Author: Vaishnavi Navghare.
(1982) 2 SCR 272
NAMES OF PARTIES
Petitioner: A. K. Roy
Respondent: Union of India
Justice Y. V. Chandrachud;
Justice P. N. Bhagwati;
Justice A.C. Gupta;
Justice V. D. Tulzapurkar; and
Justice D. A. Desai.
Right to personal liberty and right to life are the two important rights given to each and every person by the constitution of India. It is often considered as these rights should be free from coercion and restriction. Preventive detention rights existed into our country from ages and during the tenure of Indira Gandhi this law was misuse by passing the National Security Ordinance. Which put the person in detention of months with no access to lawyer. This law is often recognized as draconian which hampers the personal liberty of people.
It is often compared to Rowlatt Act of the British era which hampers the fundamental rights of the people. This judgement upheld the National Security Act which is often criticized and considered as arbitrary. This article is a case analysis of the Case of A. K. Roy v. Union of India and preventive detention rights in India.
Shri A.K Roy, Marxist Member of Parliament was detained under the 1980 National Security Act, under order passed by the Dhanbad District Magistrate, saying he was indulge in activities which are threat to public order.
After this incidents many opposition members of the parliament filed petition in the court saying that the ordinance making power of the president is against the parliamentary democracy in India. They question the validity of ordinance making power of President and ask to define the scope of issuing of ordinance by president.
Numerous petitions were filed along with this asking the validity of National Security ordinance and National Security Act 1980, calling it extremely arbitrary and draconian.
Court allowed all these petitions. Also they allow the applications for intervention by the People’s Union of Civil Liberties, the Supreme Court Bar Association and the State of Jammu and Kashmir which is interested in the upholding of the Jammu & Kashmir Public Safety Act, 1978.
Lawyers representing the Petitioner’s were Dr Ghatate, Shri Ram Jethmalani, Shri R.K. Garg. Shri Shiv Singh Shri Kapil Sibal. Shri V.M. Tarkunde, and Dr. L.M. Singhvi.
The Attorney General and Solicitor General of India represented the respondent (Government).
From the side of petitioner issues which are raised are as follows;
1. Shri Garg questions the extent and scope of the ordinance making power of the president. Under which he stated that:
- Ordinance making power lies with legislature and not executive.
- Under Article 21 of the Constitution the ‘Ordinance is not Law’, sating that the ordinance cannot take the life and liberty of people.
- Shri Tarkunde ji contended that ordinance is unconstitutional if the pre-conditions to promulgate an ordinance are not accomplished.
- If the ordinance making power is given to executive then Articles 14, 19 and 21 of the Constitution will be reduced to a dead letter.
2. Shri Garg questions the validity of the Preventive detention laws as it puts severe limitation over the personal freedom of the individual.
3. Questioning the validity of the unenforced part of 44th Amendment Act, 1978, Shri Garg further focuses on:
- Contradiction between the section 1(2) of the 44th amendment act and Article 368(2) of the constitution.
- Section 1(2) of the 44th Amendment Act is ultra vires to the power conferred by the parliament through Article 368 of Constitution i.e. power to Amend.
- Failure to bring section 3 of the 44th Amendment Act into force to the degree that it affects the Framework of the Advisory Boards.
- It is a Mala Fide act by government of not bringing the section 3 of the 44th Amendment Act into force.
4. Shri Ram Jethmalani ji questions the scope of the section 3(1) and 3(2) of the clauses of the National Security Act, thus calling them vague.
5. Lastly he questions the reasonableness of the procedure established by the National Security Act.
Court’s Response on the Issues Raised
Issue 1: Shri Garg questions the extent and scope of the ordinance making power of the president.
In this Shri Garg mainly center his argument saying that the ‘ordinance is not Law’ and president being an executive cannot have the legislative power and cannot take the life and liberty of the person through an ordinance.
a) Ordinance making power lies with legislature and not executive.
The petitioner hear quoted the statement of Montesquieu who said, “when the legislative and executive powers are united in the same body, there can be no liberty, because of the danger that the same monarch should enact and execute tyrannical laws”. He also quoted Blackstone who said “wherever the right of making and enforcing the law is vested in the same, there can be no public liberty.
Then Shri Garg referred to the ordinance law in Pre-Independence era he also focus status of ordinance making power in U.K. and U.S.A. and compare it with Indian law.
As per petitioner absolute and unrestrained power in the hand of executive can be harmful to the democracy and the life and liberty of the citizens. In England and America executive has no power to issue the ordinance. In India this power comes from colonial era and now executive can exercise this power whenever there is necessity. Before Independence there was free exercise of power and by which people have to suffer a lot. When The Government of India Act, 1935 was put before the members of constituent assembly, many members had already faced the trauma and suffering of the ordinance. The two powerful countries U.K. and U.S.A. does not assure such power. But they look inspiration from the The Government of India Act, 1935 where the Governor General had the power to issue the ordinance but only in certain necessitate situation only and also when the parliamentary session is on recess.
Constitution adopted the same from the The Government of India Act, 1935 in the Chapter III of Part V called ‘Legislative power of the President’ under Article 123. as per which when then both houses are not in session and if situation demands then president can issue the ordinance for national security. If within 6 weeks of commencement of parliamentary session, if it does not passed into an act then ordinance will lapse. From this Shri Garg concluded that the executive is only capable of passing an ordinance but not an act. And thus ordinance is not law.
The Court denied this argument stating that:
- As per Article 123 clause (2) the ordinance pass by the president have same effect as the law pass by the parliament. The only difference is that the terms of law decides the life of the law drawn by the parliament and the ordinance will cease to exist at the expiry of six weeks after reassembling of parliament unless both the houses pass the resolution disapproving it.
- As per Article 13 clause (2) the state should not make any laws which take away the right given in Part III of the constitution. And clause of the Article 13 provides that law includes ordinance.
- Article 367 provides with ‘Interpretation’ of the constitution and in the clause (2) of the article it is stated that the constitution makes no difference in the law made by the Parliament and law made by president. They Both are results of the exercise of legislative power, and are thus ordinance are subject to same limits as imposed on any law pass by parliament.
- The executive is allowed to used the legislative power in certain circumstance like Article 356 which authorizes the President to pass a decree when there is event of constitutional machinery breakdown in the States, and under Article 357(1)(a) all the powers exercised by president by its representative are legislative in nature.
- In the case of R.C.Cooper v. Union of India 1, the bench observed that “The President is under the Constitution not the repository of the legislative power of the Union, but with a view to meet extraordinary situations demanding immediate enactment of laws, provision is made in the Constitution investing the President with power to legislate by promulgating Ordinances.” Despite the adverse effect and suffering faced by the constituent assembly members due to ordinance in Pre- Independence era they decided to equip the president with legislative powers.
- Even if the executive is conferred with the powers of legislative it does not mean that, power can be used recklessly and with mala-fied intention for stratifying the political ends. President should use it only in extraordinary situation only. Therefore Judges did not accept the contention of petitioner that “Ordinance making power lies with legislature and not executive.”
b) Under Article 21 of the Constitution the ‘Ordinance is not Law’, sating that the ordinance cannot take the life and liberty of people.
As per petitioner Article 21 of the constitution, states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. In the case of A.K. Gopalan v State of Madras 2, the court held that “supremacy of the legislature is a fundamental right under Article 21 and it cannot be replaced by the executive supremacy to promulgate ordinances which deprive people of their life and liberty” if the ordinance will be termed as the legislative act the it will ultimately abuse the separation of power doctrine and also it cannot be said to ‘establish’ the procedure as ordinance is there for limited time period.
Judges denied the argument of the petitioner by saying that:
- On the argument of petitioner that the term ‘law’ in the Article 21 is made for the law pass by legislature and does not include an ordinance, Sections 123(2) and 367(2) of the Constitution gives the counter argument for that.
- The word ‘establish’ in the Article 21 denotes the procedure establish by law, and which ultimately ensures that those who are deprives of their life and liberty (fundamental right) should know the degree to which there rights are deprived. Also the purpose of Article 21 the time period of the law does not matter so long as its process is fair and ascertainable.
- Indian constitution does not follow the strict rule of separation of power therefore the argument of violation of separation of power does not stand.
On the basis of this explanation by judges court refutes the argument of petitioner that the ‘ordinance is not law.’
c) Shri Tarkunde Ji contended, ordinance is unconstitutional if the pre-conditions to promulgate an ordinance are not accomplished.
From the side of petitioner Shri Tarkunde contended that in order to issue an ordinance there should be a emergency situation which actually demands the passing of ordinance and compel the president to take the urgent action. He focus on deleted clause of Article 123(4), which ensures that the subjective satisfaction of president should be fair and final so that Parliament did not find it necessary to grant unfettered powers to Executive to issue ordinances. Burden of prof to prove the existence of emergency situation is on president.
However, the court did not find it appropriate to discuss this issue at a greater length because:
- The ordinance can either lapse or become the act, the president satisfaction is not the only reason why the ordinance become an act, such discussions are for academic purpose and not courts.
- No solid reasons were placed before courts to show that there were no pre-existing conditions for passing the ordinance, in the present case.
Therefore judges refuted the argument that the ordinance is unconstitutional if the pre-conditions to promulgate an ordinance are not accomplished. The president satisfaction is subjective and probably depends upon the resources he is exposed to at the time of decision making.
d) If the ordinance making power is given to executive then Articles 14, 19 and 21 of the Constitution will be reduced to a dead letter.
Shri Garg from the side of petitioner contended that “An ordinance should be operated only on a virgin land, i.e. an ordinance should be made only on those aspects where a law has never been made.” he further argued that if the executive is allowed to take the life and liberty of the people by detaining them then the then Articles 14, 19 and 21 of the Constitution will be reduced to a dead letter.
Judges denied this arguments by saying
- The constitution does not prescribe for the perfect rules as well as the guidelines for making an ordinance. Also the primary function of the ordinance is to handle the emergency situation and not to make the law on new subject matter.
- On the part of taking away the fundamental rights, Article 13(2) mentions that any law can’t be made in contrary to fundamental rights, and ordinance is subject to same limitations as the law pass by legislature, therefore the question of taking away of fundamental rights can never arise.
Issue 2: Shri Garg questions the validity of the Preventive detention laws as it puts severe limitation over the personal freedom of the individual.
Indian constitution makers made the constitution and government to protect the people, and therefore they gave the government the powers of declaration of emergency, issuance of ordinances, suspension of fundamental rights, etc. But along with this they have also taken care of human rights of people from the misuse of this powers by legislature and executive. In order to limit the excessive liberty the preventive detention laws were put in the central and concurrent lists of the seventh schedule of the constitution. Preventive detention laws are used for purpose national security when there is threat to public order, foreign affairs, defence etc.
The countries like U.K and USA did not have the preventive detention laws. But our constituent assembly members decided to have the preventive detention law, therefore judges said that they just cannot simply declare it unconstitutional on notion of right or wrong. Freedom of citizens is assured only when they are treated equally, preventive detention is recognized for abridging the liberties of the people (subject to limitations in Part III of the Constitution). therefore judges did not accept the argument that preventive detention is not in consonance with the fundamental rights of people.
Issue 3: Questioning the validity of the unenforced part of 44th Amendment Act, 1978.
As per the clause 4 of Article 22 of the constitution unless the advisory body of the judges of the high court demands no law should should provide for the preventive detention of the person for more than three months. This particular clause was amended by 44th amendment 1978 and in that it was stated that no law shall detain a person for more than two months. Time period can only be extended only the advisory body is constituted by the chief justice of ‘appropriate’ High court over particular matter. The amendment also specifies the composition of advisory body which includes the chairman and two members where chairman is serving as judge and other retired judges. It also defines the meaning of appropriate High court.
But problem arose when president under article 368(2) of constitution gave assent to this constitutional amendment act in 1979. few provisions from the act were brought into force by government through section 1(2) from June 30, 1979, also the rest of some provisions but section 3 of the act did not come into force. Section 3 of the 44th Constitutional Amendment Act, 1978 was only going to bring changes in the Article 22 which deals with preventive detention. But later National security ordinance came into force in 1980 which was in accordance with the section 3 of the amendment act. And later National security act was passed replacing the ordinance of 1980, but it was in consonance with the clause 4 of the Article 22 and with the amendment.
a) Contradiction between the section 1(2) of the 44th amendment act and Article 368(2) of the Constitution.
The article 368(20 provides for the procedure to bring amendment in the constitution. As per this article when an amendment bill is passed in parliament then it must be placed before the president for the assent. After the assent the constitution will stand amended as per the bill. This shows that the 44th Amendment Act, 1978 amended the Constitution after the president’s assent. But in the clause 1(2) it was given that the executive needs to issue notification in order to pass the amendment therefore the counsel of the petitioner stated that this condition is against the Article 368 and section 1(2) is also a deviation from constitution.
Judges denied the point of the petitioner and stated that:
- The article 368(2) lays down the general rule as to the date on which the President gave his approval. And section 1(2) of the act states the manner in which act should come into force.
- Constitutional body is itself setting a date on which the amendment can come into force therefore no compliant can be made against it.
- The constitution which will be amended after the passing of the bill as per its provisions is different from the amendment act which will be incorporated in the Constitution.
The legislature can have no effect unless it is brought into force. An amendment incorporated in constitution will have no effect unless it is brought into force. Therefore there is no contradiction between two and Section 1(2) is in accordance with the Constitution.
b) Section 1(2) of the 44th Amendment Act is ultra vires to the power conferred by the parliament through Article 368 of Constitution i.e. power to Amend.
Article 368(1) states the power given of parliament and also restrict the power to parliament only. This power cannot be delegated to any other body but petitioner claim that it is delegated and in this case it is government.
Judges denied this contention saying that:
- The authority to pass a notice to put the terms of the amendment into effect is not a legislative right. And also it does not have the authority to directly pass the constitutional amendment.
- In Queen v. Burah 3, the Privy Council case it was stated that it is difficult for the same authority to make as well as to enforce the law. Therefore it was held that legislature can make additional legislation at the time of enforcement of law and therefore section 1(2) of the 44th Amendment Act is not ultra vires to the power conferred by the parliament through Article 368 of the Constitution.
c) Failure to bring section 3 of the 44th Amendment Act into force to the degree that it affects the Framework of the Advisory Boards.
On this contention judges said that the court cannot force the government to bring the section 3 of the act into force. The discretion lies with the executive here and if parliament feels that executive has betrayed its trust then they can censure him. The writ of mandamus can not stand here as parliament does not give any special provisions or guidelines for the enforcement of the act. Judiciary can only be involved in this matter when there is no action from the side of executive and at last the remedy is to request central government to bring the section into force.
d) It is a Mala Fide act by government of not.
Judge denied this argument by saying that the discretionary power is with government and parliament has given the power to government to pass any amendment, mere because a delay the judiciary cannot interfere in this matter. And there is no such evidence showing any Mala fide intention of the central government to not bringing the section 3 of the 44th Amendment Act into force.
Issue 4. Shri Jethmalani Ji questions the scope of the section 3(1) and 3(2) of the clauses of the National Security Act, thus calling them vague.
Section 3(1) and section 3(2) of the National Security Act states that the any person can be detained if he is perceived to be threat to defense of India or security of India. On this section Shri Ram Jethmalani Ji argues that the term ‘Threat’ and ‘security’ of India have a very broad meaning and under these terms power can be misused and government can take anyone’s liberty and life and can detain him.
On this argument judges said that petitioner has taken the unrealistic issue in this aspect. “The fact that any interpretation or construction of an expression doesn’t mean that the definition will automatically give certainty to the expression.” the terms in the section 2 are uncertain but it does not mean that they are hard to define. Therefore this terms are not vague then also court will try to give the narrow definition to the terms for more benefit.
Issue 5. Petitioner questions the reasonableness of the procedure established by the National Security Act.
Three argument advance raise by the petitioner on the issue are-
- Reasonableness of the procedure which is prescribed by National Security Act.
- Fairness and reasonableness in regard to provisions of the Constitution of Advisory Boards.
- Reasonableness and justness in the procure carried out by the advisory board.
The counsel of the petitioner states that it is a is a draconian legislation because the grounds for detention are furnished according to this act, also the uniform 12 months detention period irrespective of the offence, also accused does not have the access to the lawyer, right to present evidence or undergoing cross examination in this period. Therefore the person under detention is denied to natural justice.
Courts denied all the arguments stated by the petitioner stating that rights are made available to the person on the basis of proceedings and the statutory provisions. The rights which are available to the criminal in the trail proceedings are cannot be applied in the advisory board proceedings as both of them have different impacts. The court further stated that held both the person detained and government should be denied legal help otherwise there would be breach in Article 14. The Advisory Board is free to regulate its own procedure according to the Constitutional provisions and the statute.4
The court in the judgement concluded that5:
- Executive have the ordinance making power and it is legislative in nature.
- Ordinance pass by the executive have the same effect as the act pass by the legislature.
- Indian constitution permits the right of preventive detention.
- National Security Act 1980 provisions are not vague and are reasonable.
- Section 1(2) of the 44th amendment act is in consonance with the provisions of constitution and is not ultra vires.
Majority decision of the court is;
- The parliament has given the discretionary power to the government to decide on enforcement of section 3 of the 44th amendment act. Therefore now they cannot force the government to bring the section into force by the writ of mandamus.
- On the contention of Shri Jethmalani Ji, that the words “defence of India” and “relation of India with foreign powers”, “security of India” have the wide meaning and are vague on this court said petitioner has taken the unrealistic issue in this aspect. Further court said liberal construction of these words can lead to many activities which in reality will not justify the the grounds for any preventive detention.
- On the contention of the petitioner that the advisory bodies should have the same proceedings like the judicial tribunals, court denied this contention saying the detained person is not a accused. Detainee is not allowed to get represented by a lawyer but he can consult a lawyer to take advice. He will represent himself. He can file for habeas corpus and go for cross examination. Detainee is kept away from the normal prisoners and his family can also meet him once a week.
Dissenting opinion is made by Justice Gupta on following points;
- According to him writ of mandamus should have been set in motion and urged central government to to implement Section 3 of the 44th Amendment Act, 1978 within two months. As per him this thing could have made the difference and if the advisory board consist of member who is retired judge rather than a person qualifies to be High court Judge then board could have easily get equip with the judicial mind. Justice Tulzapurkar also agreed on this point.
- As per him the ordinance is not law, because both of them posses different characteristic and mere heading to the chapter of legislative Powers will not make it a law.
From the overall arguments and the justification of the court we can said that this judgement has given us the answers to all the question related to the ordinance making power of the executive and why it is a legislative function. But it is some what hard to accept the decision of the majority that ‘Ordinance is law.’ because both of these powers are made by different organs of the state and have different values.
Also the decision of the president can be judicially reviewed but no such focus was given by the court on this grounds also no explanation was given which grounds should be taken into consideration for the judicial review of the decision of the president. Ans this is also limited to the president’s satisfaction only. Therefore is power can be easily misuse by the executive.
Also more basic rights should be given to the person who is detained so that his natural justice should not get hampered. The time period of the detention should be reduced for the easy and quick disposal of the cases, also it will not hamper the rights of the innocent.
Preventive detention is often referred to as the administrative detention where the person is confine without trial. Detention of the person takes place when he is consider as danger to the public safety and national security. The purpose of detention is to stop the detainee from committing further crime. It is considered as hampering the right of personal liberty of the person. Preventive detention is made on three grounds
- Security of state and for maintaining public order.
- Maintenance of supplies and essentials services.
- Foreign affairs and for security of India.
In India the minimum period of detention is three months and it can be extend if needed by the advisory bodies. As per Article 22(2) it is necessary to produce the person detain before magistrate within 24 hours from his arrest.6
National Security Act 1980
National Security Act 1980 was passed by Indian parliament on 23rd September 1980 and purpose of this act is to “provide for preventive detention in certain cases and for matters connected therewith.” This act extends to whole of India. This act gives the power to the Indian government to detain any person who is threat to the national security of India. This act was passed in the tenure of Indira Gandhi and before this there was National Security Act ordinance which is then pass into an Act.7
A. K. Roy v. Union Of India, (1982) it is a landmark judgement in the constitution in the area of ordinance and preventive detention. This judgement upheld the validity of National security Act. The judgement also gave the explanation relation to nature of ordinance making power and how it is same as legislative power. It is a commendable effort by Justice Chandrachud to effortlessly gave answers to the all the arguments of petitioners.
- AIR 564,  3 SCR 530.[↩]
-  SCR 88.[↩]
-  5 I.A. 178[↩]
- A.K. Roy v. Union of India, (1982) 1 SCC 271[↩]
- Aaqib Mushtaq Bhat, Dr Akhilesh Ranaut, ‘Preventive detention and personal liberty’, International Journal of Science and Research, Volume 8 Issue 4, April 2019.[↩]
- National Security Act 1980.[↩]
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