A. K. Roy, Etc. v/s Union of India and Another was decided on December 28, 1981, by a 5 judge bench of the honorable Supreme Court of India. The petitioner in the present case is Shri AK Roy who is a Marxist member of the parliament, while the respondent is the Union of India. The Supreme Court was approached through Article 32 of the Indian Constitution whereby the validity of the National Security Ordinance, 1980, and certain provisions of the said ordinance are under-challenged.
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”. AK Roy 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. Broadly the act was challenged on the below grounds:
- Scope and limitations of the ordinance making power
- Vagueness and unreasonableness on the provisions of the act and the punitive detention
- Effect of 44th constitutional amendment act and the validity of its section 1(2)
- Issues relating to the fulfilment of preconditions of the exercise of ordinance making power
- The effect of non-implementation by the central government of the provisions of the 44th amendment regarding the composition of advisory boards
- Undefined powers of detention conferred under the act
- Need for the grant of minimum facilities for the deteneus, the nature of the right of deteneus to make an effective representation against the order of detention and the evils of the exercise of the power to issue an ordinance.
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?
Ratio of the Court
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”.
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.
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.
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.
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.
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 cannot 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.
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. A careful reading of the constitution suggests that executive can possesses legislative powers under certain circumstances. 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.
The contention that the word “law” in Article 21 must be construed to mean a law made by the legislature only and cannot 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.
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.
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. 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. An ordinance which is subject to the same constraints as a law made by the parliament cannot make article 14, 19, and 21 ineffective.
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. 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.
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.
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.
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). 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.
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.
Therefore section 1(2) of the 44th constitutional amendment is not ultra vires the power of amendment conferred upon the parliament by article 368(1) of the constitution.
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.
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.
The Supreme Court held that in the proceedings before the advisory board, the detenus 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. 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.
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.
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. 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.
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.