LAW RESOURCE INDIA

Rallying public opinion against arbitrary detention

Posted in CONSTITUTION, HUMAN RIGHTS, JUDICIARY, LIBERTY AND JUSTICE, RIGHTS, SUPREME COURT by NNLRJ INDIA on January 27, 2010

THE PUBLIC IN THE REPUBLIC SERIES

K.K. Venugopal remembers how his father M.K. NAMBIAR took up the A.K.Gopalan case, challenging the Preventive Detention Act

MY FATHER, M.K. Nambiar belonged to a family of landlords. The landlords of Kerala at that time (1920s) were a very litigious lot. I remember my father telling me that the big tarwads (clans) would fight over a small bit of land and before the case was filed, one landlord would tell the other “I will see you in the Privy Council”. This meant that he was willing to spend any amount of money to protect what he believed to be the family prestige.

M K NAMBIAR

M K NAMBIAR

In his family, I believe my father was the only person who graduated, and later went to England as a young lawyer in the early 1930s to instruct the Queen’s Council in a dispute between two landed families. He then stayed back and did his LL.M in constitutional and administrative law, stood first and won many prizes, including one I remember vividly–a gramophone.

He was called to the Bar of the Inner Temple. Coming back, he was public prosecutor and government pleader in Mangalore in the then Madras Presidency for as long as 11 years. He then shifted to Madras at the suggestion of P. Govinda Menon who was elevated to the Bench of the Madras High Court and took over his practice. At that point of time he was doing mainly criminal cases, but had written a number of articles on constitutional law.

V .G.Rao who was later to be A.K.Gopalan’s counsel chanced upon my father arguing a criminal case by introducing Constitutional law principles to defend his client. Gopalan’s case was the lead case in a huge batch challenging the Preventive Detention Act. Realising that my father has a very good grounding in Constitutional law, Rao asked him whether he would challenge the validity of the Act before the Supreme Court. He said Gopalan would not be able to pay much by way of fees, but that all expenses would be taken care of to go to Delhi and argue before the Supreme Court. My father readily agreed.

Thereafter I remember that in his large office in Madras, there were books on Constitutional law, particularly American constitutional law strewn all over the floor as there was no space on the tables. Of course my father had a good library of UK Constitutional law, but what was more helpful was the American and Irish constitutional law texts. I was also told that when he went to Delhi, Sir K. M. Munshi who was appearing in one of the connected matters sent word to my father’s solicitor if he (Munshi) could lead the arguments, but that the solicitor informed him that as Nambiar was fully prepared, he would commence arguments.

Here was a person who was completely new to the Supreme Court and unfamiliar as far as the judges were concerned (who were of the erstwhile Federal Court). From day one, the questions posed by the judges and the answers of counsel were reported in the daily papers across the country, as this was the first constitutional law case of great significance. The judges were pleasantly surprised that the counsel could present constitutional law principles in a most authoritative fashion. As a matter of fact, many of the principles relating to fundamental rights and constitutional construction, which were not accepted at that time by the Court was later accepted by the Court in the Bank Nationalisation and Maneka Gandhi cases. Those principles, argued 30 years earlier, then became the law of the land.

InGolakNath,myfatherhadputforwardtheprincipleofthe”basicstructure” of the Constitution by way of arguing there were `implied limitations’ which fettered the amending power of the Constitution. As a matter of fact, there was a German author–Dieter Conrad–who had enunciated the principle. I was latertoldthathehadvisitedMadrasandmetmyfatheranddiscussedtheaspect.
But this was the first time this was argued in the Supreme Court. It was later  accepted in the  esavanandacasebyamajorityof7:6,thereby making a serious in road into Parliamentary supremacy. There were further attempts to modify this judgment, which failed, and is therefore the law of the land today.

K.K. Venugopal is a senior advocate in the Supreme Court of India

CASE

A.K. Gopalan v. State of Madras was decided by a 6-judge bench of the Supreme Court on 1950

JUDGMENT

The Court rejected a challenge against the use of the Preventive Detention Act, 1950 to arrest veteran Communist leader A.K. Gopalan. Shri M.K. Nambiar’s arguments invoking a wide protection for life and personal liberty under Article 21 of the Constitution did not find favour with the bench. Instead, the Court adopted a narrow threshold of `procedure established by law’ to hold that personal liberty could be restrained as long as the same was done under an enacted law. As per this understanding, courts could not inquire into the fairness of such a law.

IMPACT

In the eyes of many constitutional scholars, this decision was the `original sin’ of the post-Independence judicial set-up. By endorsing the principle of preventive detention, individual rights were clearly subordinated to those of the Sovereign. However, the reading of Article 21 has since been expanded. Courts must now inquire into whether a law that restrains personal liberty is `just, fair and reasonable’.

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