At the stroke of midnight on August 15, 1947, when the world was asleep, and India was awaking to life and freedom, one of its freedom fighters was in prison. This prisoner, otherwise banished to solitary confinement, hoisted the flag within the jail premises, and gave a speech to his fellow prisoners. He was adequately rewarded. A case of sedition was brought against him for inciting hatred against the British. As K.G. Kannabiran puts it in his book ‘Wages of Impunity’, the prisoner argued that “[…] There is some incongruity in bringing me to trial at this time when on the face of it we have just achieved freedom.”
The public prosecutor and magistrate thought that “the advent of Independence was just an event which did not disturb continuity; it did not announce a change in the existing social order.” Thus, his incarceration continued.
He was soon released in October 1947, but the story doesn’t end there. The prisoner in question is A.K. Gopalan, a freedom fighter and communist leader, whose subsequent detention would make the first fundamental rights case, deciding the fate of the newly adopted Indian Constitution. A case which we all have read in law school – A.K. Gopalan v. State of Madras (AIR 1950 SC 27).
A.K. Gopalan, after his release in October 1947, was arrested again in December, under a preventive detention law. He was still in detention when the Constitution was enacted. Later his detention was brought under the Preventive Detention Act of 1950, passed a month after the Constitution came into force. Gopalan challenged his detention, and also questioned the constitutionality of the Prevention Detention Act in light of Article 22 of the Constitution (which speaks of preventive detention). As we know, Gopalan lost his case.
Interestingly, A.K. Gopalan was represented by M.K. Nambiar, father of the present Attorney General of India, K.K. Venugopal.
The View of the Court
The Court held the Fundamental Rights would work in “silos” i.e. one right cannot be tested against another (an interpretation which was later overturned in Bank Nationalization case), and secondly, that “law” under Article 21 was to be enacted as per proper procedure (which the Court held had been done in this case). This view was overturned in the Maneka Gandhi case, where it was held that a “substantive due process” is required for laws to be enacted.
What Article 22 Says
Article 22 of the Constitution puts a limit to how detention has to be carried out. As per 22(2)- anyone detained has to be produced before a magistrate within 24 hours.
Article 22(4) says that no person shall be detained for more than three months unless an advisory board has reviewed their detention or they have been detained under a law passed under 22(7). Using its power to pass a law under Article 22(7), the Parliament ended up passing a law for almost all categories of detention it had the legislative authority for, that too without prescribing a maximum period of detention. This ended up making our preventive detention regime more authoritarian than the pre-Independence laws.
The Interpretation of Article 22
The majority in A.K. Gopalan said that the law was validly passed, and thus the Court could not intervene. However, as pointed by Gautam Bhatia in this lecture, Article 22 was meant to be a safeguard for the individual rather than to legitimize preventive detention. This was held by the dissenting judge in A.K.Gopalan, and also finds mention in the Constituent Assembly Debates. Thus, Article 22(7), i.e. detention of more than three months without a review, was meant to be an exception. However, because of this interpretation by the legislature and subsequently the court, the exception resulted in becoming the norm.
Although the rulings of A.K. Gopalan have been overturned, preventive detention under various laws still continues to this day. What is also interesting to note is that Justice Fazl Ali talks of even procedural safeguards while interpreting the phrase “procedure established by law”, which as per Gautam Bhatia hasn’t been adopted by the court to date; even after we have shifted towards the “due process of law”.
The pattern of preventive detention still continues to this day. Here, a passage by Justice Vivian Bose, as cited in ‘Wages of Impunity’ provides questions we must ask ourselves while interpreting such provisions:
“Brush aside for a moment the pettifogging of the law & forget for the nonce [sic] all the learned disputations about this & that, & ‘and’ or ‘or’, or ‘may’ & ‘must’. Look past the mere verbiage of the words & penetrate deep into the heart & spirit of the Constitution. What sort of State are we intended to be? Have we not here been given a way of life, the right to individual freedom, the utmost the State can confer in that respect consistent with its own safety? Is not the sanctity of the individual recognised & emphasised again & again?…”
As Gautam Bhatia puts it, although the rulings of Gopalan have been overturned, they’ve been done so for the wrong reasons. Thus the “ghost of Gopalan” survives. You could watch his lecture on this case here.
This story has been inspired by and largely relies on Chapter 4 of the book ‘Wages of Impunity’ by K.G. Kannabiran. If you are interested in the story and want to read more, you could check out the book here. A PDF is also available online (This seems to have no copyright infringement issues. However, if you find otherwise get in touch with us).
If you are looking to listen to an insightful conversation about the Constitution of India. You could check this episode of the podcast ‘Seen and Unseen’ where the host Amit Verma talks to Madhav Khosla about the aspirations of the Indian Constitution.
If you wish to write for us, or have a story to share, you could get in touch with us at firstname.lastname@example.org.
Umang graduated from NUJS in 2019. After that, he worked at L&L Partners before taking up the role of an Editor at Lawctopus. You can find him on Twitter @UmangPod, and read some of his other writings at twodsinapodd.wordpress.com.
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