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A .22. (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 preventive 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 providing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under ***[sub-clause (a) of clause (4)]. And clause 4 of A.22 lays down: A .22. (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 sufficient cause for such detention: Provided that nothing in this sub-clause shall authorise 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 subclauses (a) and (b) of clause (7). A .19. (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; (f) omitted; (g) to practise any profession, or to carry on any occupation, trade or business.
The Case
Interpretation of Constitutional Provisions As per Justice Kania, the construction of a statute, particularly a Constitution, it is improper to omit any word which has a reasonable and proper place is more to refrain from giving effect to its meaning. He further observed that the report of the drafting committee of the Constituent Assembly may be read not to control the meaning of an article in the Constitution of India, but may be seen in case of ambiguity. While it is not proper to take into consideration the individual opinions of members of Assembly to construe the meaning of any particular article, when a question is raised whether a certain phrase or expression was up for consideration at all or not, a reference to the debates may be permitted. Both Kania C. J. and Mahajan J. were of the opinon that the courts were not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in words. Where the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature, Courts cannot declare a limitation under the notion of having discovered something in the writ of the Constitution which is not even mentioned in the instrument. It is difficult upon any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written Constitution give that authority. If the words be positive and without ambiguity, there is no authority for a Court to vacate or repeal a Statute on that ground alone. But it is only in express constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and paramount law settled by the deliberate wisdom of the nation that one can find a safe and solid ground for the authority of Courts of justice to declare void any legislative enactment. Any assumption of authority beyond this would be to place in the hands of the judiciary powers too great and too indefinite either for its own security or the protection of private rights. Mukherjea J. made a point on Constitutional interpretation by observing that, the Constitution must be interpreted in a broad and liberal manner giving effect to all its parts, and the presumption should be that no conflict or repugnancy was intended by its framers. In interpreting the words of a Constitution, the same principles undoubtedly apply which are applicable in construing a statute, but the ultimate result must be determined upon the actual words used not in vacuo but as occurring in a single complex instrument in which one part may throw light on the other.
Kania C. J.; B. K. Mukherjea and Das JJ. Are of the opinion that Article 19 has no application to a legislation dealing with preventive or punitive detention as its direct object. DAS J. observes that the article has by providing for prevention detention, recognized that individual liberty may be subordinated to the larger social interests.
described as the principles of natural justice outside the realm of positive law. "Law" in that article is equivalent to State-made law. Whether The Act is in accordance with A.22 According to Justice Mahajan - Article 22 is self-contained in respect of the laws on the subject of preventive detention. Article 19 (5) is a saving and an enabling provision. It empowers Parliament to make a law imposing reasonable restriction on the right of freedom of movement while Art. 22(7) another enabling provision empowering Parliament to make a law on the subject of preventive detention in certain circumstances. If a law conforms to the conditions laid down in Art. 22 (7), it would be a good law and it could not have been intended that that law validly made should also conform itself to the provision of Art. 19 (5) . One enabling provision cannot be considered as a safeguard against another enabling provision. Article 13 (2) has absolutely not application in such a situation. Kania C. J. observed that - In the case of an Act of preventive detention passed by the Parliament cl. (7) of Art. 22 contained in the Chapter on Fundamental Rights, permits detention beyond a period of three months and excludes the necessity of consulting an Advisory Board, if the opening words of sub-clause are complied with. Sub-clause (b) is permissive. It is not obligatory on the Parliament to prescribe any maximum period. Does Parliament have the right to enact such an act ? Justice Mukherjea categorically opined that -Sub-clause (a) of Art 22 (7) lays down a purely enabling provision and Parliament. Bearing in mind the provisions of Art. 22 read with Art. 246 and Sch. 7, List I, Entry 9 and List III. Entry 3, it is clear that the Parliament is empowered to enact a law of preventive detention (a) for reasons connected with defense, (b) for reasons connected with foreign affairs, (c) for reasons connected with the security of India and (under List III), (d) for reasons connected with the security of State, (e) for reasons connected with the maintenance of public order, or (f) for reasons connected with the maintenance of supplies and services essential to the community.
Conclusion:
A.K. Gopalan v. State of Madras, though with its many flaws, still stands as a judicial beacon for Part III of the Constitution when viewed through the eyes of the historical kaleidoscope of judicial interpretation. It helps us to understand the initial concepts, to know the earlier assumptions of interpretation from which our great judiciary has evolved to its behemoth position as the champion of fundamental and human rights as it stands today.