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A.K.Gopalan, a communist leader, was detained in the Madras
Transcript of A.K.Gopalan, a communist leader, was detained in the Madras
A.K.Gopalan, a communist leader, was detained in the Madras jail. He had been in detention since 1947.
He was sentenced to various terms of imprisonment under the ordinary criminal law but every time the sentence was set aside.
When he was still under the detention under the orders of the state government, he was served with a fresh order of detention under the Prevention of Detention Act, 1950.
The British government in India made and used this act to suppress nationalist movements. The first Preventive Detention Act during the British rule was Bengal Regulation III of 1918.
In this act, an action is taken beforehand to prevent possible commitment of crime. Preventive detention thus is action taken on grounds of suspicion that some wrong actions may be done by the person concerned.
There was a petition by the applicant under article 32 of the constitution of India for a writ of habeas corpus against his detention in the Madras jail.
Art. 32. This has all the constitutional remedies of the Indian Constitution (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
A writ of habeas corpus (literally to "produce the body") is a court order to a person (prison warden) or agency (institution) holding someone in custody to deliver the imprisoned individual to the court issuing the order.
In the petition he had given various dates showing how he had been under detention since December 1947. He had been sentenced to imprisonment but the convictions were set aside. While he was thus under detention, under imprisonment the convictions were set aside.
While he was thus under detention under one of the orders of the Madras State Government, on 1st March, 1950 he was served with an Order of the Madras State Government under Section 3 (1) of Preventive Detention Act ,1950.
He challenged the legality of the order as it was contended that 1950 Act contravenes the provisions of article 13, 19 and 21 and provisions of that Act were not in accordance with article 22 of the Constitution
Art. 13. Laws inconsistent with or in derogation of the fundamental rights.
This article envisages the supremacy of the Constitution.
19. Protection of certain rights regarding freedom
(1) 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
(g) to practice any profession, or to carry on any occupation, trade or business.
21. Protection of life and personal liberty
The right to personal liberty means in substance a person’s right not to be subject to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification
22. Protection against arrest and detention in certain cases.
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) [the two previous laws we just read] 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 authorize 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 sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7) [which is: The maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention]; or
(b) such person is detained in accordance with the provisions of any law made by Parliament under subclauses (a) and (b) of clause (7).
(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, communicate 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.
Today, to prevent reckless use of Preventive Detention, certain safeguards are provided in the constitution.
Firstly, a person may be taken to preventive custody only for 3 months at the first instance. If the period of detention is extended beyond 3 months, the case must be referred to an Advisory Board consisting of persons with qualifications for appointment as judges of High Courts. It is implicit, that the period of detention may be extended beyond 3 months, only on approval by the Advisory Board.
Secondly, the detainee is entitled to know the grounds of his detention. The state however may refuse to divulge the grounds of detention if it is in the public interest to do so. Needless to say, this power conferred on the state leaves scope for arbitrary action on the part of the authorities.
Thirdly, the detaining authorities must give the detainee earliest opportunities for making representation against the detention. These safeguards are designed to minimize the misuse of preventive detention. It is because of these safeguards that preventive detention, basically a denial of liberty, finds a place on the chapter on fundamental rights. These safeguards are not available to enemy aliens. In customary international law, an enemy alien is any native, citizen, denizen or subject of any foreign nation or government with which a domestic nation or government is in conflict with and who are liable to be apprehended, restrained, secured and removed.
However, the provisions of the constitution seem to be ambiguous and this ambiguity has been tried to do away with some provisions. These provisions are mentioned in Article 22 (1), 22(5), 22 (6). Here is a summary of these provisions:
Every case of preventive detention
must be authorized by law and not at
the will of the executive.
The Preventive detention
cannot extend beyond a period of 3 months. (Unless there is an exception considering the laws which need to be kept in mind and which read a few moments ago.)
Every case of preventive detention must be placed before an Advisory Board composed of Judges of the High Court (or persons qualified for Judges of the High Court).
The case must be presented before the Advisory Board within 3 months.
A continued detention after 3 months must be having a “favors of the Advisory Board”.
The person will be given opportunity to afford earliest opportunity to make a representation against the preventive detention.
No person can be detained indefinitely.
Article 22 (7) provides exception to the above provisions. This Article mandates that:
When parliament prescribes by law the circumstances under which a person may be kept in detention may be kept in detention beyond 3 months without the opinion of the advisory board.
Parliament by law can also describe under the same law, the maximum period of detention.
The first Preventive Detention Act was passed in 1950. The validity of this act was challenged in the Supreme Court in the Gopalan v/s State of Madras Court. The Supreme Court held this act constitutionally valid except some provisions. This act expired in 1969, and before it expired, it was amended for 7 times, each expansion was to make it valid for 3 more years and this it was extended till 31 December 1969.
These events made the indian judiciary think about the flaws in the existing fundamental rights and the rights in general.