Tag: #habeascorpus

S.no	Contents
1.	Introduction
2.	Safeguard Of Liberty
3.	Essential elements in Safeguards of Liberty
4.	Safeguards the protected liberty of Indian citizens
5.	Right in Safeguard of Liberty
6.	Landmark Judgment
7.	Conclusion

“Without freedom of thought, there can be no such thing as wisdom – and no such thing as public liberty without freedom of speech”

By Benjamin Franklin

Introduction

Safeguards of Liberty in India was to protect people who are suffering and aged 16 or above 16 and also who needed it. Liberty Protection Safeguards(LPS) care for those people and treated their mental capacity with the proper agreement. In India basic right of the human being is liberty, the right to live life without fall of dignity. 

Every Individual who could have a Liberty Protection Safeguards authorization incorporate those with dementia, mental imbalance, and learning handicaps who come up short on the pertinent limit.

The Liberty Protection Safeguards were presented in the Mental capacity (amendment) Act 2019 and will supplant the Hardship of Liberty Safeguards (DoLS) framework. The Liberty Protection Safeguards will convey further developed results for individuals who are or who should be denied their liberty. The Liberty Protection Safeguards have been intended to put the privileges and wishes of those individuals at the focal point of all dynamics on the hardship of liberty.

The liberty protection safeguards are wanted to come into force in April 2022.[1]

Safeguard Of Liberty

Liberty is the most valuable thing for an individual and viable advances are required for its safeguards. From days of yore, there is a tussle between the state’s power and individuals’ liberties. An individual appreciates more freedoms assuming that the power of the state is abridged. Liberty can’t exist in a domineering state. Prof. Laski calls attention to specific strides for protecting freedom. “Opportunity, right off the bat, won’t be accomplished for the mass of men clear under unique certifications” and it can’t “exist in that frame of mind of honor”. Besides, “extraordinary honor is incongruent with opportunity”. Thirdly, “liberty can’t be acknowledged in that frame of mind in which the privileges of some rely on the joys of others”. Fourthly, “What is the state’s fundamental duty for safeguards liberty”.

Essential elements in Safeguards of Liberty

• The democratic form of Government

Democracy system is a type of govern­ment where everyone has an offer in the organization. Just democrat; states can give an amiable environment to the turn of events: human character. It is helpful for the full pleasure in liberty.

The Foundation of a majority rule framework is a fundamental shield of freedom. Both liberty and a democratic rules system are valuable to each other. We can’t imagine a majority rules government without the presence of common, financial, political, and individual freedom. Moreover, without even a trace of the right to opportunity, there can be no genuine majority rules government. Liberty is more secure and safer in the Majority rules system than in some other type of government. Popularity-based government is the public authority of individuals though in different types of government (like Outright Government and Fascism) all powers are focused and brought together under the control of one individual or a gathering of people. The individual in power or a gathering of people in power can’t endure his or their analysis. The nature of A majority rules system inverse gatherings is given due regard in Majority rules government. The contrary gatherings structure the public authority after the disappointment of the decision party. Analysis of the public authority is invited in Majority rule government.

• Fundamental Rights

There should be a reasonable and unambiguous rundown of essential fundamental rights in the Constitution. Individuals should be con­versant with their freedoms and the public authority should know about the limita­tion of abilities. These freedoms are justiciable and any demonstration that contradicts the arrangements of the Constitution can be announced ultra vires.

One of the vital strategies for safeguarding liberty is to consolidate a sanction of central privileges and opportunities in the constitution of the State. Alongside it, legal insurance ought to be given privileges. They safeguard our freedom to an exceptionally extraordinary degree. These basic freedoms likewise restrict the power of the state. In the presence of crucial freedoms, the state can’t meddle in that frame of mind of individual life. Without a trace of key freedoms freedom of the individual is never out of risk and without freedom improvement of human character is preposterous.

• Separation of Power

The powers of the public authority ought to be isolated among the chief, law-making body, and legal executive. This will help in forestalling any organ of the public authority. To turn out to be outright. Each organ of the public authority. Will work in its system. As indicated by popular French Researcher Montesquieu, detachment of abilities is a fundamental condition for pleasure in the freedom and the nations where there is the partition of abilities, individuals appreciate more freedom. This interaction is finished through the utilization of balanced governance. Lord  Acton believes that “Power taints an; outright power undermines totally.” Power has an internal pattern for abuse and power ought to go about as a check to drive.

• Responsible Government

An administration framed by the representa­tives of individuals will undoubtedly be capable. Any error concerning the public authority will sound its mark of the end and the resistance will exploit it. A bi-party framework with solid resistance will guarantee essential safeguards for liberty.

• Love for Liberty

For the security of freedom, individuals ought to have limitless love for freedom. On the off chance that it is thus, individuals might never want to lose their freedom and will be ready to make each penance for its insurance. During the opportunity battle, lakhs of Indians made penances of their lives as they went to gallows and prisons for the fulfilment of opportunity for their homeland.

• Rule of law

The idea of Law and order implies all people are equivalent under the watchful eye of law and regulation. This law and Regulation see no difference between the rich and poor, the high and low.

The rule of law is laid out in Britain, the U.S.A. also, and India. The idea of Law and order implies that all individuals are equivalent under the steady gaze of regulation. Regulation makes no separation between rich and poor, the high the low. All individuals ought to be under similar regulations and limited by similar sorts of commitments. Nobody ought to be above regulation. No honours will be given to an individual having a place with a specific class nor will there be any arrangement for insusceptibility. No individual will be rebuffed or saved in care for quite a while until and except if his wrongdoing is demonstrated.

• Constitution

Just the constitution limits the power of the state. It sets out specific obstructions and these hindrances are not to be crossed by the state while utilizing its power. For the most part, the constitution is acknowledged as the incomparable law of the nation, and if any organ of the public authority disregards any arrangement of the const., that act is pronounced unlawful by the courts. In brief, every organ of the public authority. Will undoubtedly work inside the structure of the constitution and this way the constitution safeguards the liberties of individuals.

• Independent Judiciary

There should be a free and fair judiciary for the assurance and conservation and individual liberty. The judiciary should be free of chief and authoritative control.

The autonomous, strong, and fair-minded legal executive is the greatest defender of freedom. Thus, arrangements ought to be made to keep the legal executive free. Assuming that the Legal executive is subordinate to the Leader or on the other hand on the off chance that it isn’t liberated from the impact of the Chief, it can not grant equity nor can it safeguard the major freedoms of man. In socialist nations or in nations that have Fascism, basic privileges are given to individuals, yet the Legal executive isn’t liberated from the impact of the Chief. In such nations, the safeguards and security of central privileges, constitution, and freedom aren’t exactly imaginable and freedom becomes simply a joke. Here, just keen and fair-minded people ought to be delegated as judges. They ought to be paid significant compensation and adequate annuity after retirement. Their residency ought to be long.

Safeguards the protected liberty of Indian citizens

• Right to life and individual freedom

 Article 21[2] gives that no individual will be denied his life or individual freedom besides as per technique laid out by regulation.

• Habeas Corpus

Habeas Corpus is a writ that is accustomed to bringing an individual who has been kept or detained under the watchful eye of a court. This writ is utilized to safeguard the liberty of a person.

• Legal Review

 Legal Survey is the force of the legal executive to survey the activities of the leader and authoritative parts of government. This power is utilized to guarantee that the public authority doesn’t abuse the central privileges of residents.

• Partition of power

Division of Abilities is a successful protection for individual freedom. The blend of a chief, administrative or legal powers in a similar individual or set of people could bring about the maltreatment of abilities and loss of individual freedom.

• Right to constitutional remedies

The Constitution accommodates different cures, for example, writs, orders, and headings that can be utilized by residents to authorize their central freedoms.

• Freedom of speech and expression

The right to speak freely of discourse and articulation is a principal right ensured by the Constitution of India. It permits residents to offer their viewpoints unreservedly unafraid of oversight or discipline.

• Right to information

 The Right to Information Act, of 2005[3] accommodates admittance to data held by open specialists. This right permits residents to consider public specialists responsible and guarantees straightforwardness in administration.

Right in Safeguard of Liberty

Article 5[4] says that safeguards are for anyone who is being arrested or detained. It is for all the people who suffer and those who are detained those people are sent to judge. Detention can be challenged if it is lawful. Victims get compensation for unlawful detention.

Some Restriction

A.K. Gopalan v. State of Madras[5] it was contended that the ‘procedure established by law’ implied equivalent to ‘due process of law’. Both the terms are equivalent and similar security is being given in both nations with a distinction that ‘due process of law’ covers considerable and procedural regulation yet ‘methodology laid out by regulation’ covers just procedural law.

In Maneka Gandhi v. Union of India[6], Chandrachud J. said that the system must be simple, fair and sensible, not whimsical, abusive, or erratic and Krishna Iyer J. said that the ‘law’ signifies sensible regulation and no established piece.

Landmark Judgment

This idea originally came up on account of A. K. Gopalan v. State of Madras[7]. In this situation, the solicitor was confined under Preventive Detainment Act. He tested this in the court that it be violative of his right to opportunity of development, which is the quintessence of individual freedom under Article 21[8]. The Supreme Court gave the significance of individual freedom in an extremely tight sense. It said that individual freedom incorporates just the actual opportunity of the body like independence from capture or unjust repression. It likewise said that the term ‘law’ is the state-made regulation as it were. The High Court held that Article 19[9] has no association and relevance to Article 21.

On account of Satwant Singh Sahney v. Identification Officer[10], the option to travel abroad is remembered as ‘personal liberty’ and no individual can be denied his entitlement to go besides according to the technique laid out by regulation. Refusal to give the identification of the individual with practically no reasons allotted for it adds up to an unapproved hardship of individual freedom as given under Article 21.

There was another instance of the State of Maharashtra v. Prabhakar Pandurang[11]. In this situation, it was seen that the detainee does not stop being an individual not having key privileges. The right to compose a book and get it distributed by a detenu is his major right and its forswearing without the power of regulation disregarded Article 21.

Conclusion

Every one of the previously mentioned focuses addresses the manners by which we can defend a singular’s liberty. These are just conceivable when every single individual no matter what their situation in the general public no matter what their positions no matter what component can make discrimination attempts to guarantee that freedom as a guideline or element pervasive in the general public isn’t compromised. Freedom is an essential element that guarantees that the Majority rule government in space wins. On the off chance that it falls flat, that Democracy is no Democracy and acts as a joke to freedom all in all.

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Endnotes:

1. https://www.gov.uk/government/publications/liberty-protection-safeguards-factsheets/liberty-protection-safeguards-what-they-are
2. Constitution of India, Article 21
3. Right to Information Act, of 2005, https://rti.gov.in/rti-act.pdf
4. Constitution of India, Article 5
5. A.K. Gopalan v. State of Madras, AIR 1950 SC 27
6. Maneka Gandhi v. Union of India, AIR 1978 SC 597
7. ibid 5
8. ibid 2
9. Constitution of India, Article 19
10. Satwant Singh Sawhney vs D. Ramarathnam, Assistant Passport Officer, 1967 AIR 1836, 1967 SCR (2) 525
11. State of Maharashtra v. Prabhakar Pandurang, 1966 AIR 424, 1966 SCR (1) 702

This article is authored by Pranita Dhara, a student of Lloyd Law College.

Year

1950

Citation

AIR 1950 SC 27

Court

The Supreme Court of India

Bench

Harilal Kania (C.J.), Justice M. Patanjali Sastri, Justice Mehr Chand Mahajan, Justice B.K. Mukherjee and Justice Sudhi Rajan Das, Justice Fazal Ali Saiyid.

Introduction

A.K. Gopalan was the political opponent of the government. He filed the writ petition of habeas corpus. Habeas Corpus which means you may have the body is a writ that institutes the court to determine whether a criminal defendant has been lawfully imprisoned or not. A.K. Gopalan filed this writ petition challenging Article 19(1) (d)[1] which is the right to freedom of movement and article 21[2] which states the right to life and personal liberty. He filed this writ petition against the detention in pursuance of an order of detention made under the Prevention Detention Act, of 1950[3].

Prevention Detention Act detains the person without giving any valid reason and detention is being done because that detention is important. He challenged the validity of the order given by the court in pursuance of the Prevention Dentition Act to be “Mala Fide”.

Facts of the case

Since December 1947 A.K. Gopalan was detained several times illegally and even after the order of the court which makes him free he was kept under detention by the government under the Prevention Detention Act, of 1950. So, he filed a writ petition under article 32 for seeking the writ of habeas corpus of The Indian Constitution. He challenged the legality of order by the government as it opposes some of the articles of The Indian Constitution. He further argued that Sections 7, 8, 10, 11, 12, 13, and 14 of the Prevention Detention Act, 1950 violate Articles 13, 19, and 21 of the Indian Constitution. But majorly he asked for this writ on the ground that the Preventive Detention Act[4] curtails his personal liberty under Article 21 of the Indian Constitution. He contended that the law under Article 21 is not just the enacted law but it also includes the Principle of Natural Justice as well as some others laws associated with it that deprives the individual’s personal life and liberty. 

Petitioner contention

M.K. Nambiar appeared as a petitioner’s council. Some of the arguments put forward by the petitioner’s side were –

• The first and foremost argument was about the legality and validity of the provision of the Preventive Detention Act, of 1950 which they believed had violated Articles 13, 19, 21, and 22.
• We have article 19(1) (d) of the Indian Constitution which states the freedom to move freely within the territory of India but in this case, the State Government of Madras restricted this right by the detention of A.K. Gopala even after the decision by the court which made him free.
• The provisions of the Preventive Detention Act, of 1950 were against article 19 and challenged the statute’s failure as the petitioner’s freedom of speech and expression was revoked.
• Article 21 is in the Right to Life and personal liberty but after the prolonged detention, it seems to have no importance of Article 21 for the petitioner.
• The detention order was also arbitrary as it violates article 22. Article 22 deals with protection against arrest and detention in certain cases.
• Section 14 of the Preventive Detention Act, of 1950 violates the fundamental right under article 13 of the Indian Constitution

Respondent’s Contention

Advocate K. Rajah Ajyar (Advocate General of Madras), and M.C. Setalvad (Attorney General of India) appeared as respondent’s council 

• The respondent said that Articles 19 and 21 should not be read together as it depends on the perspective and the nature of the case in which context both the articles should be read together.
• Detention that is being done is not arbitrary, according to Article 22 which states protection against arrest and detention in certain cases.
• The legal procedure that is followed, everything is as per the constitution of India. 
• Detention does not violate any of the rights of the petitioner i.e. of articles 12, 19, 21, and 22.
• The Prevention Detention Act is completely legal and not arbitrary.
• There is no point in filing a writ petition of habeas corpus under article 32 of the Indian Constitution.

Issues raised in the case

• The Prevention Detention Act, of 1950 does violate the prevailing articles 19 and 21.
• Article 19 – Protection of certain rights regarding, speech and expression, assembly, association, residence, and profession. Article 21 – Protection of life and personal liberty is there any kind of relation between these two, and can they be read together? This was one of the major issues as it could turn out to be the deciding factor.
• Due process is a requirement that legal matters are resolved according to the established rules and principles and everyone should be treated fairly. So the issue raised was whether the procedure established by law under Article 21 is the same as that of due process of law.

Judgment

This case is a landmark case in constitutional law and is popularly known as the Prevention Detention case. After extensive discussion and wide research, the bench of judges came to the last point of the case where they were expected to give the judgment on this particular case. The court rejected the argument that Article 19 and Article 21 of the Indian Constitution are being violated because of the Prevention Detention Act, of 1950. The next particular topic on the discussion was being done was that whether the Prevention Detention Act, 1950 is ultra-vires or not, however in this particular question section 14 of the act was declared as the ultra-vires as it violates the rights guaranteed by Article 22(5) of the Indian Constitution. The court also said that being ultra-vires of section 14 of the act does not affect the validity of the whole act. The next question was whether article 19 and article 21 should be read together and if there is any kind of relationship between both articles. The court rejected this argument and said that both article is distinct and must not be read together.

The judgment of this case was given by the 6 judge’s constitutional bench in a ratio of 5:1. The decision of Justice Fazal Ali was opposite to the decision given by the other judges and his decision can be regarded as the dissenting opinion. The court said that personal liberty only means the freedom of the physical body and nothing beyond that. In the nutshell, we can say that the Supreme Court rejected the petition filed by A.K. Gopalan and said that the Prevention Detention Act, 1950 does not violate article 19(1) (d) and article 21 of the Indian Constitution.

• Dissenting opinion by Justice Fazal Ali

In this case, the dissenting opinion was given by Justice Fazal Ali; he observed that preventive detention violates the Fundamental Rights guaranteed by the constitution. According to him, the Constitution recognized that personal liberty and preventive detention are arbitrary and could be misused by the government to suppress political dissent. He further argued that personal liberty was a fundamental right and could only be curtailed in accordance with the law and that the Preventive Detention Act, of 1950, did not satisfy this requirement.

In his dissenting opinion, Justice Fazal Ali noted that the right to personal liberty is one of the essential parts of the freedom and dignity of the individual, and it is necessary to protect this right from arbitrary interference by the state. He said preventive detention violates this right hence it is unconstitutional.

Therefore, in the case of A.K. Gopalan vs. The State of Madras, Justice Fazal Ali highlights a commitment to a person’s rights and restricting the power of the state to interfere with personal liberty.

• Protection of Personal Liberty

The Article 21 of our Indian constitution reads “No person shall be deprived of his personal liberty except according to the procedure established by law”[5]. The word “person” that is being used in this article signifies that this Article is applicable to the citizen as well as non-citizens as everyone is entitled to personal liberty. The Article further states that this liberty cannot be taken away unless there is a procedure established by law has been followed. Concerning the fact regarding personal liberty the difference between “Due process of law” which means the process must be fair and reasonable and “procedure established by law” which means the procedure should take place in a way that the parliament has signified, was taken into consideration. However, in the judgment of this case the meaning of Article 21 was taken in a narrow sense i.e. in this case the meaning of personal liberty was taken as personal liberty is just protection of body parts and the state cannot harm the individual’s body part. Also, it was held that there is no link between Articles 14, 19, and Article 21.

After 30 years in the case of Maneka Gandhi v. Union of India[6], personal liberty was interpreted in a different sense i.e. in a wider sense. The court took the wider view of Article 21. It was held that there is a connection between Articles 19 and 21. It was also held that there is no difference between personal liberty and liberty. In personal liberty, every other liberty has been included. Therefore the concept of personal liberty was taken into consideration in a different sense before and after the case of A.K Gopalan v. State of Madras[7] thereby leading to the rejuvenation of a new concept of personal liberty in the case of Maneka Gandhi v. Union of India[8].

• Co-relation of Article 14, 19, and Article 21 before and after the case

Articles 14, 19, and Article 21 are the basic and vital Articles of the constitution, and the connection between both them is to be taken into consideration for the better interpretation of these Articles. Article 14, 19, and Article 21 are connected with each other as there forms the bedrock of the Fundamental Right guaranteed to every citizen of India. Before the case of A.K Gopalan (1950), these articles used to be taken into consideration as a separate and distinct identity. Article 14 ensures equality before the law and equal protection of the law. Article 19 guarantees six freedom to the citizens of India these freedoms are – Freedom of speech and expression, Freedom to assemble peacefully, Freedom to form associations and unions, Freedom to move freely throughout the territory of India, Freedom to reside and settle in any part of the country and the last is the freedom to practice any profession, occupation, trade or business. Article 21 guarantees the right to life and personal liberty to every citizen.

In the case of A.K Gopalan, the Supreme Court of India held that the right to personal liberty under Article 21 is limited to procedural aspects. This means the government can deprive an individual of their personal liberty as long as the procedure for doing so was legal. This decision in the case of A.K Gopalan was criticized by many as an individual could be detained infinitely without facing any trial until the procedure allows doing that.

However, in the subsequent cases, the Supreme Court expanded the scope of Article 21 to include substantive rights as well such as a free trial, the right to privacy, and the right to education, etc. under this Article. This inculcation of substantive rights in the purview of this Article 21 gives the interconnection of Articles 14, 19, and Article 21.

Conclusion

In the case of A.K. Gopalan vs. The State of Madras, the court restricted the meaning of Article 19 and Article 21 of the Indian Constitution. However, after several years in the case of Maneka Gandhi vs. Union of India, the court overruled this judgment and said that the opinion of Justice Fazal Ali was correct. The court further said that the scope of Article 21 and Article 19 has a wider view. From the above analysis of the case, we can conclude to the fact that the Right to life and personal liberty is not only recognized under the Indian Constitution but also intentionally recognized on the basis of the principles of natural justice. The case of A.K Gopalan is one of the most important cases of Independent India as in this case the question pertaining to Article 21 was raised for the first time after the Independence of India. However, the court took Article 21 in a narrow sense and makes it in accordance with the procedure established by the law. Almost after 30 years this decision was overruled and lastly, Article 21 was taken into a broader sense. Lastly, the court widen the view of Article 21 and said that the procedure established by the law must be just, fair, and reasonable. Therefore, from the above discussion, we can say that the case of A.K. Gopalan vs. The State of Madras (1950), was a landmark case in the Indian Constitution.

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Endnotes

1. INDIA CONST. art. 19(1) (d)
2. INDIA CONST. art. 21
3. Prevention Detention Act, 1950, Act No. 4 of 1950
4. Ibid
5. INDIA CONST. art. 21
6. Maneka Gandhi v. Union of India, AIR 1978 SC 597
7. A.K Gopalan v. State of Madras, AIR 1950 SC 27
8. Supra note vii

This case analysis is authored by Prashant Prasad, a second-year law student from University Law College.