When freedom came on Aug 15, 1947, AK Gopalan was in jail; his case a benchmark for personal liberty

“I was a governmental captive from 1930 to 1945 successful the eyes of a overseas government. Under today’s fashionable government, I americium branded arsenic a criminal,” helium wrote successful his autobiography In the Cause of the People.

In 1950, helium moved the Supreme Court against his detention, possibly hoping that the freedoms guaranteed by the caller Constitution that came into unit successful 1950 would guarantee his merchandise from jail. After all, Article 21 stated that “no idiosyncratic shall beryllium deprived of his beingness oregon idiosyncratic liberty but according to process established by law”.

AKG argued that the preventive detention instrumentality violated his cardinal rights under, among others, Article 21 and Article 22 of the Constitution (protection against apprehension and detention). However, Article 22, portion providing for “protection against apprehension and detention”, including the close to beryllium informed of charges, the close to a lawyer and the close to beryllium produced earlier a tribunal wrong 24 hours, carves retired a strategical objection — that extortion is suspended erstwhile an apprehension is nether a instrumentality that specifically provides for preventive detention. Thus, AK Gopalan v State of Madras would frankincense spell connected to go the archetypal lawsuit to question the Constitution’s contrariety.

On May 19, 1950 , a six-judge seat held that the preventive detention instrumentality was valid and lone allowed insignificant procedural safeguards that the magnitude of detention had to beryllium informed astatine the clip of apprehension though it could beryllium extended. While AKG mislaid his case, the prescient questions it raised proceed to signifier our rights and freedoms.

“Preventive detention is curtailing someone’s state based connected their past behaviour that was utilized successful England and different parts during warfare situations. The British utilized it successful India and portion we continued it successful our Constitution, Gopalan’s lawsuit brought successful immoderate procedural safeguards. Disclosure of grounds for detention, judicial reappraisal were enactment successful spot adjacent if Gopalan mislaid his lawsuit successful the SC. The statement that we look astatine our cardinal rights arsenic a bundle and not successful isolation besides emerged from the arguments by Gopalan’s lawyer,” erstwhile Attorney General for India K K Venugopal told The Indian Express. His begetter M K Nambyar argued for AKG.

Born connected October 1, 1904, successful Peralasseri colony successful Kerala’s Kannur district, Ayillyath Kuttiari Gopalan came from an upper-caste Hindu Nambiar family. After completing college, Gopalan worked arsenic a schoolhouse teacher for 7 years. But the stirrings of the nationalist question drew him distant from the classroom. His information successful the Civil Disobedience Movement landed him successful jailhouse for the archetypal clip astatine the property of 26.

While helium went connected to go president of the Kerala Congress and a subordinate of the All India Congress Committee, interactions with communist leaders successful situation shifted Gopalan’s politics. By 1934, Gopalan had joined the Congress Socialist Party and, successful 1939, erstwhile the enactment merged into the Communist Party, Gopalan became 1 of Kerala’s earliest Communist leaders, alongside P Krishna Pillai and E M S Namboodiripad.

It is during 1 specified detention, with chap Communist person M R Venkataraman, erstwhile Gopalan “filed occasional affidavits and wrote to the tribunal arsenic a substance of course”. One of these writ petitions became the AK Gopalan case. The legendary lawyer Nambyar, past a Mangalore-based mofussil lawyer, appeared against past Attorney General and Constituent Assembly subordinate M C Setalvad.

AKG wrote successful his autobiography that helium was taken to Delhi to witnesser the proceeding successful a “special First Class compartment by 2 Inspectors and 12 policemen”. In his book, M.K. Nambyar: The Constitutional Visionary, K K Venugopal says that his father, portion arguing for AKG, invoked everything from India’s dharmic traditions of justice; a Latin enunciation, saying that the “procedure established by law” nether Article 21 would mean ‘jus’ (a broader conception of justness and morality) and not conscionable ‘lex’ (a written instrumentality oregon rule) to adjacent utilized a quick-witted “quote from an authoritative publication by a respected author” to bolster his lawsuit — his adversary Setalvad’s ain publication connected civilian liberties.

However, 4 of the six judges held that “procedure established by law” is simply a constrictive threshold and a instrumentality made by Parliament, successful this lawsuit the Preventive Detention Act, 1950, was capable to suspend the close nether Article 21. The bulk sentiment stated that “law” had been utilized successful the “sense of State-made instrumentality and not arsenic an equivalent of instrumentality successful the abstract oregon wide consciousness embodying the principles of earthy justice.”

Justice Fazl Ali penned a dissent, which Justice Mehr Chand Mahajan concurred with, saying, “The question to beryllium decided is whether the connection ‘law’ means thing much than statute law.” He past held that the connection instrumentality means “valid law” and “procedure” means “certain definite rules of proceeding and not thing which is simply a specified pretence for procedure”.

Over 2 decades later, and a twelvemonth aft his death, AKG stood vindicated — the Supreme Court successful its 1978 ruling successful Maneka Gandhi v Union of India restored Justice Ali’s dissenting sentiment arsenic the Court’s bulk sentiment and established “due process” arsenic a indispensable criteria for immoderate instrumentality to beryllium constitutionally valid.

AKG’s son-in-law and erstwhile CPI(M) Lok Sabha subordinate P Karunakaran told The Indian Express, “When each different governmental prisoners arrested by the British were released to people the time of Independence, AKG did not get immoderate specified benefit. He argued that successful Independent India, helium should not beryllium inactive detained nether the assemblage law. The SC verdict was not successful his favour, but erstwhile the verdict was aboriginal overruled, it vindicated Gopalan’s basal with respect to idiosyncratic liberty.’’

Meanwhile, Gopalan’s detention came up again earlier the Madras High Court. In 1951, Gopalan, caller from his decision successful the Supreme Court, himself argued his lawsuit and the Court decided successful his favour since 1 of the detention orders did not bespeak the play of detention arsenic mandated by law. However, hardly 10 yards from the court’s gate, helium was served caller detention orders. After different circular of fierce courtroom battle, Gopalan was released for the 2nd clip successful 2 days. “But the Madras HC Chief Justice astatine that time, Justice PV Rajamannar had pulled up the Advocate General for keeping a detention bid acceptable adjacent earlier the Court’s verdict came. The AG resigned the adjacent day,” Venugopal said, adding that though specified instances hap adjacent today, the Courts bash not respond arsenic swiftly.

By the clip helium died successful 1977 astatine the property of 72, Gopalan had been jailed 20 times, spending 17 years of his beingness down bars. His case, though, keeps vigil that instrumentality does not mean conscionable immoderate acceptable of arbitrary orders by those successful powerfulness but is conscionable and reasonable.