This article is written by Shafaq Gupta. This article provides a comprehensive overview of the judgement of A.K. Roy v. Union of India (1982), which was delivered by the five judge bench of the Hon’ble Supreme Court of India. It defines the scope of the ordinance-making power of the President and the preventive detention laws in India. It also deals with the validity of the National Security Act, 1980. 

Introduction 

The Constitution of India is the highest law of the land and is considered to be the grundnorm (the law from which all other laws derive their validity) from which all other legislation comes into being. Article 21 of the Constitution provides the right to life and personal liberty to every individual, and it cannot be contravened by any authority except according to the procedure laid down by the law. It is not an absolute right and is subject to restrictions as per law. Laws of preventive detention have been followed in our country since ancient times, as prevention is better than cure. But these laws were misused during the reign of Indira Gandhi by passing the National Security Ordinance, 1980. Due to this ordinance, a number of people were denied their right to life by being put in detention for months. They did not have access to their lawyers and felt helpless. It had put a restraint on the personal liberty of the people, which is a fundamental right guaranteed under Part III of our Constitution. 

The National Security Ordinance is quite similar to the Rowlatt Act of 1919, which gave unfettered power to the British government to arrest any person for a certain period without any trial. This article will provide an in-depth analysis of the case of A.K. Roy vs. Union of India (1982), whereby this ordinance was upheld as valid by the 5 judge constitutional bench. It also deals with the scope of the President’s power to issue an ordinance under Article 123 of the Constitution of India. 

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Details of the case 

  • Date of the judgement: 28 December, 1981 
  • Case Number: Writ Petitions No. 5724, 5874, and 5433 of 1980.
  • Petitioner: A. K. Roy
  • Defendant: Union of India
  • Bench: Justice Y. V. Chandrachud; Justice P. N. Bhagwati; Justice A.C. Gupta;  Justice V. D. Tulzapurkar;  and Justice D. A. Desai
  • Court: Supreme Court of India
  • Relevant citations: (1982) 2 SCR 272, 1982 AIR 710, 1982 SCC (1) 271, 1981 SCALE (4) 1905
  • Relevant provisions involved: Article 21 and Article 123 of the Constitution of India. 

Background of the case

In India, the preventive detention laws date back almost a millennium. These laws are preventive in nature and prevent people suspected of committing a crime from committing it in the future and escaping prosecution. In 1980, during the reign of Prime Minister Indira Gandhi, the National Security Ordinance was promulgated, which subsequently turned into an Act known as the National Security Act, 1980. It was a very draconian law that allowed the central or state government to detain any person if he/she was seen as a threat to the public order and national security of India. The decision to detain a person depends on the subjective satisfaction of the government, which can be biased. The main reason for introducing it was “to provide for preventive detention in certain cases and for matters connected therewith”. This Act has been often criticised for its arbitrary provisions, which curtail the personal liberty of individuals. Any individual could be detained for a maximum period of 12 months, and it was not considered necessary to inform him about the grounds of his arrest until 10 days had passed.   

Facts of A. K. Roy vs. Union of India, AIR 1982 

According to the National Security Ordinance, which later turned into an Act, A.K. Roy, who was a Marxist member of Parliament, was detained by an order passed by the District Magistrate of Dhanbad. He was detained on the ground that he indulged in some activities that were against public order. A group of writ petitions were filed under Article 32 of the Constitution by the ten opposition members of the parliament (one of them was independent and the others belonged to various political parties) who challenged the validity and fairness of the National Security Ordinance, 1980, and also a few of the provisions of the National Security Act. They also asked the judiciary to define the scope of the President’s power to promulgate ordinances and argued that it is executive power and not legislative power, so it is not a law. All the writ petitions were allowed by the court. The applications filed by the People’s Union for Civil Liberties, the Supreme Court Bar Association, and the State of Jammu and Kashmir for intervening in the matter were also allowed. 

The National Security Ordinance was promulgated on 23 September, 1980, when both houses of parliament were not in session and the President was satisfied that the circumstances existed that rendered it necessary to take immediate action. 

Issues raised 

The following issues arose in the present case:

  1. What is the extent of the ordinance-making power of the President and its limitations? Whether it is justifiable or not?
  2. Whether the preventive detention laws are valid as they encroach upon the personal liberty of an individual?
  3. What is the validity of the unenforced part of the 44th Amendment Act, 1978, and how does it affect the framework of advisory boards?
  4. Whether Section 3(1) and Section 3(2) of the National Security Act, 1980, are vague in light of the law?
  5. Whether the procedure prescribed and followed by the National Security Act can be considered reasonable?

Arguments of the parties

Petitioners 

  1. Shri R.K. Garg was the counsel for the petitioner, and he argued that the Ordinance is not a law. He supported his contention by making the following arguments:
  • The President’s power to issue an ordinance is not of legislative nature but of executive nature. He supported his argument by quoting Blackstone, who said that if the law-making power and the function of enforcing the law are vested in the same agency, there can be no public liberty.  
  • The ordinance-making power under Article 123 has been borrowed from the Government of India Act, 1935, which provided that the governor-general has the power to issue ordinances if he considers it necessary to take immediate action during the recess of the parliament. Even the UK and America did not accept such provisions, and many members of the Constituent Assembly were witnesses to the damage caused by the exercise of free will by promulgating ordinances, yet they accepted them. 
  • An ordinance cannot be considered law as it was not made by any legislative body established under the Constitution of India.
  • In order to preserve people’s rights, there has been suspicion of power, and it has been used arbitrarily in recent times. 
  • Article 21 of the Constitution guarantees the right to life and personal liberty to every individual, and it cannot be denied except according to procedures established by law. The ordinance stays in effect only for a specific duration  and does not follow a certain and fixed procedure. Therefore, it cannot be said to be ‘established’ as per Article 21. 
  • He referred to the case of A.K. Gopalan vs. State of Madras (1950), in which the supremacy of the fundamental right guaranteed by Article 21 was upheld and it could not be suppressed by the executive’s power to issue ordinances. 
  • Ordinances should be made only on those points of law on which no legal provisions exist. It should not encroach upon laws already made by the legislature. 
  • He further contended that it shall not be considered a law because then it will violate the principle of separation of powers between the executive and the legislature, which forms part of the basic structure of the Constitution.
  • Article 14, Article 19, and Article 21 would be reduced to dead letters if the executive were given liberty to curtail the freedom of individuals by passing ordinances. 
  1. Shri Tarkunde, also one of the counsels for the petitioner, argued about the validity of the National Security Ordinance. He contended that the ordinance making power is not a liberal right that can be exercised in any situation. It must be proven that exceptional circumstances existed and that it was necessary to take immediate action. Clause (4) of Article 123 was deleted earlier by the 44th Amendment Act of 1978, which is enough to show that even the Parliament was not in favour of granting unfettered powers to the executive. Hence, the burden of proof to prove that such circumstances existed lies on the executive. 
  2. It was further argued that the preventive detention laws are not permissible under the Indian Constitution, and they impose limitations on the fundamental rights of an individual. 
  3. Dr. Ghatate argued before the Hon’ble Court that it was the duty of the central government to bring Section 3 of the 44th Amendment Act (which amended clause (4) of Article 22 of the Constitution) into force, but it has not been done till now, though it received the President’s accent. Therefore, it is not mandatory to constitute an advisory board as per the amended provision. Further, a writ of mandamus must be issued against the government to compel them to discharge their duty within a reasonable time and without any further delay.

He also opined that Article 368 of the Constitution gives the Parliament the power to make amendments to the Constitution as per the procedure prescribed. There is no authority in the law that states that such power can be delegated to the executive. It will create a parallel universe, and it will violate the separation of powers. Hence, it is ultra vires to the basic structure of the Constitution.  

  1. It was contended that the National Security Act, 1980, did not work in accordance with Article 22(4) of the Constitution, which was amended by Section 3 of the 44th Amendment Act. No law can be made against the statute made by the legislature. Hence, the National Security Act is not good in the eyes of the law. 
  2. Shri Ram Jethamalani, a very experienced lawyer, stated that the use of certain words like ‘defence of India’, ‘relations of India with foreign powers’, ‘security of India’ in Section 3(1) and (2) of the National Security Act is quite baseless as it gives a very wide and broad scope of power to the executive, which is likely to be misused. It may lead to uncontrollable detention, which infringes on the liberty of an individual. 
  3. Dr. Singhvi represented the Supreme Court Bar Association and intervened in the case. He was of the view that before the personal liberty of a person is taken away, he must be given a fair opportunity to rectify his conduct in accordance with the provisions of the law. The National Security Act does not follow principles of natural justice and is vague in its true sense. 
  4. The other arguments were made regarding the same detention period of 12 months in every case, regardless of the facts and circumstances of each case, which are different. Moreover, there was no obligation to inform the detained person of the grounds of his detention, and he did not even have permission to have access to his lawyer or have the right to cross-examination. All these things make the Act draconian in nature, and it should be struck down. 

Judgement in A. K. Roy vs. Union of India, AIR 1982

The five judge bench of the Honourable Supreme Court of India upheld the validity of the National Security Ordinance, which later turned into an Act in 1980. It was found to be reasonable because preventive detention laws are necessary to promote social security among individuals, ensure the security of the state, and maintain public order. They do not violate the fundamental rights provided in Part 3 of the Constitution of India. It was held that they are not vague. 

Rationale behind this judgement 

This is a landmark case with regards to the constitutional validity of the ordinance making power of the President and the preventive detention laws. It showed us that in India, there is no clear separation of powers between the legislature and the executive. When both houses of Parliament are not in session and there is an immediate need to take action, the power to pass an ordinance can be delegated to the executive. The ordinance-making power of the President is legislative in nature and has the same effect as any other law made by the Parliament. The preventive detention laws are permissible and are not violative of the fundamental rights provided in the Constitution. Therefore, the National Security Act of 1980 is not vague but reasonable. Section 3 of the 44th Amendment Act is not ultra vires, as any provision needs to be implemented only when it comes into force, just like any other Act or Statute. 

Issue-wise judgement 

Extent and limitation of the ordinance-making power of the President and its justifiability

The Hon’ble judge denied the arguments made by the petitioner that an ordinance is not a law. He held that the Ordinance is a law within the meaning of Article 13(2) of the Constitution, which provides that the State is not entitled to make any law that takes away the fundamental rights of an individual guaranteed under Part III of the Constitution. Article 123(2) also states that the Ordinance has the same effect as the Act made by the legislature. They differ just on one point that laws made by the legislature continue to remain in force until they are repealed. But the Ordinance continues to remain in force only for a period of six weeks from the re-assembly of both the sessions of the Parliament and ceases to have effect if the resolution is passed by the Parliament disapproving it. 

Article 367(2) also states that if any reference is made to any laws made by the Parliament under the Constitution, it shall also include the ordinances made by the President and the Governor. So, it is not the executive power but the legislative power of the President. Like other laws, it is also bound by the constitutional spirit. The case of R.C. Cooper vs. Union (1970) of India was referred to, which held that the President is given the right to legislate only in extraordinary situations that demand prompt action. Therefore, our Constitution provides for the Ordinance-making power of the President. It should not be used with any mala fide intention. 

The judges also denied the contention that an ordinance is not a law within the meaning of Article 21 because the word ‘established’ basically means that a clear and definite procedure must be laid down. Article 123 provides a specific procedure regarding ordinances. The duration for which it remains in force is immaterial in the present case. It is the discretion of the President to issue an ordinance based upon his ‘satisfaction’ which is justifiable. It is not mandatory to disclose to the general public all the reasons for doing so. 

The judges further opined on this issue that, as an ordinance is also a law within the meaning of Article 13, it is also subject to constitutional safeguards provided by Articles 14, 19, and 21 of the Constitution and can’t be ever reduced to a dead letter. 

Validity of the preventive detention laws with regards to the infringement of personal liberty of an individual

Prevention detention laws were held to be valid in this judgement. The Court stated that the constituent assembly had a dual purpose in framing the Constitution. Firstly, to establish a democratic government for the people, and secondly, to protect the people against misuse of power by the government. Therefore, fundamental rights were incorporated into our Constitution. Preventive detention laws are made with the object of protecting the security of the State and maintaining public order. It is made to put reasonable restrictions on the liberty of an individual and to ensure equality among people. 

Validity of the unenforced part of the 44th Amendment Act, 1978, and its effects on the framework of advisory boards

The Court held that the unenforced part of the 44th Amendment Act is valid because it will have effect on the working and composition of the advisory board only when it comes into force, like any other law made by the legislature. There is no contradiction between Article 368(2) and Section 1(2) of the Amendment Act, as the former prescribes the general rule applicable to the approval date by the President and the latter deals with the procedure regarding how various provisions of the Act can come into force. It was further held that Section 1(2) is not ultra-vires in the spirit of Article 368. The writ of mandamus cannot be issued against the government because the Court has no authority to force the government to bring all the provisions of the Amendment Act into force. It can only be done by the executive. The court can only request that the government bring the amendment into action without further delay. There is no prima facie evidence available to show the malafide intention of the government behind not enforcing Section 3 of the 44th Amendment Act. As it has not been enforced yet, it is not obligatory to compose the advisory board as provided by the Amendment Act. It can be formed as per the original provisions of the Constitution. 

Whether Section 3(1) and Section 3(2) of the National Security Act, 1980, are vague?

The Court rejected the argument made by the Council for the petitioner that Section 3(1) and Section 3(2) of the National Security Act, 1980, are vague in light of the law. In the opinion of the court, it is a very impractical issue that has been raised before the court. The words or expressions used in the sections do not give them the certainty that they can be used only in a particular sense; they can be interpreted in various ways by the Court as it deems fit. To explain it further, an example from criminal law was given in which expressions like “annoyance to the public” and “contempt” have been used very frequently, but it does not give any certainty that the provisions need to be interpreted in a particular form only. Therefore, these provisions were not struck down by the Court for the reason of vagueness.

Is the procedure prescribed by the National Security Act considered reasonable?

Yes, the procedure prescribed and followed by the National Security Act was considered reasonable. It is because the procedure followed in the criminal trial is very different from the procedure followed by the advisory board in its proceedings. The rights that are available to an accused in a criminal trial cannot be extended to the proceedings by the advisory board. The advisory board has the power to regulate its own procedure on its own free will, and the court cannot intervene in it. But it is subject to any limitations imposed by the Constitution itself.

Analysis in A. K. Roy vs. Union of India, AIR 1982 

In my opinion, an Ordinance should not be considered the same as a law made by the legislature. I contradict the viewpoint given by the Supreme Court that an Ordinance is a law. It can be considered a political tool in the hands of the ruling party rather than an action taken in need of an administrative emergency. 

Let us have a look at the process of formulating any law:

  1. Draft bill is presented before the cabinet committee for review, and it is also released for public comment.
  2. Modifications are made based on public input. 
  3. Vetting by the cabinet to see that it has followed all the agreed terms and principles and does not contravene any other policy. 
  4. Then it is approved by the legal advisors.
  5. The Bill is tabled in parliament by the concerned Minister.
  6. A Bill is then debated in the Parliament and passed to become law based on voting.
  7. The final Bill is enacted as an Act and comes into force on a specific date decided by Parliament. 

Like this, the law-making process gives a voice to every stakeholder who will be affected by its enactment. This is a very fair and reasonable procedure formulated by Parliament. 

On the other hand, an ordinance is promulgated just on the basis of the opinions of the political parties. It does not include any debates or discussions. Though it is temporary legislation, this power has been abused a number of times. It can be said to be a shortcut to passing legislation by the ruling party. One such example is the case of D.C. Wadhwa & Ors vs. State of Bihar (1986). In this case, 256 ordinances were promulgated in the State of Bihar over a period of time, including 69 ordinances which were repeatedly re-promulgated between 1967 to 1981 without being  formulated into proper laws. Even the approval by the legislature was not sought every time, and it continued for a number of years. The Supreme Court held in this case that this practice followed by the Bihar government is unconstitutional. It is against the morality of the Constitution and is prima facie an exercise of colourable legislation. Therefore, the ordinance and the law must not be considered on the same footing. 

Conclusion 

A.K. Roy vs. Union of India is a landmark case in the constitutional history of India and has been cited a number of times as a precedent in other cases related to the ordinance-making power of the executive and the validity of the preventive detention laws. The 5 judge bench in this case addressed each and every issue in depth, which gives us a comprehensive understanding of the concept. We can also see that there is no clear separation of powers in India, and the validity of the National Security Act, 1980, was upheld by the Hon’ble Supreme Court of India. However, in my opinion, the laws made by the legislature and the ordinances passed by the executive cannot have the same value, as a few basic rights of every individual need to be protected. One such example of this is that every person accused of an offence must have the right to have his lawyer to represent him in legal proceedings against him. 

Frequently Asked Questions (FAQs) 

Does the President have absolute power to issue an ordinance under Article 123 of the Constitution?

No, the power of the President to issue an ordinance under Article 123 is not absolute. It must be approved by both houses of parliament for it to continue to remain in force after the expiration of two months. As per the above judgement, it was held that the subjective satisfaction of the President with regards to the matter that such circumstances exist that demand prompt action is not completely non-justifiable. There must be reasonable grounds to do the same. 

Through which Article of the Constitution do the preventive detention laws derive their authority?

Article 22(3) of the Constitution provides that persons detained under any preventive detention laws do not have protection against arrest. They are arrested on the mere suspicion of the commission of a criminal offence and to protect the security of the state. Article 22(4) provides for the composition of an advisory board in case the detention continues beyond the period of three months. The detained person must be informed about the reasons for his detention after the order for his detention has been passed by the appropriate authority. 

References

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