[Constitutional Law] A. K. Roy, Etc vs Union Of India And Anr, AIR 1982 SC 710

Case NameA. K. Roy, Etc vs Union Of India And Anr, AIR 1982 SC 710
Case NumberWrit Petition No. 5724 of 1980
CourtBefore the Supreme Court of India
BenchChief Justice Y.V. Chandrachud, Justice PN Bhagwati, Justice AC Gupta, Justice V.D. Tulzapurkar, Justice D.A. Desai
Author of the judgmentChief Justice Y.V. Chandrachud (Majority Opinion), Justice AC Gupta (Partly Dissenting), Justice VD Tulzapurkar (Partly Dissenting).
Decided OnDecember 28, 1981
Relevant Act/SectionsConstitution of India- Article 123, 14, 19, 21, 213, 368, 22.
Indian Evidence Act- Section 106.
National Security Act- Sections 3, 5, 8, 13, 16.
Author of the briefAditya Gor

Introduction

In the present case, the Supreme Court has been approached under Article 32 of the Indian Constitution whereby the validity of the National Security Ordinance, 1980, and certain provisions of National Security Act, 1980, which replaced the ordinance is challenged. Shri AK Roy is a Marxist member of the parliament who was detained under the ordinance by an order passed by the district magistrate, Dhanbad, on the ground that he was indulged in activities which were prejudicial to public order. Supreme Court in the present case accepted the application of intervention by other parties on the ground that since the ordinance-making power of the president is destructive of the system of Parliamentary democracy, it is necessary to define the scope of that power.

Broadly the act was challenged on the below grounds:

  1. Scope and limitations of the ordinance making power
  2. Vagueness and unreasonableness on the provisions of the act and the punitive detention
  3. Effect of 44th constitutional amendment act and the validity of its section 1(2)
  4. Issues relating to the fulfillment of preconditions of the exercise of ordinance making power
  5. The effect of non-implementation by the central government of the provisions of the 44th amendment regarding the composition of advisory boards
  6. Undefined powers of detention conferred under the act
  7. Need for the grant of minimum facilities for the detenus, the nature of the right of detenus to make an effective representation against the order of detention and the evils of the exercise of the power to issue an ordinance.

Brief Facts and Procedural History:

The National Security Ordinance which came into force on September 23, 1980, was passed in order “to provide for preventive detention in certain cases and for matters connected therewith”. The Parliament was not in session when it was promulgated and its preamble recited that it was being issued because the “President is satisfied that circumstances exist which render it necessary for him to take immediate action”. (Para 4)

Issues before the Court

Whether the power to make an ordinance is a legislative power or whether it is an executive power masquerading as a legislative power? (Para 6)

Arguments raised by the petitioners:

(a) The power to issue an ordinance is an executive power, not a legislative power;

(b) Ordinance is not ‘law’ because it is not made by an agency created by the Constitution for making laws and no law can be made without the intervention of the legislature;

(c) There is a marked shift towards distrust of power in order to preserve the people’s rights and therefore, liberty, democracy and the independence of judiciary are amongst the principal matters which are outside the ordinance-making power;

(d) By Article 21 of the Constitution, a person can be deprived of his life or liberty according to only to the procedure established by law. Ordinance is not ‘law’ within the meaning of Article 21 and therefore no person can be deprived of his life or liberty by an ordinance;

(e) The underlying object of Article 21 is to wholly deny to the executive the power to deprive a person of his life or liberty. Ordinance-making power, which is executive power, cannot, therefore, be used for that purpose. The executive cannot resort to the power to make ordinances so as or in order to remove the restraints imposed upon it by Article 21;

(f) The procedure prescribed under an ordinance is not procedure established by law because ordinances have a limited duration in point of time. The procedure prescribed by an ordinance is neither firm nor certain, by reason of which the procedure cannot be said to be ‘established’, from this it follows that no person can be deprived of his life or liberty by procedure prescribed by an ordinance;

(g) The power to issue an ordinance is ordaining power of the executive which cannot be used to liberate it from the discipline of laws made by a democratic legislature. Therefore, the power to issue ordinances can be used, if at all, on a virgin land only. No ordinance can operate on a subject which is covered by a law made by the legislature;

(h) Equating an ordinance made by the executive with a law made by the legislature will violate the principle of separation of powers between the executive and the legislature, which is a part of the basic structure of the Constitution; and

(i) Articles 14, 19 and 21 of the Constitution will be reduced to a dead letter if the executive is permitted to take away the life and liberty of the people by an ordinance, lacking the support of a law made by the legislature. The ordinance-making power must, therefore, be construed harmoniously with those and other provisions of the Constitution. (Para 6)

It was further argued by Shri Takunde that the ordinance making the power of the president is subject to the precondition that such conditions exist which render it necessary for the president to pass an ordinance which is further subject to judicial scrutiny. For this reliance has been placed on section 106 of the Indian Evidence Act and section 16 of the 44th Constitutional Amendment. (Para 24)

Ratio as given by the author

Majority opinion of the Chief Justice

According to Montesquieu, “when the legislative and executive powers are united in the same person or body of persons there can be no liberty, because of the danger that the same monarch or senate should enact tyrannical laws and execute them in a tyrannical manner”. Blackstone expresses the same thought by saying that “wherever the right of making and enforcing the law is vested in the same man or one and the same body of men, there can be no public liberty”. Para 7 (Reliance was also placed on Walter Bagehot’s The English Constitution (1867), Wade’s Administrative Law (3rd Edn.) pp. 323-24, Constitutional Laws of the British Empire by Jennings and Young, Law and Ordersby C.K. Allen (1945) and Harold Laski’s Liberty in the Modern State (1961) and Jawaharlal Nehru’s Presidential Address to the Lucknow Congress (April 12, 1936))

Uncontrolled power in the executive is a great enemy of freedom and therefore, eternal vigilance is necessary for the realm of liberty. No two Constitutions are alike, for it is not mere words that make a Constitution. It is the history of a people which lends color and meaning to its Constitution.  (Para 8)

The Constituent Assembly had before it the Government of India Act, 1935 and many of its members had experienced the traumas and travails resulting from the free exercise of the ordinance-making power conferred by that Act. They were also aware that such a power was not claimed by the Governments of two leading democracies of the world, the English and the American. And yet, they took the Government of India Act of 1935 as their model. Section 42 of that act talks about the Power of Governor-General to promulgate Ordinances during recess of legislature. Section 43 conferred upon the Governor-General the power to issue ordinances for the purpose of enabling him satisfactorily to discharge his functions insofar as he was by or under the Act required to act in his discretion or to exercise his individual judgment. (Para 10)

Article 123, which confers the power to promulgate ordinances, occurs in Chapter III of Part V of the Constitution, called “Legislative Powers of the President”. Article 213, which occurs in Part VI, Chapter IV, called “Legislative Power of the Governor” confers similar power on the Governors of States to issue ordinances. (Para 11)

In view of the specific provisions of these questions, it is difficult to accept the argument that ordinance making power is not a legislative power and consequently, the ordinance is not a law. The heading of Chapter III of Part V is “Legislative Powers of the President”. Clause (2) of Article 123 provides that an ordinance promulgated under Article 123 ‘shall have the same force and effect as an Act of Parliament”. The only obligation on the Government is to lay the ordinance before both Houses of Parliament and the only distinction which the Constitution makes between a law made by the Parliament and an ordinance issued by the President is that whereas the life of a law made by the Parliament would depend upon the terms of that law, an ordinance, by reason of sub-clause (a) of clause (2), ceases to operate at the expiration of six weeks from the reassembly of Parliament, unless resolutions disapproving it are passed by both Houses before the expiration of that period. (Para 12)

Article 13(2) provides that the State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of this provision shall, to the extent of the contravention, be void. Clause (3) of Article 13 provides that in Article 13, “law” includes, inter alia, an ordinance, unless the context otherwise requires. In view of the fact that the context does not otherwise so require, it must follow from the combined operation of clauses (2) and (3) of Article 13 that an ordinance issued by the President under Article 123, which is equated by clause (2) of that article with an Act of Parliament, is subject to the same constraints and limitations as the latter. Therefore, whether the legislation is Parliamentary or Presidential, that is to say, whether it is a law made by the Parliament or an ordinance issued by the President, the limitation on the power is that the fundamental rights conferred by Part III can not be taken away or abridged in the exercise of that power. An ordinance, like a law made by the Parliament, is void to the extent of the contravention of that limitation. (Para 13)

Further, it is clear from Article 367 of the Indian constitution which talks about the interpretation of the constitution that the constitution makes no difference between a law made by the parliament and the ordinance passed by the legislature. Both of these are subject to the limitations which the parliament has placed upon them.  (Para 14)

A careful reading of the constitution suggests that executive can possesses legislative powers under certain circumstances. It is therefore not true to say that, under our Constitution, the exercise of legislative power by the legislature properly so called is the only source of law. Ordinances issued by the President and the Governors and the laws made by the President or his delegate under Article 357(1)(a) partake fully of legislative character and are made in the exercise of legislative power, within the contemplation of the Constitution. (Para 15)

The contention that the word “law” in Article 21 must be construed to mean a law made by the legislature only and can not include an ordinance, contradicts directly the express provisions of Articles 123(2) and 367(2) of the Constitution. Besides, if an ordinance is not law within the meaning of Article 21, it will stand released from the wholesome and salutary restraint imposed upon the legislative power by Article 13(2) of the Constitution. (Para 18)

The contention that the procedure prescribed by an ordinance cannot be equated with the procedure established by law is equally unsound. The word “established” is used in Article 21 in order to denote and ensure that the procedure prescribed by law must be defined with certainty in order that those who are deprived of their fundamental right to life or liberty must know the precise extent of such deprivation. Thus, the ordinance is a law.  (Para 19, 20, 21)

It is also not accepted that the ordinance making powers will destroy the basic feature of separation of powers by the constitution since in the first place, Article 123(1) is a part of the Constitution as originally enacted; and secondly, our Constitution does not follow the American pattern of a strict separation of powers. (Para 23)

The question whether the pre-conditions of the exercise of the power conferred by Article 123 are satisfied cannot be regarded as a purely political question. The doctrine of the political question was evolved in the United States of America on the basis of its Constitution which has adopted the system of a rigid separation of powers, unlike ours. Thus the pressure put by the petitioner that the court cannot entertain political question cannot be accepted. (Para 25 and 26)

An ordinance which is subject to the same constraints as a law made by the parliament cannot make article 14, 19, and 21 ineffective. (Para 31)

It is undoubtedly clear that personal liberty is a precious right and thus the constitutional makers have ensured that while unlimited powers are given to the government the fundamental rights of the people are protected against the government. But the liberty of the individual has to be subordinated, within reasonable grounds, to the good of the people. Therefore, acting in public interest, the Constituent Assembly made provisions in Entry 9 of List I and Entry 3 of List III, authorising the Parliament and the State legislatures by Article 246 to pass laws of preventive detention. (Para 33 and 34)

Thus preventive detention is a permissible means to abridge the liberty of the individual subject to the limitations imposed by Part III of the constitution. This makes it clear that Preventive Detention was permissible under the constitution. (Para 36)

The third contention centres on the 44th Constitution (Amendment) Act, 1978, with particular reference to Section 1(2) and Section 3 thereof. The 44th Amendment Act received the assent of the President under Article 368(2) on April 30, 1979. Most of the provisions of the 44th Amendment were brought into force with effect from June 20, 1979 by a notification issued by the Central Government on June 19, 1979. The rest of the provisions of the Amendment were brought into force with effect from August 1, 1979 except Section 3 whereby Article 22 was amended, which has not yet been brought into force. The position, as it stands today from the government’s point of view, is that Advisory Boards can be constituted to consist of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court in accordance with the provisions of Article 22 (4) (a) in its original form. The amendment made to that article by Section 3 of the 44th Amendment not having been brought into force by the Central Government by issuing a notification under Section 1(2), it is not necessary, according to the Union Government, to constitute Advisory Boards in accordance with the recommendations of the Chief Justice of the appropriate High Court and consisting of a Chairman and not less than two other Members, the Chairman being a serving Judge of the appropriate High Court and the other Members being serving or retired Judges of any High Court. (Para 37 & 38)

It must be mentioned that the National Security Ordinance which came into force on September 22, 1980, provided by clause 9 for the constitution of Advisory Boards strictly in accordance with the provisions of Section 3 of the 44th Amendment Act, in spite of the fact that the aforesaid section was not brought into force. The National Security Act was passed on December 27, 1980, replacing the Ordinance retrospectively. Section 9 of the Act makes a significant departure from clause 9 of the Ordinance by providing for the constitution of Advisory Boards in accordance with Article 22(4) in its original form and not in accordance with the amendment made to that article by Section 3 of the 44th Amendment Act. (Para 39)

The main thrust of the argument is that the Central Government was under an obligation to bring Section 3 of the 44th Amendment into force within a reasonable time after the President gave his assent to the Amendment and since it has failed to do so, this Court must, by a mandamus, ask the Central Government to issue a notification under Section 1 (2) of the Amendment, bringing it into force without any further delay. Alternatively, Dr. Ghatate contends that clause (2) of Section 1 of the 44th Amendment is ultra vires the amending power conferred upon the Parliament by Article 368 of the Constitution. He argues: The power to amend the Constitution is vested in the Parliament by Article 368, which cannot be delegated to the executive. By such delegation, the Parliament has created a parallel constituent body which is impermissible under the terms of Article 368. Sub-section (2) of Section 1 of the 44th Amendment Act vests an uncontrolled power in the executive to amend the Constitution at its sweet will, which is violative of the basic structure of the Constitution. Section 1(2) is also bad because by conferring an unreasonable, arbitrary and unguided power on the executive, it violates Articles 14 and 19 which are an integral part of the basic structure of the Constitution. (Para 40)

Shri Takunde had not asked for mandamus compelling the central government to enforce the amendment but instead, he has challenged the central government’s failure to enforce it. According to him the central government by refusing to bring section 3 into force within a reasonable time without any valid reason has flouted the constituent decision of the parliament arbitrarily, which according to him is violative of law.  It was also argued by Shri Ram Jethmalani that the national security act is bad for the constitution of the advisory board with reliance on section 3 of the amendment, despite the fact that the said section had not been into force. It was argued that even if section 3 of the 44th amendment has not been brought into force, the wisdom of that amendment is available to the court. The view of the ‘constituent body’ on that question is to be regarded as reasonable and to the extent that provisions of the act run counter to that view, the aactmust be held to be unreasonable and for that reason struck down. (Para 41 and 42)

Referring to article 368(2) of the constitution it was held by the court that the constitutional 44th amendment act is valid. According to the very terms of the 44th amendment none of its provision can come into force unless and until the central government issues a notification as contemplated by section 1(2). Para 45 thus the amendment introduced in the 44th constitutional amendment act did not become a part of the constitution on April 30, 1979 (President’s assent). They will acquire the status only when the central government brings them into force by issuing a notification under section 1(2) of the amendment act. (Para 47)

It was argued that the constituent power must be exercised by the constituent body itself and the same cannot be delegated to the executive or any other agency. But in the present case the power to appoint a date for bringing into force a constitutional amendment was delegated. According to the Supreme Court this is not a constituent power because it does not carry with it the power to amend the constitution in any manner. Constituent power means the power to frame or amend the constitution. (Para 48 & 49)

Therefore section 1(2) of the 44th constitutional amendment s not ultra vires the power of amendment conferred upon the parliament by article 368(1) of the constitution. (Para 50)

The 44th constitutional Amendment received the assent of the president on April 30th. But even after two and half years no notification had been issued by the government according to the rules. According to the Supreme Court, the court cannot intervene in such matters and pass an order of mandamus to the central government. If the parliament is of the opinion that the executive has not fulfilled its trust then the parliament can further censure the executive and not otherwise. Further the court also did not accept that section 1(2) confers an uncontrolled power of the executive and is by its unreasonableness violative of article 14 and 19 of the constitution. (Para 53, 54)

It is contended by Shri Ram Jethmalani that the expression ‘defence of India’, ‘relations of India with foreign powers’ ‘security of India’ and ‘security of state’ which occur in sub-sections (1)(a) and (2) of section 3 are so vague, general and elastic that even conduct which is otherwise lawful can easily be comprehended within those expressions, depending upon the whim and caprice of the detaining authority. (Para 58)

Though there are certain words in the national security act which are quite uncertain and ambiguous the act cannot be struck down mainly on that basis. The court while construing such clause has to keep in mind that such clauses are not given a narrower meaning in such a way that the literal meaning of such word is lost. (Para 63, 64, 65, 66, 67)

The next argument was advanced on the reasonableness of the procedure prescribed by the act. The question was argued on three grounds:

  1. The reasonableness of the procedure which is generally prescribed by the act
  2. The fairness and reasonableness of the substantive provision in regard to the constitution of advisory boards
  3. The justness and reasonableness of the procedure in the proceedings before the advisory boards.

The Supreme Court held that in the proceedings before the advisory board, the detenu has no right to cross-examine either the persons on the basis of whose statement the order of detention is made or the detaining authority. (Para 103)

Thus the writ petitions were disposed of in accordance with the view expressed herein and the orders and direction given above.

Opinion of Justice Gupta (Partly Dissenting)

He disagreed that the parliament left it to the unfettered discretion of the central government when to bring into force any provision of the amendment act. According to him, when the amendment act received the assent of the president the central government was under an obligation to bring into operation the provisions of the act within a reasonable time; the power to appoint dates for bringing into force the provisions of the act was undoubtedly given to the central government obviously because it was not considered feasible to give effect to all the provisions immediately. Further, the parliament wanted the provisions of the constitutional 44th amendment to be made effective as soon as possible as has been envisaged by the object and reasons of the amendment. (Para 111)

Thus a writ of mandamus should be issued directing the central government to issue a notification under section 1(2) of the constitution (44th amendment) act, 1978 bringing into force the provisions of section 3 of the act within two months from this date. (Para 112)

Further justice Gupta also did not agree with the contention that ordinance is a ‘law’ within the meaning of article 21 of the Indian constitution. According to him, an ordinance which has to be laid down before both the houses of parliament and ceases to operate at the expiration of that period resolutions disapproving it are passed by both houses can hardly be said to have that firmness and permanence that the word establishes under article 21 of the Indian constitution implies. (Para 114)

Opinion of Justice VD Tulzapurkar (Partly Dissenting)

With regards to the question of bringing into force section 3 read with section 1(2) of the constitution (44th amendment act), 1978, he agreed with the view expressed by the learned judge AC Gupta and in other circumstances with the majority opinion.

 

Decision Held

An ordinance issued by the President or the Governor is as much law as an Act passed by the Parliament and is, fortunately, and unquestionably, subject to the same inhibitions. (Para 16)

 

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