Judgement

BOSE, J. : This is a petition under Article 32 of the Constitution for a writ of habeas corpus . The petition was presented by Mr. R. V. S. Mani, an advocate of the Nagpur High Court, on behalf of Shrimati Vidya Verma was directed against her father Dr. Shiv Narayan Verma of Nagpur.

2. Mr. Mani had no power of attorney from the lady and when the office pointed out that he could not present a petition without producing the necessary authority he amended the petition and described himself as the next friend of the lady.

3. When the matter first came up for hearing we directed a notice to issue to the father but later the same day it was brought to our notice that the opposite party was not either the Union of India or a State, nor was it some official acting under the orders of one or the other, but a private person. The question, therefore, arose of our power under Article 32 to issue a writ of this kind against the private party. Accordingly, before the notice was sent out we recalled it and set the matter down for further hearing.

4. Mr. Mani appeared agains on the appointed date and was robed as he had been on the previous occasion. He was asked to clarify his position and when he said he had no power of attorney and explained that he was appearing in a private capacity as next friend he was told that at the next hearing he must address the Court without his robes. He was also warned that if he lost he might have to bear the costs of the other side personally. After hearing Mr. Mani for a time we decided to fix a date for the hearing of a preliminary question only, namely whether a fundamental right was involved when the detention complained of is by a private person and not by a State or under the authority or orders of a State. We directed that notices be issued to the opposite party as well as the Attorney-General of India.

5. At the adjourned hearing Mr. Mani appeared in persons, unrobed as directed but with the advocate on record sitting by his side. He asked for permission to address us himself. We declined to hear him unless he discharged the advocate on record. He did that on the spot and then proceeded to address us in person.

6. As the question that arises hear has been discussed at length in two earlier decision on this Court we need not examine the matter in any detail. The fundamental right that is said to be infringed is the one conferred by Article 21 : the right to personal liberty. In A. K. Gopalan v. State of Madras , AIR 1950 SC 27 (A) four of the six learned Judges who were in that case held that the word "law" in Article 21 referred to State-made law and not to law in the abstract. They rejected the contention that this was the same as the due process clause in the American Constitution. One learned Judge dissented and one expressed no opinion on this point. Patanjali Sastri J. (as he then was) said at p. 74 that as a rule constitutional safeguards are directed against the State and its organs and that protection against violation of rights by individuals must be sought in the ordinary law; and S. R. Das J. dealing with the question of preventive detention said at pp. 120-121 that Article 21 protects a person against preventive detention by the executive without the sanction of a law made by the legislature.

7. This principle was applied to Articles 19(1) (f) and 31(1) by a Bench of five Judges in P. D. Shamdasani v. Central Bank of India , AIR 1952 SC 59 (B) who held that violation of rights of property by a private individual is not within the purview of these Articles therefore, a person whose rights of property are infringed by a private individual must seek his remedy under the ordinary law and not under Article 32. Article 21 was not directly involved but the learned Judges referring to Article 31(1) said at page 60.

"It is clear that it is a declaration of the fundamental right of private property in the same negative form in which article 21 declares the fundamental right to life and liberty.