dedol-hf/india-case-legal-rag huggingface dataset:
tial  in  a free community to strike a just balance  in  the
matter  ?  That a person should be deprived of his  personal
liberty  without a trial is a serious matter, but the  needs
of  society may demand it and the individual may often  have
to  yield  to those needs.  Still the  balance  between  the
maintenance  of  individual rights and public  good  can  be
struck only if the person who is deprived of his liberty  is
allowed  a fair chance to establish his innocence, and I  do
not  see how the establishment of an  appropriate  machinery
giving  him such a chance can be an impediment to  good  and
just government.
     PATANJALI SASTRI J.--This is an application under arti-
cle  32  of  the Constitution of  India  for  releasing  the
petitioner   from  detention  in  jail without  trial  under
directions   purporting to  be issued by  the Government  of
Madras  under the Preventive Detention  Act,  1950,  and  it
has the distinction of being the first application  invoking
the  guaranteed protection of this Court as the guardian  of
Fundamental  Rights  against  alleged  infringement  of  the
petitioner's  right  to  freedom of movement.  As  the  case
involved  issues of great public importance and breaking  of
new  ground it was argued with thoroughness and  ability  on
both  sides, reference being made to more or less  analogous
provisions of the Constitutions of
189
other  countries and in particular the Constitution  of  the
United States of America.
    The petitioner had been under detention previously under
orders passed by the said Government under the Madras  Main-
tenance  of Public Order Act, 1947, but as the  validity  of
that Act and all other   similar local public safety  enact-
ments   had  been questioned in some of the High  Courts  in
India  after the new Constitution came into force, the  Par-
liament  enacted a comprehensive measure called the  Preven-
tive  Detention Act, 1950, (hereinafter referred to  as  the
impugned Act) extending to the whole of India with a certain
exception not material here.
    The  Act came into force on 25th February 1950, and,  on
the  27th February, the Government of Madras,  in  purported
exercise of the powers conferred by the impugned Act and  in
supersession  of earlier orders, directed the  detention  of
the  petitioner,   and the order was served on  him  on  1st
March.  The petitioner contends that the impugned Act and in
particular  sections  3, 7, 10, 11, 19,, 13 and  14  thereof
take  away  or abridge the fundamental right to  freedom  of
movement in contravention of article 13 (2) of the Constitu-
tion and is, therefore, void as declared therein.
    Article 13 is one of a fasciculus of articles which  are
comprised  in  part III of the  Indian  Constitution  headed
"Fundamental Rights."   This Part forms a new feature of the
Constitution  and  is the Indian "Bill of  Rights."   It  is
modelled  on the first ten Amendments of  the American  Con-
stitution   which declare the  fundamental  rights   of  the
American citizen.  Article 12, which is the first article in
this Part, defines "the State" as including the  Governments
and Legislatures of the Union and the States as well as  all
local  and other authorities against which  the  fundamental
rights  are enforceable,  and article 13 (1)  declares  that
all  existing laws inconsistent with the provisions of  Part
III  shall,   to the extent of the inconsistency,  be  void.
Clause  (2) of the article,  on which the petitioner's  con-
tention is primarily founded reads as follows:
190
     "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."
As  the  constitutional inhibition  against  deprivation  or
abridgement  relates only to "the rights conferred  by  this
Part,"  it  is necessary first to ascertain the  nature  and
extent of the right which, according to the petitioner, Part
III has conferred on him, and, secondly, to determine wheth-
er the right so ascertained has been taken away or  abridged
by the impugned Act or by any of its provisions.  The  first
question turns on the proper interpretation of the  relevant
articles  of the Constitution, and the second  involves  the
consideration of the provisions of the impugned Act.
     Mr. Nambiar appearing for the petitioner advanced three
main  lines of argument.  In the first place, the  right  to
move freely throughout the territory of India referred to in
article 19 (1)(d) is of the very essence of personal  liber-
ty, and inasmuch as the detention authorised by the impugned
Act  was   not a "reasonable restriction"  which  Parliament
could  validly impose on such right under clause (5) of  the
article,  the  impugned  Act is  void.   Alternatively,  the
petitioner  had a fundamental right under article 21 not  to
be  deprived  of his personal liberty  except  according  to
procedure established by law, and the impugned Act by autho-
rising  detention otherwise than in accordance  with  proper
procedure took away that right and was therefore void.  And,
lastly,  the provisions of the impugned Act     already  re-
ferred  to were  ultra vires and inoperative  as  Parliament
in enacting  them has overstepped the     ]imitations placed
on its legislative power by article 22 clauses (4) to (7).
     Accordingly,  the  first  question  for   consideration
is  whether article 19 (1) (d) and (5) is applicable to  the
present  case.  "Liberty," says John Stuart Mill,  "consists
in  doing  what one desires.  But the  liberty'      of  the
individual  must be thus far limited--he must not make  him-
self  a  nuisance  to others."  Man, as  a  rational  being,
desires  to do many things, but in a civil society  his  de-
sires have to be controlled, regulated
191
and  reconciled  with the exercise of  similar  desires.  by
other  individuals.   Liberty has, therefore, to be  limited
in order to be effectively possessed.  Accordingly,  article
19,  while  guaranteeing some of the most valued  phases  or
elements of liberty to every citizen as civil1 rights,  pro-
vides  for  their  regulation for  the common  good  by  the
State   imposing  certain "restrictions" on their  exercise.
The power of locomotion is no doubt an essential element  of
personal liberty which means freedom from bodily  restraint,
and detention in jail is a drastic invasion of that liberty.
But the question is: Does article 19, in its setting in Part
III  of the Constitution, deal with the deprivation of  per-
sonal liberty in the sense of incarceration ? Sub-clause (d)
of clause (1) does not refer to freedom of movement simplic-
iter  but guarantees the right to move  freely   "throughout
the  territory of India."  Sub-clause (e) similarly  guaran-
tees  the  right  to reside and settle in any  part  of  the
territory  of India.  And clause (5) authorises the  imposi-
tion of "reasonable restrictions" on these  rights  in   the
interests of the general public or for the protection of the
interests of any Scheduled Tribe.  Reading these  provisions
together,  it  is reasonably clear that they  were  designed
primarily to emphasise the factual unity of the territory of
India and to secure the right of a free citizen to move from
one  place in India to another and to reside and  settle  in
any  part of India unhampered by any  barriers  which   nar-
row-minded provincialism may seek to interpose.  The use  of
the word "restrictions" in the various sub-clauses seems  to
imply,  in  the context, that the rights guaranteed  by  the
article are still capable of being exercised, and to exclude
the idea of incarceration though the words "restriction" and
"deprivation"  are sometimes used as interchangeable  terms,
as restriction may reach a point where it may well amount to
deprivation.   Read  as a whole and viewed  in  its  setting
among  the group of provisions (articles 19-22) relating  to
"Right  to  -Freedom,"  article  19  seems  to  my  mind  to
pre--suppose  that  the citizen to whom  the  possession  of
these fundamental rights is secured retains the substratum
192
of  personal freedom on which alone the enjoyment  of  these
rights  necessarily rests.  It was said that  subclause  (f)
would  militate against this view, as the enjoyment  of  the
right  "to acquire, hold and dispose of property"  does  not
depend upon the owner retaining his personal freedom.   This
assumption is obviously wrong as regards  moveable   proper-
ties,   and  even  as regards  immoveables   he   could  not
acquire or dispose of them from behind the prison bars;  nor
could  he "hold" them in the sense of exercising  rights  of
possession  and control over them which is what the     word
seems  to mean in the context.  But where, as a penalty  for
committing  a  crime or otherwise, the citizen  is  lawfully
deprived of his freedom, there could no longer be any  ques-
tion  of his exercising or enforcing the rights referred  to
in  clause (1).  Deprivation of personal liberty in  such  a
situation  is  not,  in my opinion, within  the  purview  of
article 19 at all but is dealt with by the succeeding  arti-
cles  20 and 21.  In  other words, article 19 guarantees  to
the citizens the enjoyment of certain civil liberties  while
they   are  free,  while  articles  20-22  secure   to   all
persons--citizens  and non-citizens--certain  constitutional
guarantees in regard to punishment and prevention of  crime.
Different criteria are provided by which to measure legisla-
tive  judgments in the two fields, and a construction  which
would bring within article 19 imprisonment in punishment  of
a  crime  committed or in prevention of a  crime  threatened
would,  as it seems to me, make a reductio  ad  absurdum  of
that  provision.  If imprisonment were to be regarded  as  a
"restriction"  of the right mentioned in article 19  (1)(d),
it would equally be a restriction on the rights mentioned by
the other subclauses of clause (1), with the result that all
penal  laws providing for imprisonment as a mode of  punish-
ment  would have to run the gauntlet of clauses (2)  to  (6)
before  their validity could be accepted.  For  instance,the
law  which imprisons for theft would, on that view, fall  to
be justified under clause (2) as a law sanctioning  restric-
tion  of freedom of speech and expression.  Indeed, a  Divi-
sion Bench of the Allahabad High Court,in a recent unreport-
ed decision brought to our notice
193
applied the test of undermining the security of the State or
tending  to  overthrow  it in determining  the  validity  or
otherwise of the impugned Act. The learned Judges  construed
article  19  as covering cases of  deprivation  of  personal
liberty  and held,  logically enough, that inasmuch  as  the
impugned Act, by authorising preventive detention, infringed
the right to freedom of speech and expression,  its validity
should be judged by the reservations in clause (2), and,  as
it  failed to stand that test, it was  unconstitutional  and
void.
  Mr.    Nambiar did not seek to go so far.  He drew a  dis-
tinction  between the right conferred by sub-clause (d)  and
those conferred by the other sub-clauses.  He urged,  refer-
ring  to  Blackstone's Commentaries, that  personal  liberty
consisted  "in moving one's person to whatever  place  one's
inclination  might   direct," and that any law   which   de-
prived   a person  of such power of locomotion was a  direct
invasion  of the right mentioned in sub-clause (d),  whereas
it inter-fered only indirectly and consequentially with  the
rights  mentioned  in the other sub Clauses.   There  is  no
substance in the distinction suggested. It would be  illogi-
cal,  in construing article 19, to attribute to one  of  the
sub-clauses  a scope and effect totally different  from  the
scope  and effect of the others or to draw a distinc-.  tion
between one right and another in the group.  All the  rights
mentioned  in clause (1) are equally essential  elements  in
the liberty of the individual in any civilised and democrat-
ic  community, and imprison, ment operates as an  extinction
of  all  of them alike. It cannot, therefore, be  said  that
deprivation  of personal liberty is an infringement  of  the
right  conferred  by  sub-clause (d) alone but  not  of  the
others.  The  learned  Judges of the  Allahabad  High  Court
realised this and were perfectly logical in holding that the
constitutional  validity of a law providing for  deprivation
of  personal liberty or imprisonment must be judged  by  the
tests  laid  down not only in clause (5) of article  19  but
also in the other clauses including clause (2), though their
major  premise  that deprivation of personal liberty  was  a
"restriction"  within  the meaning of article 19 is,  in  my
judgment, erroneous.
194
It  was  said that preventive detention being a  drasic  re-
striction  of the right to move freely was, in its pith  and
substance,"  within article 19 (1) (d) read with clause  (5)
and  not  within article 21 which deals with crime  and  its
punishment and prevention.  There    is no room here, in  my
opinion,  for the application of the rule of "pith and  sub-
stance."  As  pointed out by the Privy Council  in  Prafulla
Kumar  Mukherjee v. The Bank of Commerce Ltd.,  Khulna  (1),
approving  the observations of the Federal Court in  Subrah-
manyam  Chettiar  v. Muttuswamy Goundan (2),  the  rule  was
evolved  by  the Board for determining whether  an  impugned
statute was, in its true character, legislation with respect
to  matters  within the jurisdiction of one  legislature  or
another  in a scheme of divided legislative power.  No  such
question arises here. What the Court has to ascertain is the
true scope and meaning of article 19 in the context of  Part
III of the Constitution, in order to decide whether depriva-
tion of personal liberty falls within that article, and  the
pith and substance rule will be more misleading than helpful
in the decision of that issue. Article 19, as I have already
indicated,  guarantees  protection for  the  more  important
civil  liberties  of citizens who are in  the  enjoyment  of
their  freedom, while at the same time laying down  the  re-
strictions which the legislature may properly impose on  the
exercise  of  such  rights, and it has nothing  to  do  with
deprivation  of  personal liberty or imprisonment  which  is
dealt with by the succeeding three articles.
    There is also another consideration which points to  the
same conclusion.  The ]Drafting Committee of the Constituent
Assembly, to whose Report reference was freely made by  both
sides during the argument, recommended "that the word liber-
ty should be qualified by the insertion of the word 'person-
al  '  before it, for otherwise it might be  construed  very
widely so as to include even the freedoms already dealt with
in  article  13" (now article 19). The  acceptance  of  this
suggestion shows that whatever may be the generally accepted
(1) 74 I.A. 23.                   (2) [1940] F.C.E. 188.
195
connotation  of  the expression "personal liberty,"  it  was
used  in article 21 in a sense which excludes  the  freedoms
dealt  with in article 19, that is to say, personal  liberty
in the context of Part III of the Constitution is  something
distinct  from  the freedom to move  freely  throughout  the
territory of India.
    It  was further submitted that article 19  declared  the
substantive  rights  of personal liberty  while  article  21
provided the procedural safeguard against their deprivation.
This  view of the correlation between the two  articles  has
found  favour  with some of the Judges in  the  High  Courts
which   have  had occasion to  consider  the  constitutional
validity  of  the impugned Act.  It is, however, to  be  ob-
served that article 19 confers the rights therein  specified
only on the citizens of India, while article 21 extends  the
protection   of   life   and   personal   liberty   to   all
persons--citizens  and  noncitizens  alike.  Thus,  the  two
articles do not operate in a conterminous field, and this is
one reason for rejecting the correlation suggested.   Again,
if  article 21 is to be understood as providing only  proce-
dural safeguards, where is the substantive right to personal
liberty  of non-citizens to be found in the  Constitution  ?
Are  they denied  such  right  altogether ?  If   they   are
to  have  no right of personal liberty,  why  is the  proce-
dural  safeguard in article 21 exended to them ?  And  where
is  that most fundamental right of all, the right  to  life,
provided for in the Constitution ?  The truth is that  arti-
cle  21, like its American prototype in the Fifth and  Four-
teenth Amendments of the Constitution of the United  States,
presents an example of the fusion of procedural and substan-
tive  rights  in  the same provision.  The  right  to  live,
though the most fundamental of all, is also one of the  most
difficult  to define and its protection generally takes  the
form of a declaration that no person shall be deprived of it
save by due process of law or by authority of law. "Process"
or  "procedure"  in this context connotes both the  act  and
the  manner of proceeding to take away a man's life or  per-
sonal liberty.  And the first and essential step in a proce-
dure  established by law for such deprivation must be a  law
made by a competent legislature
196
Authorising such deprivation.  This brings me to the consid-
eration  of  articles  21 and 22 to which  was  deroted  the
greater part of the debate at the Bar.
 These articles run as  follows:
    "21.  No person shall be deprived of his life or person-
al liberty except according to procedure established by law.
       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  necessary for the journey from the place of arrest  to
the  Court  of the magistrate and no such  person  shall  be
detained  in  custody  beyond the said  period  without  the
authority of a magistrate.
(3) Nothing in clauses '(1) and (2) shall apply
(a) to any person who for the time being is an enemy  alien;
or
    (b) to any person who is arrested or detained under  any
law providing for preventive detention.
(4)  No  law providing for  preventive  detention  shall
authorise the detention of a person for a longer period than
three months unless-
    (a) an Advisory Board consisting of persons who, are, or
have been, or are qualified to be appointed as, Judges of  a
High  Court has reported before the expiration of  the  said
period  of three months that there is in its opinion  suffi-
cient cause for such detention:
Provided that nothing in this sub-clause shall'  autho-
rise  the detention of any person beyond the maximum  period
prescribed  by any law made by parliament  under  sub-clause
(b) of clause (7); or
     (b)  such  person is detained in  accordance  with  the
provisions  of any law made by Parliament under  sub-clauses
(a) and (b) of clause (7).
197
    (5) When any person is detained in pursuance of an order
made  under any law providing for preventive detention,  the
authority making the order shall, as  soon as may be, commu-
nicate  to  such person the grounds on which the  order  has
been  made and shall afford him the earliest opportunity  of
making a  representation against the order.
    (6)  Nothing in clause (5) shall require  the  authority
making  any such order as is referred to in that  clause  to
disclose facts which such authority considers to be  against
the public interest to disclose.
(7)  Parliament  may by law prescribe
(a) 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 under any law providing for preven-
tive detention without obtaining the opinion of an  Advisory
Board in accordance with the provisions of sub-clause (a) of
clause (4);
    (b)  the maximum period for which any person may in  any
class or classes of cases be detained under any law  provid-
ing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in
an inquiry under sub-clause (a) of clause (4)."
    Mr.  Nambiar  urged that the word "law"  in  article  21
should  be understood, not in the sense of an enactment  but
as  signifying  the immutable and  universal  principles  of
natural justice--the jus naturale of the civil law--and that
the  expression "procedure established by law"   meant   the
same   thing as that famous  phrase  "due process   of  law"
in  the  American  Constitution in  its  procedural  aspect.
Numerous  American  decisions were cited to  show  that  the
phrase  implied the basic requirements of (1)  an  objective
and ascertainable standard of conduct to which it is  possi-
ble  to conform, (2) notice to the party of  the  accusation
against him, (3) a reasonable opportunity for him to  estab-
lish his innocence, and (4) an impartial tribunal capable of
giving an unbiased judgment Mr. Nambiar conceded that  these
requirements  might have to be modified or adapted  to  suit
the  nature of the particular proceeding and the  object  it
had in
198
view,  as for instance, in a case of  preventive  detention,
previous notice, which might result in the person  concerned
going  underground might be dispensed with  Learned  counsel
insisted that these requirements, being the very core of the
principles  of natural justice which transcended all  State-
made  laws, must be substantially complied with by  any  law
governing  the  process of deprivation of life  or  personal
liberty, subject, of course, to any express provision in the
Constitution sanctioning their relaxation or dispensation in
any case or class of cases.  He also appealed to the  Pream-
ble of the Constitution as the guiding star in its interpre-
tation to support his thesis that, in view of the democratic
Constitution  which  the people of India have  purported  to
give themselves guaranteeing to the citizens certain  funda-
mental rights which are justiciabke, the provisions of  Part
III must be construed as being paramount to the  legislative
will,   as otherwise the socalled fundamental right to  life
and personal liberty would have no protection against legis-
lative action, and article 13 12) would be rendered  nugato-
ry.
There  can  be no doubt that the people of  India  have,  in
exercise of their sovereign will as expressed in the  Pream-
ble,  adopted  the  democratic ideal which  assures  to  the
citizen  the dignity of the individual and  other  cherished
human values as a means to the full evolution and expression
of  his personality, and in delegating to  the  legislature,
the  executive and the judiciary their respective powers  in
the Constitution, reserved to themselves certain fundamental
rights,  socalled, I apprehend, because they have  been  re-
tained  by  the people and made paramount to  the  delegated
powers,  as  in the American model. Madison  (who  played  a
prominent part in framing the First Amendment of the  Ameri-
can  Constitution)  pointing  out the  distinction,  due  to
historical  reasons,  between the American and  the  British
ways  of  securing "the great and essential  rights  of  the
people,"  observed "Here they are secured not by laws  para-
mount  to  prerogative  but by  Constitutions  paramount  to
laws:"   Report on the Virginia Resolutions, quoted in  Near
v. Minnesota (1).
(1) 283 U.S. 697.
109
This  has been translated into positive law in Part  III  of
the  Indian  Constitution, and I agree  that  in  construing