LexA.K. GOPALAN versus THE GOVERNMENT OF INDIA
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A.K.GOPALAN
v.
THE GOVERNMENT OF INDIA
October 27, 1965
[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO,. M. HIDAYA-
TULLAH, R. S. BACHAWAT AND V. RAMASWAMI, JJ.]
Df[ence of India Rn/es-R. 30(l)(h)-Detention order by Governor
of State cancelled-Substituted by Detention Order of Central Govern-
111ent-Whether nuila fide-Whether otherwise legal.
At a time when the State of Kerala was 'being governed by virtue of
a Proclamation under Art. 356 by the President acting through the Gover-
nor, the petitioners, who we,re members of the Left 1Communist Party
along with others numbering 140 in all, were ordered tu be detained
under r. 30(1) (b) of the Defence of India Rules by orders of the Gover·
nor of Kernla passed on December 29, l 964.
On March 4, 1965, the
Governor's orders \Vere cancelled and on the1 same date fresh orders of
detention were, made by the Central Government.
In petitions unde:r Art. J2, for \vrits of Habeas Corpus, the petitioners
contended, z'nter a/ia, that the orders of detention of the. 29th December
were mala fide 'in that they \\'·~re calculated to damage the prospect of
the petitioners' party at the imp·ending election.s; in the State, and that
the orders of the 4th March were also 111ala fide as they w·ere made to
circumvent the possibility of the petitioners' release in case their party
came into power afte1r the elections.
lt \Vas further contended that the,re
\Vas no application of the mind by the Government when the detention
orders were passed, for as inany as 140 orders \Vere passed on the same
day; that there \yas no material before the Central Government when
it passed the orders of March 4, l 965, and that if the orders of deten-
tion of December 29, 1964 were good, the only \Vay in which they
could be cancelled was by release of the petitioners and they could not
be replaced by other orders of detention.
HELD : The petitioners' detention under the orde;rs passed on March
4, 1965 \Vas le.gal.
It is \Vell settled that in dealing \Vith a petition for habeas corpus the
courts has to see: \vhethcr the detention on the date on which the. appli-
cation is made is legal if nothing more has intervened between the date
of the. application and the date of hearing. Accordingly, the court would
only consider the legality of the orders passed on March 4, 1965. [430
C-D, E]
It could not be said that the detention orders we:re passed mala fide
if the Central Government v.'as satisfied that with a view to preventing
the petitione:rs from acting in a manner prejudicial to the dzfencc of
India, etc., it was necessary to detain them. [430 F-G]
There was no reason to disbelieve the affidavit fikd on behalf of the
Government of India that it was satisfied with resp·zct to each individual
person detained that lais detention wa? necessary; and that thzre was
meterial before it on which it camz to its conclus1on. [431 E, HJ
428
SUPREME COURT REPORTS
[1966] 2 ~.C.R.
There1 was nothing illegal in the, President functioning under the Pro· A
clamation withdrawing the orders of detention of December 29, 1964 and
thereafter the Central Government passing the orders of detention of its
own on the same day. It was not necessary to carry out the empty formality
of release from jail under the orders of cancellation and then to arrest
the person released immediate1ly they came out of jail and to serve on
them the. new orders of detention dated March 4, 1965. [432 HJ
Smt. Godavari Shamrao Parulekar v. State
Maharashtra:
[1964]
R
6 S.C.R. 446. referred to.
ORIGINAL JURISDICTION : Writ Petitions Nos. 51 and 53 of
1965.
Petitions under Art. 32 of the Constitution of India for the
enforcement of the Fundamental Rights.
N. C. Chatterjee, M. R. K. Pillai, M. S. K. Aiyangar, D. P.
Singh, R. K. Garg, S. C. Aganvala, M. K. Ramamurthi, for the
petitioner (in W.P. No. 51).
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Petitioner in (W.P. No. 53) appeared in person.
Niren De, Additional Solicitor-General, N. S. Bindra, B. R.
G. K. Achar and R. N. Sachthey, for the respondent (in both the
petitions).
Interveners (in W.P. No. 53) appeared in person.
The Judgment of the Court was delivered by
Wanchoo, J.
These two petitions under Art. 32 of the
Constitution for a writ of habeas corpus raise common questions
and will be dealt with together. The main points raised in these
petitions have been dealt with in K. Ananda Nambiar v.
Chief
Secretary, Government of Madras and others(') in whiExcerpt shown. Read the full judgment & AI analysis in Lexace.