument advanced by counsel for the petitioner, Mr Nambiar, was that article 21 refers only to “procedure” and not to substantive law, although the procedure must be one that is established by law. He explained that the word “law” in this clause should not be understood as denoting any particular statute passed by the legislature in compliance with the Constitution or possessing any other binding authority. Rather, he said, “law” is to be taken in an abstract or general sense – the sense of jus as opposed to lex – meaning the underlying legal principles or fundamental rules that form the foundation of every system of positive law, including the Indian system, and whose authority is recognised in the jurisprudence of all civilized nations. He argued further that if “law” were interpreted to mean any State-made legislation, article 21 could not function as a fundamental right that limits legislative power. Under such an interpretation the legislature would always be competent to enact a law prescribing a wholly arbitrary and irrational procedure that contravenes basic principles of justice and fairness, and the people would have no protection so long as that procedure was strictly observed. To support this line of reasoning, counsel relied on a large body of American case law in which the United States Supreme Court applied the doctrine of “due process of law” from the American Constitution to strike down legislative enactments it found to be capricious, arbitrary, and contrary to fundamental legal principles. The counsel also noted that the original draft of the Indian Constitution used the phrase “in accordance with due process of law” in what is now article 21 (then article 15). The Drafting Committee subsequently replaced the “due process” wording with the expression “according to procedure established by law.” He further pointed out that the present article 21 appears to have been modeled on article 31 of the Japanese Constitution, which provides that no person shall be deprived of life or liberty, nor be subjected to any criminal penalty, except according to procedure established by law. Accordingly, Mr Nambiar argued that the phrase “procedure established by law” in article 21 carries the same meaning as the American “due process” clause, but limited strictly to procedural matters and not extending to substantive law. To evaluate the arguments presented for and against this view and to determine the precise meaning that should be attached to article 21, the Court indicated that it would be necessary to discuss briefly the doctrine of “due process of law” as it appears in the American Constitution and its development by the United States Supreme Court.

The Court observed that the phrase “due process of law” as used in the American Constitution had been shaped and applied by the United States Supreme Court over many years. It traced the historical roots of this concept back to the early thirteenth-century English legal tradition. The Court noted that the famous thirty-ninth chapter of the Magna Carta declared that “no free man shall be taken or imprisoned or disseized, or outlawed or exiled or in any way destroyed; nor shall we go upon him nor send upon him but by the lawful judgment of his peers and by the law of the land.” The Charter of English liberty was subsequently affirmed by successive monarchs, and in the confirmation known as the Statute of Westminster of the liberties of London (28 Ed. III, Chap. 3) the expression “due process of law” appeared for the first time. Although none of the documents defined the terms, Sir Edward Coke’s authority allowed the Court to state that both expressions carried the same meaning. In substance, the Court explained, they guaranteed that a person could not be imprisoned without a proper indictment and trial before his peers, and that property could not be seized except through proceedings conducted in due form, giving the owner or possessor an opportunity to show cause why seizure should not occur (1). The Court further explained that these ideas were carried to America as part of the colonists’ claim to the rights of Englishmen. The phrase, in various forms, entered several early State constitutions, and the exact wording “due process of law” was incorporated into the Federal Constitution by the Fifth Amendment in 1791, which provided that “no person shall… be deprived of life, liberty or property without due process of law.” The Fourteenth Amendment of 1868 imposed the same language on the State Constitution. The Court acknowledged that even today the precise meaning of “due process of law” remains difficult to define. The Constitution contains no description of the term, nor does it set out the principles by which it could be ascertained. In Twining v. New Jersey the Court observed: “Few phrases in the law are so elusive of exact apprehension as this. This Court has always declined to give a comprehensive definition of it and has preferred that its full meaning should be gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise” (2). The Court concluded that the requirement of “due process of law” in the United States Constitution imposes a limitation on all branches of government—legislative, executive and judicial. While in England the concept served mainly as protection against executive usurpation, in America it became a bulwark against arbitrary legislation (3).

In the United Kingdom the doctrine of due process was intended to restrain royal tyranny, whereas in the United States it evolved into a defence against arbitrary legislation (3). The discussion references Willoughby on the Constitution of the United States, volume three, page 1087 (1); the United States Supreme Court decision reported at 211 U.S. 79 (2); and the case Hurtado v. People of California, reported at 110 U.S. 516, page 532 (3). The Court observed that because due process serves as a limitation on legislative power and its purpose is to shield citizens from capricious and arbitrary lawmaking, Congress does not possess the authority to create a “due process of law” merely by exercising its will, for such an act would render the limitation meaningless. The Court further quoted a prior authority stating that “it is not any act legislative in form that is law; law is something more than mere will exerted as an act of power.” Accordingly, the phrase denotes the general law of the land, which comprises the settled and enduring principles embedded in the Constitution and forming the foundation of the entire legal system. The Court then cited Daniel Webster’s celebrated argument before the Supreme Court (1), in which he declared that the “law of the land” is the general law—a law that listens before it condemns, proceeds on inquiry, and renders judgment only after trial; he explained that every citizen enjoys life, liberty, property and immunities protected by the general rules that govern society. The Court noted that no one has ever attempted to produce a complete list of these general principles. It added that, to a great extent, these principles are derived from English common law and the judicial procedures that existed in England, traditions which accompanied the early American settlers. Some judges have referred to the principles of natural justice when explaining the meaning of the general law or “law of the land,” although the doctrine of a law of nature never secured a firm foothold. In Wynehamer v. New York (2), Justice Hubbard expressed opposition to any judicial effort to limit legislative authority or to invalidate a statute on the basis of any fanciful theory of a higher law or of natural rights that lies outside the Constitution. The Court observed that Coke’s dictum of a supreme fundamental law, clearly referring to principles of English common law, exerted considerable influence on American judges (3). References to cases such as the Dartmouth College case (4 Wheaton p. 518) (1), a decision reported at 13 N.Y. 379 (2), and commentary in Willis on Constitutional Law, page 647 (3), suggest that the principles of natural justice were treated as identical with common-law principles, except where common-law rules were not regarded as fundamental or were deemed unsuitable to the changing times or conditions of American society (1). Finally, in the case of Loan Association v. Topeka (2), the Court noted that limitations on governmental powers arise from the essential nature of free governments, implying that such limits are inherent in the concept of liberty itself.

In this discussion, the Court observed that the concept of a social contract implies that political institutions were created only after individuals surrendered a portion of the rights they possessed when they originally arrived, rights that were inherited from their English ancestors. The Court explained that, despite this surrender, certain fundamental rights remained reserved by the people and could not be taken away by any State. The expression “due process of law,” the Court noted, has never been formally defined by American judges or jurists; its most accurate description, according to the Court, is that it signifies, in each particular case, an exercise of governmental power that conforms to the settled maxims of law and that provides the safeguards for protecting individual rights that those maxims prescribe for the relevant class of cases (3). The Court went on to say that, when the clause on “due process of law” is applied to specific situations, the decisions of the United States Supreme Court exhibit certain unusual and inconsistent features, indicating a lack of uniformity. Historically, from the introduction of the clause in the Fifth Amendment through the middle of the nineteenth century, the Court explained, the clause was understood mainly as a limitation on procedure, especially judicial procedure, by which the Government exercised its powers (1) Cooley’s Constitutional Limitations, Vol. II, p. 73940. (2) 20 Wall, p. 655. (3) Cooley’s Constitutional Limitations, Vol. II, p. 741. In that early period, the focus was on procedural safeguards for criminal trials, ensuring that accused persons received a fair trial according to established criminal proceedings, and on the procedures by which property rights were adjudicated, including the exercise of eminent domain and taxation. During that era, the Court said, the clause was not regarded as affecting substantive law at all. However, the Court noted that a shift occurred later, as judicial opinion began to recognise that substantive rights to life, liberty and property were protected by the due-process requirement against any deprivation attempted by legislative authority. The Court attributed this change to the political and economic conditions of the nation, particularly the post-Civil War period, which ushered in rapid industrial development, the concentration of large capital in the hands of industrialists, and the emergence of a distinct labouring class. These developments created new and significant problems, prompting the States to enact various laws and regulations, some of which the Court described as ill-advised and arbitrary, leading to complaints from business interests that such legislative actions encroached upon their vested private rights.

Business interests complained that recent statutes represented legislative encroachments upon their vested private rights. In response, the Supreme Court began to employ the rule of due process of law as a direct limitation on substantial legislation. Consequently, any statute or administrative action that placed a restriction on the rights of private property or on the free contractual relationship between employers and employees was declared invalid for failing to conform to due process of law (1). The determination of what constituted a legitimate exercise of legislative power thus became a matter for judicial review, and no statute could be considered valid unless it was deemed reasonable by the Court. The assessment of reasonableness, however, depended largely on the perspectives of individual judges, who brought their own views of social and economic policy to bear on the question of whether a statute was reasonable (1) Vide Encyclopaedia of the Social Sciences, Vol. V, pp. 265-67. A well-known commentator described the Courts as having become a sort of “negative third chamber” to both State legislatures and the Congress (1). The extent to which the Courts emphasized the doctrine of freedom of contract is illustrated by the case of Lochner v. New York (2). That case involved a labor statute that prohibited the employment of persons in certain occupations for more than sixty hours per week. Lochner was prosecuted for violating the law by requiring a worker in his biscuit and cake factory to work beyond the sixty-hour limit. By a narrow majority of five to four, the Court held the statute invalid on the ground that “the right to purchase or sell labour is part of the liberty protected by the Amendment unless there are circumstances which excluded the right.”

The Lochner decision has been criticised not only because it rested on an economic theory that, as Justice Holmes—one of the dissenting judges—observed, “was not entertained by a large part of the country,” but also because it ignored the necessity of such regulation to protect the health of employees. In effect, the statute represented an exercise of police powers aimed at achieving a public-interest objective. It is relevant to note that while the doctrine of due process was being broadened through judicial pronouncements, the doctrine of police power—functioning in part as a check on the due-process clause—was simultaneously gaining prominence. In broad terms, police power may be defined as “the right of a Government to regulate the conduct of its people in the interests of public safety, health, morals and convenience.” Under this authority, a government may enact regulations concerning building safety, traffic control, the reporting of incurable diseases, market inspections, factory sanitation, and the hours of work for women (1) Vide Kelley and Harbinson on the American.

The Court referred to the treatise titled Constitution, page 539, and to the case reported at 198 U.S. 45, and also cited Willoughby on the Constitution of the United States, volume III, page 271, in reference to regulations concerning women, children, the sale of intoxicants and other similar matters (1). The Court observed that the precise limits of judicial interference with a State’s exercise of police powers have not been clearly defined by previous judicial pronouncements. The doctrine that is generally accepted, the Court explained, holds that an enactment passed by a legislature under the pretext of exercising police powers is not automatically constitutional; however, if the regulation bears a direct connection to its intended objective of achieving a legitimate public purpose, the courts should refrain from examining the wisdom or policy underlying the legislation. The Court noted that this rule contains certain exceptions, but it declined to elaborate those exceptions because they were not pertinent to the matter before it (2). The Court further observed that later decisions, though not entirely uniform, demonstrate a growing influence of the police-power doctrine, and it noted a discernible shift in judicial attitude since the year 1936 toward a more favorable view of State police powers. In discussing the case of West Coast Hotel Company v. Parrish, reported at 300 U.S. 379, which concerned the constitutionality of a statute regulating minimum wages for women, the Court recounted the opinion of Chief Justice Hughes, who stated that the alleged violation in attacks on minimum-wage regulation is framed as a deprivation of freedom of contract. Chief Justice Hughes clarified that the Constitution does not mention “freedom of contract” but instead speaks of liberty and forbids deprivation of liberty without due process of law. He further explained that the Constitution does not recognise an absolute, unchecked liberty; rather, liberty has a historical and contextual meaning and must be understood as liberty within a social organization that requires legal protection against threats to health, safety, morals and public welfare. The Court indicated that, in the years that followed, the requirement of due process of law as a substantial limitation on governmental power began to recede, and the doctrine was being confined more closely to its original procedural sense, as noted in the works of Munroe, The Government of the U.S., page 522, and Willoughby, Constitution of the U.S., volume III, pages 1709-70 (1)(2)(3). The Court acknowledged that it could not predict with certainty how this trend would evolve in the future (1). Consequently, the Court concluded that the “due process” clause of the American Constitution had become a powerful tool for the judiciary to control social legislation, but that judicial pronouncements were not guided by a uniform principle; instead, the prevailing economic and social views of the majority of judges then occupying the Supreme Court served as the yard-stick for assessing the reasonableness of any enactment. The Court noted that, to date, no writer of American constitutional law has succeeded in formulating a consistent set of principles governing the application of the due-process clause.

In examining the American jurisprudence, the Court observed that a clear and uniform set of principles has not emerged from the numerous cases in which the doctrine of due process of law has been invoked or applied. Against this backdrop, the Court turned to the manner in which the framers of the Indian Constitution addressed a comparable subject and gave final shape to the relevant provisions. In the original Draft Constitution, what is now Article 21 was drafted as Article 15, and it was evidently modeled on the Fifth and Fourteenth Amendments of the United States Constitution. The draft language read: “No person shall be deprived of his life or liberty without due process of law.” The Drafting Committee, in the report it submitted, recommended that this wording be altered. The first suggestion was to insert the word “personal” before “liberty.” The second suggestion was to replace the phrase “due process of law” with “in accordance with procedure established by law,” contending that the latter expression was more precise.

The learned Attorney-General placed before the Court the minutes of the Constituent Assembly debates concerning the adoption of the Drafting Committee’s recommendation and cited the speeches of several Assembly members who had a significant role in shaping the Constitution. He argued that, although such debates are of limited value for ascertaining the meaning of constitutional words, they might assist when the purpose of a provision is clearly indicated. He further conceded that the debates are not admissible to explain the meaning of the terms used, and he sought to rely upon them only to demonstrate that the Assembly, when finally accepting the Drafting Committee’s recommendation, was fully aware of the consequences of replacing the original phrasing with the new one.

The Court expressed the view that, in interpreting the Constitution, reliance on extrinsic material such as legislative debates should be avoided. It noted that different members of the Assembly may have been motivated by varied impulses and may have understood the proposed wording in divergent ways; consequently, some members might have accepted certain terms in one sense while others perceived them differently. By contrast, the report of the Drafting Committee has been cited by both parties and, in established authority, such reports have been accorded greater weight than the floor debates. The Court referred to the American case of Caminetti v. United States, where it was held that reports accompanying proposed legislation may aid courts in discerning the true meaning of a statute when the language is ambiguous. The Court observed that the Drafting Committee’s report was brief, stating merely that the suggested change was intended to render the provision more specific.

The Court observed that the Drafting Committee’s report was extremely brief, stating only that the purpose of the suggested amendment was to make the provision more specific. The Court expressed confidence that, had the original “due process” clause been retained by the Constituent Assembly, it could be safely presumed that the framers of the Indian Constitution intended the expression to carry the same meaning as it does in the United States. The Court noted the citations (1) Vide Willoughby on the Constitution of the United States, p. 64 and (2) 242 U.S. 470. However, the Court held that once the original wording was abandoned and a different wording was deliberately inserted, it could not be assumed that the new language, despite the difference in expression, would convey the same idea. The Court explained that Mr. Nambiar argued that, because American law on the subject was uncertain and fluid, the Drafting Committee altered the language to make it more specific, limiting its scope from the whole sphere of law, both substantive and adjective, to merely procedural law. According to Mr. Nambiar, this is why the word “process” was replaced by “procedure,” while the word “law” was meant to retain the meaning it has in the American “due process” clause, referring not to any particular statutory enactment but to the fundamental principles inherent in the legal system and based on the immutable doctrines of natural justice.

The Court found that, attractive as this argument might appear at first glance, it could not be accepted as sound. Firstly, the Court stressed that the framers of the Indian Constitution did not wish to introduce the elements of uncertainty, vagueness and changeability that have surrounded the American “due process” doctrine. They deliberately chose the wording “procedure established by law” so that, in their view, no doubts would ordinarily arise about its meaning. The Court further explained that the indefiniteness in the application of the American “due process” doctrine does not stem from any distinction between substantive and procedural law; rather, the uncertainty and elasticity belong to the doctrine itself, which the Court likened to a hidden mine whose contents are revealed only intermittently to the judicial conscience of judges. The Indian Constitution consciously discarded that theory and substituted a different form, which the framers considered more specific. Secondly, the Court held that when different words are used, it would be contrary to the ordinary canons of construction to interpret a provision in the Indian Constitution by reference to a provision in another country whose language, political conditions and constitutional set-up are dissimilar.

In this discussion the Court observed that it would be inappropriate to interpret a provision of the Indian Constitution by referring to a provision that is only somewhat analogous in the Constitution of another country, especially when the language differs and the political conditions and overall constitutional framework are dissimilar. The Court noted that in the United States Supreme Court the emphasis has always been placed on the word “due” that appears before the expression “process of law.” The term “due” is understood to mean what is just and proper in the circumstances of a particular case, and it is this word that introduces a variable element into the doctrine; what may be reasonable in one set of facts may not be reasonable in another. By contrast, the Indian Constitution has deliberately omitted the word “due.” This deliberate omission, the Court said, shows that the framers of the Indian Constitution did not intend to import the American doctrine of “due process.” The Court explained that the word “established” ordinarily means fixed or laid down, and if the term “law” were to be understood, as Mr. Nambiar suggested, not as a specific piece of legislation but as the indefinite principles of natural justice that underlie positive law, it would be improper to use the expression “established,” because natural law or natural justice cannot establish a definite procedural scheme. The Court further observed that no part of the Indian Constitution uses the word “law” in the sense of a generic “general law” that denotes principles of natural justice outside the realm of positive law. On the contrary, the provision of article 31, which appears in the chapter on Fundamental Rights, makes it clear that the word “law” is equivalent to State-made law, and that depriving a person of his property requires the authority or sanction of such a law. The Court pointed out that article 21 reproduces, with the exception of one phrase, the language of article 31 of the Japanese Constitution, and that the scheme of the Japanese Constitution makes it evident that when it speaks of “law” it refers to law passed or recognised by the State. A similar provision exists in the Irish Constitution, where article 40(4)(1) provides that “no citizen shall be deprived of his personal liberty save in accordance with law,” and the term “law” is clearly meant to denote the law of the State. The Court recognized that the strongest argument supporting Mr. Nambiar’s contention is that if “law” is taken to mean only State-made law, then article 21 would not act as a restriction on legislation at all; consequently no question would arise about the legislature passing a law that abridges the right conferred by article 21, and article 13(2) would have no operation with respect to this provision. The Court quoted an American judge to illustrate that such a view would make the Constitution appear to be speaking directly to the legislature, telling it that it could not infringe the right created by these articles unless it deliberately chose to do so.

The Court observed that the legislature could not violate the rights created by the constitutional articles unless it expressly elected to do so. While this line of reasoning appeared plausible, the Court stated that it was not dealing with the policy considerations of the Constitution. It explained that fundamental rights do more than merely limit legislative action; they also function as checks on executive power. In particular, when the state seeks to deprive an individual of personal liberty, safeguards that prevent the executive from acting without legal authority constitute a fundamental right. The Court noted that constitutions of several other nations expressed protection of personal liberty in language closely resembling that of Article 21. It further explained that the question of whether the legislature or the judiciary would ultimately decide such matters is a policy decision, and the framers of the Indian Constitution deliberately placed that authority in the hands of the legislature.

Turning to the source of Article 21, the Court identified Article 31 of the Japanese Constitution as the model. It quoted the Japanese provision and observed that the same principle guided the Japanese text. The Court highlighted that the Japanese Constitution, at the same time, guarantees additional rights concerning arrest, detention and access to the courts, which can act as further checks on legislative power. Specifically, Article 32 of the Japanese Constitution provides that no person shall be denied the right of access to the courts, and Article 34 states that no person shall be arrested or detained without being immediately informed of the charges, without the immediate privilege of counsel, and without adequate cause; further, any person may demand that the cause for detention be shown openly in court in his presence and in the presence of his counsel. The Court inferred that the first two clauses of Article 22 of the Indian Constitution were drawn on the analogy of Article 34 of the Japanese Constitution. It observed that Article 22 was not present in the original Draft Constitution; after the Constituent Assembly discarded the “due process” clause and substituted the present form of Article 21, Article 22 was introduced to provide a check on arrest and detention and to impose limits on legislative authority. The Court acknowledged that these protections have been excluded in cases of preventive detention, but described that exclusion as a matter of policy, not a judicial question. Consequently, the Court concluded that the term “law” in Article 21 must be understood as law made by the State, not as an abstract notion of law embodying natural-justice principles. It further held that Article 21 presupposes that such law is a valid and binding law under the relevant constitutional provisions, of

The Court observed that a statute is valid when it falls within the legislative competence, relates to a subject within the Constitution’s jurisdiction, and does not encroach upon any of the fundamental rights guaranteed by Part III. Accordingly, the objection raised by Mr Nambiar, which claimed that the Preventive Detention Act was invalid because its procedure allegedly violated the principles of natural justice, was deemed unnecessary for determination. The Court held that it was sufficient to verify that the Act was a law that the Parliament was authorized to enact and that it did not infringe any constitutional freedoms. Likewise, the Court found it unnecessary to explore the Attorney-General’s contention that Article 22 constitutes a self-contained code governing preventive detention and that the procedure prescribed therein might be exhaustive. Even assuming that the statutory procedure were not exhaustive, the Court emphasized that it could not be supplemented by applying the rules of natural justice. Turning to the third contention advanced by Mr Nambiar, the Court identified the sole issue for consideration: whether Section 12 of the Preventive Detention Act exceeded constitutional authority because it failed to conform to the requirements of Article 22(7)(a). Article 22(7)(a) empowers Parliament to specify the circumstances and the classes of cases in which a person may be detained for a period exceeding three months under any preventive-detention law, without the need to obtain an advisory board’s opinion, provided the procedure laid down in sub-clause (a) of clause (4) is observed. Section 12 of the Act, which claims to be enacted under Article 22(7)(a), states that any person detained in certain classes of cases or under certain circumstances may be held without an advisory board’s opinion for a period longer than three months but not more than one year. The provision lists two broad categories: (a) detention aimed at preventing actions prejudicial to the defence of India, India’s foreign relations, or the security of India; and (b) detention intended to safeguard the security of a State or to maintain public order. The Court noted that the Constitution’s legislative lists contain six heads covering preventive detention: Item 9 of List I, which enumerates matters relating to defence, foreign affairs, and national security, and Item 3 of List III, which enumerates matters concerning the security of a State, the maintenance of public order, and the maintenance of essential supplies and services. Except for the head concerning essential supplies and services, the remaining five heads are enumerated in Section 12 of the Act, appearing both as circumstances and as classes of cases in which detention beyond three months may be authorised without an advisory board’s opinion.

In this case, the Court observed that, apart from the final head dealing with services essential to the community, the remaining five heads have been incorporated in section 12 of the Preventive Detention Act. The Act lists those five heads both as “circumstances” and as “classes of cases” in which a detention longer than three months may be authorized without obtaining the opinion of an advisory board. The Court recorded that counsel for the petitioner, Mr Nambiar, argued that the inclusion of five out of the six legislative heads in section 12 does not satisfy the requirement of article 22(7)(a) to prescribe the circumstances or the classes of cases in which a person may be detained for more than three months. He further contended that because the Constitution separates the terms “circumstances” and “classes” with the conjunction “and,” both terms must be specified; a reference to only one of them would not meet the constitutional condition. The Court also noted the submission that describing the same matters alternately as “circumstances” or as “classes” is not mandated by article 22(7) and appears illogical and unsound. Finally, the Court expressed the view that section 12 is drafted in a rather clumsy manner and could have been framed in a clearer and more appropriate way.

The Court then explained that article 22(7)(a) empowers Parliament to designate the circumstances and the classes of cases wherein the requirement for an advisory-board review may be dispensed with. By “classes of cases,” the Court meant groups of persons that are identifiable because they share a particular characteristic that defines the group. In contrast, “circumstances” refer to external situations or conditions affecting the individuals concerned. The Court pointed out that preventive detention may be sanctioned for reasons linked to six different matters enumerated in the relevant items of the legislative lists, and article 22(4)(a) ordinarily restricts any detention beyond three months unless it receives the sanction of an advisory board. However, clause (b) of article 22 provides Parliament with the option to withdraw that protection and to specify the circumstances and the cases in which the advisory-board requirement will not apply. The Court expressed serious doubt whether the classification devised by Parliament in section 12 of the Act truly fulfills the constitutional purpose. It observed that the classification is based on the anticipated acts of detained persons, as described by the general heads in the legislative lists, and that five of the six heads have been extracted and labeled as “classes of cases” to which the protection of clause 4 does not extend.

In examining paragraph (a) of article 22, the Court observed that the protection prescribed in that sub-clause would not extend to the classes listed by Parliament. The Court found it unreasonable to assume that every activity falling under the five legislative heads identified by Parliament posed an identical danger and therefore warranted identical, severe treatment. The language used by Parliament was broad, and the Court noted that each head could encompass acts of differing intensity and risk. Although the Court was not convinced that section 12 had been drafted with full appreciation of the constitutional purpose, it could not declare the provision unconstitutional or beyond Parliament’s authority. The Constitution, the Court held, grants Parliament unrestricted power to create classifications, and Parliament may adopt any classification scheme it deems appropriate. If Parliament chose to rely on the principle implied by the enumeration of subjects within the relevant legislative heads, the Court concluded that Parliament had not overstepped its jurisdiction. The Court also rejected the argument that both “circumstances” and “classes” must be expressly specified to satisfy sub-clause (a) of article 22(7). That sub-clause was characterized as a purely enabling provision, permitting Parliament to enact legislation in any manner it chooses. When a statute confers an optional power to perform two distinct acts, the Court explained, the statute does not obligate the authority to carry out both acts; it may exercise either one at its discretion. Here, the classes delineated by Parliament comprised persons detained to avert the commission of certain anticipated offences. The Court expressed doubt that these classes could be equated with “circumstances,” a term that ordinarily denotes conditions such as war, rebellion, or communal unrest—situations that might justify extraordinary measures, including detention beyond three months without advisory-board sanction. The suggestion that the likelihood of the specified acts constituting “circumstances” was deemed by the Court to be an unreasonable and unsound interpretation. Nonetheless, because the Court was of the view that Parliament was not required to prescribe both circumstances and classes, it could not deem section 12 ultra vires for omitting explicit circumstances. The Court also remarked that the draft legislation appeared clumsy and questioned Parliament’s use of the word “or” where the Constitution employs “and.” Finally, addressing the fourth and last point raised by counsel, the Court identified the principal issue as the validity of section 14 of the Preventive Detention Act, noting that subsection (1) of that section prohibits any Court from permitting any statement or evidence concerning the substance of

Section 14 of the Preventive Detention Act dealt with communications made under section 7 and the manner in which courts could handle such matters. Sub-section (1) expressly prohibited any court from permitting a statement to be made or any evidence to be produced before it concerning the substance of a communication addressed to a detained person that set out the grounds of the detention order, or any representation made by that person against the order. The provision further barred a court from compelling any public officer to produce or disclose the substance of such communication or representation, nor could it require the court to examine the proceedings of an advisory board or any part of the advisory board’s report that was designated as confidential. Sub-section (2) created a criminal offence for anyone who disclosed or published, without prior authorisation of the Central Government or the State Government as appropriate, any material purporting to be the contents of the communication or representation mentioned in sub-section (1). The offence was punishable by imprisonment for a term which could extend to one year, by a fine, or by both, but the provision expressly exempted a disclosure made to a legal adviser by the person who was the subject of the detention order. The Court observed that these provisions were of a very severe character. They imposed a complete ban on the court’s ability to consider the substance of the communication that informed the detainee of the grounds of detention, and they rendered the court incompetent to inspect the advisory board’s confidential proceedings or report. Moreover, the disclosure of such material was made a punishable offence carrying a possible term of one-year imprisonment. Counsel for the petitioner, Mr Nambiar, argued that these restrictions effectively nullified the guarantee of article 32 of the Constitution, which afforded every person the right to approach the Supreme Court for the enforcement of rights conferred by Part III. While it was undisputed that the petitioner possessed the right to move the Supreme Court for a writ of habeas corpus, the Court noted that if it could not examine the grounds of the detention order, it would be unable to reach a substantive decision, rendering the proceeding merely illusory despite the formal right to petition. The respondent contended that article 32 only assured a constitutional remedy for rights that were actually guaranteed by the Constitution; if no constitutional rights were accorded to a person detained under preventive-detention legislation, there would be no right to enforce before the court. The Court found this argument unpersuasive and held that section 14 indeed curtailed and materially affected the fundamental rights guaranteed by the Constitution.

Section 14 of the Preventive Detention Act, in the view of the Court, does indeed diminish and significantly restrict several of the fundamental rights that the Constitution guarantees. Article 22, clause (5), of the Constitution establishes a fundamental right that when a person is detained under a preventive detention law, the authority that issues the order must, as soon as possible, inform the detainee of the specific grounds for the detention and must provide the detainee with the earliest opportunity to make a representation against the order. Clause (6) permits the authority to withhold any facts that it considers to be against the public interest, but the requirement to disclose the grounds of detention is not subject to any such prohibition under any circumstance. Moreover, the detaining authority is obligated to afford the detainee the earliest chance to present a representation against the detention order. The Court has, in several decisions, rightly observed that if the grounds communicated to a detained person are so vague and indefinite that the person cannot make a proper and adequate representation in response, this itself constitutes a violation of the right conferred upon the detainee by law. The Court further noted that it cannot determine whether the provisions of Article 22, clause (5), have been complied with and whether the guaranteed fundamental right has been made available to the detainee unless the actual grounds communicated under that article are produced before the Court. In addition, a detained person may contend that the detention order is a mala fide exercise of power by the detaining authority and that the grounds on which it is based are neither proper nor relevant to justify detention under the law. Such rights of the detainee would become effectively unenforceable if the Court were prevented from examining the grounds supplied to him under section 7 of the Preventive Detention Act. Consequently, the Court held that section 14 of the Preventive Detention Act materially affects the fundamental rights declared in Part III of the Constitution and, for that reason, must be declared illegal and ultra vires. It was not contested, however, that this particular section could be severed from the remainder of the Act without impairing the other provisions. Accordingly, the entire Act could not be declared ultra vires. Counsel for the respondent further argued that section 3 of the Act also contravened Article 32 of the Constitution because it rendered the satisfaction of the particular authorities final in matters of preventive detention, thereby allegedly preventing the Court from assessing the propriety of the detention order. The Court rejected this contention, finding that no infringement of any fundamental right was involved.

The Court observed that it could not intervene in a detention order unless the petitioner demonstrated that the authority had acted in bad faith or that the grounds for detention were either improper or irrelevant to justify the deprivation of liberty. While acknowledging that the provisions of the Preventive Detention Act were indeed severe, the Court clarified that these provisions did not eradicate the protections afforded under articles twenty-one and twenty-two of the Constitution. Because the constitutional guarantees of life, liberty and the procedure established in those articles remained intact, the Court concluded that the provisions could not be characterised as illegal or ultra vires. Accordingly, the Court held that the Preventive Detention Act, as a whole, was constitutionally valid, with the sole exception of section fourteen, which it declared to be illegal and ultra vires. The petition that had been filed against the detention was therefore dismissed. Nevertheless, the Court left open the possibility for the petitioner to make a fresh application in the future, should he wish to do so, provided that the grounds supplied to him under section seven of the Act were sufficient to support a new application.

Justice D A S expressed the same view and also ordered the dismissal of the application. Counsel for the petitioner had contended that the provisions of the Preventive Detention Act, 1950 (Act IV of 1950) were extremely drastic, wholly unreasonable and by their operation substantially abridged the fundamental rights granted to citizens by Part III of the Constitution. He urged that the Act be declared entirely void under article thirteen (2) of the Constitution and that the petitioner be released at once. The Court noted that the scope of its own authority must be understood in relation to the constitutional framework of the country. It explained that the powers of the judiciary differ under different constitutional orders. In England, for example, Parliament possesses supreme legislative authority and the courts are limited to interpreting and applying statutes; they do not have the power to declare an act of Parliament unconstitutional. By contrast, under the United States Constitution, legislative power resides with Congress but the written Constitution occupies a superior position over all three branches of government. Consequently, the United States Supreme Court has the power to declare any law invalid if it is not in conformity with the Constitution, especially where the law violates the due-process requirements articulated in the Fifth Amendment and the Fourteenth Amendment. The Court further observed that the United States Supreme Court, famously under Chief Justice Marshall, had asserted the right to strike down statutes that failed to meet the standards of due process of law, thereby establishing judicial supremacy over both the executive and the legislative branches.

In India the position of the judiciary occupies a place that lies between the doctrines of the English courts and those of the United States Supreme Court. While the Constitution generally leaves Parliament and the State legislatures supreme within their own legislative spheres, it also imposes specific constitutional limitations on those legislatures. Whenever a limitation exists, the Court is required, upon receiving a complaint, to examine whether the legislature has exceeded the prescribed bound. If the Court finds that the legislature has transgressed a constitutional restriction, it is bound by its oath to declare the offending law unconstitutional. However, beyond the areas where the Constitution limits legislative power, Parliament and the State legislatures remain supreme and the Court may not question the wisdom or policy of duly enacted statutes. Unlike the English constitutional arrangement, the Indian Constitution recognises a limited judicial supremacy that operates only where the Constitution itself has circumscribed legislative authority. In that confined domain, the Court may, after scrutinising the legislative enactement, strike down the law as void if it breaches the constitutional limitation. The Indian Constitution, in contrast to the American Constitution, does not grant the Court absolute supremacy over the legislature in all matters; outside the narrowly defined constitutional constraints, legislative supremacy remains intact. Consequently, the Indian judiciary cannot assume the same sweeping role as the United States Supreme Court in reviewing every legislative action. It is essential for courts to remember this fundamental restraint on their authority whenever they engage in constitutional review.

The statute that is presently before the Court was enacted by Parliament after the Constitution had become operative. Article 246 of the Constitution confers exclusive legislative authority on Parliament for all subjects enumerated in List I of the Seventh Schedule. The same article also vests exclusive power in each State legislature to legislate on matters listed in List II of the Seventh Schedule. In addition, Article 246 provides for concurrent legislative competence of Parliament and the State legislatures over subjects placed in List III. Any matters not assigned to either List I or List II fall within the residuary legislative power, which Article 248 reserves exclusively for Parliament. The first observation relevant to the present dispute is that Entry 9 of List I authorises Parliament to enact preventive detention laws concerning the subjects enumerated therein. Likewise, Entry 3 of List III grants both Parliament and the State legislatures the power to legislate preventive detention measures related to the matters specified in that entry. The Constitution does not attach any condition of war, foreign invasion, or proclamation of emergency under Part XVIII to the validity of such preventive detention legislation. Accordingly, the Constitution expressly permits preventive detention to be legislated in peacetime as a distinct category apart from emergency powers. The Court therefore must not intrude upon the policy choices embodied in the preventive detention statute, because such policy decisions rest with the legislature, not with the judiciary.

The Constitution does not require the existence of a war with a foreign power or the proclamation of an emergency under Part XVIII for preventive detention legislation to be valid. Accordingly, the Constitution has accepted preventive detention as a matter that may be legislated in peacetime, distinguishing it from emergency legislation. This inclusion of preventive detention in the Constitution is a novel feature; the author notes that no other country's Constitution, as far as he knows, contains a comparable provision. Nevertheless, for whatever reasons, the Constitution deliberately and explicitly confers on both Parliament and the State Legislatures the authority to enact preventive detention laws even when there is no emergency. While many people find a preventive detention law repugnant at any time, the author emphasizes that it is not the role of the Court to question the wisdom or policy of a constitutional provision that the people themselves have adopted. This is a further basic principle that the Court must not overlook. The next point to consider is that, if the Constitution contained no other limitations, the legislative powers granted to Parliament and to the State Legislatures in their respective fields would be absolute. In such a scenario the Court would be limited to examining whether either Parliament or a State Legislature, in passing a particular law, had exceeded its own legislative domain and intruded upon the domain of the other, but it could not otherwise challenge the validity of any law enacted by either body. Hence, under Entry 9 of List I, Parliament, and under Entry 3 of List III, both Parliament and the State Legislatures, could frame as sweeping a preventive detention statute as they wished. Such a statute could empower a policeman, a District Magistrate, a Sub-Divisional Magistrate, or a Commissioner of Police to arrest any person—whether a citizen or a non-citizen—and keep that person in detention for an indefinite period, without any requirement to inform the detainee of the grounds of detention, to provide an opportunity to make a representation, or to establish an advisory board. Similarly, under Entries 1 and 2 of List III, Parliament or a State Legislature could invent any number of new offences according to its imagination and prescribe any cruel punishment, ranging from mutilation of limbs to boiling a person alive in oil, or could even repeal the entire Code of Criminal Procedure and replace it with trial by battle, ordeal, or conviction based on the verdict of a sorcerer or soothsayer. Such legislation might prohibit any criticism of the Government, no matter how mild, ban all public meetings, or forbid the formation of any association, imposing penalties for such conduct. Moreover, under Entry 33 of List I, Parliament could enact a law empowering the Union to acquire any person’s property for its purposes without providing any compensation, and

In the scenario described, Entry 36 of List III permits a State Legislature to enact legislation, but only insofar as it complies with Entry 42 of List III, which authorises the State to make a law laying down principles for the payment of compensation, a compensation that may be set at any amount above zero. Similarly, Entry 81 empowers Parliament to pass a law that could restrict or even prohibit inter-State migration, for example preventing a Bengali individual from moving to Bihar or vice-versa. The judgment observes that it would be futile to enumerate countless oppressive statutes that Parliament or a State Legislature might have fashioned under article 246 read with the various constitutional lists if the Constitution contained no further safeguards. Subject to the distribution of legislative authority, the legislatures would have enjoyed a supremacy in their respective fields comparable to the historic supremacy of the English Parliament. In such a circumstance the courts would have been obliged merely to accept the duly enacted law, interpret it, and apply it, without any authority to question the propriety of the statute, even if the statute embodied monstrous atrocities.

The Constitution, however, rejects that notion of absolute legislative supremacy. Article 245(1) expressly makes legislative power conditional upon the provisions of the Constitution. Article 13(2) further declares that the State shall not enact any law that takes away or abridges the rights conferred by Part III, and that any law contravening this clause shall, to the extent of the contravention, be void. This clause imposes a clear limitation on the broad legislative powers granted by article 246, and it is within the competence of the courts to determine whether a statute violates this limitation, thereby giving the judiciary a superiority over the legislature in this respect. Consequently, two principal constraints on parliamentary legislation emerge: (i) the law must fall within the legislative competence prescribed by article 246, and (ii) the law must not infringe the rights guaranteed by Part III of the Constitution. Both constraints are justiciable, and the courts may examine whether Parliament has exceeded either limitation. The petitioner’s counsel does not claim that the impugned Act is beyond Parliament’s competence under article 246; rather, he contends that the Act is void because it infringes or abridges a fundamental right granted by Part III. Therefore, the Court first needed to identify the precise nature, extent, and scope of the specific fundamental right asserted, before assessing whether the Act had in fact taken away or abridged that right.

In this matter the Court observed that the first task was to determine precisely the nature, extent and scope of the particular fundamental right that had been identified, and thereafter to examine whether the impugned Act had taken away or in any manner abridged that right. The Court then explained that civil rights of an individual are ordinarily classified into two categories: the rights that are attached to the person, known as jus personarum, and the rights that relate to property, known as jus rerum. Among the personal rights, the foremost is the freedom of life, which means the right to live and the assurance that a person’s life may be taken away only under the authority of law. The next most important personal right is the freedom of the person, which means that a person’s body may not be touched, violated, arrested, imprisoned or injured except under lawful authority. The Court emphasized that the right to life and the freedom of the person constitute the primary personal rights. Once a person’s personal freedom is secured, that person is then able to enjoy a range of auxiliary rights. Within lawful limits the individual may speak as he wishes, assemble wherever he chooses, form any associations or unions, move about freely according to his own inclination, reside and settle wherever he desires, and practise any profession or engage in any occupation, trade or business. These various entitlements are attributes of the freedom of the person and therefore form part of the rights attached to the person. The Court cautioned that these are not the entirety of personal rights; many other rights also flow from the freedom of the person. All such rights are commonly described as personal liberties, and they are so numerous that they cannot be exhaustively listed. Some of these auxiliary rights are so important and fundamental that they are regarded as distinct and independent rights separate from the general freedom of the person. Personal liberties may be summed up as the right to do as one pleases within the law, but the Court stressed that liberty is not an unbounded licence. It is what Edmund Burke termed “regulated freedom.” The Court quoted Montesquieu, Book III, Chapter 3 of The Spirit of the Laws: “In Governments, that is, in societies directed by laws, liberty can consist only in the power of doing what we ought to will, and in not being constrained to do what we ought not to will. We must have continually present to our minds the difference between independence and liberty. Liberty is a right of doing whatever the laws permit, and if a citizen could do what they forbid, he would no longer be possessed of liberty, because all his fellow-citizens would enjoy the same power.” The Court further cited Webster, Works, Volume II, page 393: “Liberty is the creation of law, essentially different from that authorised licentiousness that trespasses on right. It is a legal and”

In the judgment, the Court observed that liberty is a refined notion that originates from an advanced civilization and is not comprehended by those who are uncivilised. The Court explained that liberty is proportional to wholesome restraint, noting that the more restraint imposed on others to keep them from harming us, the greater our own liberty becomes. It warned that it is mistaken to think that liberty consists merely in a scarcity of laws. The Court described the operation of the nation’s complex system as one that contains many checks and restraints on legislative, executive and judicial power, and asserted that this system favours both liberty and justice. Those checks and restraints, the Court said, serve as numerous safeguards that surround individual rights and interests, and a person is free only when he is protected from injury. Accordingly, the Court held that imposing restraint on the wrongful conduct of one individual effectively secures the liberty of the intended victims. It gave the example that curbing the freedom of a saboteur who secretly removes fish plates from railway tracks ensures the safety and liberty of movement for the many innocent and unsuspecting passengers. The Court further stated that restraints on liberty must be evaluated not merely subjectively with regard to the few individuals directly affected, but also objectively in terms of how they protect the liberty of a far larger number of persons. It recognised that the public interest in an individual’s liberty may sometimes have to be subordinated to a greater social interest. The Court explained that if a law safeguards and promotes a larger social interest, such a law is wholesome and beneficent even though it may infringe upon the liberty of some individuals, because it ultimately enhances the liberty of the rest of society’s members. At the same time, the Court warned that personal liberty must also be guarded against the usurpation of powers and prerogatives by the executive, legislative and judicial branches. Subject to reasonable restraints on individuals and appropriate checks on the State, the Court noted that every person possesses a variety of personal liberties that are too numerous to be listed exhaustively. The Court then turned to the Constitution, observing that it recognises personal liberties as fundamental rights. It pointed out that the Constitution guarantees certain liberties under article 19(1) while imposing restraints on them through clauses (2) to (6). The Constitution also checks the State’s legislative powers by means of articles 21 and 22 and, by providing for preventive detention, acknowledges that individual liberty may be subordinated to larger social interests. Finally, the Court examined Part III of the Constitution, which is titled “Fundamental Rights” and is organised under seven headings together with “General” provisions in articles 12 and 13. These headings comprise the Right to Equality (articles 14-18), the Right to Freedom (articles 19-22), the Right against Exploitation (articles 23 and 24), the Right to Freedom of Religion (articles 25-28), Cultural and Educational Rights (articles 29 and 30), the Right to Property (article 31) and the Right to Constitutional Remedies (articles 32-35). Under the heading “Right to Freedom,” the Constitution groups four articles, namely articles 19 to 22, and article 19(1) reads: “(1) All citizens shall have the right- (a) to freedom of speech and expression;”.

The Constitution lists several freedoms in clause (1) of Article 19, namely the right (b) to assemble peaceably and without arms, (c) to form associations or unions, (d) to move freely throughout the territory of India, (e) to reside and settle in any part of the territory of India, (f) to acquire, hold and dispose of property, and (g) to practise any profession or to carry on any occupation, trade or business. Of these seven rights, six – that is, (a), (b), (c), (d), (e) and (g) – are described as rights attached to the person (jus personarum). The remaining right, (f), is the right to property (jus rerum). If Article 19 contained only these rights without any further provisions, they would be absolute and would entirely prevent Parliament or any State legislature from enacting a law that takes away or diminishes any of those rights. However, a careful reading of Article 19 makes it clear that none of the seven rights enumerated in clause (1) is absolute, because each is subject to restriction by laws made by the State in accordance with clauses (2) to (6) of the same article. Those clauses preserve the State’s power to impose certain specified limits on the various rights. Consequently, the unlimited legislative authority granted by Article 246, read with the lists in the Seventh Schedule, is curtailed by the provisions of Article 19. Any law made by the State affecting these rights must, if it is to be valid, comply with the limitations laid down in clauses (2) to (6). Whether a particular law has actually exceeded those limits is a question for the Court. If the Court finds that the restrictions imposed exceed what clauses (2) to (6) allow, it will declare the law unconstitutional and void under Article 13. In making that determination, the Court may apply an “intellectual yardstick” of judicial review. Conversely, if the Court, after scrutiny, concludes that the law has not overstepped the constitutional limits, it must uphold the law even if it personally dislikes it. The broader argument presented is that personal liberty is generally guaranteed by Article 19(1) and that the Preventive Detention Act, 1950, imposes unreasonable restrictions in violation of clauses (2) to (6). The initial question that arises, therefore, is whether the freedom of the person, which is directly and principally suspended or destroyed by preventive detention, falls within the scope of Article 19(1). If personal liberty is indeed guaranteed by any sub-clause of Article 19(1), the argument then asks why it is also protected by Article 21.

Counsel for the petitioner contended that the substantive right to personal liberty was secured by article 19-1 of the Constitution, while article 21 merely added a procedural safeguard governing the manner in which that right could be curtailed. The Court was unable to accept this submission. Acceptance of the counsel’s view would imply that the Constitution does not confer, to any person whether citizen or non-citizen, a substantive guarantee of the right to life, because the right to life does not appear among the sub-clauses of article 19-1. In response, the petitioner argued that no human law or constitution can guarantee life, which is a divine gift, and by the same reasoning, no law can guarantee freedom of speech or free movement, since disease or paralysis may likewise deprive a person of those abilities. The petitioner further suggested that the procedural protection envisaged in article 21 would amount to a supererogatory measure, because when the divine will takes a life, the opportunity to explain conduct before a tribunal, as required by article 21, would unlikely be observed. The Court noted that the Fifth and Fourteenth Amendments of the United States Constitution expressly protect life as a substantive right, and that article 31 of the Japanese Constitution of 1946 does the same. Accordingly, there is no reason why the Indian Constitution should not accord a comparable substantive protection. In fact, article 21 has been interpreted to provide that substantive protection to life, and, when properly understood, it does not prescribe any specific procedural formula. Accepting the petitioner’s argument would lead to an astonishing conclusion that an Indian citizen possesses only the rights enumerated in article 19-1 and no other personal liberties. Yet, as already observed, beyond the several sub-clauses of article 19-1, many additional personal freedoms are available to a free individual. The Court referred to the observations of Chief Justice Harries C.J. of Calcutta in an unreported judgment in Miscellaneous Case No. 166 of 1950 (K. Shitindra v. The Chief Secretary of West Bengal), where it was stated that a free man enjoys far more and wider rights than those listed in article 19-1. For instance, a free man may eat what he chooses, subject only to rationing regulations; he may work as he wishes; he may drink beverages subject to licensing rules; and he may engage in numerous other activities not enumerated in article 19-1. The Court concurred fully with that view, emphasizing that if freedom of the person were derived solely from article 19-1, a free man would be limited to the seven rights specified therein, which is clearly not the case in India. Therefore, the Constitution must be read as protecting the broader bundle of rights that, together with the rights mentioned in sub-clauses (a) to (e) and (g) of article 19-1, constitute personal liberty.

The Court observed that a free individual may eat as much as he wishes and remain idle for as long as he chooses. He may also drink any beverage permitted under the licensing regulations, smoke, and engage in countless other activities that are not enumerated in article 19. The Court explained that if personal freedom were derived solely from article 19, a free person would be limited to the seven rights expressly listed in that article. Clearly, however, the reality in India shows that a free person enjoys many rights beyond those seven. The Court stated that it fully concurred with the learned Chief Justice on this point. It warned that, were the opposite view accepted, the citizen’s right to eat whatever he wishes could be withdrawn by an arbitrary order of the Civil-Supply Department, even in the absence of any rationing legislation. Similarly, the Government could impose prohibition without any enabling prohibition or licensing statutes. The Court could not accept a constitutional scheme that offered no protection to the collection of rights, together with the rights specified in sub-clauses (a) to (e) and (g), which together constitute personal liberty.

The Court further noted that a strength of the Constitution is that it does not attempt to list every personal right exhaustively; instead it employs the broad term “personal liberty” in article 21 to safeguard the entire spectrum of such rights. It observed that the original draft used only the word “liberty,” mirroring the American Constitution, but the Drafting Committee deliberately inserted the word “personal” to distinguish the protection intended by article 21 from that already provided by article 19. While the Court acknowledged that referring to the Drafting Committee’s report could address the petitioner’s argument that substantive personal liberty derives from article 19, it declined to base its judgment on that report and refrained from commenting on its admissibility. The Court stressed that, regardless of the Drafting Committee’s intentions, the final Constitution’s article 21 employs the phrase “personal liberty,” a term that has a precise legal meaning encompassing not only freedom of the person but also the rights attached to the person (jus personarum). The Court emphasized that the expressions “freedom of life” or “personal liberty” do not appear in article 19, and it would be a misreading to force personal liberty into that article. Moreover, the right to life cannot be inferred from article 19, which applies only to citizens; consequently, a non-citizen would lack protection for life and personal liberty except for the procedural safeguards provided by article 21. The Court concluded that without a substantive right, procedural provisions would have nothing to protect, while recognising that it is not essential for a foreigner to enjoy the same privileges as a citizen, yet article 21, as interpreted, extends equal protection of life and personal liberty to all persons within the country.

In this case the Court observed that if article 21 of the Constitution were interpreted in the manner it had suggested, the guarantee of protection for life and personal liberty would extend equally to foreigners as well as to citizens under the laws of the country. Consequently, the Court could not accept the proposition that personal liberties derived from article 19 or that article 19 was intended to safeguard the entire spectrum of those liberties. The Court then addressed the contention that the term “personal liberty” was synonymous with the right of free movement and therefore fell directly under article 19(1)(d). The argument relied upon an unpublished dissenting judgment of Justice Sen of the Calcutta High Court in Miscellaneous Case No 166 of 1950, which had been referred to a Full Bench. In that dissent Justice Sen quoted a passage from Blackstone’s Commentaries stating that English law regards personal liberty as the power of locomotion, the ability to change one’s situation or move one’s person to any place one’s inclination directs, without imprisonment or restraint unless law permits it. Justice Sen concluded from that passage that personal liberty was encompassed by article 19(1)(d). The Court, however, could not agree with this conclusion. Upon reviewing Chapter I of Book I of Blackstone’s Commentaries, the Court noted that the commentator distinguished the rights attached to the person (jus personarum) into two categories: “personal security” and “personal liberty.” Under “personal security,” Blackstone listed several rights, including the rights to life, limb, body, health, and reputation, whereas under “personal liberty” he placed only the right of free movement. The Court explained that there was no reason to assume that article 21 employed the term “personal liberty” in the narrow sense used by Blackstone. If article 21 were understood to mean merely the right of free movement, the startling implication would be that only that specific right would enjoy the procedural safeguards mandated by article 21, while none of the other rights enumerated in the sub-clauses of article 19(1) would receive any procedural protection. Counsel for the petitioner argued that the procedure required by article 21 comprised giving notice and providing a right of hearing before an impartial tribunal. Accordingly, according to the petitioner, a person’s right of movement could not be withdrawn without notice and a fair trial before an impartial tribunal, whereas he could be deprived of his freedom of speech, property, or any other right without any procedural formalities. The Court considered these submissions in the context of its broader interpretation of the constitutional provisions.

In the judgment it was observed that a person could be deprived of his freedom of speech, his property, or any other right without any procedural formality. The proposition required only a statement of rejection to be sufficient. The Court held that article 19 protected some important attributes of personal liberty as separate rights, and that the expression “personal liberty” in article 21 was used as a comprehensive term that embraced all the various rights that together constitute personal liberty. Counsel for the petitioner then argued that personal liberty unquestionably includes the freedom of the person, and that the core of that freedom is the right to move freely. Accordingly, any preventive detention law that destroys or suspends the freedom of the person would inevitably destroy or suspend the right of free movement and would therefore offend the protection afforded to a citizen by article 19(1)(d) unless the law satisfied the reasonableness test laid down in clause (5). The Court found the argument persuasive and worthy of careful examination in order to determine the precise purpose and scope of sub-clause (d) of article 19(1). The language of article 19(1)(d) itself suggested that its aim was not to protect a general right of free movement that arises from personal freedom, but rather to protect a specific, limited aspect – namely, the special right of an Indian citizen to move freely throughout the territory of India, that is, from one State to another within the Union. In other words, the provision guaranteed, for example, that a citizen normally residing in West Bengal could travel to Bihar or choose to reside and settle in Madras or Punjab without any obstruction, except as provided for in clause (5). This special right of movement, in that narrow sense and for that particular purpose, was what article 19(1)(d) protected. The Court also considered an authority cited from a decision of a Special Bench of the Calcutta High Court, presided over by Justice Sen in Sunil Kumar v. The Chief Secretary of West Bengal, which held that the words “throughout the territory of India” in the sub-clause merely indicated that the Constitution did not guarantee citizens the right of free movement in or into foreign territory and that those words were inserted to preserve passport restrictions. The Court could not accept this interpretation. It reasoned that the Constitution could not possibly confer upon any citizen a right of free movement in a foreign country, and that it would have been entirely unnecessary to specify this in the Constitution, as such a limitation would have been obvious. Moreover, the phrase “throughout the territory of India” was not employed in most of the other sub-clauses of article 19(1). The Court therefore questioned whether the omission of those words from other sub-clauses implied any broader guarantee of rights outside Indian territory.

The Court noted that the omission of the phrase “throughout the territory of India” from the other sub-clauses of article 19 does not mean that the Constitution guarantees to its citizens freedom of speech and expression, say, in Pakistan. It further questioned whether the Constitution guarantees a right to assemble or to form associations or unions in a foreign territory, and answered that it clearly does not. Accordingly, there was no need to use those words in sub-clause (d) merely to indicate that free movement in foreign countries was not being guaranteed. The Court also rejected the proposition that by using the words the Constitution makes it clear that no guarantee is given to any citizen regarding emigration from India without a passport and that the freedom of movement is therefore restricted to the territory of India. It examined the implication of omitting those words from article 19 (1) (a) and asked whether the omission would imply that a citizen of India has been guaranteed such freedom of speech and expression as would enable him to set up a broadcasting station and broadcast his views to foreign lands without a licence. The Court answered that clearly such a guarantee does not flow from the omission. In sum, the Court found that the absence of the phrase in the other sub-clauses does not create any expansive right abroad.

The Court then turned to a completely new line of argument, which claimed that the use of the words “throughout the territory of India” signals that the Constitution has given the widest possible right of free movement that it could possibly grant to its citizens, and that the omission of those words from the other sub-clauses indicates that the Constitution has deliberately kept back some parts of those rights beyond the limits of the qualifying clauses that follow. The Court asked whether the other rights therefore prevail throughout the Indian territory even without those words, and observed that they indeed do, as affirmed in the citation (1) 54 C.W.N. 394. Consequently, the Court concluded that the words in sub-clause (d) must have been employed for some other purpose. The Court identified that purpose as the intention to indicate that free movement from one State to another within the Union is protected, so that Parliament may not, by a law made under Entry 81 in List I, curtail it beyond the limits prescribed by clause (5) of article 19. The Court explained that the provision creates an independent, additional right for the Indian citizen to move freely throughout the territories of India, separate from the general right of locomotion that arises from the freedom of the person. It described this as a guarantee against unfair discrimination in the matter of free movement, a protection against provincialism, and distinct from the personal liberty guaranteed by article 21. Finally, the Court emphasized that clause (5) of article 19 qualifies sub-clause (d) and must be read in light of it, permitting the State to impose reasonable restrictions on the exercise of the right of free movement throughout the territory of India.

The Court explained that when a reasonable restriction is placed on the constitutional guarantee of free movement, the right is not completely eliminated; rather, certain portions of the right continue to exist. Such a restriction may be justified either for the benefit of the general public or for the protection of the interests of any Scheduled Tribe. Scheduled Tribes ordinarily inhabit what are designated as Scheduled Areas, and the provision allowing restriction of movement in the interests of these tribes clearly shows that the limitation applies specifically to the right to move into or within those areas. Consequently, if it is deemed necessary to safeguard the Scheduled Tribes, a citizen may be prohibited from entering or travelling within a Scheduled Area, while the citizen remains freely able to move in all other parts of the Union. The Court noted that this restraint may be essential to shield members of Scheduled Tribes, who are generally impoverished and belong to a backward class, from exploitation by money-lenders or other persons who might seek to take advantage of them. It may also be required to protect them from their own financial habits that could lead to the sale or mortgage of their homes and hearths.

The Court further observed that restrictions on free movement may also be imposed in the interest of the general public. For example, a person suffering from an infectious disease may be barred from moving about so as to prevent the spread of the disease, and quarantine regulations may be introduced. Similarly, healthy individuals may be prevented from entering a region that is infected with plague. The Court cited additional instances where access to certain places, such as forts or other strategic locations, may need to be regulated or even prohibited for public safety. In each of these situations, the restriction is limited to a defined local area that becomes a prohibited zone, while the right to move freely throughout the remainder of the Union remains untouched.

Accordingly, the Court concluded that clause (5) of article 19 contemplates only the removal of a specified area, thereby narrowing the field within which the right conferred by sub-clause (d) of clause (1) may be exercised. This indicates that sub-clause (d) does not concern the general freedom of the person but rather a particular aspect of movement that is treated as an independent right separate from personal liberty. The emphasis, the Court stressed, lies on the words “throughout the territory of India.” The purpose of article 19(1)(d) is to ensure that no State barrier exists, providing protection against provincialism, and it is unrelated to the personal freedom of the individual as such.

In this portion of the judgment, the Court examined the scope of the rights protected by article 19 (1) of the Constitution. It asked whether article 19 (1) safeguards the right of free movement and the other personal liberties enumerated therein under all circumstances, regardless of any other considerations. The Court inquired whether the article presupposes a capacity to exercise those rights, and whether that protection persists even after a citizen lawfully loses the capacity to exercise them. It further questioned how the continuation of such personal rights could be reconciled with the lawful detention of an individual, observing that the existence of personal rights and lawful detention appear mutually exclusive.

The Court illustrated its point by referring to a person who had been properly convicted of an offence punishable under a provision of the Indian Penal Code, where the reasonableness of the conviction was not disputed. It noted that the convicted person’s freedom of speech was undoubtedly impaired. Under clause (2) of article 19, the State is authorized to enact a law concerning libel, slander, defamation, contempt of Court, or any matter that offends decency or morality, or that undermines the security of the State or tends to overthrow it. The Court explained that any legislation of this kind must relate directly to speech and expression, meaning that the law may expressly restrict the citizen’s ability to utter libelous statements, speak contemptuously of the Court, express indecent or immoral ideas, or utter seditious words.

The Court rejected the proposition that every criminal provision automatically undermines the security of the State and therefore, by virtue of clause (2), constitutes a law within the meaning of article 19 (1) (a). It described this view as wholly unconvincing and as a mere futile attempt to argue that any conviction by a court must necessarily infringe article 19 (1) (a). The Court emphasized that there can be no escape from the fact that detention resulting from a conviction impairs freedom of speech far beyond the limits permitted by clause (2) of article 19. Similarly, a lawful detention impairs each of the other personal rights listed in sub-clauses (b) to (e) and (g) to a degree that exceeds the restrictions contemplated in clauses (3) to (6). The Court found the argument that every provision of the Indian Penal Code, irrespective of any reference to the rights in sub-clauses (b) to (e) and (g), constitutes a reasonable restriction on those rights to be implausible.

Finally, the Court asserted that a detention based on a lawful conviction inevitably impairs the fundamental personal rights guaranteed by article 19 (1) far beyond what clauses (2) to (6) permit. Yet, it observed, no one could reasonably question the validity of the detention or of the specific provision of the Indian Penal Code under which the sentence was imposed, because the freedom of the convicted individual to exercise those rights was already curtailed by the very fact of his confinement.

When a person is lawfully deprived of his liberty, the convict no longer possesses the entitlement to exercise the freedom of speech and expression or any of the other personal freedoms safeguarded by clause (1) of article 19. By the same reasoning, during the period of detention the convict is unable to enjoy any other personal right; for example, he cannot select the food he wishes to eat or the time at which he wishes to eat, but must instead consume the meals prescribed by the Jail Code at the times stipulated by the jail regulations. Consequently, it is unavoidable to conclude that the rights protected by article 19 (1) that are attached to the person—specifically those enumerated in sub-clauses (a) to (e) and (g)—can be exercised only by a citizen who remains free and whose personal liberty is not impaired. A contention raised against this line of reasoning is that detention following a lawful conviction does not strip a person of his right to acquire, hold, or dispose of property as mentioned in sub-clause (f). The reply to that contention is straightforward: the right to property is not a right attached to the person (jus personarum) and its existence does not depend on the individual’s personal freedom. Thus, loss of personal liberty does not suspend the right to property. However, if a person loses his property because it has been compulsorily acquired under article 31, he consequently loses the right to hold that property and cannot claim that his fundamental right under sub-clause (f) of article 19 (1) has been infringed. From this it follows that the rights listed in article 19 (1) exist only while the citizen retains the legal capacity to exercise them. If that capacity is removed—either because of a lawful conviction that affects the rights in sub-clauses (a) to (e) and (g), or because of a lawful compulsory acquisition that affects the right in sub-clause (f)—the citizen ceases to enjoy those rights for the duration of his incapacity. Moreover, if a citizen’s personal liberty is lawfully taken away for reasons other than a conviction for an offence, the same principle applies: the citizen, for the identical reason, cannot exercise any of the rights attached to his person, including those enumerated in sub-clauses (a) to (e) and (g) of article 19 (1). In this judgment it is held that a lawful detention, whether punitive or preventive, does not violate the protection afforded by article 19 (1) (a) to (e) and (g), because those rights necessarily cease when personal liberty is lawfully withdrawn. In effect, those rights terminate at the moment lawful detention commences. When interpreted in this manner, article 19 and article 21 can coexist harmoniously, and there is no actual conflict between them. Accordingly, the validity of preventive detention does not hinge on, nor is it determined by, article 19.

In summarising the relationship between personal liberty and the provisions of article 19, the Court observed that the freedom of the person does not flow from article 19. Article 19 merely addresses certain particular rights that originate as attributes of personal liberty but, because of their importance, are treated as distinct and independent rights. The article does not itself confer the general freedom of the person. Specifically, article 19(1)(d) safeguards a precise component of the right of free movement, namely the right to travel freely throughout the territory of India, which is recognized as a special privilege of an Indian citizen and is protected accordingly. The protection afforded by article 19 is co-terminous with a citizen’s legal capacity to exercise the rights it enshrines; sub-clauses (a) to (e) and (g) of article 19(1) presuppose the existence of personal freedom, without which the capacity to enjoy those rights cannot exist. Consequently, a citizen who is lawfully detained—whether because of a criminal conviction or under preventive detention—loses the personal liberty necessary to exercise the rights mentioned in those sub-clauses and therefore holds none of the protections that those sub-clauses provide. The Court therefore concluded that article 19 bears no relevance to the question of the validity of preventive detention, and, as a result, clause 5, which mandates a test of reasonableness to be framed and applied by the Court, has no application in this context. Having set article 19 aside, the Court turned to article 20, which safeguards individuals against ex post facto statutes, double jeopardy, and self-incrimination. Article 20 limits the otherwise absolute legislative power that Parliament or State legislatures might exercise under article 246 and the relevant legislative lists; should a legislature transgress this limitation, the Court will intervene to prevent it. The Court further held that article 20 does not pertain to preventive detention laws and therefore moved on. Addressing article 21, which states, “No person shall be deprived of his life or personal liberty except according to procedure established by law,” the petitioner’s counsel argued that the provision offers only procedural protection to every person, citizen or non-citizen, and does not confer a substantive right to life or liberty, merely prescribing a procedure that must be followed before deprivation. The Court could not accept this argument. It noted that the marginal note to article 21 declares a “protection of life and personal liberty” for every person, and the Court read the article as defining a substantive fundamental right that is protected, not as a provision that merely commands a specific procedure.

In the judgment the Court explained that the phrase “no person shall be deprived of his life or personal liberty except according to procedure established by law” expresses a substantive fundamental right that the Constitution protects. The Court understood that the declared purpose of Article 21 was to delineate the scope of the right to life and personal liberty that is guaranteed as a fundamental right. It further observed that the right conferred by Article 21 was not an unrestricted or absolute right; rather, it was a qualified right that could be limited only through a procedure that had been established by law. The language of the article therefore acted as a limitation, indicating that deprivation of life or liberty could occur only if it followed a law-prescribed process. By framing the right in this way, the article also imposed a corresponding duty on the State to observe an appropriate procedure before it could deprive any individual of life or personal liberty. The Court noted that the article itself did not aim to specify or prescribe the exact nature of that procedure; its role was merely to require that some lawful procedure be in place, without dictating its detailed content.

The Court then turned to the argument put forward by counsel for the petitioner, who contended that Article 21 itself prescribed a procedure. According to that counsel, the procedure referred to in the article comprised the fundamental, immutable rules of due process that are sanctioned by the principles of natural justice and are accepted universally across all times and places. The Court said that before deciding whether such a principle could be incorporated into the Constitution, it first needed to determine the meaning of the expression “procedure established by law.” It held that the word “procedure” in Article 21 should be understood to denote a step, method, or manner of proceeding that leads to the possible deprivation of life or personal liberty. The statute, therefore, required that this procedure be “established by law.” Referring to the Oxford English Dictionary (Vol. III, p. 297), the Court noted that “establish” meant, among other things, “to render stable or firm; to strengthen by material support; to fix, settle, institute or ordain permanently by enactment or agreement.” Similarly, Dr. Annandale’s edition of the New Gresham Dictionary defined “establish” as “to found permanently; to institute; to enact or decree; to ordain; to ratify; to make firm.” From these definitions, the Court concluded that “established” in its ordinary sense included the meaning “enacted.” Consequently, the phrase “established by law” should be interpreted as “enacted by law.” Accepting this sense of “established” meant that the word “law” must refer to legislation made by the State and could not be understood to mean the principles of natural justice, since no procedural rule could ever have been “enacted” by those principles. The Court illustrated this point by observing that when Section 124-A of the Indian Penal Code speaks of a “government established by law,” it clearly refers to a government created by statutory enactment, not by the abstract concept of natural justice.

The Court observed that the expression “government established by natural justice” could not be the intended meaning. Accordingly, the phrase “procedure established by law” was held to refer to a procedure enacted by the State, which, under the definition provided in Article 12, includes the Parliament. Applying the fundamental rule of statutory interpretation—that the words of a statute must be given their ordinary natural meaning—left no alternative construction. This approach introduced no novelty, because at the time the Constitution came into force the procedural law governing both civil and criminal matters in the country was largely, if not wholly, a product of statute. The earlier Hindu and Muhammadan procedural systems had been abolished and replaced by the Code of Civil Procedure and the Code of Criminal Procedure. Consequently, a procedure “established by law” was entirely consistent with a procedure “enacted by law.”

The Court then considered the possible interpretation of “established” as meaning “sanctioned,” “settled,” or “made firm,” which would raise the question of what “law” signified in that context. Reference was made to Salmond’s Jurisprudence (10th edition, p. 37), which notes that the term “law” can be employed in two senses, and it was suggested that in the phrase “established by law” the word might denote law in its abstract sense—that is, the principles of natural justice, or “jus” rather than “lex.” Counsel for the petitioner advanced this argument, pointing out that English and Indian jurisprudence have, in numerous cases, recognized and applied principles of natural justice and that the Court should adopt the same interpretative approach for constitutional provisions. The Court found this approach difficult to accept, given the clear meaning of “law” in the other constitutional articles. Article 14, while embodying a principle of natural justice by guaranteeing equality before the law, refers to state-made law, because natural justice itself speaks of equality before law only when the state’s legislation provides that equality. The expression “in accordance with law” in Article 17 likewise pertains to state law, as does the word “law” in Article 20(1). The same interpretation applies to the phrases “in accordance with law” in Articles 23, 31 and 32. Since natural justice does not impose taxes, the term “law” in Articles 265 and 286 must also denote state-made law. Accepting this meaning leaves no room for introducing principles of natural justice into Article 21; therefore, “procedure established by law” must mean a procedure established by law made by the State, which, as defined, includes Parliament and the

In discussing the legislatures of the States, the Court referred to several textbooks and judicial decisions that trace the evolution of the American doctrine of “due process of law,” and noted that counsel had urged the adoption of those principles in the Indian Constitution. The Court emphasized that this issue required examination within its historical context. It observed that English settlers who migrated to various regions of America brought with them English common law, which functioned as a personal law that regulated their mutual rights and liberties as well as the relationship between the individuals and the State. After the War of Independence, the United States drafted written constitutions to replace the colonial framework. The Court pointed out that most of the framers of those constitutions were lawyers who had studied closely the Commentaries of the eminent English jurist Sir William Blackstone, whose famous work advocated the separation of the three limbs of government – the executive, the legislature and the judiciary. It further noted that Montesquieu’s Spirit of Laws had already been published, in which Montesquieu offered a broader and more emphatic articulation of the Aristotelian doctrine of separation of powers. The Court recorded that the framers of the American Constitution were impressed by their experience of the repressive statutes of the British Parliament, which convinced them that every legislative body tended to seize powers that were not within its jurisdiction. The Court added that colonial governors had also interfered with both legislation and the administration of justice, creating a grievance that reinforced the desire for constitutional safeguards. Consequently, according to the Court, the combination of this adverse experience and the prevailing political philosophy prompted the American founders to embed protections not only against executive overreach but also against legislative encroachment. The Court cited a scholarly work, noting “See Munro on the Government of the United States, 5th Edition, Chapter IV, p. 53 et seq.”. It then quoted Judge Cooley’s observation from Constitutional Limitations, 6th Edition, Vol. II, Chapter XI, p. 755: “The people of the American States, holding the sovereignty in their own hands, have no occasion to exact any pledges from any one for a due observation of individual rights; but the aggressive tendency of power is such that they have deemed it of no small importance, that, in framing the instruments under which their governments are to be administered by their agents, they should repeat and reenact this guarantee, and thereby adopt it as a principle of constitutional protection.” The Court remarked that there could be little doubt that the citizens of the various American States intended to eliminate any risk to their life, liberty or property, even from the legislative branch. Referring to Munro’s discussion on pages 58-61, the Court reproduced the passage: “The framers of the Constitution set boundaries to the powers of the Congress, and it was their intent that these limitations should be observed. But how was such observance to be enforced by the Courts? The statesmen of 1767 did not categorically answer that question.” The Court concluded that the original Constitution contained no explicit provision designating an umpire to adjudicate instances where Congress exceeded its legislative authority. By the time the Fifth Amendment was adopted, the principle now known as the “due process clause” had emerged to address this lacuna.

In this discussion, the Court noted that the phrase “due process clause” first appeared in the Federal Constitution, and that the Fourteenth Amendment introduced a comparable clause into the State Constitutions. Some State Constitutions expressed the guarantee with the words “due course of law,” others reproduced the language of the Magna Charta, namely “the law of the land,” while the majority employed the expression “due process of law.” All of these formulations conveyed the same principle: no individual could be deprived of life, liberty, or property except in accordance with due process of law. By embedding this provision, the Constitution afforded the Supreme Court the possibility of reviewing national statutes and declaring them unconstitutional. Under the leadership of Chief Justice John Marshall, the Court seized that opportunity and asserted the authority to be the final arbiter of constitutional questions, a power it continues to exercise today, as noted by Munro (p. 62). The American courts have interpreted “due process of law” in varying ways over time. Carl Brent Swisher, in his work on the growth of constitutional power in the United States, described three historical phases. In the first phase, covering roughly the first hundred years of the Republic, “due process” was understood mainly as a limitation on governmental procedure, especially judicial procedure, used to exercise governmental powers. In the second phase, extending roughly to 1936, the concept was broadened to restrain not only procedure but also the substantive content of governmental actions. In the third phase, from 1936 to the present, the substantive application of “due process” has been largely set aside, returning the doctrine chiefly to its original procedural character. In interpreting “due process of law,” the American courts have gone farther than even Lord Coke anticipated. Over time the courts gradually assumed the power to invalidate any legislation they deemed unreasonable. Initially, the courts limited themselves to demanding a fair procedure before a person could be deprived of life, liberty, or property. Subsequently, “due process of law” was applied to personal liberty, social regulation, jurisdictional matters, and even substantive law, as observed by Willis (p. 642). Munro described “due process of law” as a kind of palladium that shields all individual rights. Although the Supreme Court never provided a precise definition of the phrase, it employed the concept to strike down statutes it considered unreasonable, as Willis notes (p. 657). In Holden v. Hardy, the Court remarked that it has never endeavored to define the words “due process of law” with exactness, but it suffices to state that there exist certain immutable principles of justice inherent in the very idea of free government, principles that no member of the Union may disregard.

In Taylor v. Peter, Justice Bronson observed that the phrase “by the law of the land” used in the Constitution does not refer to a statute enacted solely for the purpose of doing wrong. He warned that such a construction would render the restriction absolutely nugatory and would turn that part of the Constitution into mere nonsense. According to his reasoning, the people would be forced to say to the two Houses: “You shall be vested with the legislative power of the State, but no one shall be disenfranchised or deprived of any of the rights or privileges of a citizen unless you pass a statute for that purpose.” In other words, the legislature would be permitted to do the wrong only if it chooses to do so. This observation led the Supreme Court of the United States to firmly establish its own supremacy over the other two limbs of the State, namely the executive and the Congress. John Dickinson, quoted in Munro at page 61, is cited as saying, “The Judges of Aragon began by setting aside laws and ended by making them.” All this sweeping development could only be possible because of the presence of one little word “due,” which in its content knows no bound and is not subject to any fixed definition. Whenever a substantive law or some procedure laid down in any law did not find favour with the majority of the learned judges of the Supreme Court it was deemed unreasonable and therefore it was not “due.” (1) 169 U.S. 366 at p. 389. The very large and nebulous import of the word “due” was bound to result in anomalies, for what was not “due” on one day according to the judges then constituting the Supreme Court became “due” say twenty years later according to the new judges who then came to occupy the bench, for the Court had to adapt the Constitution to the needs of a society that were continually changing and growing. The larger content of due process of law, which included both procedural and substantive due process of law, had of necessity to be narrowed down, for social interest in personal liberty had to give way to social interest in other matters which came to be considered of more vital interest to the community. This was achieved by the Supreme Court of the United States evolving the new doctrine of police powers—a peculiarly American doctrine. Police powers are nowhere exhaustively defined. In Chicago B. & Q. Ry. v. Drainage Commissioner, the court stated that “police power” embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals or the public safety.” (1) Reference in this connection may be made to Cooley’s Constitutional Limitations, 8th Edition, Vol. II, p. 1223 and to Chapter XXVI of Willis at p. 727. The nett result is

It was observed that the once broad and indefinite doctrine of due process of law in the United States had, through the articulation and use of the newer doctrine of police power, been reduced to its original character as a procedural due process of law, the police power acting as a remedy or soothing influence to the former doctrine, though it remained uncertain when the balance might shift again. The discussion then turned to what is commonly described as procedural due process of law, noting that the concept had been expressed in various terms in different decisions. In the case of Westervelt v. Gregg, Judge Edwards explained that due process of law unquestionably means, in the ordinary course of legal proceedings, the rules and forms that have been established for the protection of private rights, as reported at 204 U.S. 561, 592 and 12 N.Y. 202. A more detailed definition of the phrase “the law of the land” as procedural due process was offered by Webster, who appeared as counsel for the plaintiff in error in the Trustees of Dartmouth College v. Woodward. He stated that “the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry and renders judgment only after trial.” He further explained that this meaning requires that every citizen enjoys his life, liberty, property and immunities under the protection of the general rules that govern society, and that anything that merely takes the form of an enactment should not automatically be regarded as the law of the land. Willis, in Chapter XXIII of his treatise (page 661), observed that the guarantee of due process of law as a procedural matter means that no part of a person’s personal liberty, including ownership, may be taken away except by observing certain formalities, and that the purpose of this guarantee is to protect the social interest in personal liberty. On the following page (662), Willis listed the essential elements of procedural due process as: (1) notice; (2) an opportunity to be heard; (3) an impartial tribunal; and (4) an orderly course of procedure. He summarized that procedural due process requires that a person who might be deprived of life, liberty or property must be afforded “his day in Court.” Willoughby, citing page 736 of his work, elaborated that this “day in Court” includes: (1) appropriate notice, whether actual or constructive, of the initiation of proceedings that could affect the person’s legal rights; (2) a reasonable chance to appear and defend those rights, including the right to testify, to call witnesses, and to submit relevant documents and other evidence; (3) a tribunal before which the rights are adjudicated that is constituted so as to provide reasonable assurance of its honesty and impartiality, as noted in Wheaton at page 579 and the fourth edition at page 645; and (4) the requirement that the tribunal be a court of competent jurisdiction. The commentary noted that the fourth requirement identified by Willoughby differs from the fourth requirement listed by Willis.

In this case the Court described the development of the United States doctrine of the process of law and the procedural due-process requirements as articulated by the American Supreme Court. The petitioner’s counsel did not argue that the entire American doctrine of due process should be adopted in India, but rather urged that the procedural component be taken and that no individual be deprived of life or personal liberty except in accordance with the formalities demanded by justice and fair play. While the petitioner’s submissions were compelling at first glance and struck a sympathetic chord, the Court, after careful consideration, identified several insurmountable objections to incorporating the American procedural due-process doctrine into the Indian Constitution. The Court observed that such a doctrine functions effectively only where the legislature is subordinate to the judiciary, permitting the latter to review every legislative action. In a system where the legislature is supreme, this model cannot be applied. The Court contrasted this with the English position, noting that the doctrine of “due process of law” differs markedly because Parliament holds supreme authority. To illustrate this distinction, the Court quoted Justice Mathews in Joseph Hurtado v. People of California (1) at p. 531, emphasizing that the Magna Charta’s guarantees were extracted from the King to protect against oppression, not to limit Parliament’s power, and that English history did not regard bills of attainder, ex post facto statutes, or forfeiture laws as inconsistent with the law of the land. The Court further explained that, despite references to Lord Coke in Bonham’s case, Parliament’s omnipotence over the common law remained absolute, even against common sense and reason. In England, the real safeguard for liberty against legislative tyranny was the free public opinion embodied by the Commons, while written constitutions, such as those in the United States, were deemed essential to protect rights against governmental overreach, incorporating Magna Charta provisions into bills of rights as limits on all branches of government. The Court stressed that this fundamental divergence between the two systems must not be overlooked if conceptual confusion is to be avoided. Although the Indian Constitution imposes certain constraints on legislative power, it nevertheless leaves Parliament and the State Legislatures supreme within their respective legislative domains, except for the limited restrictions expressly provided for in the Constitution.

Subject to the limitations that have been previously identified, the Constitution favours the supremacy of the Legislature over that of the Judiciary. Because of this, the English concept of due process of law aligns more closely with the Constitution than the American doctrine of due process, which was developed for a substantially different system of government. The colourful remarks of Justice Bronson, which were cited earlier, may be appropriate when discussing the American Constitution—where Congress does not claim supreme authority—but those remarks are entirely misplaced when applied to a constitution such as ours. Our Constitution, apart from a few expressly stated restrictions, recognises that each Legislature possesses supremacy within its own legislative sphere. It is well known that the framers of the Constitution deliberately rejected the uncertain and constantly evolving American notion of due process of law. In place of the phrasing “except in due process of law” that appeared in the original draft, they inserted the clearer language “except in accordance with procedure established by law.” To attempt to import the American doctrine in spite of this deliberate substitution would only obscure and distort the intention of Article 21 of the Constitution.

Considering the plain meaning of the language of Article 21, as previously interpreted, it is impossible to admit the principles of natural justice that the United States Supreme Court incorporates under its procedural due-process clause. Even the ubiquitous word “due” does not appear in Article 21 to qualify the procedure; the article refers simply to “procedure,” not to a “due procedure,” and therefore the Court’s “intellectual yardstick” cannot be applied. Moreover, it would be inconsistent to introduce the doctrine of due process of law without also adopting its accompanying concept of police powers, which cannot be read into Article 21. Some have suggested a compromise whereby the Court would occupy a middle ground between the flexible natural-justice principles found in the American doctrine of due process and the strict rigidity of statutes enacted by the State. It has been argued that the Code of Criminal Procedure already contains salutary procedural principles, and that these should be treated as “procedure established or settled by positive law.” However, such an approach raises difficult questions: which principles are fundamental, which are inessential, and which should be embraced as essential? What a judge regards as fundamental today may not be seen the same way by another judge a decade later, because principles evolve with changing social conditions. In the United States, it was once proposed that due process of law should be understood as the body of common law existing at the time the Constitution was adopted. In Bardwell v. Collins this view was rejected, with the Court stating that “‘Due process of law’ does not mean the general body of the law, common and statute, as it was at the time the Constitution took effect …”

The Court observed that the phrase “due process of law” does not refer to the entirety of the law, whether common or statutory, as it existed at the moment the Constitution became operative; such an interpretation would unduly restrain the legislature from altering or amending the law. The Court further noted that it had previously introduced principles of natural justice under the due-process clause, citing the American case 44 Minn. 97. The Court warned that if it were to treat the basic principles underlying the Code of Criminal Procedure as immutable, it would forbid the legislature from improving or updating those principles. This, the Court said, would amount to imposing a restriction on the legislature that the Constitution itself does not prescribe. The Court expressed the view that undertaking such a step would be an impermissible and hazardous venture, likely to cause legal stagnation and ultimately lead to ruin. Accordingly, the Court emphasized the necessity of accepting the Constitution as the supreme law. It pointed out that Article 21 of the Constitution mandates the existence of a procedure, while Article 22 prescribes certain minimum procedural safeguards. To add further requirements beyond those provisions, the Court explained, would not be an act of constitutional interpretation but rather a reconstruction of the Constitution according to the Court’s own intellectual standards and unconscious preferences for an ideal Constitution.

In the Court’s judgment, Article 21 was described as conferring a substantive fundamental right to life and personal liberty. However, this right was characterized as limited rather than absolute, its scope being circumscribed by the possibility of deprivation through a procedure established by law enacted by the appropriate legislative authority. The Court stressed that the primary purpose of Article 21 is not to dictate a specific procedural scheme. The Court reminded that when the Constitution came into force, the Indian Penal Code defined numerous offences, and conviction for any of those offences resulted in the deprivation of personal liberty. Under Article 246 read with Entry 1 of the Concurrent List, Parliament or a State Legislature could legislate additional offences, thereby creating further avenues for the removal of personal liberty. Nevertheless, any such deprivation resulting from a conviction could only occur if the procedure prescribed by the Code of Criminal Procedure was followed.

The Court further observed that at the time the Constitution was adopted, each province possessed preventive detention statutes, which also permitted the deprivation of personal liberty. Those statutes, however, provided their own procedural mechanisms that had to be observed. Consequently, prior to the Constitution’s commencement, personal liberty could be withdrawn only by adhering either to the procedure laid down in the Criminal Procedure Code for punitive detention or to the procedures stipulated in the various Security Acts for preventive detention. The Court noted that Parliament and State Legislatures have been empowered, under Article 246 read with Entry 2 of the Concurrent List, to enact laws concerning criminal procedure. The Court implied that if Article 246 operated in isolation, the legislature could theoretically repeal the entire Criminal Procedure Code and even eliminate the procedural safeguards contained in the Security Acts, thereby allowing the removal of life or personal liberty without any procedural guard. This absolute legislative supremacy, the Court explained, is curtailed by Article 21, which limits the substantive right to life and liberty by reference to a required procedure, and by Article 22, which sets out the minimum procedural standards that must be observed.

The Court observed that a State Legislature possessed the authority to repeal the entire Criminal Procedure Code and to eliminate even the minimal procedural framework set out in the various Security Acts. It noted that if article 246 were considered in isolation, the legislature could theoretically remove a person’s life or personal liberty without any procedural safeguards. However, the Court explained that this absolute legislative supremacy had been restrained by article 21, which defined the substantive right to life and personal liberty in terms of an accompanying procedure, and by article 22, which prescribed the minimum procedural requirements that must be satisfied. Consequently, the Court’s role was limited to determining whether the law under challenge had indeed prescribed some procedure and whether that procedure fulfilled the essential requirements of article 22. If the law satisfied these criteria, the Court would not impose a more elaborate procedure of its own choosing, nor would it question the wisdom of the legislature in enacting a provision that might appear harsh, unreasonable, outdated, or objectionable. The Court rejected the contention that such a strictly technical interpretation of article 21 would reduce the provision to a non-fundamental right, arguing that under this view every individual’s life and liberty would be left entirely to the whims of the legislature, which could deprive a person of life or liberty at its pleasure merely by providing a rudimentary procedure that met article 22’s minimal standards. The Court addressed this line of argument by asserting that article 21, as interpreted, protected every person against executive action and therefore deserved its placement among the fundamental rights, comparable to the historic freedoms guaranteed by the famous thirty-ninth Chapter of the Magna Carta. Moreover, the Court held that article 21 read together with article 32 afforded some protection against legislative excess, because any deprivation of life or personal liberty must be effected in accordance with a procedure, however legislatively enacted, that at least conforms to article 22’s requirements. Subject to this limitation, Parliament or any State Legislature could enact any law and prescribe any procedure it deemed appropriate for depriving a person of life or liberty under article 21. In the Court’s view, such a law, made by the competent legislative authority under article 246 and observing the procedural safeguards of article 22, did not diminish or abridge the right guaranteed by article 21, since the Constitution itself allowed the legislature to define the procedure within the bounds set by the minimum procedural guarantee.

The Court observed that the right granted by the article is limited by the possibility or risk of deprivation, and therefore a law exercising that power does not violate article 13 (2). It explained that the Constitution represents a compromise between the principle of parliamentary supremacy as found in England and the principle of judicial supremacy as seen in the United States. Subject to the specific limitations that the Court had identified as justiciable, the Constitution accepts the supremacy of the legislative body. Consequently, the Court said, the nation must be prepared to endure occasional irregularities of the legislature and to tolerate enactments such as the infamous English statute mentioned by counsel for the petitioner, which prescribed that the Bishop of Rochester’s cook be boiled to death. The Court reasoned that if a Parliament may lawfully authorize death by hanging, there can be no logical objection to it authorising death by shooting, by a firing squad, by guillotine, by electric chair or even by boiling in oil. The Court further noted that a legislative procedure might offend its own sense of justice or fairness, and a legislative sentence might shock its ideas of penology, but such considerations are wholly irrelevant to the constitutional analysis. The Court affirmed that it can interpret the Constitution and determine its true meaning, but once that meaning is established it cannot question the wisdom or policy underlying the legislative measure. The Constitution, the Court stressed, is supreme, and the Court must accept it as it stands, even if it does not match any preconceived notion of an ideal Constitution. The Court added that any protection against legislative tyranny ultimately depends on a free and informed public opinion that will eventually assert itself.

The Court continued that its conclusion introduced no novelty, because many other constitutions also recognise legislative supremacy in matters of depriving a person of life, liberty or property. It cited the English Democratic Constitution as an example. The Court then referred to the Constitution of the Irish Free State, noting that article 40(4)(i) provides that no citizen shall be deprived of personal liberty except in accordance with law, and article 50(5) guarantees that every citizen’s dwelling is inviolable and may not be forcibly entered except in accordance with law. The Court interpreted the phrase “in accordance with law” in both clauses to mean law made by the State, since no natural-justice rule concerning searches or entry was referenced. It also examined article 107(2) of the Czechoslovakian Constitution, which uses the same phrase, and read it together with clause (1) of that article to mean law that will form part of the Constitution. Finally, the Court mentioned the Constitution of the Free City of Danzig, specifically article 74 in Part II titled “Fundamental Rights and Duties,” illustrating once more that the expression “in accordance with law” is understood to refer to statutes enacted by the legislative authority.

The Court noted that the Constitution of the Free City of Danzig declares that “The liberty of the person shall be inviolable. No limitation or deprivation of personal liberty may be imposed by public authority, except by virtue of a law.” The Court explained that the term “law” in that provision cannot be read to refer to principles of natural justice. Article 75 of the same Constitution protects the freedom of movement within the City, the right to reside and settle anywhere, to acquire real property and to earn a living, and it further provides that this right may not be curtailed without legal sanctions. The Court held that “legal sanctions” in this context can only mean sanctions derived from the statutes of the City. The Court then observed that Article 114 of the Weimar Constitution expresses essentially the same principle in language that mirrors Article 74 of the Danzig Constitution. Turning to the Japanese Constitution of 1946, from which our own Article 21 is said to have been drawn, the Court cited Article XXXI, which states: “No person shall be deprived of life or liberty nor shall any other criminal penalty be imposed, except according to procedure established by law.” The Court reasoned that the words “except according to procedure established by law” when applied to the imposition of a criminal penalty must refer to law made by the State, and that the same wording in the same sentence cannot, according to ordinary rules of statutory construction, be given a different meaning when applied to deprivation of life or liberty. While acknowledging that it is not proper to interpret one Constitution by reference to another, the Court indicated that a reading of the cited provisions shows clearly that there is no compelling reason inherent in written constitutions that requires the insertion of natural-justice principles or the American doctrine of due process of law into our Constitution. The Court observed that none of the constitutions mentioned had adopted the American doctrine; instead they left the protection of life and liberty to the statutes enacted by their legislatures, and that our Constitution is no different in this respect. Consequently, despite the very able and persuasive arguments presented by counsel for the petitioner, which the Court freely acknowledges, the Court is not convinced that any scope exists for introducing the doctrine of due process of law into Article 21 of our Constitution, even as regards procedural matters. The Court added that whether it likes this result or not is a consequence of its interpretation of the Constitution as it stands. The Attorney-General referred to certain debates in the Constituent Assembly concerning the original clause that later became Article 21, not as evidence for interpreting the language of Article 21 but merely to disclose the historical background. He stated that his purpose was to demonstrate what the framers intended.

The Court observed that the framers of the Constitution understood the essential difference between the expressions “due process of law” and “according to procedure established by law”; they recognized that the former conferred supremacy on the judiciary while the latter conferred supremacy on the legislature, and, with that knowledge, they deliberately chose to reject the former expression and adopt the latter. The Court held that the language of article 21 could be interpreted by applying the ordinary rules of statutory interpretation, and therefore it found it unnecessary to examine the constitutional debates. Since the Court did not intend to rely on those debates for the purpose of the present case, it expressed no view on whether the debates were admissible. Turning then to article 22, the Court noted that counsel for the petitioner argued that the phrase “according to procedure established by law” in article 21 incorporated the four requirements of American procedural due process of law as summarized by Willis, and that, except where article 22 expressly altered or abridged those requirements, they must be strictly followed before any person could be deprived of life or personal liberty. The Court reiterated its earlier conclusion that there was no room to import any rule of natural justice, any American procedural due-process principle, or any underlying principle of the Code of Criminal Procedure into article 21. Consequently, the Court found that the petitioner’s principal assumption was absent, and that the argument could not be accepted. The Court also considered the Attorney-General’s contention that article 21 had no relation to preventive detention, which he said was fully covered by sub-clauses (4) to (7) of article 22 and therefore formed a complete code. The Court declined to adopt this extreme position as well. Instead, it placed the correct view between the two extremes. According to the Court, article 21 safeguards life and personal liberty only to the extent specified in its text; it does not declare those rights to be absolute, but rather limits their scope. The definition in article 21 reduces the absolute right by subjecting it to the possibility of deprivation in accordance with a law-established procedure. This circumscribed right, the Court explained, is substantively protected by article 21 against both the executive and the legislature, because the Constitution conditions any deprivation on the existence of a procedure established by law made by the legislature itself. While sub-clauses (2) to (6) of article 19 impose certain limits on fundamental rights, article 21, together with article 22, delineates the boundaries of state power under article 246 and the legislative lists.

In this case the Court explained that while fundamental rights of citizens are limited by the Constitution, articles 21 and 22 also place limits on the power of the State that is derived from article 246 together with the legislative lists. The Constitution therefore creates a balance: the rights of individuals, as set out in article 19, are subject to certain restrictions, and at the same time the State’s authority is checked by the guarantees contained in articles 21 and 22. The Court observed that preventive detention removes a person’s personal liberty in the same manner as punitive detention, and consequently the right to personal liberty—though it is already qualified by the possibility of its deprivation—must be protected against both punitive and preventive forms of confinement. The wording of article 21, the Court noted, is broad and sufficiently general to afford limited protection of personal liberty against every type of detention. It therefore safeguards an individual from being subjected to preventive detention by the executive unless such detention is authorised by a law made by the legislature. Moreover, article 21 forbids the legislature from depriving a person of personal liberty except in accordance with a procedure established by law, wherein the law itself must be validly enacted. The Court then addressed the contention advanced by the learned Attorney-General, which the Court had previously accepted, that article 19 protects the rights of a free citizen only so long as he remains free and does not contemplate total deprivation of liberty, and that article 21 does not shield a person from preventive detention. The Court asked where the protection for life and personal liberty would reside as substantive rights if the procedural provisions of article 22 were the only safeguard. It further questioned the usefulness of procedural protection in the absence of any substantive right. In reaching its conclusion, the Court held that article 21 indeed protects substantive rights by imposing a requirement of procedure, while article 22 provides the minimum procedural safeguards. Specifically, clauses (1) and (2) of article 22 prescribe the steps that must be followed when a person is arrested. These clauses guarantee four essential protections: first, the arrested person must be informed of the grounds of arrest; second, the person has the right to consult and be defended by a legal practitioner of his choice; third, the person must be produced before a magistrate within twenty-four hours; and fourth, the person cannot be detained beyond that period except by order of the magistrate. The Court noted that these four procedural requirements closely correspond to the procedural due-process standards identified in the jurisprudence of Willis and that similar safeguards are also embodied in the Code of Criminal Procedure. The Court then considered why article 21, which already encompasses principles of natural justice and reflects the underlying principles of the criminal procedure code, appeared to be repeated in article 22. It explained that article 21 does not prescribe a particular procedural mechanism; rather, it merely envisions the necessity of a procedure to protect life and personal liberty. Consequently, article 22 was enacted to lay down the minimum procedural rules that must be observed.

In its discussion, the Court observed that the procedural safeguards set out in the Constitution could not be overridden or ignored even by Parliament, particularly where punitive detention was involved. However, the Court noted that clause three of article twenty-two explicitly stated that the procedural guarantees contained in clauses one and two would not apply to an alien enemy or to any person who was arrested or detained under a law that provided for preventive detention. Accordingly, the Court explained that a person detained in such circumstances was not required to be produced before a magistrate, nor was he entitled to the assistance of a lawyer for consultation or for defence. The Court emphasized that this exemption was a clear constitutional provision, and therefore no one could question its wisdom or validity. Having recorded this principle, the Court then turned to clauses four, five, six and seven of article twenty-two, which it identified as relating specifically to preventive detention.

The Court further explained that article two hundred and forty-six authorized the appropriate legislature to enact a law for preventive detention pursuant to entry nine of List I and/or entry three of List III of the Seventh Schedule. The Court pointed out that this legislative power was subject to several limitations imposed by article twenty-two, clauses four through seven. Under these limitations, the Court said, both Parliament and a State Legislature were reminded that no law they might make for preventive detention could authorize detention for a period longer than three months, except in the two circumstances described in sub-clauses (a) and (b). The Court observed that the proviso to sub-clauses (a) and (b) referred only to a law made by Parliament under clause seven, and that clause seven reserved to Parliament alone, and not to any State Legislature, the authority to prescribe the matters enumerated in its three sub-clauses. Consequently, the Court noted, while a State Legislature could legislate for preventive detention under entry three of List III, such a law could not permit detention beyond three months unless the provisions of sub-clauses (a) and (b) of clause four were satisfied. Similarly, the Court held that even a law enacted by Parliament could not exceed the three-month limit unless it was enacted pursuant to the provisions of clause seven. In summary, the Court described clause four of article twenty-two as imposing a substantive limitation on legislative power with respect to the duration of preventive detention, while also prescribing a procedural mechanism—namely, the constitution of an advisory board—for cases in which detention might extend beyond three months. The Court then turned to clause five, which it said laid down the mandatory procedure to be followed when a person was detained under any preventive-detention law: (a) the grounds for the detention order had to be communicated to the detainee as soon as possible, and (b) the detainee had to be given the earliest opportunity to make a representation against the order. The Court explained that the first requirement served the purpose of notice, and the second requirement served the purpose of a defence or hearing. The Court concluded that these two requirements were the only compulsory procedural safeguards mandated by the Constitution, although the Legislature remained free to provide a more elaborate procedural scheme for preventive detention if it chose to do so.

In this case the Court observed that the legislature is not required to go beyond the procedure envisioned by article 21 when it also obeys the compulsory safeguards laid down in article 22; if a preventive-detention law contains a procedure that meets those constitutional requirements, no constitutional objection can be sustained against the law. Counsel for the petitioner admitted that the four procedural-due-process requirements summarized by Willis must be adapted when they are applied to preventive detention, and therefore he did not press for a prior notice of arrest, recognising that such a requirement could defeat the purpose of preventive detention by allowing the suspected person to escape. He accepted that clause (5)’s provision of the grounds for detention serves as an adequate substitute for notice, and he did not demand that the body which assesses the reasonableness of the detention be a strictly judicial tribunal; he was satisfied if the advisory board or tribunal named in article 22 acted impartially, examined the merits of the order and rendered a decision that bound the executive government. He insisted only that the detainee be given a reasonable and effective opportunity to present a defence, without insisting on the assistance of counsel because the Constitution expressly removes that right. Nonetheless, he required that the detainee be heard in person before an impartial tribunal that could freely scrutinise the grounds of detention and whose decision would be binding both on the detainee and on the authority effecting the detention. The Court stressed that the issue before it was not the reasonableness of the provisions of article 22 (4)-(7), for those provisions are constitutional commands that are supreme and not subject to judicial alteration; the Court could only interpret, on a proper construction, the protection that the Constitution actually provides. The Constitution supplies the requirement to inform the detainee of the grounds, though it permits the withholding of facts distinct from those grounds under clause (6), and it guarantees a right of representation against the detention order and fixes the maximum period of detention. Beyond those safeguards the Constitution does not provide for a trial before any tribunal, and a right of representation cannot be equated with a right to a full trial. The Court noted that the right of representation is essentially a right to lodge objections, similar to provisions in the Danzig and Weimar constitutions, and that such objections will be considered by the government, even though the orders of detention are ordinarily issued by the District Magistrate, Sub-Divisional Officer or Commissioner of Police.

In the matter, the Court observed that the representation made by a detainee was addressed to the Government, and questioned why it should be presumed that a senior official at the centre of government would be unable to consider the representation impartially and evaluate the propriety of the detention order issued by local officers. The Court noted that clause five of the Constitution did not obligate the provision of any oral representation that a hearing would entail, and that the removal of the provisions of clauses one and two eliminated any notion of a trial or oral defence. While acknowledging that the Court, by its temperament and training, might not entertain such a question, it held that the Court could not challenge the wisdom or policy underlying the constitutional scheme. In the Court’s judgment concerning preventive detention statutes, the only restriction on legislative power was that the legislation must incorporate some procedural safeguards and must at least satisfy the minimum requirements set out in article 22 sections four to seven. No limitation was placed on the substantive content of the law. Consequently, any preventive detention statute that provided a procedure and met the requirements of article 22 (4) to (7) had to be regarded as a valid law, even if the Court found the law to be repugnant in its appearance. Counsel for the petitioner argued that the impugned Act failed to meet even the bare requirements of article 22 (4) to (7). It was pointed out that section three of the Act did not contain an objective test, leaving the authority to define and decide whether a particular individual fell within the legislative categories, and therefore it was claimed that Parliament had not legislated at all but had delegated its legislative power to the executive. The Court found no substance in that contention. Firstly, the objection concerned substantive law rather than procedure, and substantive matters were not subject to judicial scrutiny. Secondly, the contention ignored the fundamental distinction between the delegation of law-making power and the conferral of authority and discretion to execute the law within its framework. The impugned Act had, in fact, set out an ascertainable standard by which the detaining authority could assess the conduct of a particular person. The petitioners further contended that section twelve of the Act did not satisfy clause seven of article 22 for two reasons: (i) that clause seven envisaged a law that prescribed the circumstances and the class or classes of cases in which a person could be detained for more than three months, and a separate law thereafter providing for preventive detention for a period exceeding three months; and (ii) that under clause seven Parliament must prescribe both the circumstances and the class or classes of cases for detention beyond three months. Regarding the first point, the Court saw no necessity for Parliament to enact two separate statutes—one to lay down principles for longer detention and another for the longer period itself. The Court reasoned that the same Act could simultaneously contain the provisions required under sub-clauses (a) and (b) of clause seven, and that clause four (b) already contemplated detention in accordance with any law made by Parliament under those sub-clauses. As for the second point, the argument that Parliament possessed a discretion under clause seven to make a law and was not obliged to make any law, but when it chose to do so it must prescribe both the circumstances and the class or classes of cases for detention beyond three months, was not accepted by the Court, which could not interpret clause seven (a) in the manner suggested by the learned counsel.

In the present case the Court observed that there was no reason for Parliament to enact two separate statutes—one to set out the principles for detention of longer duration and another to provide for the actual detention for such a period. The Court recognized that while a State might be unable to permit longer detention until Parliament enacted a law, Parliament could nevertheless accomplish both tasks within a single enactment. The Court pointed out that clause 4(b) expressly envisions that detention itself be carried out in accordance with any law that Parliament makes under sub-clauses (a) and (b) of clause 7, and therefore the detention could validly be based on the very law that Parliament adopts pursuant to those sub-clauses. Regarding the second contention, the Court noted that the argument claimed Parliament possessed a discretion under clause 7 to make a law and was not obligated to do so, but that once Parliament chose to legislate it must prescribe both the circumstances and the class or classes of cases in which detention longer than three months could occur. The Court could not accept the petitioner’s counsel’s interpretation of clause 7(a). It held that clause 7(a) was an enabling provision permitting Parliament to prescribe two things and that Parliament could prescribe either one, the other, or both. To illustrate, the Court used an analogy of a father who tells his child that he may play table-tennis or badminton but not football; this does not oblige the child to play both permitted sports, merely provides options. Similarly, the Constitution gave Parliament the power to prescribe two matters, without obligating it to prescribe either, unless it chose to do so. The Court therefore read clause 7(a) distributively: Parliament may prescribe the circumstances for detention exceeding three months, and Parliament may also prescribe the class or classes of cases for such detention. This reading, the Court said, was consistent with sound rules of construction. Moreover, the Court observed that the circumstances and the class of cases could overlap, and cited the Full Bench decision in Kshitindra Narayan v. The Chief Secretary (Full Bench No. 1 of 1950), where the same provision was interpreted either as describing circumstances or as providing a classification. In that case, while most judges rejected the contention that only circumstances had been prescribed, one judge held that the provision had prescribed the class of cases but not the circumstances, demonstrating that a classification could itself indicate the circumstances. The Court further noted that classifications might be based on various criteria such as the detainee’s province, age, intended objective, or suspected activity, and that such classifications could serve as the circumstances justifying detention for a period longer than three months. Consequently, the Court concluded that no additional limitation should be read into clause 7(a) of article 22.

In this case the Court observed that the age of a detained person could constitute a basis for classification, just as the purpose that the detained person is alleged to pursue or the activities in which he is suspected of involvement could serve as such a basis. Parliament, the Court noted, had taken five of the six legislative heads enumerated in the statute and divided them into two groups, thereby classifying detainees according to the suspected objectives or activities that threatened the matters specified in the provision. The Court expressed no difficulty with the notion that classification might be based upon the objectives of detainees falling within particular legislative heads, because each head carries a distinct legal meaning that is well understood. Consequently, if a classification exists, the fact that an individual belongs to one of those classes may itself represent the circumstance that justifies his detention for a period exceeding three months. The Court further stated that it would be incorrect, as a matter of statutory construction, to read any additional limitation into clause 7(a) of Article 22. In the Court’s judgment Parliament was not required by clause 7 to set out both the circumstances and the classes, and in substance Parliament had in fact provided for both. The Court acknowledged that a law made by Parliament under Article 22(7) would eliminate the protective function of an advisory board, but reminded that the Constitution itself anticipated that in certain situations or for certain categories of detainees the advisory board might not be appropriate, and therefore entrusted Parliament to legislate for those instances. The Court warned that a preference for an advisory board should not blind the adjudicator to this constitutional aspect. It observed that “circumstances” generally refer to external conditions such as riots, political or communal unrest, or other abnormal situations, and that the framers of the Constitution had envisaged that in such conditions the advisory board could be dispensed with, particularly for detainees deemed more dangerous. While the Court admitted that a more precise specification of circumstances or clearer delineation of classes would be desirable, it stressed that the Constitution does not impose such a limitation and that it is not the role of the Court to amend or add to the Constitution. If a parliamentary enactment proved to be contrary to common sense, the Court suggested that public opinion would eventually compel Parliament to modify it appropriately. Finally, the Court noted the objection that Section 14 of the challenged Act removed or curtailed the right of a detainee to approach the Court through appropriate proceedings.

Both sub-clauses (1) and (2) of Article 32 were explained as dealing with the enforcement of rights that are granted by Part III of the Constitution. The Court observed that the constitutional guarantee allowing a person to move the Court is not intended merely to permit the act of filing a petition; rather, it is intended to enable a person to approach the Court in order to enforce a specific right that falls within Part III. Accordingly, the Court has been vested with the authority to issue directions, orders, or writs for the purpose of giving effect to any such right. Consequently, the Court held that in order for Article 32 to be invoked, the applicant must first demonstrate that he possesses a right conferred by Part III which requires enforcement under Article 32. The Court noted previously that Article 19 does not address the personal liberty of an individual, while Articles 21 and 22 do provide protection by imposing procedural safeguards. Under Article 22(5), the authority that issues an order of detention is required, as soon as possible, to communicate to the detenu the grounds on which the detention order is based. The Court explained that the purpose of this requirement is to give the detenu an opportunity to make a representation against the detention order. The Court then considered a hypothetical situation in which the authority fails to supply any grounds at all, distinguishing this from the factual statements mentioned in Clause 6. In such a circumstance, the detenu would be deprived of a fundamental right because he would be unable to present a representation against the order of detention. The Court further imagined a scenario in which the authority hands the detenu a slip of paper bearing vague scribblings that do not constitute any substantive ground for detention. Even in that case, the detenu could legitimately claim that his right had been violated. He could thereafter approach the Court seeking relief under Article 32, but, because Section 14 of the Act prohibited him from showing the paper with the scribblings, the Court would be unable to determine whether the detenu had actually received the grounds to which he was entitled under Article 22(5). In that situation, the detenu could argue that both his substantive right under Article 22(5) and his constitutional remedy right under Article 32 had been infringed. He could maintain that his remedial rights under Article 32 were violated because he could not demonstrate any infringement of the substantive right under Article 22(5). The Court therefore concluded that Section 14 of the Act, to the extent that it barred the detenu from disclosing the communicated grounds to the Court, was inconsistent with Part III of the Constitution and consequently void under Article 13(2). However, the Court found that Section 14 was severable and did not invalidate the entire Act. Finally, the Court observed that the opinions expressed by Meredith C.J. and Das J. of Patna in Criminal Miscellaneous No 124 of 1950 (Lalit Kumar Barman v. State) and the majority view of the learned judges of the Calcutta High Court in Full were correct and sound.

The Court noted that the decision reported as Bench Case No. 1 of 1950 in the matter of Kshitindra Narayan v. The Chief Secretary appears to be both correct and sound. After reviewing the reasons set out earlier in the judgment, the Court held that the statute challenged by the petition is a valid piece of legislation, with the sole exception of section 14 to the extent that it bars the disclosure of the grounds of detention to the Court. The Court observed that the petitioner before it does not assert that he has been denied proper grounds of detention. Moreover, the Court found that the duration of the petitioner’s confinement under the impugned statute has not exceeded the period of three months prescribed by law. In view of these factual and legal circumstances, the Court concluded that the application for relief should be dismissed. Consequently, the petition was dismissed. The petitioner was represented by counsel S. Subrahmanyam, while the State of Madras and the Union of India were represented by counsel P.A. Mehta.