AK Gopalan case 1950 & Maneka Gandhi case 1978

In this article we will discuss AK Gopalan case 1950 and Maneka Gandhi case 1978 in simple and easy way and understand its various important aspects.

This whole matter is related to the right to freedom , so for a better understanding of this article, you must first read it.

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AK Gopalan case 1950

AK Gopalan or AKG, was an Indian communist politician. He was one of the 16 members of the Communist Party of India elected to the first Lok Sabha in 1952. He was one of the founding members of CPI(M).

Gopalan was arrested in 1939 for prompting a rise in activism against British domination during World War II. But in 1942 he escaped from prison and remained active until the end of the war in 1945. He was arrested again soon after the end of the war and was behind bars even after India became independent on 15 August 1947.

But the extent was reached when the Central Government enacted the Preventive Detention Act 1950 and the Madras Government under an order brought his arrest under this newly created Act. This enraged him, reaching the Supreme Court for justice.

detention
Mainly there are two types of detention – ( 1) Punitive detention – It means arresting a person after a crime and depriving him of liberty. (2) Preventive Detention – It means to take away the liberty of a person by arresting him in advance so that he does not commit a crime in future. It is right here at the center of the discussion.

AK Gopalan’s side

Article 21 states that – No person shall be deprived of his life or personal liberty except according to procedure established by law.

Actually it means that if any law has been made by adopting the correct procedure of making law, then a person can be deprived of life or personal liberty under it. That is, whether the law is right or not, it does not matter, just the process of making law should be correct.

But according to Article 13, if any law violates the Fundamental Right, then it can be dismissed in the same amount as it violates the Fundamental Right, that is, Article 13 talks about due process of law. Under which if there is any irregularity in the law, then it can be dismissed.

This applies to all Fundamental Rights, but Article 21 specifically talks about the procedure established by law.

So Gopalan’s question was, whether it could be possible that all fundamental rights should follow due process of law. Whereas only Article 21 follow procedure established by.

Secondly, Secondly, the personal liberty taken away by the Preventive Detention Act of 1950 was justified, if the procedure established by law was followed. But under Article 19(1)(d) which talks about free transmission across the country, Gopalan could be freed. Because it comes under due process of law and on this ground the Preventive Detention Act 1950 could have been struck down?

Overall, Gopalan claimed that the Preventive Detention Act was inconsistent with Article 19 ( right to liberty), Article 21 ( right to life ) and Article 22 ( right to protection against arrest and detention) .

Supreme Court’s decision

In this case a Bench of 6 Judges sat and 4-2 ruled that (1) Procedure established by law and due process of law are two different things and both cannot be treated as one. (2) Article 21 is absolutely correct and it is also absolutely correct to follow the procedure established by law. (3) Both Article 21 and Article 19 are separate articles and cannot be mixed together.

Overall, the Supreme Court in its judgment upheld the validity of the Preventive Detention Act and made it clear that all the above Articles (Articles 19, 21, and 22) deal with completely different subject matter and should not be read together.

It is said that he rectified the mistake made by the Supreme Court here through the Maneka Gandhi case . What is Maneka Gandhi case, let’s see.

Maneka Gandhi case 1978

During the Emergency in 1976, on 1 June, Maneka Gandhi got her passport made (according to the Passport Act 1967). But on 2 July 1977, the Regional Passport Office (New Delhi) ordered him to surrender his passport. In fact, the Janata Party government probably feared that she might not flee abroad, while going abroad was already an established fact under personal liberty.

Overall, the Ministry of External Affairs took this decision citing public interest to the petitioner. And also did not give any reason for this arbitrary and unilateral decision.

So the petitioner (Maneka Gandhi) approached the Supreme Court and argued that the right to confiscate her passport as guaranteed by Article 21 is a direct attack on her personal liberty.

Maneka Gandhi’s side

️ – Are the provisions under Articles 21, 14 and 19 interlinked or are they mutually exclusive? [She said that the provisions contained in Articles 14, 19 and 21 should be read together and should not be mutually exclusive.]

-️ Should the procedure established by law be tested on the basis of reasonableness which was the procedure laid down by the Passport Act of 1967 in this case?

That is, India may not have adopted the American concept of ” due process of law “, yet, but the procedure established by law should be fair and just, and not arbitrary. Secondly, Section 10(3)(c) of the Passport Act violates Article 21 as it violates the right to life and personal liberty guaranteed by this Article.

-️ Is the right to travel outside the country a part of Article 21 or not? it should be clarified

– Is it justified to take away the right to life by a legislative law?

Supreme Court’s decision

A 7-judge Bench of the Supreme Court ruled 7-0 that,

(1) the procedure established by law in Article 21 may be correct in its place but it should be rational and not arbitrary and illogical. To put it in other words, now Article 21 can also be seen under due process of law.

(2) The AK Gopalan case was flawed. Because Article 14, 19 and 21 have a special relationship with each other and all three can be seen by putting them together.

(3) The right to personal liberty is not limited only to physical restraints, but it also extends to human dignity and other aspects connected with it. (As a result of this, many things were later added under Article 21 under life and personal liberty, the list of which you can see below)

(4) Traveling abroad is a matter of personal liberty under Article 21.

List of things included in life and personal liberty

Right to life and personal freedom
1. Right to privacy (added to it in 2017) 2. Right to health 3. Right to free education till the age of 14 4. Right to Free legal aid 5. Right to information (which was added in 2005) 6. Right to sleep 7. Right to eat 8. Right to electricity 9. Freedom from pollution Right to freedom from pollution 10. Right of reputation 11. Right of hearing 12. Right to social, economic security 13. Right to treat women with respect and dignity 14 Right to travel abroad 15. Right to emergency medical facility. 16. Right against late hanging 17. Right against bonded labor 18. Right against custodial exploitation 19. Right to timely proper treatment in government hospitals 20. Right against bar caterers 21. Right against public hanging 22 Right to social security and protection of family 23. Right against being confined in solitary confinement 24. Right against handcuffing 25. Right against inhuman treatment 26. Right of prisoner to necessities of life etc.

Right to life and personal freedom

1. Right to privacy (added to it in 2017)
2. Right to health
3. Right to free education till the age of 14
4. Right to Free legal aid
5. Right to information (which was added in 2005)
6. Right to sleep
7. Right to eat
8. Right to electricity
9. Freedom from pollution Right to freedom from pollution
10. Right of reputation
11. Right of hearing
12. Right to social, economic security
13. Right to treat women with respect and dignity
14 Right to travel abroad
15. Right to emergency medical facility.
16. Right against late hanging
17. Right against bonded labor
18. Right against custodial exploitation
19. Right to timely proper treatment in government hospitals
20. Right against bar caterers
21. Right against public hanging
22 Right to social security and protection of family
23. Right against being confined in solitary confinement
24. Right against handcuffing
25. Right against inhuman treatment
26. Right of prisoner to necessities of life etc.

AK Gopalan case 1950

In sum, this is the AK Gopalan case 1950 and Maneka Gandhi case 1978. A famous case related to this is the Habeas corpus case 1976 ; Which is an important case in the field of preventive detention. Do read that too.