CLASS FOUR: GOPALAN MOOT COURT EXERCISE
The first case in which the Indian Supreme Court was called upon to interpret the Fundamental Rights part of the Constitution was decided within a year of adoption: Gopalan v State of Madras. For Class Four, we will do a moot court exercise "rearguing" Gopalan; you will read the Court's actual decision for Class Five (Students other than Robert Smyly and Anna Willyard should NOT read the Gopalan decision before Class Five).
Background: At the very last minute during the drafting of the Indian Constitution (November 1949) the Nehru government succeeded in persuading the Constituent Assembly to amend draft Article 22 ("Protection against arrest and detention") to add clause (7) allowing Parliament "by law" to authorize detention in excess of three months without the approval of an Advisory Board required under clause (3). The Constitution went into effect January 26, 1950. On the same day, the President of India issued the Preventative Detention (Extension of Duration) Order to address the problem that most if not all of the existing preventive laws failed to comply with the requirements of Article 22. This Order was quickly challenged and four different state high courts declared it unconstitutional within the following month. For example, there were over 500 persons detained in Calcutta alone because they were Communists who would have been due for release on February 26, 1950 upon the expiration of three months of detention without an Advisory Board approval.
The government responded to this situation by introducing the attached Preventive Detention Act (1950) in Parliament on February 24; it passed in a special Saturday session the next day--unanimously!
A.K. Gopalan was president of the all-India communist party. He had been repeatedly jailed since 1947 but each time his conviction had been set aside. He was promptly detained under the act that passed on February 25, 1950 and he filed a habeas corpus petition directly in the Supreme Court challenging the constitutionality of the Act.
Prepare to argue for a maximum of five minutes per person as assigned below:
Issue 1. Whether the Act as applied to Gopalan violated his Right to Freedom under Article 19, specifically his right to freedom of speech and to move freely throughout the territory of India. For Gopalan: Leslie Levingston. For the government, Lori DuBois.
Issue 2. Whether the Act as applied to Gopalan is contrary to the literal language of Article 21. For Gopalan: Leroya Chester. For the government: Susan Berry.
Issue 3. The relevance of the historical background of the drafting of the Constitution, especially the decision to change the original draft language in Article 21 ( "No person shall be deprived of life, liberty or property without due process of law") to the language actually enacted. For the government: Anna Willyard For Gopalan: Robert Smyly. I am giving Anna and Robert a set of historical materials to supplement the assigned readings.
The exercise will familiarize us with the way the different articles of the Indian Constitution interact, the historical background of the Constitution, and the important role of comparative constitutional law in India.
Do not address other possible legal arguments, including the applicability of Article 22 (except as Article 22 may be relevant to the interpretation of Article 21).