1950 Supreme(SC) 19

SUPREME COURT OF INDIA
A.K.Gopalan
Versus
State Of Madras
Case No. : 18 of 1930
Date of Decision : 5/19/50
Advocates Appeared: Aiyar S.Krishnamoorthi : Ganapathi R. : Iyer K.Rajan : Lal Jindra : Mehta P.A. : Nambiyar M.K. : Raman C.R.Pattabhi : Rao V.G. : Setalvad M.C. : Subramaniam S.Siva

Headnote:Article 21-Meaning of "procedure established by law" -Not the same as "due process of law" in U.S.A. Constitution.

       Held (Per Kania C.J.) : "Established by law" does not connote the same thing as "due process of law" in the 5th and 14th Amendments to (he U.S.A Constitution. There are four marked points of distinction between the two. The first is that in U.S.A. Constitution the word liberty is used simplifier while in India it is restricted to personal liberty. (2) In U.S.A. Constitution the same protection is given to property, while in India the fundamental right in respect of property is contained in Art. 31. (3) The word due is omitted altogether and the expression due process of law is not used deliberately. (4) The word established is used and is limited to procedure in Art. 21 of our Constitution.

       In this article "law" must mean enacted law. There is no justification to give the meaning of "jus" to law in Art. 21. To read the word law as meaning the rules of natural justice will lead one in difficulties because the rules of natural justice are nowhere defined and the Constitution cannot be read as laying down a vague standard. The deliberate omission of the word "due" from Art. 21 lends strength to the contention that the justiciable aspect of law, i.e. to consider whether it is reasonable or not by the court, does not form part of the Indian Constitution. The omission of the word due, the limitation imposed by the word procedure and the insertion of the word established, thus bring out more clearly the idea of legislative prescription in the expression used in Art. 21. By adopting the phrase "Procedure established by law" the constitution gave thc legislature the final word to determine by law.

       Per Patanjali Sastri J: The term law in article 21 does not mean the immutable and universal principles of natural justice. "Procedure established by law" must be taken to refer to a procedure which has a statutory origin, for no procedure is known or can be said to have been established by such vague and uncertain concepts as "the immutable and universal principles of natural justice." "Law" in Art. 21 means "positive or State-made law".1

       Per Mukherjea J: On a plain reading of the Article, the meaning seems to be that you cannot deprive a man of his personal liberty, unless you follow and act according to t he law which provides for deprivation of such liberty. The expression procedure means the manner and form of enforcing the law, though it cannot be disputed that in order that there may be a legally established procedure, the law which establishes it must be a valid and lawful law which the legislature is competent to enact in accordance with Art. 245 of the Constitution and the particular item in

       I. A.I.R. 1950 S.C. p. 72.

       the legislative lists which it relates to. It is also not disputed that such law must not offend against the fundamental rights. In the Supreme Court of America, stress has been laid uniformly upon the word due which occurs before and qualifies the expression process of law. Due means what is just and proper according to the circumstances of a particular case. It is this word which introduces the variable element in the application of the doctrine for what is reasonable in one set of circumstances may not be so in another and a different set. In the Indian Constitution the word due has been deliberately omitted and this shows clearly that the Constitution makers of India had no intention of introducing the American doctrine.1

       Per Das J.: Article 21 defines the substantive fundamental right to which protection is given and does not purport to prescribe any particular procedure at all. That a person shall not be deprived of his life or personal liberty except according to procedure established by law is the substantive fundamental right to which protection is given by the Constitution. The avowed object of the article is to define the ambit of the right to life and personal liberty which is to be protected as fundamental right. The right to life and personal liberty protected by Art. 21 is not an absolute right but is a qualified right-a right circumscribed by the possibility or risk of being lost according to procedure established by law. Liability to deprivation according to procedure established by law is in the nature of words of limitation. The Article delimits the right by a reference to its liability to deprivation according to procedure established by law and by this very definition throws a corresponding obligation on the State to follow a procedure before depriving a man of his life and personal liberty. What that procedure is to be is not within the purpose or purview of this Article to prescribe or indicate.

       The word "established" means "enacted" and the words "established by law" mean "enacted by law. The word "law" means State made law.2

       Per Fazl Ali J. (contra): In America the word law in the expression "due process of law" does not mean merely State-made law enacted by the State and does not exclude certain fundamental principles of justice which enure in every civilized system of law and which are at the root of it. These, according to Willis3 are: (1) notice: (2) opportunity to be heard: (3) an impartial tribunal: and (4) orderly course of procedure. These essentials may assume different forms in different circumstances, and so long as they are conceded in principle, the requirement of law will be fulfilled. The word law in Article 21 does not mean only State-made law, but the words "established by law" must include the four principles set out in Prof. Willis book referred to above.4 1 A.I.R. 1950 S.C. pp. 97, 101, 102.

       2. A.I.R. 1950 S.C. p. 114.

       3. "Constitutional Law", p. 162.

       4. A.I.R. 1950 S.C., pp. 58, 61. - Article 21-Scope-Applies to cases of preventive detention as well-Correlation to Article 22.

       Held: Article 21 has to be read as supplemented by Art. 22. To the extent the procedure is prescribed by Art. 22 the same is to be observed; otherwise Art. 21 will apply. To the extent the points are dealt with, and included or excluded, Art. 22 is a complete code. On the points of procedure which expressly or by necessary implication are not dealt with by Art. 22, the operation of Art. 21 will remain unaffected.1 The language of Art. 21 is perfectly general and covers deprivation of personal liberty or incarceration, both for punitive and preventive reasons. It cannot be said that the provisions contained in clauses (4) to (7) of Article 22 form an exhaustive code dealing with all matters relating to preventive detention and cover the entire area of protection which Article 21 would afford to the person detained.2 Thus, the procedure, if any, with regard to preventive detention as has been prescribed by Art. 22 of the Constitution must override those general rules of procedure which are contemplated by Art. 21 but with respect to matters for which no provision is made in Art. 22, the general provision made in Art. 21 must apply.3

       "Article 21, as the marginal note states, guarantees to every person protection of life and personal liberty. As I read it, it defines the substantive fundamental right to which protection is given and does not purport to prescribe any particular procedure at all. That a person shall not be deprived of his life or personal liberty except according to procedure established by law is the substantive fundamental right to which protection is given by the Constitution. The avowed object of the Article, as I apprehend it, is to define the ambit of the right to life and personal liberty which is to be protected as a fundamental right. The

       1. A.I.R. 1950 S.C., pp. 40, 41, per Kania C. J.

       2. Ibid, p. 75. per Patanjali Sastri, J.

       3. Ibid, p. 90, per Mukherjea, J.

       right to life and personal liberty protected by Art. 21 is not an absolute right but is a qualified right-a right circumscribed by the possibility or risk of being lost according to procedure established by law. Liability to deprivation according to procedure established by law is in the nature of words of limitation. The Article delimits the right by a reference to its liability to deprivation according to procedure established by law and by this very definition throws a corresponding obligation on the state to follow a procedure before depriving a man of his life and personal liberty. What that procedure is to be is not within the purpose or purview of this Article to prescribe or indicate The only power of the court is to determine whether the impugned law has provided some procedure and observed and obeyed the minimum requirements of Art. 22 and if it has, then it is not for the court to insist on more elaborate procedure according to its notion or to question the wisdom of the legislative authority in enacting the, particular law, however harsh, unreasonable, archaic or odious the provisions of that law may be" (Per Das J.)1 - Articles 21, 22-Preventive Detention Act, 1950 (Act IV of 1950), S. 3-Whether complies with "the procedure established by law."

       1. See Aggrawalas "Fundamental Rights and Constitutional Remedies", Vol. I. Chapter XII, pp. 494 to 550, where this subject has been fully dealt with.

       It was contended that S3 of the Preventive Detention Act, 1950 (Act IV of 1950)1 which empowers the Central Government or the State Government to detain any person if it is "satisfied" that it is necessary to do so with a view to preventing him from acting in any manner prejudicial to (among other things) the security of the State or the maintenance of public order, cannot be said to comply with the procedure established by law, as the section prescribed no objective and ascertainable standard of conduct to which it will be possible to conform, but leaves it to the will and pleasure of the Government concerned to make an order of detention.

       Held: The argument proceeds on assumption that the procedure established by law is equivalent to the due process of law, which is not the case. Apart from this, the argument overlooks that for the purposes of preventive detention it would be difficult, if not impossible to lay down objective rules of conduct failure to conform to which should lead to such detention. As the very term implies, the detention in such cases is effected with a view to preventing the person concerned from acting prejudicially to certain objects which the legislation providing for such detention has in view. Nor would it be practicable to indicate or enumerate in advance what acts or classes of acts would be regarded as prejudicial. The responsibility for the security of the State and the maintenance of public order etc. having been laid on the executive government it must naturally be left to that Government to exercise the power of preventive detention whenever they think the occasion demands it.2 Preventive detention action is a subjective test based on the cumulative effect of different actions, perhaps spread over a considerable period. A court is the least appropriate tribunal to investigate the question whether circumstances of suspicion exist warranting the restraint on a person.3 - Article 22 (5)-Preventive Detention Act, 1950, S. 14 ultra vires, but separable without affecting the remaining Act.

       Clause 5 of Art. 22 of the Constitution provides:

       "When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."

       Section 14 of the Preventive Detention Act, 1950 (IV of 1950)1 was challenged by the petitioner as unconstitutional being against the provisions of Art. 22 (5) of the Constitution.

       Held: Section 14 of the Preventive Detention Act, 1950, is illegal and ultra vires. The invalidity of this section, however, does not affect the rest of the provisions in this Act.2 - Article 22 (7) (a)-Interpretation and scope-Preventive Detention Act, 1950 (Act IV of 1950), S.12-Whether contravenes article 22 (7) (a).

       Sub-clause (a) of clause (7) of article 22 reads:

       "Parliament may by law prescribe 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)."

       On behalf of the petitioner it was urged: S. 12 of the Preventive Detention Act 19501, did not comply with the requirements of clause (7) of Art. 22, as it merely repeated the "matters" or legislative topics mentioned in Entry 9 of List I and Entry 3 of List III of 8ch. 7 to the Constitution. Item 9 of List I mentions reasons connected with defence, foreign affairs and security of India while item 3 of list III speaks of reasons connected with security of a State, the maintenance of public order and the maintenance of supplies and services essential to the community. With the exception of the last head, all the remaining five have been listed in S. 12 of the impugned Act, and they have been mentioned both as circumstances and classes of cases in which detention for more than three months would be permissible without the opinion of the Advisory Board. The mentioning of five out of the six legislative heads in S. 12 does not amount to prescribing the circumstances under which, or the classes of eases in which, a person could be detained for more than three months as contemplated by Art. 22 (7) (a). In view of the fact that the two items circumstances and classes are separated by the conjunction and, what the Constitution really contemplated was that both these items should be specified and a statement or specification of anyone of them would not be a proper compliance with the provisions of the clause. The mentioning of the same matters as circumstances or classes is not warranted by Art. 22 (7) of the Constitution and is altogether illogical and unsound.

       1. Por text of the section, seepage 372 ante.

       Held (Per Kania G.J. Patanjali Sastri, Mukherjea and Das JJ., Fazl Ali and Mahajan JJ. contra) : Under Art 22 (7) (a), the Parliament may specify the circumstances under which and the classes of cases in which the necessity of placing the cases of detention for examination by the Advisory Board could be dispensed with. By classes of cases is meant certain determinable groups, the individuals in each group being related to one another in a particular way which constitutes the determining factor of that group. Circumstances on the other hand, connote situation or conditions which are external to the persons concerned. The basis of classification has been the apprehended acts of the persons detained described with reference to the general heads mentioned in the items in the legislative lists as stated above, and although the descriptions are very general and there may be acts of various degrees of intensity and danger under each one of these heads, the section is not invalid as being ultra vires the Constitution, inasmuch as the Constitution has given unfettered powers to Parliament in the matter of making the classifications. It also cannot be held that both circumstances as well as classes have to be prescribed in order to comply with the requirements of Art. 22 (7) (a). This sub-clause of the article lays down a purely enabling provision and Parliament, if it so chooses, may pass any legislation in terms of the same. Where an optional power is conferred on certain authority to perform two separate acts, ordinarily it would not be obligatory upon it to perform both; it may do either if it so likes. In the impugned section classes have been specified and the classes apparently are composed of persons who are detained for the purpose of preventing them from committing certain apprehended acts. It is doubtful whether the classes themselves could be described as circumstances as they purport to have been done in the section. Circumstances would ordinarily refer to conditions like war, rebellion, or communal disturbances and things like that, under which extra precaution might be necessary and the detention of suspected persons beyond the period of three months without sanction of the Advisory Board might be justified. It is not obligatory on Parliament to prescribe both the circumstances and the classes of cases and S. 12 is not ultra vires of the Constitution because the circumstances are not mentioned.1

       "A class can well be designated with reference to the end which one desires to secure, and the matters referred to as classes (a) and (b) of subsection (I) of S. 12 being clearly the objects which Parliament desired to secure by enacting the section, it seems to me that the classification with reference to such general aims does not contravene Art. 22 (7).

       "As I read Art. 22 (7), it means that Parliament may prescribe either the circumstances or the classes of cases or both, and in enacting S. 12, Parliament evidently regarded the matters mentioned in clauses (a) and (b) of sub-section (I) as sufficiently indicative both of the circumstances under which and the classes in which a person could be detained for the longer period. To say, for instance, that persons who are likely to act prejudicially to the defence of India may be detained beyond three months is at once to "prescribe a class of persons in which and the circumstances under which" a person may be detained for the longer period. In other words, the classification itself may be such as to amount to a sufficient description of the circumstances for purpses of cl. (7). The circumstances which would justify precautionary detention

       1. Per Mukherjea J., A.J.R. 1950, pp. 103, 104; per Das J., ibid, p. 123.

       beyond three months without recourse to an Advisory Board must be far too numerous for anything approaching an exhaustive enumeration, and it can, in my judgment, be no objection to the validity of S. 12 that no circumstances are mentioned apart from the matters referred to in clauses (a) and (b) of sub-section (I). It would indeed be singular for the Court to strike down a parliamentary enactment because in its opinion a certain classification therein made is imperfect or the mention of certain circumstances is unspecific or inadequate." (Per Patanjali Shastri J.)1

       Per Fazl Ali J. (contra): On reading Arts. 22 (4) and 22 (7) together, it would be clear that so long as Art. 22 (4) (a) holds the field and Parliament does not act under clause 7 (a) of Art. 22, there must be an Advisory Board in every case. Clause 4 (a) is thus a rule and clause 7 (a) an exception to it. The provision clearly means that both the circumstances and the class or classes of cases (which are two different expressions with different connotations and cannot be regarded as synonymous) should be prescribed, and the prescription of one without prescribing the other would not be enough. A special or extreme type of law must be limited to special classes of cases and circumstances. Under the Constitution, the Parliament has to describe "the class or classes", acting within the limits of the power granted to it under Lists I and III. Prescribing is more than a mere mechanical process. It involves a mental effort to select and adopt the thing prescribed to the object for which it has to be prescribed. Here the object is prolonged detention; that is detention for more than three months, and elimination of the Advisory Board. The class or classes to be prescribed must, therefore, have a direct bearing on these matters and must be so selected and stated that anyone by looking at them may say: "That is the reason why the law has prescribed prolonged detention without reference to an Advisory Board.

       "It appears to me that Art. 22 deals with three classes of preventive detention:

       (1) preventive detention for three months:

       (2) preventive detention for more than three months on the report of the Advisory Board: and

       (3) preventive detention for more than three months without reference to the Advisory Board.

       If one has to find some kind of a label for these classes for a clear understanding of the subject, one may label them as dangerous, more dangerous and most dangerous. Now so far as the first two classes are concerned, there is nothing to be prescribed under the Constitution. Apparently, the authors of the Constitution were not much concerned about class No. (1), and they thought that in so far as class No. (2) was concerned the provision that a reference to the Advisory Board was necessary coupled with the provision that detention was not to exceed the maximum period which may be fixed by the Parliament was enough. But they did take care to make a special provision for class No. (3), and it is extremely important for the liberty of the subject as well as for the smooth working of the Constitution that this provision should not be lightly treated but should receive a well considered and reasonable

       1. A.I.R. 1950, pp. 78, 79.

       

       construction. It is elementary that the rigour of a law should correspond to or fit the gravity of the evil or danger it aims at combating, and it is also evident that the law which the Parliament has been permitted to enact under Art. 22 (7) (a) can, so far as rigour is concerned, go to the farthest limit. It follows that the law must have been intended for exceptionally grave situations and exigencies. Hence the authors of the Constitution have made it necessary that the Parliament should put certain specifications into the Act which it is empowered to pass under Art. 22 (7) (a), as that by means of these specifications the necessity for enacting so drastic a law should be apparent on the face of it, and its application should be confined to the classes and circumstances specified. The Act must prescribe (I) "class or classes of cases" which are to have reference to the persons against whom it is to operate and their activities and movements and (2) "circumstances" which would bring into prominence the conditions and the backgrounds against which dangerous activities- should call for special measures. By means of such twofold prescription, the sphere for the application of the law will be confined only to a special type of cases- it will be less vague, less open to abuse and enable those who have to administer it to determine objectively when a condition has arisen to justify the use of the power vested in them by the law. This in my opinion, is the true meaning and significance of Art. 22(7) (a)."

       Applying the above test, S. 12 of the impugned Act. does not conform to the requirements of Art.22(7) (a), because it faila to prescribe either the circumstances or the class or classes of cases in the manner required by the Constitution. Even if admitting that it was within the competence of Parliament to treat any of the categories mentioned in items 9 and 3 of Lists 1 and 3 as constituting a class and to include it without any qualification or change, the impugned section cannot be saved on account of a twofold error ;- The word and which links class or classes with circumstances in Art. 22(7)(a) has been wrongly construed to mean or; and (2) the distinction between circumstances and class or classes has been completely ignored and they are used as interchangeable terms.l

       Per Mahajan J. (contra) ; It seems clear that the real purpose of c1. (7) was to provide for a contingency where compulsory requirement of an Advisory Board may defeat the object of the law of preventive detention. In my opinion, it was incorporated in the Constitution to meet abnormal and exceptional cases, the cases being of a kind where an Advisory Board could not be taken into confidence. The authority to make such drastic legislation was entrusted to the Supreme Legislature but with the further safeguard that it can only enact a law of such a drastic nature provided it prescribed the circumstances under which power had to be used or in the alternative it prescribed the classes of cases or stated or determinable group of cases in which this could be. done. The intenti0!l .was to lay down some objective standard for the guidance of the defaming authority on the basis of which without consultation of an Advisory Board detention could be ordered beyond the period of three months. In this connection, it has to be remembered that the Constitution must have thought of really some abnormal situation and of some dangerous groups of persons when it found it necessary to dispense with a tribunal like an Advisory Board which functions in camera and which is not bound even to give a personal

       1. A.I.R. 1950 S.C., pp. 62, 63, 64, 65.

       

       hearing to the detenu and whose proceedings are privileged. The law on the subject of preventive detention in order to avoid even such innocuous institution could only be justified on the basis of peculiar circumstances and peculiar situations which had to be objectively laid down and that was what in my opinion was intended by cl. (7). The intention of the Legislature in enacting the clause was that the law of preventive detention authorising detention for a longer period than three months without the intervention of an Advisory Board had to fulfil both the requirements laid down in clause (7) and not only one of the requirements in the alternative. No circumstances have been stated in S. 12, though the section ostensibly says so.

       Clause (4) of Art. 22 enjoins in respect of all the six subjects ornamented in Entry 9 of the Union List and Entry 3 of the Concurrent List of Sch. 7 that no law can provide for preventive detention for a longer period than-three months without reference to an Advisory Board. Clause (7) gives permission to make a law for dispensing with an Advisory Board by a prescription of the classes of cases in which such a dispensation can be made. The normal procedure to be followed when detention is intended to be beyond a period of three months in respect of the six subjects is provided in sub-clause (4). The extraordinary and unusual procedure was intended to be adopted in certain abnormal cases for which provision could be made by a Parliamentary statute under clause (7). Quite .contrary td the intention of the Constitution the process has been reversed by S. 12 of the impugned Act inasmuch as it has dispensed with the Advisory Board in five out of the six subjects above mentioned and the compulsory procedure of an Advisory Board laid down in Clause (4) of Art 22 has been relegated to one out of these six subjects. This has been achieved by living a construction to the phrase "circumstances under which, and the clause of cases in which so as to make it co-extensive and coterminous with the subject of legislation. This construction of clause (7) is in contravention of the clear provisions of Art. 22 and makes clause (4) of Art. 22 to all intents and purposes nugatory. Section 12 of the Act does not fulfil the requirements of clause (7) of Art. 22 of the Constitution and is net a Jaw which falls within the ambit of that Clause1 - Article 22, Clauses 4 (a) and 7-Interrelation-Meaning of "such detention" in Art. 22(4) (a)-Scope of the functions of the Advisory Board.

       Sub• clause (a) of clause (4) of Article 22 of the Constitution provides :

       "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 (h) of clause (7)"

       1. A.I.R. 1950 S.C., pp. 85, 86,87,88.

       It was argued that the words "sufficient cause for such detention" in sub-clause (a) of clause (4) had reference to the detention beyond three months mentioned in clause (4) and that the combined effect of clauses (4) and (7) was that no person could be detained for a period over three months without obtaining the opinion of an Advisory Board that there was sufficient cause for detention for the longer period, except in cases where Parliament passed a law authorising detention for period even without the opinion of an Advisory Board.

       Held (Per Kania C.J. and Patanjali Sastri J.): It cannot be accepted that Art. 22(4) (a) is the rule and Art. 22(7) the exception. There are two alternatives provided by the Constitution for making laws on preventive detention. Reading clauses (4) and (7) together, it is reasonably clear that preventive detention could last longer in two cases, (l) where the opinion of an Advisory Board is obtained and (2) where a person is detained under la law made by Parliament under sub-clauses (a) and (b) of clause (7). These are two distinct and independent provisions.

       The words "such detention" in sub-clause (a) of clause (4) refer back to the preventive detention in clause (4) and not to detention for a longer period than three months. An Advisory Board, composed as it has to be of Judges Or lawyers, would hardly be in a position to judge how long a person under preventive detention, say, for reasons connected, with defence, should be detained, That must be a matter for the executive authorities to determine. All that an Advisory Board can reasonably be asked to do, as a safeguard against the misuse of power, is to judge whether the detention is justified and not arbitrary or mala fide .

       Per Fazl Ali J. (contra): Two alternative interpretations have been put forward as to the words "such detention" in clause (4) (a) of Article 22: (1) such detention means preventive detention; such detention means detention for a period longer than there months, If the first interpretation is correct, then the function of the Advisory Board would be to go into the merits of the case of each person and simply report whether there was sufficient cause for his detention. According to the other interpretation, the function of the Advisory Board will be to report to the Government whether there is sufficient cause for the person being detained for more three months. The second interpretation is correct. - Article 22- Clause (1) and (2) Procedure to be followed on arrest person.

       Held: "Clauses (1) and (2) of Art. 22 lay down the procedure that has to be followed when a man is arrested.

       "They ensure four things: (a) right to be informed regarding grounds of arrest, (4) right to consult, and to be defended by a legal practitioner of his choice, (e) right to be produced before a Magistrate within 24 hours and (d) freedom from detention beyond the said period except by order of the Magistrate." (per Das J.) - Article 32-Scope.

       Held: "The wording of Article 32 shows that the Supreme Court can be moved to grant a suitable relief, mentioned in Art. 32 (2), only in respect of the Fundamental Rights mentioned in Part III of the Constitution (Per Kania C.J,) - Schedule 7, List I, Entry 9 and List III, Entry 3-Meaniog of "preventive detention."

       Held: There is no authoritative definition of the term "preventive detention" in Indian law. The word "preventive" is used in contradistinction

       1. C. P. and Berar Act case, A.I.R. 1939 F.C.R. : 1939 F.C.R. 18 referred to.

       2. State of Bombay v. F. N. Balsara, (1951) S. C. R. 682; A. I. R. 1951 S. C. 38 referred to.

       3. Meaning of "income" in S. 2 (6-C) of the Income-tax Act, 1922, considered.

       

       to the word “punitive." The object is not to punish a man for having done something but to intercept him before he does it and to prevent him from doing it. No offence is proved, nor any charge formulated and the justification of such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence - Article 246 (1), 24s-Legislative power of Parliament and other legislatures-How far limited-Fundamental rights under Art. 19.

       Held: Under Article 245 (1), the legislative power of Parliament is "subject to the provision of the Constitution." A persual of Art. 19 makes it abundantly clear that none of the seven rights enumerated in clause (1) is an absolute right, for each of these rights is liable to be curtailed by laws made or to be made by the State to the extent mentioned in the several clauses (2) to (6) of that Article. Those clauses save the power of the State to make laws imposing certain specified restrictions on the several rights. The net result is that the unlimited legislative power given by Art. 246 read with the different legislative list in Sch. 7 is cut down by the provisions of Art. 19 and all laws made by the State with respect to these rights must, in order to be valid, observe these limitations. Whether any law has in fact transgressed these limitations is to be ascertained by the court and if in its view the restrictions imposed by the law are greater than what is permitted by clauses (2) to (6) whichever is applicable the Court will declare the same to be unconstitutional and, therefore, void under Art. 13.1