{"id":210427,"date":"1965-10-27T00:00:00","date_gmt":"1965-10-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/a-k-gopalan-vs-the-government-of-india-on-27-october-1965"},"modified":"2019-01-04T08:42:51","modified_gmt":"2019-01-04T03:12:51","slug":"a-k-gopalan-vs-the-government-of-india-on-27-october-1965","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/a-k-gopalan-vs-the-government-of-india-on-27-october-1965","title":{"rendered":"A. K. Gopalan vs The Government Of India on 27 October, 1965"},"content":{"rendered":"
Supreme Court of India<\/div>\n
A. K. Gopalan vs The Government Of India on 27 October, 1965<\/div>\n
Equivalent citations: 1966 AIR 816, \t\t 1966 SCR (2) 427<\/div>\n
Author: K Wanchoo<\/div>\n
Bench: Gajendragadkar, P.B. (Cj), Wanchoo, K.N., Hidayatullah, M., Bachawat, R.S., Ramaswami, V.<\/div>\n
           PETITIONER:\nA.   K. GOPALAN\n\n\tVs.\n\nRESPONDENT:\nTHE GOVERNMENT OF INDIA\n\nDATE OF JUDGMENT:\n27\/10\/1965\n\nBENCH:\nWANCHOO, K.N.\nBENCH:\nWANCHOO, K.N.\nGAJENDRAGADKAR, P.B. (CJ)\nHIDAYATULLAH, M.\nBACHAWAT, R.S.\nRAMASWAMI, V.\n\nCITATION:\n 1966 AIR  816\t\t  1966 SCR  (2) 427\n CITATOR INFO :\n D\t    1968 SC 327\t (3,4)\n R\t    1974 SC 510\t (3)\n\n\nACT:\nDefence\t of  India  Rules-R.  30(1)(b)-Detention  order\t  by\nGovernor  of State cancelled-Substituted by Detention  Order\nof  Central Government-Whether mala  fide-Whether  otherwise\nlegal.\n\n\n\nHEADNOTE:\nAt  a  time when the State of Kerala was being\tgoverned  by\nvirtue\tof  a Proclamation under Art. 356 by  the  President\nacting\tthrough\t the  Governor, the  petitioners,  who\twere\nmembers\t of  the  Left 'Communist Party\t along\twith  others\nnumbering  140 in all, were ordered to be detained under  r.\n30(1)  (b)  of the Defence of India Rules by orders  of\t the\nGovernor of Kerala passed on December 29, 1964.\t On March 4,\n1965,  the Governor's orders were cancelled and on the\tsame\ndate  fresh  orders of detention were made  by\tthe  Central\nGovernment.\nIn petitions under Art. 132, for writs of Habeas Corpus, the\npetitioners  contended,\t inter\talia,  that  the  orders  of\ndetention  of the 29th December were mala fide in that\tthey\nwere  calculated to damage the prospect of the\tpetitioners'\nparty at the impending elections in the State, and that\t the\norders\tof  the 4th March were also mala fide as  they\twere\nmade  to  circumvent  the possibility  of  the\tpetitioners'\nrelease\t in  case  their party came  into  power  after\t the\nelections.   It\t was  further contended that  there  was  no\napplication of the mind by the Government when the detention\norders were passed, for as many as 140 orders were passed on\nthe same day; that there Was no material before the  Central\nGovernment  when it passed the orders of March 4, 1965,\t and\nthat  if the orders of detention of December 29,  1964\twere\ngood,  the only way in which they could be cancelled was  by\nrelease of the petitioners and they could not be replaced by\nother orders of detention.\nHELD : The petitioners' detention under the orders passed on\nMarch 4, 1965 was legal.\nIt  is\twell  settled that in dealing with  a  petition\t for\nhabeas\tcot-pus the courts has to see whether the  detention\non  the\t date on which the application is made is  legal  if\nnothing\t more  has  intervened\tbetween\t the  date  of\t the\napplication and the date of hearing.  Accordingly, the court\nwould  only  consider the legality of the orders  passed  on\nMarch 4, 1965. [430 C-D, E]\nIt  could not be said that the detention orders were  passed\nmala fide if the Central Government was satisfied that\twith\na view to preventing the petitioners from acting in a manner\nprejudicial to the defence of India, etc., it was  necessary\nto detain them. [430 F-G]\nThere  was  no reason to disbelieve the affidavit  filed  on\nbehalf of the Government of India that it was satisfied with\nrespect\t  to  each  individual\tperson\tdetained  that\t his\ndetention wag necessary; and that there was meterial  before\nit on which it came to its conclusion. [431 E, H]\n4 2 8\nThere was nothing illegal in the President functioning under\nthe  Proclamation  withdrawing the' orders of  detention  of\nDecember  29,  1964 and thereafter  the\t Central  Government\npassing the orders of detention of its own on the same\tday.\nit  was\t not necessary to carry out the empty  formality  of\nrelease from jail under the orders of cancellation and\tthen\nto  arrest the person released immediately they came out  of\njail and to serve on them the, new orders of detention dated\nMarch 4, 1965. [432 H]\nSmt.   Godavari\t Shamrao Parulekar v.  State  Maharashtra<\/a>  :\n[1964] 6 S.C.R. 446. referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL  JURISDICTION\t: Writ Petitions Nos. 51 and  53  of
\n1965.\n<\/p>\n
Petitions under Art. 32 of the Constitution of India for the
\nenforcement of the Fundamental Rights.\n<\/p>\n
N.   C.\t Chatterjee, M. R. K. Pillai, M. S. K. Aiyangar,  D.
\nP. Singh, R. K. Garg, S. C. Agarwala, M. K. Ramamurthi,\t for
\nthe petitioner (in W.P. No. 51).\n<\/p>\n
Petitioner in (W.P. No. 53) appeared in person.
\nNiren De, Additional Solicitor-General, N. S. Bindra, B.  R.
\nG. K. Achar and R. N. Sachthey, for the respondent (in\tboth
\nthe petitions).\n<\/p>\n
Interveners (in W.P. No. 53) appeared in person.
\nThe Judgment of the Court was delivered by
\nWanchoo,  J.  These  two  petitions under  Art.\t 32  of\t the
\nConstitution  for  a  writ of  habeas  corpus  raise  common
\nquestions and will be dealt with together.  The main  points
\nraised in these petitions have been dealt with in K.  Ananda
\nNambiar\t v.  Chief  Secretary,\tGovernment  of\tMadras\t and
\nothers<\/a>(1)  in which judgment is being delivered\t today.\t  It
\nremains\t now  to  consider  the\t other\tpoints\tthat   arise
\nspecially in these petitions.\n<\/p>\n
The petitioners are members of the Left Communist Party\t and
\nwere ordered to be detained along with others numbering\t 140
\nin  all\t under r. 30(1) (b) of the Defence  of\tIndia  Rules
\n(hereinafter  referred\tto as the Rules) by  orders  of\t the
\nGovernor  of  Kerala  passed  on  December  29,\t 1964.\t  In
\npursuance  of these orders the petitioners were arrested  on
\nDecember  30,  1964.  At that time the State of\t Kerala\t was
\nbeing  governed\t by  virtue  of\t the  Proclamation  of\t the
\nPresident  dated September 10, 1964.  By  this\tProclamation
\nthe  President\tassumed\t to himself  all  functions  of\t the
\nGovernment
\n(1)  [1966] 2 S.C.R. 178.\n<\/p>\n
\t\t\t    429<\/span><\/p>\n
of  the\t State\tof  Kerala  and\t all  powers  vested  in  or
\nexercisable by the Governor of that State and declared\tthat
\nthe  powers  of the legislature of the said State  would  be
\nexercisable  by or under the authority of  Parliament.\t The
\nProclamation  also  provided  that in the  exercise  of\t the
\nfunctions  and powers assumed by the President with  respect
\nto  the governance of the State, the President would act  to
\nsuch  extent as he thought fit through the Governor  of\t the
\nsaid  State.  Certain other incidental provisions were\talso
\nmade  in  the  Proclamation with which however\twe  are\t not
\nconcerned.  The case of the petitioners is that these orders
\nof  detention were mala fide inasmuch as a general  election
\nwas  going  to be hold in Kerala in the beginning  of  March
\n1965.\tIn  order  to  damage  the  prospects  of  the\tLeft
\nCommunist  Party in the election and to improve that of\t the
\nCongress Party these orders of detention were made under the
\nRules.\n<\/p>\n
After  the  elections were over, the  Left  Communist  Party
\nemerged\t  as  the  largest  single  party.   There  was\t  an
\napprehension  that if the Proclamation was withdrawn  and  a
\nparty\tgovernment  came  into\tpower  in  the\tState,\t the
\npetitioners   and  others  like\t them  might  be   released.
\nConsequently it is said that on March 4. 1965, the order  of
\nthe  Governor  dated  December 29, 1964\t was  cancelled\t and
\nanother\t order was made on the same date (namely,  March  4,
\n1965) by the Central Government in the name of the President
\nordering  the detention of the petitioners under the  Rules.
\nThe  petitioners contend that this order was also mala\tfide
\nas  it\twas  made  to  circumvent  the\tpossibility  of\t the
\nPetitioners  release  in case a party-government  came\tinto
\npower  in  the\tState of Kerala after  the  elections.\t The
\npetitioners further contend that there was no application of
\nthe mind of the authority when the orders of’ detention were
\npassed\ton December 29, 1964 and March 4, 1965.\t Further  it
\nis  contended that there was no material before the  Central
\nGovernment on March 4, 1965 on the basis of which the orders
\nof detention could be passed and therefore the orders passed
\non that date were illegal.  Lastly, it is urged that if\t the
\norders\tof detention passed on December 29, 1964 were  good,
\nthe only way in which they could be cancelled was by release
\nof  the petitioners and they could not be replaced by  other
\norders of detention.  It is further urged that the order  of
\ncancellation was passed on March 4, 1965 and so was the\t new
\norder  of  detention; but both these orders were  served  on
\nthem on March 6, 1965.\tIt is said that the Governor’s order
\ndated  December 29, 1964 having been cancelled on  March  4,
\n1965  came  to an end that day while the  President’s  order
\nhaving been served on the petitioners’ on March
\n430<\/span>
\n6,  1965  began\t from that day and therefore  there  was  no
\nwarrant -for detention between March 4 and March 6, 1965.
\nReplies have been filed on behalf of the Government of India
\ntraversing all the allegations so far as detention under the
\norder  dated March 4, 1965 is concerned.  No reply has\tbeen
\nfiled  on behalf of the Governor of Kerala with\t respect  to
\nthe detention order of December 29, 1964 for the reason that
\nthe  State,  of\t Kerala\t was  not  made\t a  party  to  these
\npetitions.   The  said\torders have  not  been\tspecifically
\nchallenged as they were not in force when the petitions were
\nmade.\n<\/p>\n
It  is\twell-settled  that in dealing with  a  petition\t for
\nhabeas corpus the court has to see whether the detention  on
\nthe  date on which the application is made to the  court  is
\nlegal,\tif nothing more has intervened between the  date  of
\nthe  application and the .date of hearing.  In\tthe  present
\ncase  the  applications were made to this  Court  after\t the
\norders\tdated  March  4,  1965\thad  been  .passed.   It  is
\ntherefore  unnecessary\tto  consider  the  validity  of\t the
\ndetention orders made on December 29, 1964, for those Orders
\nare  no longer in force and the petitioners are detained  by
\norders passed on March 4, 1965.\t We shall therefore consider
\nonly  the grounds urged against the validity of\t the  orders
\npassed on March 4, 1965.\n<\/p>\n
The first point that is urged is that these orders are\tmala
\nfide  inasmuch\tas  they  were\tpassed\tto  circumvent\t the
\npossibility  of\t the petitioners’ being released in  case  a
\nparty  government  came into power in the  State  of  Kerala
\nafter the elections in the beginning ,of March 1965.   These
\nallegations  have  been\t denied in the\taffidavit  filed  on
\nbehalf\tof  the Government of India.  But  apart  form\tthis
\ndenial we fail to see how the orders passed on March 4, 1965
\ncan  be said to be mala fide if the Central  Government\t was
\nsatisfied  that\t with a view to preventing  the\t petitioners
\nfrom acting in a manner prejudicial to the defence of India,
\ncivil  defence,\t public\t safety\t and  public  order  it\t was
\nnecessary  to  detain them.  It has been clearly  stated  on
\nbehalf\tof  the Government of India that  on  the  materials
\nplaced\tbefore it is was so satisfied before it\t passed\t the
\norders\tdated March 4, 1965.  In the face of this  affidavit
\non  behalf of the Government of India it cannot possibly  be
\nsaid that the orders passed on March 4, 1965 were mala fide,
\neven  if  we  were  to\tassume\tthat  there  was  any\tsuch
\npossibility   of  release  as  has  been  alleged   by\t the
\npetitioners, though that has also been ,denied on behalf  of
\nthe Government of India.  We therefore reject
\n431<\/span>
\nthe contention that the orders passed on March 4, 1965 were
\nmala fide.\n<\/p>\n
Then  it is urged that there was no application of  mind  by
\nthe Government of India before the- orders in question\twere
\npassed,\t for as many as 140 orders were passed on  the\tsame
\nday and that shows that mind could not have been applied  to
\neach  individual case before so many orders were passed\t all
\nat  once  on one day.  We are of opinion that  there  is  no
\nforce  in  this convention either. The reply  on  behalf  of
\nGovernment of India in this connection is that the  question
\nas  to the detention, of the persons who were ordered to  be
\ndetained  on  March 4, 1965 was under consideration  of\t the
\nGovernment  of\tIndia.\tfor quite some time  and  that\tonly
\ndetention  orders were passed on one day.  It has also\tbeen
\nstated\ton  behalf of the Government of India  that  it\t was
\nsatisfied with respect to each individual person ordered  to
\nbe  detained on March 4, 1965 that detention  was  necessary
\nfor   reasons  already\tset  out  and  it  was\tafter\tsuch
\nsatisfaction  that  the\t orders\t were  passed  though\tthey
\nhappened  to  be  -.passed  on the same\t day.\tWe  are\t not
\ntherefore  prepared to accept from the simple fact  that  as
\nmany as 140 orders were passed on the same day there was  no
\nsatisfaction  of  the, Government of India with\t respect  to
\neach  individual  case. We have no reason to hold  that\t the
\naffidavit filed on behalf of the Government of India in this
\nrespect\t should not be believed.  This contention must\talso
\nfail.\n<\/p>\n
Then  it  is  urged that there was no  material\t before\t the
\nCentral\t Government before it passed the orders on March  4,
\n1965.  This allegation has also been denied on behalf of the
\ngovernment  of\tIndia.\t The allegation\t is  that  the\tfile
\nrelating to these detenus must have been with the Government
\nof Kerala in Trivandrum till March 4, 1965 and therefore the
\nGovernment  of\t-India passed the orders on  March  4,\t1965
\nwithout any material before it.\t The reply of the Government
\nof  India is that the file pertaining to the  activities  of
\nthe  petitioners  and  others like  them  and  the  material
\nrelating  thereto were before the Government of\t India\twhen
\nthe orders of March 4, 1965 were passed.  We fail to see why
\nthere could not be two, files relating to the activities  of
\nthe  ‘petitioners  one\twith the Government  of\t Kerala\t and
\nanother\t with the Government of India., At any rate  it\t has
\nbeen  emphatically asserted on behalf of the  Government  of
\nIndia  that papers concerned activities of  the\t petitioners
\nand  others like them were with Government of India  and  it
\nwas  after  the government had satisfied itself\t from  those
\npapers as to the likely prejudicial. activities of the
\nSup.  Ci\/66-14
\n4 32
\npetitioners that it passed the orders in question.  There is
\ntherefore  no  force  in this contention either\t and  it  is
\nhereby rejected.\n<\/p>\n
We  now\t come to the cancellation of  the  detention  orders
\ndated December 29, 1964 on March 4, 1965 and the service  of
\nthe  orders of cancellation as well as the fresh  orders  of
\ndetention  passed  on  March  4,  1965.\t  We  have   already
\nindicated  that\t when the orders of December 29,  1964\twere
\npassed the President had assumed all functions of Government
\nof the State of Kerala and the Governor was the agent of the
\nPresident  in the matter of governance of the State to\tsuch
\nextent\tas  the President thought fit to  act  through\thim.
\nTherefore the order of the Governor dated December 29,\t1964
\nwas  in the circumstances the order of the President  acting
\nthrough\t the agency of the Governor of Kerala in respect  of
\nthe governance of the State and it was open to the President
\nto cancel the order passed by his agent and that is what  he
\ndid on March 4, 1965.  In the circumstances the cancellation
\ncannot be assailed as illegal.\tBut it is urged that if\t the
\norders\tof detention passed on December 29, 1964  were\tgood
\norders,\t they  could not be cancelled except by\t release  of
\ndetenus.   We cannot accept this contention.   These  orders
\nwere  passed when the Government of the State of Kerala\t was
\nbeing  carried\ton under the Proclamation of  September\t 10,
\n1964.\tThat  did not prevent the  Central  Government\tfrom
\ndeciding  whether it should itself detain these persons\t who
\nhad till then been detained under the orders of December 29,
\n1964.  If it decided to do so we cannot see anything illegal
\nin  this  action.  Further as the Government of\t Kerala\t was
\nfunctioning   under   the  President  by   virtue   of\t the
\nProclamation,  the  -decision of the Central  Government  to
\ndetain these persons for itself could be given effect to  by
\nasking\tthe President to cancel the orders of  the  Governor
\ndated December 29, 1964.  Thereafter the Central  Government
\ncould  pass  the  order\t of March  4,  1965  detaining.\t the
\npetitioners  and others like them.  Even where -Persons\t are
\ndetained  by orders of the State Government we can see 1  no
\nillegality  in\tthe  Central  Government  asking  the  State
\nGovernment concerned to withdraw its order of detention and’
\nto  detain the persons thereafter by orders of\tthe  Central
\nGovernment,  provided the State Government is  agreeable  to
\nwithdraw  its  order  of  detention.   Therefore  there\t was
\nnothing\t illegal  in  the President  functioning  under\t the
\nProclamation of September 10, 1964 withdrawing the orders of
\ndetention  of December 29, 1964 and thereafter\tthe  Central
\nGovernment passing the orders of detention of its own on the
\nsame  day.   It\t was not necessary to carry  out  the  empty
\nformality of release from jail under the orders
\n433<\/span>
\nof  cancellation  and then to arrest  the  persons  released
\nimmediately  they came out of jail and to serve on them\t the
\nnew  order  of\tdetention dated March 4, 1965  :  (see\tSmt.
\nGodavari Shamrao Parulekar v. The State of Maharashtra)
\nWe<\/a>  do\tnot think it necessary to decide the nature  of\t the
\ndetention  between  March 4 and March 6, 1965.\t Nor  is  it
\nnecessary in the present cases to decide whether an order of
\ncancellation comes into effect immediately while an order of
\ndetention  takes  effect from the date it  is  communicated.
\nWhat we have to see is whether the detention under the fresh
\norder  passed on March 4, 1965 was legal when  the  petition
\nfor  habeas  corpus was made.  As to that we have  no  doubt
\nthat it is legal.\n<\/p>\n
We therefore dismiss the petitions.\n<\/p>\n
Before\twe leave these cases we would like to refer  to\t the
\ninordinate  delay that took place between the making of\t the
\npetitions  to the jail authorities and their  reaching\tthis
\nCourt.\t The petitions were made on March 15, 1965 but\tthey
\nreached\t this  Court on April 12, 1965, exactly\t four  weeks
\nlater.\t We consider that ordinarily one week is enough\t for
\nany  such  petition to reach this Court, from  any  part  of
\nIndia.\t We  also consider that it is the duty of  the\tjail
\nauthorities  to send such petitions directly and at once  to
\nthis  Court  and indeed to the High Courts  where  they\t are
\naddressed  to  them.  We trust that there will\tbe  no\tsuch
\nlapse again in future.\n<\/p>\n
Petitions dismissed.\n<\/p>\n
(1) [1964] 6 S.C.R. 446.\n<\/p>\n
434<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India A. K. Gopalan vs The Government Of India on 27 October, 1965 Equivalent citations: 1966 AIR 816, 1966 SCR (2) 427 Author: K Wanchoo Bench: Gajendragadkar, P.B. (Cj), Wanchoo, K.N., Hidayatullah, M., Bachawat, R.S., Ramaswami, V. PETITIONER: A. K. GOPALAN Vs. RESPONDENT: THE GOVERNMENT OF INDIA DATE OF JUDGMENT: 27\/10\/1965 BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-210427","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nA. K. 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