Gopalan doctrine : fundamental rights as isolated silos

THE SUPREME COURT OF INDIA has laid down the law that  right to privacy is a fundamental right, in WRIT PETITION (CIVIL) NO 494 OF 2012, JUSTICE K S PUTTASWAMY (RETD.), AND ANR. VERSUS UNION OF INDIA AND ORS.

The judgment by Dr D Y CHANDRACHUD, J , states 

D Gopalan doctrine : fundamental rights as isolated silos 

19 When eight judges of this Court rendered the decision in M P Sharma in 1954 

and later, six judges decided the controversy in Kharak Singh in 1962, the ascendant 

and, even well established, doctrine governing the fundamental rights contained in 

Part III was founded on the Gopalan principle. In Gopalan, Chief Justice Kania, 

speaking for a majority of five of the Bench of six judges, construed the relationship 

between Articles 19 and 21 to be one of mutual exclusion. In this line of enquiry, what 

was comprehended by Article 19 was excluded from Article 21. The seven freedoms 

of Article 19 were not subsumed in the fabric of life or personal liberty in Article 21. 

19 Ibid, at pages 358-359

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The consequence was that a law which curtailed one of the freedoms guaranteed by 

Article 19 would be required to answer the tests of reasonableness prescribed by 

clauses 2 to 6 of Article 19 and those alone. In the Gopalan perspective, free speech 

and expression was guaranteed by Article 19(1)(a) and was hence excluded from 

personal liberty under Article 21. Article 21 was but a residue. Chief Justice Kania 

held : 

“Reading Article 19 in that way it appears to me that the concept of 

the right to move freely throughout the territory of India is an entirely 

different concept from the right to “personal liberty” contemplated 

by Article 21. “Personal liberty” covers many more rights in one 

sense and has a restricted meaning in another sense. For instance, 

while the right to move or reside may be covered by the expression, 

“personal liberty” the right to freedom of speech (mentioned in 

Article 19(1)(a)) or the right to acquire, hold or dispose of property 

(mentioned in 19(1)(f)) cannot be considered a part of 

the personal liberty of a citizen. They form part of the liberty of a 

citizen but the limitation imposed by the word “personal” leads me 

to believe that those rights are not covered by the expression 

personal liberty. So read there is no conflict between Articles 19 and 

21. The contents and subject-matters of Articles 19 and 21 are thus 

not the same and they proceed to deal with the rights covered by 

their respective words from totally different angles. As already 

mentioned in respect of each of the rights specified in sub-clauses 

of Article 19(1) specific limitations in respect of each is provided, 

while the expression “personal liberty” in Article 21 is generally 

controlled by the general expression “procedure established by 

law”.”20

‘Procedure established by law’ under Article 21 was, in this view, not capable of being 

expanded to include the ‘due process of law’. Justice Fazl Ali dissented. The dissent 

20 Gopalan (Supra note 3), at pages 36-37

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adopted the view that the fundamental rights are not isolated and separate but protect 

a common thread of liberty and freedom:

“To my mind, the scheme of the Chapter dealing with the 

fundamental rights does not contemplate what is attributed to it, 

namely, that each article is a code by itself and is independent of 

the others. In my opinion, it cannot be said that Articles 19,20, 21 

and 22 do not to some extent overlap each other. The case of a 

person who is convicted of an offence will come under Articles 20 

and 21 and also under Article 22 so far as his arrest and detention 

in custody before trial are concerned. Preventive detention, which 

is dealt with an Article 22, also amounts to deprivation of personal 

liberty which is referred to in Article 21, and is a violation of the right 

of freedom of movement dealt with in Article 19(1)(d)…

It seems clear that the addition of the word “personal” before 

“liberty” in Article 21 cannot change the meaning of the words used 

in Article 19, nor can it put a matter which is inseparably bound up 

with personal liberty beyond its place...”21