Supreme Court of India
A. K. ROY, ETC.versusUNION OF INDIA AND ANR.
- Citation
- 1981 INSC 210
- Decided
- 28 December 1981
- Disposal
- Disposed off
- Bench
- Y V CHANDRACHUD
Holding
The President's ordinance‑making power is legislative, an ordinance is "law" under Article 21, Section 1(2) of the 44th Amendment is valid, no mandamus can be issued, and the advisory‑board scheme of the National Security Act is constitutionally valid though detenu may not be represented by counsel before the board.
Summary
The petitioners, including A.K. Roy, challenged the National Security Ordinance, 1980 and the subsequent National Security Act, 1980 on grounds that the President's ordinance‑making power under Article 123 is an executive power and not "law" within the meaning of Article 21, that the provisions of the Act are vague, unreasonable and violate natural‑justice principles, and that Section 1(2) of the Constitution (Forty‑fourth Amendment) Act, 1978 unconstitutionally delegates the power to bring a constitutional amendment into force to the executive. The Court held that the President's power to promulgate ordinances is a legislative power, that an ordinance is "law" for the purposes of Article 21, that Section 1(2) of the 44th Amendment is valid and cannot be subjected to mandamus, and that the advisory‑board provisions of the Act are constitutionally valid though the detenu is not entitled to legal representation before the board. The Court also ruled that the Act's provisions, while broad, are not void for vagueness and that the procedural safeguards required by Article 22(3)(b) are satisfied. Consequently, the writ petitions were dismissed.
Issues considered
- The nature of the President's power under Article 123: legislative or executive, and whether an ordinance qualifies as "law" under Article 21.
- Validity of the National Security Ordinance/Act, particularly the vagueness and reasonableness of its preventive‑detention provisions.
- Constitutionality of Section 1(2) of the Constitution (Forty‑fourth Amendment) Act, 1978 which delegates the power to bring amendment provisions into force to the Central Government.
- Whether the Court can issue a mandamus to compel the Central Government to bring Section 3 of the 44th Amendment into force.
- Compatibility of Section 9 of the National Security Act with the amended Article 22(4) introduced by the 44th Amendment.
- Whether a detenu detained under preventive‑detention law is entitled to legal representation, cross‑examination and to present evidence before the Advisory Board.
- Whether the procedural requirements of Article 22(3)(b) and the principles of natural justice are satisfied by the Act.
Legislation cited
- Constitution (Forty‑fourth Amendment) Act, 1978s. Sec. 1(2), s. Sec. 3
- Constitution of Indias. Art. 123, s. Art. 21, s. Art. 22(3)(b), s. Art. 367(2), s. Art. 368(2)
- Essential Commodities Act, 1955
- National Security Act, 1980s. Sec. 10, s. Sec. 11, s. Sec. 13, s. Sec. 16, s. Sec. 3(1), s. Sec. 3(2), s. Sec. 5, s. Sec. 8, s. Sec. 9
- National Security Ordinance, 1980
- Prevention of Black‑marketing and Maintenance of Supplies of Essential Commodities Act, 1980s. Sec. 3(1)
Subjects
Ordinance powerLegislative power of PresidentArticle 21Preventive detentionNational Security Act44th AmendmentSection 1(2) delegationMandamusAdvisory BoardNatural justiceLegal representationVagueness doctrine
Judgment
A 272
A. K. ROY, ETC.
v.
B UNION OF INDIA AND ANR.
December 28, 1981
[Y.V. CHANDRACHUD, C.J., P.N. BHAGWATJ A.C. GUPTA,
..
V.D. TULZAPURKAR AND D.A. DESAI, JJ. )
Constitution of India, 1950-Constitution (Fortyforth Amendment) Act,
c 1978-Power conferred on exeoetive to appoint different dates for different provi-
...
sions of the Act-If amou/l/s to transfer of legislative power to executive.
Ordinance-Whether law-Whether President has power to issue Ordinances-
' National Security Ordinance-Validity of-Constitution of Advisory Boards under
section 9 of the Act-Validity of.
D
Natural Justice-Detenu under National Security Act-If entitled to be repre-
sented by a legal practitioner before Advisory Board-Detenu, if has a right to
consult a lawyer, or be assisted by a friend before the Advisory .(Joard- ,-
lf could cross-examine witnesses-If could present evidence before the Advisory
Board in.rebuttal of o/legations against him-Duties and functions of Ad1•isory
Boards-Proceedings of Advisory Board, if open to public.
E
Section 1(2) of the Constitution (Fortyfourth Amendment) Act 1978 provides
that "It shall come into force on such date as the Central Government may, by
notification in the Official Gazette appoint and different dates may be appointed
-
for different provisions of this Act." Section 3 of the Act substituted a new
clause (4) for the existing sub-clause (4) of Article 22. By a notificat:on the
Central Government had brought into force all the sections of the Fortyfourth
F Amendment Act except section 3.
Jn the meantime the Governmint of India issued the National Security
Ordinance 2 of 1980 which later became the National Securi1y Act 1980.
The petitioner wa s detained under the provisions of the Ordinance on the
ground that he was in dulging in activities prejudicial to public order. In his
G petition under Article 32 of the Constilution the petitioner contended that the
power to issue an Ordinance is an executive power, not legislative power, and
the'refore the Ordinance is not law.
HELO : [per Chandrachud, C.J., Bhagwati & Desai, JJ]
H [Gupta and Tulzarurkar, JJ dissented on the question of bringing into force
section 3 read with section 1(2) of the Fortyfourth Amendment Act .. Gupta J,
?issented on the question whether or<li/1ance is~law].
A.K. ROY v. UNION OF INDIA 273
The power of the President to issue an Ordinance under Article 123 of the A
Constitution is a legislative and not an executive power.
From a conspectus of the provisions of the Constitution it is clear that the
Constituent Assembly was of the view that the President's power to legislate by
issuing an Ordinance is as necessary for the peace and good government of the
country as the Parliament's power to legislate by passing laws. The mechanics
of the Presidents legislative power was devised evidently in order to take care of 8
urgent situations which cannot brook delay. The Parliamentary process of
legislation is comparatively tardy and can conceivably be time-consuming. It is
true that it is not easy to accept with equanimity the proposition that the execu-
tive can indulge in legislative activity but the Constitution is what it says and
not what one would like it to be. The Constituent Assembly indubitably thought,
despite the strong a11d adverse impact which the Governor-General's Ordinance-
c
-
making power had produced on the Indian community in the pre-independence
era, that it was necessary to equip the President with legislative powers in urgent
situations. [290 E-G)
R.C. Cooper v. Union of India, [1970] 3 SCR 530, 559, referred to.
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 D
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. [292 G-H)
The contention that the procedure prescribed by an Ordinance cannot be
equated with the procedure established by law is equally unsound. The word E
'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. f293 A-BJ
- The argument of the petitioner that the fundamental right conferred by
Article 21 cannot be taken away by an Ordinance really seeks to add a proviso to
F
Article 123(1) to the effect: "that such Ordinances shall not deprive any person
of his right to life or personal liberty conferred by Article 21 of the Consti-
, tution." An amendment substantially to that effect moved in the Constituent
'-' ~-s_"_mbly was rejected by the <;:on.s!itµyl)t As~"mbl~. [293 D-E]
A.K. Gopala11 (1950) SCR 88, Sant Ram, [1960] 3 SCR 499, 506, State of G
Nagaland v. Ratan Singh [1966] 3 SCR 830, 851, 852, Govind v. State of Madhya
Pradesh & Anr. (1975) 3 SCR 946, 955-56, Ratilal Bhanji Mithani v. Asstt.
Collector of Customs, Bombay & Anr. [1967) 3 SCR 926, 928-931 and Pandit
M.S.M. Sharma v. Shri Sri Krisna Sinha & Anr. [1959) Supp. 1 SCR 806,
:860-861, referred to.
H
Since the petitioners have not laid any acceptable foundation for holding
that no circumstances existed (lf ~Q!l)d heve, ~xisted which ren dere<:! it pei;essary
274 SUPREME COURT REPORT (1982} 2 S.C.R
A for the President to take immediate action by promulgating impugned Ordi-
nance, the contention that the Ordina·nce is unconstitutional for the reason that
the pre-conditions t<> the exercise of power conferred by Article 123 are not
fulfilled, has no force. (298 DJ
There can be no doubt that personal liberty is a precious right. So did the
founding fathers believe at any rate because, while their first object was to give
B unto the people a Constitution whereby a Government was established, their
second object, equally important, wa< to protect the people against the Govern-
ment. That is why, while conferring extensive powers on the Government like the
power to declare an emergency, the power to suspend the enforcement of funda-
mental rights and the power to issue Ordinances, they assured to the people a
Bill of Rights by Part III of the Constitution, protecting against executive and
-
legislative despotism those human rights which they regarded as fundamental.
c The imperative necessity to protect those rights is a lesson taught by all history
and all human experience. And therefore, while arming the government with
large powers to prevent anarchy from within and conquest from without, they
took care to ensure that those powers were not abused to mutilate the liberties
of the people. [300 B-D]
Section 1(2) of the Fortyfourth Amendment Act is valid. There is no
D
internal contradiction between the provisions of Article 368(2) and those of sec-
tion 1(2) of the 44th Amendment Act. Article 368(2) lays down a rule of general
application as to the date from which the Constitution would stand' amended in
{
accordance with the Bill assented to by the President, section 1(2) of the Amend-
ment Act specifies the manner in which that Act or any of its provisions may
be brought into force. The distinction is between the Constitution standing
amended in accordance with the terms of the Bill assented to by the President
E and the date of the coming into force of the Amendment thus introduced into
the Constitution. For determining the date with effect from which the Constitu-
tion stands amended in accordance with the terms of the Bill, one has to turn to
the date on which the President gave, or was obliged to give, his assent to the
-
Amendment. For determining the date with effect from which the Constitution.
as amended, came or will come into force, one has to turn to the notification,
if any, issued by the Central Government under section 1(2) of the Amendment
F
Act. [310 D-F]
The contention raised by the petitioners, that the power to appoint a date
for bringing into force a constitutional amendment is a constituent power and
therefore it cannot be delegated to an outside agency is without force. It is true.
that the constituent power, that is to say, the power to amend any provision
G of the Constitution ·.:by way of an addition, variation or repeal must be
· exercised by the Parliament itself and cannot be delegated to an outside
agency. That is clear from Article 368(1) which defines at once the scope
of the Constituent power of the Parliament and limits that power to the
Parliament. The power to issue a notification for bringing into force the provi-
sions of a Constitutional amendment is not a constituent power because, it does
H not carry with it the power to amend the Constitution in any manner. It is,
the1efore, permissible to the Parliament to vest in an outside agency the power to
)>rin~ a Co.nst_i.tuti9na) .~mf!)dment ipto force. [312 C-E]
A.k:. llOY v. i.JNiON OF iNDiA
Although the 44th Amendment Act received the assent of the President on A
April 30, 1979 and more than two and a half years have already gone by without
the Central Government issuing a notification for bringing sectinn 3 of the Act
into force, this Court cannot intervene by issuing a mandamus to the Central
Government obligating it to bring the provisions of section 3 into force. The
Parliament having left this question to the unfettered judgment of the Central
Government it is not f,ir th' Court to compel thc]Government to do that which
according to the mandate of Parliament, lies in its discretion to do when it B
considers it opportune to do it. The executive is responsible to the Parliament
and if the Parliament considers that the executive has betrayed its trust by not
bringing any provision of the Amendment into force, it can censure the execu-
tive. It would be quite anomalous that the inaction of the executive should have
the approval of the Parliament and yet the court should show its disapproval
of it by against mandamus. (314 G-H)
c
In leaving it to the judgment of the Central Government to decide as to
when the various provisions of the 44th Amendment should be brought into force,
the Parliament could not have intended that the Central Government may exer-
cise a kind of veto over its constituent will by not ever bringing the Amend-
ment or some of its provision into force. The Parliament having seen the neces-
sity of introducing into the Constitution a provision like section 3 of the 44th
Amendment, it is not open to the Central Government to sit in judgment over the D
wisdom of the policy of that section. If only the Parliament were to lay down an
objective standard to guide and control the discretion of the Central Government
in the matter of bringing the various provisions of the Act into force, it would
have been possible to compel the Central Government by an appropriate writ to
discharge the function assigned to it by the Parliament. (316 B-D]
Expressions like 'defence of India', 'security of India' security of the State'
E
and 'relations of India with foreign powers', mentioned in section 3 ~of the Act,
are not of any great certainty or definiteness. But in the very nature of things
they are difficult to define. Therefore provisions of section 3 of the Act cannot be
struck down on the ground of their vagueness and certainty. However, since the
concepts are not defined, undoubtedly because they are not capable of a precise
- definitions, courts must strive to give to those concepts a narrower construction
than what the literal words suggest. While construing laws of preventive detention
like the National Security Act, care must be taken to restrict their application to
F
as few situations as possible. Indeed, that can well be the unstated premise for
upholding the constitutionally of clauses like those in section 3, which are
fraught with grave consequences to personal liberty, if construed liberally.
[324 E-H]
G
What is said in regard to the expressions 'defence of India', ·security of
India', 'security of the State' and 'relations of India with foreign powers' cannot
apply to the expresssion "acting in any manner prejudicial to the maintenance of
supplies and services essential to the community" which occurs in section 3(2) of
the Act. The particular clause in sub-section (2) of section 3 of the National
Security Act is capable of wanton abuse in that, the detaining authority can place H
under detention any person for possession of any commodity on the basis that
the authority is of the opinion that the maintenance of supply of that commodity
276 stiPkEME cotJR'r REPORTS (1982J 2. S.C.R.
A is essential to the community. This particular clause is not only vague and
uncertain but, in the context of the Explanation, capable of being extended
cavalierly to supplies . the maintenance of which is not essential to the community;
To allow the personal liberty of the people to be taken away by the application
of that c<ause would b~ a flagrant violation of the fairne<s and justness of pro-
cedure which is implidt in the provisions of Article 21. The power given to
detain persons under section 3(2) on the ground that they are acting in any
B manner prejuuicial 10 the mJintenance of supplies and services essential to the
community cannot however be struck down because it is vitally necessary to
ensure a steady flow of supplies and services which are essential to the community,
and if the State has the power to detain persons on the ground; mentioned in
section 3(1) and the other grounds mentioned in section 3(2), it must also have
the power to pass ordor of detention on this particular ground. No person can be
detained with a view to preventing him from acting in any manner prejudicial
c to the maintenance of supplies and services essential to the community unless, by
-
a law order or notification made or published fairly in advance, the supplies and
services, the maintenance of which is regarded as essential to the community and
in respect of which the order of detention is proposed to be passed, are made
known appropriately, to the public. [325 A-C; 326 BC, FH]
R. C. Cooper v. Union of India, (1970] 3 SCR 530, 559, Haradhan Saha,
D [1975] l SCR 778, Khudiram, [1975] 2 SCR 832, Sambhu Nath Sarkar, (1974] 1
SCR I and Maneka Gandhi, ll\.78] 2 SCR 621, explained.
Laws of preventive detention cannot, by the back·door, introduce proce-
dural measures of a punitive kind. Detention without trial is an evil to be
suffered, but to no greater extent and in no greater measure than is minimally
necessary in the interest of the country and the community. It is neither fair
E nor just that a detenu should hav.e to suffer detention in "such place" as the
Government may specify. The normal rule has to be that the detenu will be kept
in detention in a place which is within the environs of his or her ordinary place
of residence. [330 E-F]
ln order that the procedure attendant upon detentions should conform to
-
the mandate of Article 21 in the matter of fairness, justness and reasonableness,
it is imperative that immediately after a person is taken in custody in pursuance
F
of an order of detention, the members of his househo Id, preferably the parent,
the child or the spouse, must be informed in writing of the passing of the order
of detention and of the fact that the detenu has been taken in custody. Intimation
must also be given as to the place of detention, including the place wbere the
detenu is transferred from time to time. This Court has stated time and again
that the person who is taken in custody does not forfeit, by reason of his arrest,
a 11 and every one of his fundamental rights. It is, therefore, necessary to treat
G 1he detenu consisten1ly with human dignity and civilized norms of behaviour.
(331 C-D]
Since section 3 has not been brought into force by the Central Government
in the exercise of its powers under section 1(2) of the 44th Amendment Act, that
section is still not a part of the Constitution. The question as to whether section
il 9 of the National Security Act is bad for the reason that it is inconsistent with
the provisions of section 3 of the 44th Amendment Act, has therefore to be decid-
ed on the basis that section 3, though a part of the 44th Amendment Act, is not
A.k. ROY v. tiNiON OF INDiA
a part of the Constitution. If section 3 is not a part of the Constitution, it is
difficult to appreciate how, the validity of section 9 of the National Security Act
can be tested by applying the standard laid down in that section. It cannot
possibly be that both the unamended and the amended provisions of Article 22(4)
of the Constitution arc parts of the Constitution at one and the same time. So
long as section 3 of the 44th Amendment Act has not been brought into force,
Article 22(4) in its unamended form will continue to be a part of the Constitution
and so long as that provision is a part of the Constitution, the amendment intro- B
duced by section 3 of the 44th Amendment Act cannot become a part of the
Constitution. Section 3 of the 44th Amendment substitutes a new article 22(4) for
the old article 22(4). The validity of the constitution of Advisory Boards has
therefore to be t~sted in the light of th~ provisions contained in Article 22(4) as it
stands now and not according to the amended article 22(4). [335 D-H]
On a combined reading of clauses (1) and (3)(b) of Article 22, it is clear C
that the right to consult and to be defended by a legal practioner of one's choice,
which is conferred by clause (1), is denied by clause (3)(b) to a person who is
detained under any law providing for preventive detention. Thus, according to
the express intendment of the Constitution itself, no person who is detained under
any law, which provides for preventive detention, can claim the right to consuli
a legal practioner of his choice or to be defended by him. It is therefore difficult
to hold, by the application of abstract, general principles or on a priori considera- D
tion that the detenu has the right of being represented by a legal practioner in the
proceedings before the Advisory Board. [339 D-E]
Yet the fact remains that the detenu has no right to appear through a legal
practitioner in the proceedings before the Advisory Board. The reason behind the
provisions contained in Article 22(3)(b) of the Constitution clearly is that a legal
practitioner should not be permitted to appear before the _Advisory Board for any E
party. The Constitution does not contemplate thl!t the detaining authority or
the Government should have the facility of appearing before the Advisory Board
with the aid of a legal practioner but that the said facility should be deni!d to the
detenu. · In any case, that is not what the Constitution says and it would be
wholly inappropriate to read any such meaning into the provisions of Article :l2.
Permitting the detaining authority or the Government to appear before the
Advisory Board with the aid of a legal practitioner or a legal adviser would be F
in breach of Article 14, if a similar facility is denied to the detenu. Therefore if
the detaining authority or the Government takes the aid of a legal practitioner or
a legal adviser before the Advisory Board, the detenu must be allowed the facility
of appearing before the Board through a legal practitioner. [344 H; 345 A-CJ
The embargo on the appearance of legal practitioners should not be extended
so as to prevent the detenu from being aided or assisted by a friend who, in truth G
and substance, is not a legal practitioner. Every person whose interests are
adversely affected as a result of the proceedings which have a serious import, is
entitled to be heard in those proceedings and be assisted by a friend. A detenu,
taken straight from his cell to the Board's room, may lack the ease and composure
to present his point of view. He may be "tongue·tied, nervous, confused or
wanting in intelligence" (see Pett v. Greyhound Racing Association Ltd.), and if H
justice is to be done he must at least have the help of a friend who can assist
him to give coherence to his stray and wandering ideas. [345 G-H]
278 SUPREME COURT REPORTS [1982] 2 s.C.R.
A 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. [352 DJ
New Prakash Transp?rt Co. Ltd. v. New Suwarna Transport Co. Ltd., [1957]
SCR 98, 106, Nagendru Nath Bora v. Commissioner of Hills Division and Appeals,
Assam, ( 1958] SCR 1240, 1261, State of Jammu & Kashmir v. Bakshi Ghulam
B Mohammad, [1966] Suppl. SCR 401, 415, Union of.India v. T.R. Verma, [1958]
SCR 499, 507 and Khen. Chand v. Union of India [19 59] SCR 1080, 1096, held
inapplicable.
There can be no objection for the detenu to lead evidence in rebuttal of the
allegation made against him before the Advisory Board. Neither the Constitution
nor the National Security Act contains any provision denying such a right to the
c detenu. The detenue may therefore offer oral and documentary evidence before
the Advisory Board in order to rebut the allegations which are made against
him. (352 E·F]
...
It is not possible to accept the plea that the proceedings of the Advisory
Bo3rd should be thrown open to the public. The right to a public trial is not one
of rhe guaranteed rights under our Constitution. [354 C-D)
D
Puranlal Lakhanpa/ v. Union of India, [1958) SCR 460, 475 and Dattatreya
Moreshwar Pangarkar v. State of Bombay, (1952] SCR 612, 626, referred to.
Yet the Government must afford the detenus all reasonable facilities for an
existence consistent with human dignity. They should be permitted to wear their
own clothes, eat their own food, have interviews with the members of their fami-
E lies at least once a week and, last but not the least, have reading and writing
material according to their reasonable requirements. (355 B-C)
Persons who are detained under the National Securty Act must be segregat-
ed from the convicts and kept in a separate part of the place of detention. It is
hardly fair that those who are suspected of being engaged in prejudicial conduct
should be lodged in the same ward or cell where the convicts whose crimes are
F established are lodged. [355 DJ
...
Sunil Batra v. Delhi Administration [1980] 3 S CR 557 and Sampat Prakash
v. State of Jammu & Kashmir [1969] 3 SCR 754, referred to.
[per Gupta and Tulzapurkar, JJ dissenting]
G
Section I (2) of the Constitution (Fortyfourth Amendment) Act 1978 cannot
be construed to mean that Parliament ha~ left it to the unfettered discretion or
judgment of the Central Government when to bring into force any provision of
the amendment Act. After the President's assent, the Central Government was
under an obligation to bring into operation the provisions of the Act within a
H reasonable time; the power to appoint dates for bringing into force the provisions
of the Act was given to the Central Government obviously because it was not
considered feasible to give affect to all the provisions immediately. But th"'
A.It. ROY v. UNION OF iNDiA 2.79
Central Government could not in its discretion keep it in a state of suspended A
animation for any length of time it pleased. [358 A-Bl
From the Statement of Objects and Reasons it was clear that the Parliament
wanted the provisions of the Amendment Act to be made effective as early as
possible. When more than two and half years have passed since the Amendment
Act received the assent of the President, it is impossible to say that any difficulty
should still persist preventing the Government from giving effect to section 3 of B
the Amendment Act. A provision like section 1(2) cannot be said to have
empowered the executive to scotch an amendment of the Constitution passed by
Parliament and assented to by the President. That Parliament is competent to
take appropriate steps if it considered that the executive had betrayed its trust
does not make the default lawful or.relieve this Court nf its duty. [359 B-C]
[per Gupta. J. dissenting.] c
- Normally it is the legislature that has the power to make laws. The nature
of the legislative power of the President has to be gathered from the provisions of
Article 123 and not merely from the heading of the chapter, "Legislative Powers
of the President". When something is said to have the force and effect of an
Act of Parliament that is because it is not really an Act of Parliament. Article
123(2) does not say that an ordinance promulgated under this article shall be D
deemed to be an Act of Parliament to make the two even fictionally identical.
While an ordinance issued under Article 123 has the same force and effect as an
Act of Parliament, under Article 357(l)(a) Parliament can confer on the President
the power of the legislature of a State to make laws. The difference in the nature
of power exercised by the President under Article 123 and under Article 357 is
clear and cannot be ignored. [360 B, 361 B-C] .
E
The word "establish" in Article 21 as interpreted by this Court "implies
some degree of firmness, permanence and general acceptance". An ordinance
which ceases to operate on the happening of one of the conditions mentioned in
Article 123(2) can hardly be said to have that "firmness" and "permanence" that
the word "establish" implies. It is not the temporary duration of an ordinance
that is relevant; what is relevant is its provisional and tentative character which
is apparent from Article 123(2). [362 G] F
A.K. Gopalan v. State [1950] SCR, 88, relied on.
A significant difference between the law made by the President under
, Article 357 and an ordinance promulgated by him under Article 123 is that while
' a law made under Article 357 continues to be in force until altered, repealed or
' amended by a competent legislature or authority, an ordinance promulgated G
under Article 123 ceases to operate at the expiration of six weeks of reassembly
of the Parliament at the latest. [363 BJ
The argument that since· Article 367(2) provides that any reference in the
Constit1Jtion to Acts of Parliament should be construed as including a reference
to an ordmance made by the President, an ordinance should be equated with an ll
Act of Parliament is without substance because an ordinance has the force and
effect only over an area where it can validly operate. An invalid ordinance can
280 StlPREME couR.i ilEPORts ii9s2J 2 s.c.tt
A have no force or effect and if it is not 'law' in the sense the word has been used
Article 21, Article 367(2) cannot make it so. [363 E]
[On all other points His Lordship agreed with the conclusions of Hon'ble
the Chief Justice].
[Hon'ble Tu lzapurkar J. agreed with the majority on all other
B points]
ORIGINAL JURISDICTION : Writ Petitions Nos 5724, 5874 & .,..,--
5433 of 1980.
(Under Article 32 of the Constitution of India)
C R.K. Garg, V.J. Francis and Su11il K. Jain for the Petitioners
in WP. 5724 & 5874 and for internners 3-12.
N.M. Ghat ate, S. V. Deshpande and Shiva Pujan Singh for the
petitioner in WP. 5433.
-
D L.N. Sinha, Attorney General, K. Parasaran, Solicitor General,
M.K. Banerjee, Additional Solicitor General, K.S. Gurumurthi
Miss A. Subhashini and Girish Chandra for Respondent No. 1 in
all the WPs.
Subbash C. Maheshwari, Additional, Advocate General, 0.P.
Rana, Hansraj Bhardwaj and R.K. Bhatt for Respondents 2 & 3
E
in WP. 5874/80.
•
L.N. Sinha, Attorney General, Ram Balak Mahto, Additio!!al
Advocate General, K.G. Bhagat and D. Goburdhan for Respondents
2 & 3 in WP. 5724/80.
F For Jnterveners :
V.M. Tarkunde, P.H. Parekh, Miss Manik Tarkunde and R.N,
Karanjawa/a for Intervener No. I.
Bhim Singh intervener No. 2 (in person)
G
Dr. L.M. Singhvi, Anand Prakash, S.N. Kackar, G. Mukho()',
B.B. Sinha, A.K. Srivastava, Randhir Jain, M.L. Lahoty, Kupil Sibal,
L.K. Pandey and S.S. Khanduja for Intervener No. 13.
Mrs. Subhadra Joshi for Intervener No. 14.
H
Ram Jethma/ani and Miss Rani Jethmalani for Intervener
No, 15.
A.k. ROY v. UNION OF iNDIA (Chandrachud, C.J.) 281
L.N. Sinha, Attorney General and Altaf Ahmed for Inter- A
vener No. 16.
The following Judgments were delivered
CHANDRACHUD, C.J. This is a group of Writ Petitions under
Article 32 of the Constitution challenging the validity of the B
-,_, National Security Ordinance, 2 of 1980, and certain provisions of
the National Security Act, 65 of 1980, which replaced the Ordinance.
Writ Petition No. 5724 of 1980 is by Shri A. K. Roy, 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 indluging in activities which were prejudicial to c
public order. Ten mem,bers of the Parliament, one an Independent
and the others belonging to various political parties in opposition
applied for permission to intervene in the Writ Petition 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. We allowed the intervention. D
So did we 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 up-
holding of the Jammu & Kashmir Public Safety Act, 1978.
Shri R.K. Garg argued the Writ Petition, respondents being repre-
sented by the Attorney General and the Solicitor General. E
After the Ordinance became an Act, more writ petitions were
filed to challenge the validity of the Act as well. Those petit10ns
were argued on behalf of the petitioners by Dr N. M. Ghatate,
Shri Ram Jethmalani, Shri Shiv Pujan Singh and Shri Kapil Sibal.
--- Shri V.M. Tarkunde appeared in person for the People's Union of
Civil Liberties and Dr. L.M. Singhvi for the Supreme Court Bar
F
Association.
Broadly, Shri Garg concentrated on the scope and limitations
of the ordinance-making power, Shri Ram Jethmalani on the vague-
ness and unreasonableness of the provisions of the Act and the G
punitive conditions of detention and Dr. Gh_atate on the effect
of the 44.th Constitution Amendment Act and the validity of
its section 1(2). Shri Tarkunde dwelt mainly on the questions
relating to the fulfilment of pre-conditions of the exercise of the
ordinance making power, the effect of non-implementation H
by the Central Government of the provisions of the 44th
Amendment regarding the composition of the Advisory Boards and
282 sUl>llEME coUlt't llE!>OkTS [i981J 1 s.c.k.
A the broad, undefined powers of detention conferred by the Act.
Dr. L.M. Singhvi laid stress on the need for the ~grant of minimal
facilities to 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 ordinances.
B The National Security Ordinance, 1980, was passed in order
"to provide for preventive detention in certain cases end for matters
connected therewith." It was made applicable to the whole of India
except the State of Jammu & Kashmir and il came into force on
September 23, 1980. The Parliament was not in session when it was
promulgated and its preamble recites that it was being issued because
c the "Prerident is satisfied that circumstances exist which render it
necessary for him to take immediate action".
Shri R.K. Garg, appearing for the petitioners, challenges the
-
power of the President to issue an Ordinance depriving any person
of his life or liberty. He contends :
a
(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
E 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,
F 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 only to
the procedure established by law. Ordinance is not
G '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
H
to the executive the power to deprive a person of his
life or liberty. Ordinance-making power, which is
A.K. ROY v. UNION OF INDIA (Chandrachud, C.J.) 283
A
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 res-
traints imposed upon it by Article 21;
(f) The procedure prescribed under an Ordinance is not
procedure established by law because, Ordinances have
B
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 bis life or liberty by procedure pre-
scribed by an Ordinance;
c
(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
0
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 E
legislature, which is a part of the basic structure of the
Constitution; and
Ii) 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 F
Ordinance, lacki~g the supportfjof a law made by the
legislature. The Ordinance-making power must,
therefore, be construed barm'oniously with those and
other provisions of the Constitution.
G
This many-pronged attack on the Ordinance-making power
has one central theme : 'Ordinance is not law.' We must therefore
consider the basic question as to whether the power to make an
ordinance is a legilative power as contended by the learned Attorney
General or whether it. is an executive power masquerading H
as a legislative power, as contended on behalf of the peti-
tio11ers,
.284 SUPREME COURT REPORTS [ 1982) 2 S.C.R.
A In support of these submissions Shri Garg relies on many
texts and decisions which we need not discuss at length since, pri-
marily, we have to consider the scheme of our Constitution and to
interpret its provisions in order to determine the nature and scope
of the ordinance-making power. Counsel drew our attention, with
great emphasis, to the statements in Montesquieu's Esprit des lois
8 (1748) and Blackstone's Commentaries on the laws of England'
(1756) which are reproduced in 'Modern Political Constitution's by
C.F. Strong (8th edition) at page 291. 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
c laws and execute them in a tyrannical manner." Blackstone expres-
ses 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". Reliance was also
placed on views and sentiments expressed to the same effect in Walter
Bagehot's 'The English Constitution' (1867). Wade's Admin.istrative
D Law' (3rd edition) pages 323-324, 'Constitutional Laws of the British
Empire' by Jennings and Young, 'Law and Orders' by C.K. Allen
(1945) and Harold 'Laski's Liberty in the Modern State' (1961).
According to Laski (pages 42-43).
E " ... if in any state there is a body of men who possess
unlimited political power, those over whom they rule can
never be free. For the one assured result of historical
investigation is the lesson that uncontrolled power is invari-
ably poisonous to those who possess it. They are always
tempted to impose their canon of good upon others,
F and, in the end, they assume that the good of the commu-
nity depends upon the continuance qftheir power. Liberty
always demands a limitation of political authority, and it
is never attained unless the rulers of a state can, where
necessary, be called to account. That is why Pericles
insisted that the secret of liberty is courage."
Finally, counsel drew on Jawaharlal Nehru's Presidential Address
to the Lucknow Congress {April 19, J 9J6) in which· he referred to
the rule by ordinances as "the humiliati0n of ordinances" (Selected
Works of Jawaharlal Nehru, volume 7, page 183).
We are not, as we cannot be, unmindful of the danger to
people's liberties which comes in any community frqm wliat iSi
A.K. ROY v. UNION OF INDIA (Chandrachud, C.J.) . 285
called the tryanny of the majority. Uncontrolled power in the A
executive is a great enemy of freedom and therefore, eternal vigiiance
is necessary in the realm of liberty. But we cannot transplant, in
the Indian context and conditions, principles which took birth in
other soils, without a careful examination of their relevance to the
interpretation of our Constitution. No two Constitutions are alike,
for it is not mere words that make a Constitution. It is the history B
of a people which lends colour and meaning to its Constitution.
We must therefore turn inevitably to the hi8torical origin of the
ordinance-making power conferred by our Constitution and con-
sider the scope of that power in the light of the restraints by which
that power is hedged. Neither in England nor in the United States
of America does the executive enjoy anything like the power to c
issue ordinances. In India, that power has a historical origin and
the executive, at all times, has resorted to it freely as and when it
considered it necessary to do so. One of the larger States in India
has manifested its addiction to that power by making an over-
generous use of it-so generous indeed, that ordinances which
lapsed by efflux of time were renewed successively by a chain of D
kindred creatures, one after another. And, the Ordinances embrace
everything under the sun, from Prince to pauper and crimes to con-
tracts. The Union Government too, so we are informed, passed
about 200 Ordinances between 1960 and 1980, out of whieh 19 were
passed in 1980.
E
Our Constituent Assembly was composed of famous men who
had a variegated experience of life. They were not elected by the
people to frame the Constitution but that was their strength, not
- their weakness. They were neither bound by a popular mandate
nor bridled by a party whip. They brought to bear on their task
their vast experience of life-in fields social, economic and political.
Their deliberatior, :, which run into twelve volumes, are a testimony
F
to the time and attention which they gave with care and concern to
evolving a generally acceptable instrument for the regulation of the
fundamental affairs of the country and the life and liberty of its
people.
G
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 ordi-
nance-making power conferred by that Act. They were also aware
H
that such a power was not claimed by the Governments of two
Jadin~ democr~cies of the world, the English and the American,
286 SUPREME COURT REPORTS (1982) 2 s.c.tt.
A And yet, they took the Government of India Act of 1935 as their
model, Section 42 of that Act ran thus :
Power of "42 (1) If at any time when the Federal Legis-
Governor lature is not in section the Governor-
General to General is satisfied that circumstances
B promulgate exist which render it necessary for him to
ordinances take immediate action, he may promul-
during recess gate such ordinances as the circumstances
of Legisla- appear to him to require :
ture.
c Provided that the Governor-General-
...
(a)
(b)
D
(2) An ordinance promulgated under this
section shall have the same force and
effect as an Act of the Federal Legislature
assented to by the Governor-General, but
every such ordinance-
E (a) shall be laid before the Federal
Legislature and shall cease to operate
at the expiration of six weeks from
the reassembly of the Lagislature, or,
F
if before the expiration of tbat period
resolutions disapproving it are --
passed by both Chambers, upon
the passing of the second of those
resolutions;
(b) shall be subject to the provisions of
G this Act relating to the power of His
Majesty to disallow Acts as is it
were an Act of the Federal Legisla-
ture assented to by the Governor-
General; and
H (c) may be withdrawn at any time by the
Governoi:-General.
A.K. ROY v. UNION OF INDIA (Chandrachud, C.J.) 287
(3) If and so far as an ordinance under this A
section makes any provision which the
Federal Legislature would not under this
Act be competent to enact, it shall be
void".
Section 43 conferred upon the Governor-General the power to 8
issue ordinances for the purpos~ of enabling him satisfactorily to
discharge his functions in so far as he was by or under the Act
required to act in his discretion or to exercise his individual
judgment.
c
- Article 123, which confers the power to promulgate ordinances,
occurs in Chapter III of Part V of the Constitution, called "Legis-
lative Power of the President". It reads thus :
Power of "123 (I) If at any time, execpt when both Houses
President of Parliament are in session, the President
D
to promul- is satisfied that circumstances exist which
gate Ordi- render it necessary for him to take imme-
nances diate action, he may promulgate such
during Ordinances as the circumstances appear
recess of to him to require.
Parliament,
E
(2) An Ordiance promulgated under this
Article shall have the same force and
effect as an Act of Parliament, but every
such Ordinance- F
(a) shall be laid before both Houses of
Parliament and shall cease to operate
at the expiration of six weeks from
the reassembly of Parliament, or, if
G
before the expiration of that period
resolutions disapproving it are passed
by both Houses, upon the passing
of the second of those resolutions;
and H
(b) may be withdraw11 at any time hr
...... President.
the - .. _.,. ____ ,
288 SUPREME COURT REPORTS {I 982) 2 S.C.R
A Explanation-Where the Houses of
Parliament are summoned to reassemble
.
on different dates, the period of six weeks
shall be reckoned from the later of those
dates for the purposes of this clause.
B (3) If and so far as an Ordinance under this
article makes any provision which Parlia-
ment would not under this Constitution
be competent to enact, it shall be
void."
c Article 213, which occurs in Part VT, Chapter IV, called "Legislative
Power of the Governor" confers similar power on the Governors
of States to issue ordinances.
As we have said earlier while setting out the petitioner's case,
the thrust of his argument is that the power to issue an ordinance is
D an executive power, not a legislative power, ancl consequently,
is not law. In view of the clear and specific provisons of the
Constitution bearing upon this question, it is quite impossible to
accept this argument. 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
E 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 Constitu-
tion makes between a law made by the Parliament and an ordiance
issued hy the President is that whereas the life of a law made by
the Partiament would depend upon the terms of that law, an ordi-
F
nance, by reason of sub clause (a) of clause (2), ceases to operate
at the expiration of six \\eeks from tl1e reassembly of Parliament,
unless resolutions disapproving it are passed by both Houses before
the expiration of that period.
G Article I 3 (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
..
H context otherwise requires. In view of the fact that the context
does not otherwise so require, it must fotlow from the combined
operation of clauses (2) :11Pd (3) of Article 13 that' an ordinance
A.K. ROY v. UNION OF INDIA (Chandrarfiud, C.J.) 289
issued by the President under Article 123, which is equated by A
clause (2) of that article with an Act of Parliamcn t, 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 exer- B
cise of that power. An ordinance, like a law made by the Parlia-
ment, is void to the extent of contravention of that limitation'
The exact equation, for all practical purposes, between a law
made by the Parliament and an ordinance issued by the President is
emphasised by yet another provision of the Const tutinn. Article
c
- 367 which supplies a clue to the "[nterpretation" of the Constitu-
tion provides by clause (2J that-
"Any reference in this Cnnstitution to Acts or laws
of, or made by, Parliament, or to Acts or laws of, or made D
by, the Legislature of a State, shalt be construed as inclu-
ding a reference to an Ordinance made by the President
or, to an Ordinance made by a Governor, as the case
may be."
It is clear from this provision, if indeed there was any doubt about
E
the true position, that the Constitution makes no distinction in
. principle between a law made by the legislature and an ordinance
issued by the President. Both, equalty, are products of the exercise
of legislative power and, therefore, both are equally subject to the
- limitations which the Constitution has placed upon that power.
It may sound strange at first blush that the executive should
possess legislative powers, but a careful -look at our Constitution
F
will show that the scheme adopted by it erivisages the exercise of
legislative powers by the executive in stated circumstances. An
ordinance can be issued by the President provided that both Houses
of the Parliament are not in session and the President is satisfied G
that circumstances exist which render it ne('essary for him to take
immediate action An ordinance which satisfies these pre-condi-
tions has the same force and effect as an Act of Parliament. Article
356 empowers the President to issue a proclamation in case of
failure of constitutional machinery in the States. By Article 357 H
(I) (a), if by a proclamation issued under Article 356 (I) it has been
declared that the power~ 9f the Legislature of the State shall be
290 SUPREME COURT REPORTS (1982) 2 S.C.R.
A exercisable by or under the authority of Parliament, it is competent
for the Parliament to confer on the President the power of the
Legislature of the State to make Jaws. Indeed, by the aforesaid
clause (a), the Parliament can not only confer on the President the
power of the State Legislature to make laws but it can even autho-
rise the President to delegate the power so conferred to any autho·
B rity to be specified by him in that behalf. The marginal note to
Article 357 speaks of the "Exercise of Legislative powers" under
the proclamation issued under Article 356. There cannot be the
slightest doubt that not only the power exercised by the President
under Article 357(1)(a) but even the power exercised by his
delegate under that clause is legislative in character. It is therefore
c not true to say that, under our Constitution, the exercise of legisla-
tive power by the legislature properly so called is the only source
of law. Ordinances issued by the President and the Governors and
...
the Jaws made by the President or his delegate under Article 357
(I) (a) partake fully of legislative character and are made in the
exercise of legislative power, within tl1e contemplation of the
D
Constitution.
It is thus clear that the Constituent Assembly was of the view
that the President's power to legislate by issuing an ordinance is as
necessary for the peace and good government of the country as the
E Parliament's power to legislate by passing laws. The mechanics of
the President's legislative power was devised evidently in order to take
care of urgent situations which cannot brook delay. The Parlia-
mentary process of legislation is comparatively tardy and can con-
-
ceivably be time-consuming. It is true that it is not easy to accept
with equanimity the proposition that the executive can indulge in
F legislative activity but the Constitution is what it says and not what
one would like it to be. The Constituent Assembly indubitably
thought, despite the strong and adverse· impact which the Governor-
General's ordinance-making power had produced on the Indian
community in the pre·indepence era, that it was neeessary to
equip the President wi1h kgislative powers in urgent sitrJations.
G After all, the Constitution makers had to take into account life's
realities. As observed by Shri Seervai in 'Constitutional Law of
India' (2nd Ed., p. 16)."Grave public inconvenience would be caused
if on an Act, like the Bombay Sales Tax Act, being declared void
no machinery, existed whereby a valid law could be promptly pro-
JI mulgated to take the pl~~\! of the Jaw declared void". Speaking for
A.IC. ROY v. tJNiON OF INDIA (chandrachud, C.J.) 291
the majority in R.C. Cooper v. Union of lndia( 1), Shah J. said : "The
President is under the Constitution not the repostory of the legisla-
tive power of the Union, but with a view to meet extraordinary situa-
tions demanding immediate enactment of laws, provision is made in
the Constitution investing the President with power to legislate by
promulagating Ordinances." The Constituent Assembly therefore
conferred upon the executive the power to legistate, not of course
B
intending that the said power should be used recklessly or by imagin-
ing a state of affairs to exist when, in fact, i! did not exist; nor,
indeed, intending that it should be used ma/a fide in order to prevent
the people's elected representatives from passing or rejecting a Bill
after a free and open discussion, which is of the essence of demo-
cratic process. Having conferred upon the executive the power to
0
-- legislate by ordinances, if the circumstances were such as to make
the exercise of that power necessary, the Constituent Assembly sub-
jected that power to the self-same restraints to which a law passed
by the legislature is subject. That is the compromise which they
made between the powers of Government and the liberties of the
people. Therefore, in face of the provisions to which we have already
D
referred, it seems to us, impossible to accept Shri Garg's contention
that a ordinance made by the Pre~ident is an executive and not a
legislative act. 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. In
those inhibitions, lies the safety of the people. · The debates of the
Constituent Assembly (Vol. 8, Part V, Chapter III, pp 201 to 217)
would show that the power to issue ordinances was regarded as a
necessary evil. That power was to be used to meet extra-ordinary
situations and not perverted to serve political ends. The Constituent
Assembly held forth, as it were, an assurance to the people that an
F
extra-orninary power shall not be used in order to perpetuate a fraud
on the Constitution which is conceived with so much faith and
vision. That assurance must in all events be made good and the
balance struck by the founding fathers between the powers of
the Government and the liberties of the people not disturbed or
destroyed. G
The next contention of Shri Garg is that even assuming that
the power to issue ordinances is legislative and not executive in
character, ordinance is not 'law' within the meaning of Article 21 of
ff
(I] [1970] 3 SCR 530, 559,
292 SUPREME COURT REPORTS (1982] 2 s.c.tt.
A the Constitution. That article provides that "No person shall be
deprived of his life or personal liberty except according to procedure
established by law'". It is contended by the learned counsel that the
decision of this Court in A. K. Gopu,'an( 1 ) establishes that the supre-
macy of the legislature is enshrined in Article 21 as a fundamental
right in order to afford protection to the life and liberty of the people
B against all executive powers and, therefore, the supremacy of the
legislature cannot be replaced by making the executive supreme by
allowing it to promulgate ordinances which have the effect of depriv-
ing the people of their life and liberty. The extent of protection
afforded to the right conferred by Article 21 consists, accocding to +
counsel, in the obligation imposed upon a democratic legislature to
c devise a fair, just and reasonable procedure for attenuating the liber-
ties of the people. Since the very object of Article 21 is to impose
restrains on the power of the executive in the matter of deprivation of
the life and liberty of the people, it is absurd, so the argument goes,
to concede to the executive the power to deprive the people of the
-
right conferred by Article 21 by issuing an ordinance. The argument,
D in other words is that the executive cannot under any conditions or
circumstances be permitted to liberate itself from the restraints of
Article 21. Shri Garg says that if ordinances are not excluded from
the precious area of life and liberty covered by Article 21, it is the
executive which will accquire the right to trample upon the freedoms
of the people rather than the people accquiring the fundamental right
E to life and liberty. It is also urged that by elevating ordinances into
the status of laws, the principle of separation of powers. which is a
part of the basic structure of the Constitution, shall have been
violated. An additional limb of the argument is that an ordinance
can never be said to 'establish' a procedure, because it has a limited
duration and it transient in character.
In one sense, these contentions of Shri Garg stand answered
by what we have already said about the true nature and character of
the crdinance· making power. The contention that the word 'law' in
Article 21 must be construed to mean a law made by the kgistature
G 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.
H
(I) [1950] SCR 88.
A.K. ROY v. UNION OF INDIA (Chandraciwd, Ci.) 293
The contention that the procedure presribed by an ordinance A
cannot be equated with the procedure established by law is equally
unsound. The word 'established' i~ used in Article 21 in order to
denote and ensure that the procedure prescribed by the 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. The decision of this Court in State of Orissa v.
Bhupendra Kumar Bose(1), and Mohammadbhai Khudabux Chhipa &
Anr. v. The State of Gujarat & Anr( 2 ), illustrate that enduring rights
and obligations can be created by ordinances. The fact that any
particular law has a temporary duration is immaterial for the pur-
poses of Article 21 so long as the procedure prescribed by it is definite
and reasonablly ascertainable. In fact, the Preventive Detention laws c
.. were in their inception of a temporary character since they had a
limited duration. They were only extended from time to time .
The argument of the petitioner that the fundamental right con-
ferred by Article 21 cannot by taken away by an ordinance really
D
seeks to add a proviso to Article 123(1) to the following effect :
"Provided that such ordinances shall not deprive any person of his
right to life or personal liberty conferred by Article 21 of the Const-
tution."; An amendment substaintially to that effect was moved in
the Constituent Assembly by Shri B. Pocker Sahib, but was rejected
by the Constituent Assembly, (see Constituent Assembly Debates, E
Vol. 8, p. 203). Speaking on the amendment moved by Shri Pocker
Dr. Ambedkar said : "Clause (3) of Article 102 lays down that any
law made by the President under the provisions of Article 102 shall
be subject to the same limitations as a law made by the legislature
by the ordinary process. Now, any law made in the ordinary
process by the legislature is made subject to the provisions F
contained in the Fundamental Rights articles of this Draft
Constitution. That being so, any law made under the provisions of
Article I 02 would also be automatically subject to the provisions
relating to fundamental rights of citizens, and any such law therefore
will not be able to over-ride those provisions and there is no need for
any provision as was suggested by my friend, Mr. Pocker in his G
amendment No. 1796" (page 214). It may be mentioned that Draft
Article 102 corresponds to the present Article 123 of the Consti-
tution.
(1) (1962] Suppl. 2 SCR 380, 398-400 H
(2) (1962] Supp. 3 SCR 875.
294 SUPREME COURT REPORTS [1982] 2 s.c.R..
A Another answer to Shri Garg's contention is that what Article
21 emphasise is that the deprivation of the right to life ot liberty
must be brought about by a State-made law and not by the rules
of natural law (see A.K. Gopalan (supra) at pages 111, 169, 199, 229,
236 and 308, 309). Reference may usefully be made in this behalf to
a few representative decisions which illustrate that Article 21 takes
B in laws other than those enacted by the legislature. In Re : Sant
Ram( 1 ), the Rules made by the Supreme Court; in State of Nagaland
v. Ratan Singh,(2) the Rules made for the governance of Nagaland
Hills District; in Govind v. State of Madhya Pradesh & Anr.(3) the
Regulations made under the Police Act; in Ratilal Bhanji Mithani v.
Asstt. Collector of Customs, Bombay & Anr.,( 4) the Rules made by the
c High Court under Article 225 of the Constitution; and in Pandit
M.S.M. Sharma v. Shri SriKrishna Sinha & Anr.( 5 ), the Rules made by
a House of Legislature under Article 208, were all regarded as lying
down procedure established by 'law' for the purposes of Article 21.
.
We must therefore reject the contention that Ordinance is not
D 'law' within the meaning of Article 21 of the Constitution.
There is no substance in the argument that the ordinance-mak-
ing power, if extended to cover matters mentioned in Article 21,
will destroy the basic structure of the separation of powers as
envisaged by the Constitution. In the first place, Article 123(1) is a
E part of the Constitution as originally enacted; and secondly, our
Constitution does not follow the American pattern of a strict separa-
tion of powers.
We may here take up for consideration some of the submissions
made by Shri Tarkunde on the validity of the National Security
F Ordinance. He contends that the power to issue an ordinance under
Article 123 is subject to the pre-conditions that circumstances must
exist which render it necessary for the president to take immediate
action. The power to issue an ordinance is conferred upon the
President in order to enable him to act in unusual and exceptional
circustances. Therefore, according to Shri Tarkunde, unusual and
G exceptional circumstances must be show to exist, they must be
relevant on the question of the necessity to issue an ordinance and
(1) (1960] 3 SCR 499, 506.
(2) (1966] 3 SCR 830, 851-852.
H (3) [1975] 3 SCR 946, 955-56.
(4) f1967] 3 SCR 926, 928-931.
(5) [1959] Supp. I SCR 806, 860-861.
A.k. ROY v. UNiON OF INDIA (Chandrachud, C.J.) 295
they must be such as to satisfy a reasonable person that, by A
reason thereof, it was necessary to take immediate action and issue
an ordinance. The . legislative power to issue an ordinance being
conditional, the question as regards the existence of circumstances
which compelled the issuance of ordinance is justiciable and it is
open to this Court, says Shri Tarkunde, to determine whether the
power was exercised on the basis of relevant circumstances which B
establish the necessity to take immediate action or whether it was
exercised for a collateral purpose. In support of this contention,
Shri Tarkunde relies on the circumstance that foe amendment intro·
duced in Article 123 by the 38th Constitution Amendment Act,
1975, was deleted by the 44th Constitution Amendment Act, 1978.
Section 2 of the 38th Amendment Act introduced clause (4) in Article c
- 123 to the following effect :
"Notwithstanding anything in this Constitution, the
satisfaction of the President mentioned in clause (I) shall
be final and conclusive and shall not be questioned in any
Court on any ground." D
This amendment was expressly deleted by section 16 of the 44th
Amendment Act. Shri Tarkunde says that the deletion of the par·
ticular clause is a positive indication that the Parliament did not
consider it safe or proper to entrust untrammelled powers to the
executive to issue ordinances. It therefore decided that the Presi- E
dent's satisfaction should not be "final and conclusive" and that it
should be open to judicial scrutiny. Shri Tarkunde added that the
exercise of a conditional power is always subject to the proof of
conditions and no distinction can be made in this regard between
conditions imposed by a statute and conditions imposed by a
constitutional provision. Relying on section 106 of the Evidence Act, F
Shri Tarkunde says that circumstances which necessitated the passing
of the ordinancebeing especially within the knowledge of the execu-
tive, the burden lies upon it to prove the existence of those circum-
t stances.
·~
It is strongly pressed upon us that we should not avoid the
G
decision of these points on the plea that they involve political
questions. Shri Tarkunde distinguishes the decision in the Rajasthan
Assembly Dissolution casee) on this aspect by saying that Article
356 which was under consideration in that case uses language which
H
(I) [1978] 1 SCR I.
SUl>R.BME COURT REPORTS (1982) 2 s.c.R.
A is much wider than that of Article 123. He relies on Seervai's
observation in the Constitutional Law of India' (2nd Edition,
Volume III pages 1795 and 1797) to the effect that "there is no place
in our Constitution for the doctrine of the political question", since
that doctrine is based on, and is a consequence of, a rigid separation
of powers in the U.S Constitution and our Constitution is not
B based on a rigid separation of powers. Reliance is placed by
Shri Tarkunde on the decision in the Privy Purse case(1) in which
Shah, J. observed that "Constitutional mechanism in a democratic
polity does not contemplate existence of any function which may
qua the citizens be designated as politi..:al and orders made in exer-
cise whereof are not liable to be tested for their validity before the
c lawfully constituted courts". In the same case Hegde J., said that
''There is nothing like a political power under our Constitution
in the matter of relationship between the executive and the
citizens".
We see the force of the contention that the question whether
D 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. In fact,
that is om: of the principal reasons why the U.S. Supreme Court had
E refused to give advisory opinions.(2) In Baker v. Carr(3) Brennan J.
said that the doctrine of political question was "essentially a func-
tion of the separation of powers". There is also a sharp difference
in the position and powers of the American President on one hand
and the President of India on the other. The President of the United
States exercises executive power in his own right and is responsible
F ·not to the Congress but to the people who elect him. In India, the
executive power of the Union is vested in the President of India,
but he is obliged to exercise it on the aid and advice of his Council
of Ministers. The President's "satisfaction" is therefore nothing
but the satisfaction of his Council of Ministers in whom !be real
executive power resides. It must also be mentioned that in the
G United States itself, the doctrine of the political question has come
under a cloud and bas been the subject matter of adverse criticism.
(1) [1971] 3 SCR 9, 75, 168-169
(2) See Seervai on Constitutional Law of India, Vol. III, p. 1796, Foot
H Notes 64 & 65. (The Constitution of the United States. Congressional
Edition, 4th ed., pp. 649-50)
(3) 7 L. ed. 2d p. 663, 685-86,
A.K. ROY v. UNION OF INDIA (Chandrachud, C.J.) 291
It is said that all that the doctrine really means is that in the exer- A
cise of the power of judicial review, the courts must adopt a 'pru-
dential' attitude, which requires that they should be wary of deciding
upon the merit of any issue in which claims of principle as to the
issue and claims of expediency as to the power and prestige of courts
are in sharp confiict. The result, more or less, is that in America
B
the phrase "political question" has become "a little more than a
play of words".
The Rajasthan case is often cited as an authority for the pro-
position that the courts ought not to enter the "polical thicket".
It has to be borne in mind that at the time when that case was c
decided, Article 356 contained clause (5) which was iuserted by the
38th Amendment, by which the satisfaction of the President men-
tioned in clause (1) was made final and conclusive and that satisfac-
tion was not open to be questioned in any court on any ground.
Clause (5) has been deleted by the 44th Amendment and, therefore,
any observations made in the Rajasthan case on the basis of that D
clause cannot any longer hold good. It is arguable that the 44th
Constitution Amendment Act leaves no doubt that judicial review is
not totally excluded in regard to the question relating to the
President's satisfaction.
There are. however, two reasons why we do not propose to E
discuss at greater length the question as regards the justiciabilty of
the President's satisfaction under Article 123 (I) of the Constitution.
In the first place, the Ordinance has been replaced by an Act. It
is true, as contended by Slui Tarkunde, that if the qu~stion as
regards the justiciability of the President's satisfaction is not to be
considered for the reason that th~ ordinance has become an Act F
the occasion will hardly ever arise for considering that question,
because, by the time the challenge made to an Ordinance comes up
for consideration before the Court, the ordinance almost invariably
shall have been replaced by an Act. All the same, the position is
t firmly established in the field of constitutional adjudiction that the
Court will decide no more than needs to be decided in any particular G
case. Abstract questions present interesting challenges, but it is for
scholars and text-book writers to unravel their mystique. 'It is not
for the courts to decide questions which are but of academic
importance.
H
The other reason why we are not inclined to go into the ques-
tion as regards the justiciability of the President's satisfaction under
298 SUPREME COURT REPORTS [1982] 2 s.C.R.
A Article 123 (I) is that on the material which is placed before us, it
is impossible for us to arrive at a conclusion one way or the other.
We are not sure whether a question like the one before us would be
governed by the rule of burden of proof contained in sec:tion 106
of the Evidence Act, though we are prepared to proceed on the
basis that the existence of circumstances which led to the passing
B of the Ordinance is especially within the knowledge of the
executive. But before casting the burden on the executive to
establish those circumstances, at least a prima facic case must be
made out by the challenger to show that there could not have
existed any circumstances necessitating the issuance of the
Ordinance. Every casual or passing challenge to the existence of
circumstances, which rendered it necessary for the President to
c take immediate action by issuing an ordinance, will not be enough to
shift the burden of proof to the executive to establish those
circumstances. Since the petitioners have not laid any acceptable
foundation for us to hold that no circumstances existed or could
have existed which rendered it necessary for the Presid.!nt to take
immediate action by promulgating the impugned Ordinance, we are
unable to entertain the contention that the Ordinance is uncons-
titutional for the reason that the pre-conditions to the exercise of
the power conferred by Article 123 are not fulfilled. That is
why we do not feel called upon to examine the correctness of the
submission made by the learned Attorney General that in the very
nature of things, the "satisfaction" of the President which is the
basis on which he promulgates an Ordinance is founded upon
materials which may not be available to others and which may not
be disclosed without detriment to public interest and that, the
circumstances justifying the issuance of the Ordinace as well as the
F necessity to issue it lie solely within the President's judgment and
are, therefore, not justiciable.
The two surviving contentions of Shri Garg that the power to
issue an ordinance can operate on a virgin land only and that
Articles 14, 19 and 21 will be reduced to a dead letter if the execu-
tive is permitted to take away the life or liberty of the people by an
G ordinance, need not detain us long. The Constitution does not
impose by its terms any inhibition on the ordinance-making power
that it shall not be used to deal with a subject matter which is
already covered by a law made by the Legislature. There is no
H justification for imposing any such restriction on the ordinance-
making power, especially when an ordinance, like any law made by
the Legislature, has to comply with the mandate of Artice 13 (2)
A.K. ROY v. UNION OF INDIA (Chandrachud, C.J.) 299
of the Constitution. Besides, legislative activity, properly so called, A
has proliferated so enormously in recent times that it is difficult
to discover a virgin land or a fresh field on which the ordinance-
making power can operate, as if on a clean slate. To-day, there is
possibly no subject under the sun which the Legislature has not
touched.
B
As regards Articles J4, 19 and 2 l being reduced to a dead
letter, we are unable to appreciate how an ordinance which is sub-
ject to the same constraints as a law made by the Legislature can,
in its practical operation, result in the obliteration of these articles.
The answer to this contention is again to be found in the provisions c
contained in Article 13 (2).
That disposes of the contentions advanced by the various parties
on the validity of the ordinance. We must mention that in a recent
judgment dated October 20, I 98 I delivered by a Constitution Bench D
of this Court in Writ Petition No. 355 of 1981 (the Bearer Bonds
case(1), the question as regards the nature and scope of the ordi-
nance-making power has been discussed elaborately. We adopt the
reasoning of the majority judgment in that case.
The argments advanced on behalf of the various petitioners E
can be broadly classified under six heads: (I) The scope, limits
and justiciability of the ordinance-making power; (2) The validity of
Preventive Detention in the light of the severe deprivation of per-
sonal liberty which it necessarily entails; (3) The effect of the non·
- implemention of the 44th Amendment in so far as it bears upon the
Constitution of the Advisory Boards; (4) The vagueness of the pro-
visions of the National Security Act, authorizing the detention of
F
persons for the reasons mentioned .in section 3 of the Act; (5) The
unfairness and unreasonableness of the procedure before the
Advisory Boards; and (6) The unreasonableness and harshness of
the conditions of detention. We have dealt with the first question
fully though the impugned ordinance has been replaced by an Act, G
since the question was argued over several days and arises fre-
quently-as frequently as ordinances are issued. All that needs have
been said was said on that question by the various counsel and the
relevant data was fully placed before us. We will now turn to the
H
(I) p982) 1 SCR 947.
300 SUPREME COURT REPORTS [1982] 2 s.c.R.
A second question relating to the validity of Preventive Detention as
a measure for regulating the liberties of the sul:>ject.
There can be no doubt that personal liberty is a precious right.
So did the founding fathers believe at any rate because, while their
first object was to give unto the people a Constitution whereby a
B Government was established, their second object, equally important,
was to protect the people against the Government. That is_ why,
while conferring extensive powers on the Governments like
the power to declare an emergency, the power to suspend
the enforcement of fundamental rights and the powe1· to issue
Ordinances, they assured to the people a Bill of Rights by
c Part III of the Constitution, protecting against executive and legis-
lative despotism those human rights wl1icil they regarded as funda-
mental. The imperative necessity to protect those rights is a lesson
taught by all history and all human exeperience. Our Constitution-
makers had lived through bitter years and seen an alien government
trample upon human rights which the country had fought hard to
D preserve. They believed like Jefferson that "an elective despotism
was not the government we fought for." And therefore, while
arming the government with large powers to prevent anarchy from
within and conquest from without, they took care to ensure that
those powers were not abused to mutilate the liberties of the
people.
E
But, the liberty of the individual has to be subordinated,
within reasonable bounds, 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 Parlia-
ment and the State legislatures by Article 246 to pass laws of preven-
F tive detention. These entries read thus :
Entry 9, List I:
"Preventive detention for reasons connected with
Defence, Foreign Affairs, or the security of India 'persons
G subjeckd to such detention."
Entry 3, List Ill:
"Preventive detention for reasons connected with the
H security of a State, the maintenance of public order, or
the maintenance of supplies and services essential to the
community; persons subjected to such detention:·
A.I<.. ROY v. UNION OF INDIA (Chandrachud, C.J.) 301
The practical need and reality of the laws of preventive detention A
find concrete recognition in the provisions of Article 22 of the Cons·
titution. Laws providing for preventive detention are expressly
dealt with by that article and their scope appropriately defined.
"The established Courts of Justice, when a question arises whether
the prescribed limits have been exceeded, must of necessity deter·
mine that question; and the only way in which they can properly do
B
so, is by looking to the terms of the instrument by which, affirma·
tively, the legislative powers were created, and by which, negati-
• vely, they are restricted. If what has been done is legislation
within the general scope of the affirmative words which give the
power. and if it violates 'no express condition or restriction by
c
- which that power is limited ..... ,it is not for any Court of Justice
to inquire further, or to enlarge constructively those conditions and
restrictions" (see The Queen v. Burah( 1 ). The legislative power
in respect of preventive detention is expressly limited to the specific
purpose mentioned in Entry 9, List I and Entry 3, List III. It is
evident that the power of preventive detention was conferred by the D
Constitutio!l in order to ensure that the security and safety of the
country and the welfare of its people are not put in peril. So long
as a law of preventive detention operates within the general scope
of the affirmative words used in the respective entries of the union
and concurrent lists which gi~e that power and so long as it does not
violate any condition or restriction placed upon that power by the E
Constitution, the Court cannot invalidate that law on the specious
ground that it is calculated to interfere with the liberties of the
people. Khanna J., in his judgment in the Habeas Corpus case(')
has dwelt upon the need for preventive detention in public
Interest.
F
The fact that England and America do not resort to preventive
detention in normal times was known to 0ur Constituent Assembly
and yet it chose to provide for it, sanctioning its use for specified
purposes. The attitude of two other well-known democracies to
preventive detention as a means of regulating the lives and liberties
of the people was undoubtedly relevant to the framing of our Cons· G
titution. But the framers having decided to adopt and legitimise it,
we cannot declare it unconstitutional by importing our notions of
what is right and wrong. The power to judge the fairness and
H
(I) L.R. 5 I.A. 178, 193-194 per Lord Selborne.
(2) [1976] Supp. SCR m, 29l-29'.<l, 494-~9(j,
302 SUPREME COURT REPORTS [1982] 2 s.c.R.
A justness of procedure established by a law for the purposes of
Article 21 is one thing : that power can bi;: spelt out from the lan-
guage of that article. Procedural safeguards are the handmaids of
equal justice and since, the power of the government is colossal as
compared with the power of an individual, the freedom of the indivi-
dual can be safe only if he has a guarantee that he will be treated
8 fairly. The power to decide upon the justness of the law itself is
quite another thing : that power springs from a 'due process' pro-
vision such as is to be found in the 5th .1nd 14tl:. Amendments of
the American Constitution by which no person can be deprived of ..
life, liberty or property "without due process of law".
c
In so far ,as our Constitution is concerned, an amendment was
moved .by Pandit Thakur Dass Bhargava to draft Article 15, which
corresponds to Article 21 of the Constitution, for substituting the
words "without due process of law" for the words "except according
to procedure established by law". Many members spoke on that
D amendment on December 6, 1948, amongst whom were Shri K.M.
Munshi, who was in favour of the amendment, and Sir Alladi
Krishnaswamy Ayyar who, while explaining the view of the
Drafting Committee, said that he was "still open to conviction".
The discussion of the amendment was resumed by the Assembly on
December 13, 1948 when, Dr. Ambedkar, who too had an open
E mind on the vexed question of 'due procern', said :
" ... I must confess that I am somewhat in a difficult posi-
tion with regard to article 15 and the amendment moved
by my friend Pandit Bhargava for the deletion of the
F words "procedure according to law" and the substitution
of the words "due process".
G ''.The question of "due process" raises, in my judg-
ment, the question of the relationship between the le, isla-
ture and the judiciary. In a federal constitution, it is
always open to the judiciary to deicide whether any parti-
cular law passed by the legislature is ultra vires or intra vires r
in reference to the powers of legislation which are granted
by the Constitution to the particular legislature .... The
'due process' clause, in my judgment, would give the judi·
A.K. ROY v. UNION OF INDIA (Chandrachud, C.J.) 303
A
ciary tbe power to question the Jaw made by, the legislature
on another ground. That ground would be whether that
Jaw is in keeping with certain fundamental principles
relating to tbe rights of the individual. In other words,
the judiciary would be endowed with the authority to
question the law not merely on the ground whether it was B
in excess of the authority of the legislature, but also on the
ground whether the law was good law, apart from the ques-
j.
tion of the powers of the legislature making the Jaw ... The
question now raised by the introduction of the phrase
'due process' is whether the judiciary should be given the
additional power to question the laws made by the State c
on the ground that they violate certain fundamental
_,... principles.
" .. There are dangers on both sides. For myself I
cannot altogether omit the possibility of a Legislature D
packed by party men making laws which may abrogate or
violate what we regard as certain fundamental principles
affecting the life and liberty of an individual. At the same
time, I do not see how five or six gentlemen sitting in the
Federal or Supreme Court examining laws made by the
Legislature and by dint of their own individual conscience E
'or their bias or their prejudices be trusted to determine
which law is good and which law is bad. It is a rather a case
where a man has to sail between Charybdis and Seylla and
I therefore would not say anything. I would leave it to
- the House to decide in any way it likes." (See Constituent
Assembly Debates Vol. VII, pp. 999-1001)
The amendment was then put to vote and was negat.ved. In
F
view of this background and in view of the fact that the Constitu-
tion, as originally conceived and enacted, recognizes preventive
detention as a permissible means of abridging the liberties of the
people, though subject to the limitations imposed by Part Ill, we G
must reject the, contention that preventive detention is basically
impermissible under the Indian Constitution.
The third contention centres around the 44th Constitution H
Amendment Act, J978, with particular reference tQ ~ection I (2) and
m:tioJJ ~ thereof. Section I reads thus :
~ • ·• - • • • . ; ' .. • • I
304 SUPREME COURT REPORTS (1982) 2 S.C.R
A "I. Short title and commencement.-
(I) This Act may be called the Constitution (Forty-fourth
Amendment) Act, 1978.
(2) It shall come into force on such date as the Central
D Government may, by notification in the Official Gazette,
appoint and different dates may be appointed for
different provisions of this Act."
Section 3 reads th us :
c "3. Amendment of article 22.-In article 22 of the Cons-
titution. - ..
(a) for clause (4), the following clause shall be sub·
stituted, namely :
D "(4) No law providing for preventive detention shall autho-
rise the detention of a person for a longer period than
two months unless an Advisory Board constituted in
accordance with the recommendations of the Chief
Justice of the appropriate High Court has reported (
before the expiration of the said period of two months
E that there is in its opinJon suflicient cause for such
detention :
Provided that an Advisory Board shall consist of a
F
Chairman and not less than two other members, and the
Chairman shall be a serving Judge of the appropriate High
Court and the other members shall be serving or retired
-
Judges of any High Court :
Provided further that nothing in this clause shall autho·
rise the detention of any person beyond the maximum
period prescribed by any law made by Parliament under
G sub-clause (a) of clause (7).
Exp/anation.-In this clause, 'appropriate High Court'
means,
H
(i) in the case of the detention of a person in pursuance
of an order of detentio11 made by tbtJ Government of
A.K. ROY v. UNION OF INDIA (Chandrachud, c J.) 305
India or an officer or authority subordinate to that A
Government, the High Court for the Union territory
of Delhi;
(ii) in the case of the detention of a person in pursuance
of an order of detention made by the Government of
., any State (other than a Union territory), the High
Court for that State; and
(iii) in the case of the detention of a person in pursuance
of an order of detention made by tl1e administrator
or a Union territory or an Officer or authority subordi-
- nate to such administrator, such High Court as may
be specified by or under any law made by Parliament
in this behalf".
(
(b) in clause (7),-
[
(i) sub·clause (a) shall be omitted ;
(ii) sub-clause (b) shall be re-lettered as sub-clause
(a); and
(iii) sub-clause (c) shall be re·lettered as sub.clause
(b) and in the sub-clause as so-relettered, for the
words, brackets, letter and figure "sub-clause
(a) of clause ( 4)'', the word, brackets and figure
"clause (4)" shall be substitued."
- Clause (4) of Article 22 of the Constitution to which the
above amendment was made by the 44th Amendments reads thus : F
"22. (4) No law providing for preventive detention shall
t
'"T"'
authorise the detention of a person for a longer
period than three months unless-
(a) an Advisory Board consisting of persons G
who are, or have been, or are qualified to be
appointed as, Judges of a High Court has
reported before the expiration of the said
period of three months that there is in its
opinion. ~µfflfi~nt f!!-µs~ f9r such detention ; H
306 SUPREME COURT REPORTS (1982] 2 s.c.R.
Provided that nothing in this sub-clause shall autho-
rise the detention of any person beyond the maximum
period prescribed by any law made by Parliament under
sub-clause (b) of clause (7); or
(b) such person is detained in accordance with the provi-
ll sions of any law made by Parliament under sub-clauses
(a) and (b) of clause (7) ."
•
Clause (7) of Article 22 to which also amendment was made
by the 44tb Amendment reads thus- -·
c "22. (7) Parliament may by law prescribe-
(a) the circumstances under which, and the class or
classes of cases in which, a person may be
detained for a period longer than three months
--
under any law providing for preventive detention
without obtainiag the opinion of an Advisory
D
Board in accordance with the provisions of sub-
clause (a) clause (4);
(b) the maximum period for which any person may
in any class or classes of case be detained under
any law providing for preventive detention; and
E
(c) the procedure to be followed by an Advisory
Board in an inquiry under sub-clause (a) of
clause (4)." ·
F
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 br,•ught into force with effect from
June 20, 1979 by a notification issued by the Central Government
0n June 19. 1979. The rest of the provisions of the Amendment
were brought i 111.0 force with effect from August I, 1979 except
section 3 whereby Article 22 was amended, which bas not yet been
G
brought into force. The position, as it stands today from the
Government's point of view, is that advisory Boards can be const-
tuted 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 amend-
ment made to that article by §i)Ction 3 of the 44th Amendment not
A.ic ROY v. UNiON OF INDIA (chandrachud, c.i.) 307
having been brought into force by the Central Government by A
issuing a notification under section 1(2), · it is not necessary,
according to the Union Government, to constitute Advisory Boards
in accordance with the recommendation 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 B
retired Judges of any High Court.
Before adverting to the arguments advanced before us on the
' question of the 44th Amendment, it must be mentioned that the
National Security Ordinance which came into force on September 22, c
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 D
Ordinance by providing for the constitution of Advisory Boards in
accordance with Article 22( 4) in its qriginal form and not in accor-
dance with the amendment made to that article by section 3 of the
44th Amendment Act.
l!I
The arguments advanced before us by various counsel, bearing
on the 44th Amendment have different facets and shall have to be
considered separately. The main thrust of Dr. Ghatate's 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 so far to do so, this Court must, by a mandamus, ask the
Centrat Government to issue a notification under section I (2) of the .
(i'
Amendment, bringing it into force without any further delay. Alter-
natively, 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 G
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 l of the 44th Amendment Act vests an uncontrolled H
power in the executive to amend the Constitution at its sweet will,
which is violative of the basic structure of the Constitution. Section
30S SUPllEME cOiJRt itill>ORtS tl981J i s.c.il.
A I (2) is also bad because by conferring an unreasonable, arbitrary and
unguided power on the executive, it violates Articles 14 and 19 which
arc in integral part of the basic structure of the Constitution.
Shri Tarkunde does not ask for a mandamus, compelling the
Central Government to bring section 3 of the 44 th Amendment
Act into force. He challenges the Central Government's
failure to bring section 3 into force as mala fide and
argues : By refusing to bring section 3 into force within a reasonable
time without any valid reason, the Central Government has flouted
the constituent decision of the Parliament arbitrarily, which is viola-
tive of Article 21. No law of preventive detention can be valid unless
c it complies with Article 22 of the Constitution, particulary with
clause (4) of that Article. Since the National Security Act does not
provide for the constitution of Advisory Boards in accordance with
section 3 of the 44th Amendment Act, the whole Act is bad. There ...
was an obligation upon the Central Government to bring the whole
of the 44th Amendment into force within a reasonable time, since
D section 1 (2) cannot be construed as conferring a right of veto on the
executive . to nulify or negate a constitutional amendment. The
bringing into force of a constitutional amendment when such power
is left to the executive, may be conceivably deferred for reasons aris-
ing out of the inherent nature of the provisions which are to be
brought into force. Rut the executive cannot defer or postpone giving 1
E effect to a constitutional amendments for policy reasons of its own
which are opposed to the policy of the constituent body as reflected
in the constitutional amendment. The fact that the National
Security Ordinance provided by clause (9) for the constitution of
Advisory Boards in accordance with the provisions of the 44th
Amendment shows that no administrative difficulty was envisaged
F or felt in bringing the particular provision into force. The National
Security Act dissolves the Advisory Boards Constituted under the
Ordinance in accordance with the 44th Amendment and substitutes
---
them by Advisory Boards whose composition is contrary to the
letter and spirit of that Amenement.
Shri Jetharnalani, like Shri Tarkunde, relies upon the provisions
of the 44th Amen<lment in regard to the constitution of Advisory
Boards in support of the contention that the National Security Act
is bad for not compliance with section 3 of the Amendment, desipite
the fact that the said section has not been brought into force. No
II Act passed by a legislature, accor<ling to Shri Jethamalani, can flout
the constituent view or decision of the Parliament, whether or not
A.it. ROY v. UNION OF INt>lA (ChandrachuJ, C.J.) 309
the Constitutional Amendment has been brought into force. In any A
event, contends the learned counsel, even if section 3 of the 44th
-+ Am~ndment Act has not been brought into force, the wisdom of that
Amendment, in so far as it bears on the composition of Advisory
Boards, is available to the Court. The view of the C0nstituent body
on that question cannot but be regarded as reasonable, and to the
extent that the provisions of the impugned Act run counter to that B
view, that Act must be held to be unreasonable and for that reason,
struckdown.
Both Dr, Ghatate and Shri Garg contend that despite the
provisions of section I (2) of the 44th Amendment Act, Article 22
of the Constitution stood amended on April 30, 1979 when the 44th
Amendment Act received the assent of the President and that there a
was nothing more that remained to be done by the executive. Section
1(2) which, according to them is misconceived and abortive must be
ignored and served from the rest of the Amendment Act and the
rest of it deemed to have come into force 011 April 30, 1979.
In so far as the arguments set out above bear on the reason- D
ableness of the provisions of the National Security Act, we will
consider them later when we will take up for examination the con-
tention that the Act is violative of Articles 19 and 21 on account of
the unreasonableness or unfairness of it> provisions and of the pro·
cedure prescribed by it. At this juncture we will limit ourselves
to a consideration of those arguments in so far as they bear upon
the interpretation of section l (2) of the 44th Amendment Act, the
consequences of the failure of Central Government to issue a notifi-
cation under that provision for bringing into force the provisions of
section 3 within a reasonable time and the question as to whether,
despite the provisions contained in section I (2), the 44th Amendment
Act must be deemed to have come into force on the date on which
.... the President gave bis assent to it. The point last mentioned raises
F
the question as to whether section 1(2) of the 44th Amendment Act
is severable from the rest of its provisions, if that section is bad for
any reason.
The argument arising out of the provisions of Article 398 (2)
may be considered first. It provides that when a Bill whereby the G
Constitution is amended is passed by the requisite majority, it shall
be presented to the President who shall give his assent to the Bill,
"and thereupon the Constitution shall stand amended in accordance
with the terms of the Bill." This provision shows that a constitu-
tional amendment cannot have any effect unless the President gives 1-J
his assent to it and secondly, that nothing more than the President's
assent to an amendment duly passed by the Parliament is required,
310 SUPREME cotJil.t REPORTS [ l 982j 2 s.c.it
A in order that the Constitution should stand amended in accordance
with the terms of the Bill. It must follow from this that the Cons-
titution stood amended in accordance with the terms of the 44th
Amendment Act when the President gave bis assent to that Act on
April 30, 1979. We must then turn to that Act for seeing how and
in what manner the 'Constitution stood thus amended. The 44tb
Amendment Act itself prescribes by section I (2) a pre-condition
which must be satisfied before any of its provisions can come into
force. That pre-condition is the issuance by the Central Govern-
ment of notification in the official gazette, appointing the date from
which the Act or any particular provision thereof will come into
force, with power to appoint dilferent dates for different provisions.
c Thus, according to the very terms of the 44th Amendment, none of
its provisions can come into force unless and until the Central
Government issues a notification as contemplated by section I (2). ...
There is no internal contradiction between the provisions of
D Article 368(2) and those of sec ti on 1(2) of the 44th Amendment Act.
Article 368(2) lays down a rule of general application as to the date
from which the constitution would stand amended' in accordance
with the Bill assented to by the President. Section 1(2) of the Amend-
ment Act specifies the manner in which that Act or any of its provi-
sions may be brought into force. The distinction is between the
E Constitution standing amended in accordance with the terms of the
Bill assented to by the President and the date of the coming into
force of the Amendment thus introduced into the Constitution. For
determining the date with effect from which the Constitution
stands amended in accordance with the terms of the Bill, one has to
turn to the date on which the President gave, or was obliged to give,
F his assent· to the Amendment. For determining the date with effect
from which the Constitution, as amended, came or will come into
for~e. one has to turn to the notification, if any, issued by the Central
Government under section I (2) of the Amendment Act.
The Amendment Act may provide that the amendment intro-
G
duced by it shall come into force immediately upon the President
giving his assent fo the Bill or it may provide that the amendment
shall come into force on a future date. Indeed, no objection
can be taken to the Constituent body itself appointing a specific
future date with effect from which the Amendment Act will come into
force, and if that be so, different dates can be appointed by it for
bringing into force different provisions of the Amendment Acst. The
A.k. ROY v. UNiON OF INDIA (Chandraciiud, C.J.) 31 i
A
point of the matter is that the Constitution standing amended in
accordance with the terms of the Bill and the amendment thus intro-
duced into the Constitution coming into force are two distinct things.
Just as a law duly passed by the legislature can have no effect unless
it comes or is brought into force, similarly, an amendment of the
Constitution can have no effect unless it comes or is brought into B
force. The fact that the Constituent body may itself specify a future
date or dates with effect from which the Amendment Act or any of
its provisions will come into force shows that there is no antithesis
between Article 368(2) of the Constitution and section I (2) of the
•
44th Amendment Act. The expression of legislative or constituent
will as regards the date of enforcement of the law or Constitution is
an integral part thereof. That is why it is difficult to accept the
c
submission that, contrary to the expression of the constituent will,
... the amendments introduced by the 44th Amendment Act came
into force on April 30, 1979 when the President gave his assent to
that Act. The true position is that the amendments introduced by
the 44th Amendment Act did not become a part of the Constitution D
on April 30, 1979. They will acquire that status only when the
Central Governmrnt brings them into force by issuing a notification
under section .1(2) of the Amendment Act.
__\.
The next question for consideration is whether section 1(2) 0fthe
44th Amendment Act is ultra vires the power conferred of the Parlia- E
ment by Article 368 to amend the Constitution. The argument is that
the constituent power must be exercised by the Constituent body itself
and it cannot be delegated by it to the executive or any other agency.
For determining this question, it is necessary to bear in mind that
- by 'constituent power' is meant that power to frame or amend the
Constitution. The power of amendment is conferred upon the
Parliament by Article 368(1 ), which provides that the Parliament may
F
in exercise of its constituent power amend by way of addition, vari-
tion or repeal any provision of the Constitution in accordance with
the procedure laid down in that article. The power thus confered on
the Parliament is plenary subject to the limitation that it cam1ot be
G
exercised so as to alter the basic structure "or framework of the
Constitution. It is well-settled that the power conferred upon the
Parliament by Article 245 to make laws is plenary within the field of
legislation upon which that power can operate. That power, by the
terms of Article 245, is subject only to the provisions of the Consti- H
tution. The constituent power, subject to the limitation aforesaid,
cannot be any the less plenary than the legislative pJwer, especially
312 St.JilRilMil cot.Jilt llili>OR'ts fl982J 2 s.c.R..
A when the power to amend the Constitution and the power to legislate
are conferred on one and the same organ of the State, namely, the
Parliament. The Parliament may have to follow a different procedure
while exercising its constituent power under Article 368 than the
procedure which it has to follow while exercising its legislative power
under Article 245. But the obligation to follow different procedures
while exercising the two different kinds of power cannot make any
difference to the width of the power. In either event, it is plenary,
subject in one case to the constraints of the basic structure of the
Constitution and in the other, to the provisions of the Constitution.
The contention raised by the petitioners, that the power to
c appoint a date for bringing into force a constitutional amendment is
a constituent power and therefore it cannot be delegated to an out-
side agency is without any force. It is true that the constituent
power, that is to say, the power to amend any provision of the
..
Constitution by way of an addition, variation or repeal must be
exercised by the Parliament itself and cannot be delegated to an
D outside agency. That is clear from Article 368 (I) which defines
at once the scope of the constituent power of the Parliament and
limits that power to the Parliament. The power to issue a notifica-
tion for bringing into force the provi~ions of a Constitutional
amendment is not a constituent power because, it does not carry
with it the power to amend the Constitution in any manner. It is,
E
therefore, permissible to the Parliament to vest in an outside agency
the power to bring a Constitutional amendment into force. In the
instant case, that power is conferred by the Parliament on another .,
organ of the State, namely, the executive, V;hich is responsible to the
Parliament for all its actions. The Par Ii am ent does not irretrievably
lose its power to bring the Amendment i_nto force by reason of the
F
empowerment in favour of the Central Government to bring it into
force. If the Central Government fails to do what, according to
the Parliament, it ought to have done, it would be open to the
Parliament to delete section 1 (2) of the 44th Amendment Act by
following the due procedure and to bring into force that Act or
G any of its provisions.
We need not enter into the muclr debated question relating to
the delegation of legislative powers. In The Queen v. Burah(1) the
Privy Council upheld the delegated power to bring a law into force
H in a district and to apply to it, the whole or part of the present or
(1) 51.A. 178,
A.K, ROY v. tiNioN OF iNDIA (Ghandrachud, C.J.) 3!3
future laws which were in force in other districts. In Russell v. The
Queen( 1) it upheld the provision that certain parts of an Act should
come into force only on the petition of a majority of electors. In
Hodge v. The Queen,(2) it upheld the power conferred upon a
Board to create offences and annex penalties. The American autho·
rities on the question of the validity of delegated powers need not
detain us because, the theory that a legislature is a delegate of the B
people and therefore, it cannot delegate its power to another does
not hold true under our Constitution. The executive, under our
Constitution, is responsible to the legislature and is not independent
of it a5 in the United States. The three Privy Council decisions to
which we have referred above were considered by this Court in
Re Delhi Laws Act(3) case, which is considered as a leading autho·
c
rity on the question of delegated legislation. The Reference made
in that case by the President under Article 143(1) of the Constitu-
tion to the Supreme Court, in regard to the validity of certain laws,
was necessitated by the decision of the Federal Court in Jatindra
Nath Gupta v. State of Bihar(4) in which it was held by the majority
0
that the power to extend the operation of an Act for a further period
of one year with such modification as may be specified was a legis-
lative power and that the provisions of section I (3) of that Act
which delegated that power to an outside agency was bad. One
of the questions which was referred to this Court in Delhi Laws Act
case was whether section 7 of the Delhi Laws Act, 1912 was ultra E
vires the Legislature which passed that Act. That section provided
that the Provincial Government may by a notification extend with
such restrictions and modifications as it thinks fit to the- Province of
Delhi or any part thereof any enactment which is in force in any
part of British India at the date of such notification. The difficulty
of discovering the ratio of the seven judgments delivered in the F
Delhi Laws Act case is well-known. There is, however, no diffe·
rence amongst the learned Judges in their perception and under-
standing of what was actually decided in the three Privy Council
cases to which we have referred and which were discussed by them.
They read the Privy Council decisions as laying down that condi-
tional legislation is permissible whereby the legislature entrusts to G
an outside agency the discretionary power to select the time or
place to enforce the law. As stated by Shri H.M. Seervai in his
(I) 7 A.C. 829.
(2) 9 A.C. 117. H
(3) (1951] SCR 747.
(4) (1949] FCR 595.
3i4 SUPREME COURT REPORTS [1982j 2 s.c.ti..
A
"Constitutional Law of India" (2nd ed. at p. 1203 : "The making
of laws is not an end in itself, but is a means to an end, which the
legislature desires to secure. That end may be secured directly by
the law itself. But there are many subjects of legislation in which
the end is better secured by extensive delegation of legislative
8
power". There are practical difficulties in the enforcement of laws
contemporaneously with their enactment as also in their uniform
extension to different areas. Those difficulties cannot be foreseen -f
at the time when the laws are made. It, therefore, becomes neces-
sary to leave to the judgment of an ouside agency the question
c as to when tile law should be brought into fore~ a 1 :I tJ which areas
it should be extended from time to time. What is permissible to
the Legislature by way of conditional legislation cannot be co1Bi-
dered impermissible to the Parliament when, in the exercise of its ...
constituent power, it takes the view that the question as regards the
time of enforcement of a Constitutional amendment should be left
D to the judgement of the executive. We are, therefore, of the opinion
that section I (2) of the 44th Amendment Act is not ultra vires the
power of amendment conferred upon the Parliament by Article
368 {l) of the Constitution.
We may now take up for consideration the question which was
E
put in the forefront by Dr. Ghatate, namely, that since the Central
Government has failed to exercise its power within a reasonable
time, we should issue a mandamus calling upon it to discharge its
duty without any further delay. Our decision on this question
should not be construed as putting a seal of approval on the delay
-
F caused by the Central Government in bringing the provisions of
section 3 of the 44th Amendment Act into force. That Amend-
ment received the assent of the President on April 30, 1979 and
more tlian two and half years have already gone by without the
Central Government issuing a notification for bringing section 3 .
of the Act into force. But we find ourselves unable to intervene in
a matter of this nature by issuing a mandamus to the Central
G
Government obligating it to bring the provisions of section 3 into
force. The Parliament having left to the unfettered judgment of the
Central Government the question as regards the time for bringing
the provisions of the 44th Amendment into force, it is not for the
H Court to compel the Government to do that which, according to the
mandate of the Pariliament, lies in its disceretion to do when it con-
siders it opportune to do it. The executive is responsible to the
Parliament and if the Parliament considers that the executive has
A.K. ROY v. UNION OF INDIA (Chandrachud, C.J.) 315
betrayed its trust by not bringing any provision of the Amendment A
into force, it can censure the executive. It would be quite anomalous
that the inaction of the executive should have the approval of the
Parliament and yet we should show our disapproval of it by issuing
a mandamus. The Court's power of judicial review in such cases
has to be capable of being exercised both positively and negatively,
if indeed it has that power; positively, by issuing a mandamus B
calling upon the Government to act and negatively by inhibiting it
from acting. If it were permissible to the Court to compel the
Government by a mandamus to bring a Constitutional amendment
into force on the ground that the Government has failed to do
what it ought to have done, it would be equally permissible to the
Court to prevent the Government from acting, on some such ground c
... as that, the time was not yet ripe for issuing the notification
for bringing the Amendment into force. We quite see that it is
difficult to appreciate what parctical difficulty can possibly prevent
the Government from bringing into force the provisions of sec-
tion 3 of the 44th Amendment, after the passage of two and half
year. But the remedy, according to us, is not the writ of mandamus.
D
If the Parliament had laid down an objective standard or test
governing tl:.e decision of the Central Government in the matter
of enforcement of the Amendment, it may have been possible to
assess the situation judicially by examining the causes of the
inaction of the Government in order to see how far they bear upon
E
the starndard or test prescribed by the Parliament. But, the Parlia-
ment has left tbe matter to the judgment of the Central Government
without prescribing any objec1ive norms. That makes it difficult
for us to substitute our own judgement for that of the Government
- on the question whether section 3 of the Amendment Act should
be brought into force. This is partcularly so when, the failure of
the Central Government to bring that section into force so far,
F
can be no impediment in the way of the Parliament in enacting a
provision in the National Security Act on the lines of that section.
ln fact, the Ordinance rightly adopted that section as a model and
it is the Act which has wrongly discarded it. It is for these reasons
that we are unable to accept the submission that by issuing a man- G
damus, the Central Government must be compelled to bring the
provisions of section 3 of the 44th Amendment into force. The
question as to the impact of that section which, though a part of
the 44th Amendment Act, is not yet a pJrt of the Constitution, will
be considered later when we will take up for examination the H
argument as regards the reasonableness of the procedure prescribed
by the Act.
316 SUPREME COURT REPORTS [1982) 2 S.C.R.
A We have said at the very outset of the discussion of this
point that our decision on the question as to whether a mandamus
should be issued as prayed for by the petitioners, should not be
construed as any approval on our part of the Jong and unexplai-
ned failure on the part of the Ce~tra I Government to bring
section 3 of the 44th Amendment Act into force. We have
B
no doubt that in leaving it to the judgment of the Central Govern-
ment to decide . as to when the various provisions of the 44tb
Amendment should be brought into force, the Parliament could not
have intended that the Central Government may exercise a kind
of veto over its constituent will by not ever bringing the A mend-
c ment or some of its provisions into force. The Parliament having
seen the necessity of introducing into the Constitution a provision
like section 3 of the 44th Amendment, it is not open to the Cen-
tral Government to sit in judgment over the wisdom of the policy
of that section. If only the Parliament were to lay down an objec-
tive standard to guide and control the discretion of the Central
D Government in the matter of bringing the various provisions of
the Act into force, it would have been possible to compel the
Central Government by an appropriate writ to discharge the function
assigned to it by the Parliament. In the past, many amendments 1
have been made by the Parliament to the Constitution, some of
which were given retrospective effect, some were given immediate
E effect, while in regard to some others, the discretion was given to
the Central Government to bring the Amendments into force. For
example, sections 3 (I) (a) and (4) of the Constitution (First
Amendment) Act, 1951 gave retrospective effect to the amendments
introduced in Articles 19 and 31 by those sections. The 7th
F
Amendment, 1956, fixed a specific date on which it was to come
into force. The 13th Amendment, 1962, provide-I by section 1 (2)
-
that it shall come into force on such date as the Central Govern··
ment may, by notification in the Official Gazette, appoint. That
amendment was brought into force by the Central Government on
December I, 1963. The 27th Amendment, 1971 brought section J:
thereof into force at once, while the remaining provisions were to·
come into force on a date appointed by the Central Government,
which was not to be earlier than a certain date mentioned in section
I (2) of the Amending Act. Those remaining provisions were
brought into force by the Central Government on February 15, 1972.
The 32nd Amendment, 1973, also provided by section I (2) that it
H shall come into force on a date appointed by the Central Govern-
ment. That amendment was brought into force on July I, 1974.
The 42nd Amendment, 1976. by which the Constitution was recast
A.K. ROY v. UNION OF INDIA (Chandrachud, C.J.) 317
extensively, gave power to the Central Government to bring it into A
force. By a notification dated January 1, 1977 parts of that Amend-
ment were brought into force in three stages (see Basu's Comment·
tary on the Indian Constitution, Ed. 1977, Volume C, Part III,
page 134). Certain sections of that Amendment, which were not
brought into force, were repealed by section 45 of the 44th
B
Amendment.
It is in this background that the Parliament conferred upon
the Central Government the power to bring the provisions of the
44th Amendment Act into force. The Parliament could not have
visualised that, without any acceptable reason, the Central Govern-
ment may fail to implement its constituent will. We hope that the c
- Central Government will, without further delay, bring section 3 of
the 44th Amendment Act into force. That section, be it remem-
bered, affords to the detenu an assurance that his case will be con·
sidered fairly and objectively by an impartial tribunal.
As regards the argument that section 1(2) of the 44th D
Amendment Act is bad because it vests an uncontrolled power in
the executive, we may point out, briefly, how similar and even
more extensive delegation of powers to the executive has been
upheld by this Court over the years. In Sardar Inder Singh v.
State of Rajasthan,(1) section 3 of the Rajasthan (Protection of
Tenants) Ordinance provided that it shall remain in force for a E
y period of two years unless that period is further exetended by the
Rajpramukh. It was held by this Court that section 3, in so far as
it authorised the Rajpramukh to extend the life of the ordinance,
fell within the category of conditional legislation and was intra vires.
The Court dissented from the view expressed in Je1indra Nath Gupta
v. The State uf Bihar, (supra) that the power to extend the life of F
an enactment cannot validly be conferred on an outside authority.
In Sita Ram Bis!iambhar Dayal and Ors. v. Stale of U. P. and
others,( 2 ) section 3D (1) of the U.P. Sales Tax Act, 1948, which was
challenged on the ground of excessive delegation, provided for
levying taxes at such rates as may be prescribed by the State
Government not exceeding the maximum prescribed. While G
rejecting the challenge, Hegde, J. speaking for the Court observed :
"However much one.might deplore the "New Despo-
tism" of the executive, the very complexity of the modern
H
(I) [1957) SCR 605.
(2) [1972] 2 SCR 14L
318 SUPREME COURT REPORTS {1982] 2 S.C. R.
A society and the demand it makes on its Government have
set in motion force which have made it absolutely neces-
sary for the legislatures to entrust more and more powers
to the executive. Text book doctrines evolved in the
19th Century have become out of date".
B
In Gwalior Rayon Silk Manufacturing ( Wvg.) Co. Ltd. v. The
Assistant Commissioner o( Sales Tax,( 1) the question which arose
for determination was whether the provisions of section 8 (2) (b) of
the Central Sales Tax Act, 1956 suffered from the vice of excessive
delegation because the Parliament, in not fixing the rate itself and
c in adopting the rate applicable to the sale or purcha~e of good inside
the appropriate State, had not laid down any legislative 'policy, abdi-
cating thereby its legislative function. Rejecting this contention ..
Khanna, J., who spoke for himself and two other learned Judges
observed that the growth of ,the legislative power of the executive is
a significant development of the twentieth century and that provision
D was therefore made for delegated legislation to obtain flexibility,
elasticity, expedition and opportunity for experimentation. Mathew,
.T. speaking on behalf of himself and Ray, C.J. agreed with the con-
clusion that section 8 (2) (b) did not suffer from the vice of excessive
delegation of legislative power. The d-!cisions bearing on the sub-
ject of excessive delegation have been surveyed both by Khanna, J.
E and Mathew, J. in their respective judgments. In M.K. Pasiah and
Sons v. The Excise Commissioner,(2) it was contended for the appel-
lants that the power to fix the rate of Excise Duty conferred by
section 22 of the Mysore Excise Act of 1965 on the Government
was bad for the reason that it was an abdication by the State legisla-
ture of its essential legislative function. The Couri, speaking
F through Mathew, J. upheld the validity of section 22. We are
unable to appreciate that the constituent body can be restrained from
doing what a legislature is free to do. We are therefore unable to
accept the argument t iat section l (2) confers an uncontrolled power
on the executive and is, by .its unreasonableness, violative of Articles
14 and 19 of the Constition.
G
We are also unable to accept Shri Tarkunde's argument that
the Central Government's failure to bring section 3 of the 44th
(l) [1974] 2 SCR 879,
(;?) (19751 3 SCR 607,
A.K. ROY v. UNION OF INDIA (Chandrachud, C.J.) 319
Amendment into force is mala fide. The Parliament has chosen to A
leave to the discretion of the Central Government the determination
of the question as to the time when the various provisions of the
44th Amendment should be brought into force. Delay in imple-
menting the will of the Parliament can justifiably raise many an
eye-brow, but it is not possible to say on the basis of such data, as
has been laid before us, that the Central Government is actuated 8
by any ulterior motive in not bringing section 3 into force. The
other limb of Shri Tarkunde's argument that there is an obligation
upon the Central Government to bring the provisions of the 44th
Amendment into force within a reasonable time has already been
dealt with by us while considering the argument that, since the
Government has not brought section 3 into force within a reasona- c
- ble time, it should be compelled by a writ of mandamus to perform
its obligation.
That disposes of all the contentions bearing on the 44th
Amendment Act except one, which we will consider later, as indi-
cated already. D
The next question arises out of the provisions of section 3(1)
and 3 (2) of the National Security Act which, according to the
petitioners, are so vague in their content and wide in their extent
that, by their application, it is easy for the Central Government or
the State GovernmeBt to deprive a person of his liberty for any E
fanciful reason which may commend itself to them. Sub-section (!)
and (2) of section 3 of the Act read thus :
- "3 (I) The Central Government or the State Government
may:-
F
(a) if satisfied with respect to any person that
with a view to perventing him from acting
in any manner prejudicial to the defence of
India, the relations of India with foreign
powers, or the security of India, or
I G
(b) if satisfied with respect to any foreigner that
with) view to regulating his continued pre-
:sence in India or with a view to making
.arrangements for his expulsion from India, H
it is necessary so to do, make an order
directins !Pat such person be detained,
320 SUPREME COURT REPORTS [1982] 2 s.c.11..
A (2) The Central Government or the State Govern-
ment may, if satisfied with respect to any person
that with a view to preventing him from acting
in any manner prejudicial to the security of the
State or from acting in any manner prejudicial
to the maintenance of public order or from acting
B
in any manner prejudicial to the maintenance of
supplies and services essential to the community
it is necessary so to do, make an order directing
that such person be detained.
c Explanation :-For the purposes of this sub-section,
"acting in any manner prejudicial to the maintenance of ...
supplies and services essential to the community" does not
include "acting in any manner prejudicial to the main-
tenance of supplies of commodities essential to the com-
munity" as defined in the Explanation to sub-section ( !)
D
of section 3 of the Prevention of Blackmarketing and
Maintenance of Supplies of Essential Commodities Act,
1980, and accordingly no order of detention shall be made _l
under this Act on any ground on which an order of deten-
tion may be made under that Act,"
E
It is contended by Shri Jethmalani that the expressions
'defence of India' 'relations of India with foreign powers', 'security
of India' and 'security of the State' which occur in sub-sections (I)
(a) and (2) of section 3 are so vague, general and elastic that even
conduct which is otherwise lawful can easily be comprehended
F
within those expression~, depending upon the whim and caprice of
the detaining authority. The learned counsel argues: These
expressions are transposed from the legislative en tries into the
aforesaid two sub-sections without any attempt at precision or defini-
tion. ln so for as ".if'fence of "1dia' is concerned, the legislature
G could have easily indicated the broad content of that expression by
including within it acts like inciting armed forces to rebellion,
damaging or destroying defence i11stallations or disclosing defence
secrets. In the absence of such definition, a statement that corrupt
officials are responsible for the purcha>e of defence equipment from
H a foreign power, may b~ considered as falling within the mischief
of that expression. The expression 'acting in any manner prejudi-
fi~I to ~h~ rell!ot_ions of Jndiit with foreign powers', is particularly
A.K. ROY v. UNION OF INDIA (Chandrachud, C.J.) 321
open to grave objection because, it can take in any and every piece A
of conduct. In the absence of a preci,e definition it is impossible
for any person to know with reasonable certainty as to what in this
behalf a~e the limits of lawful conduct which he must not tramgress.
Even if a person were to say, in· the exercise of the right of his free
speech and expression, that a foreign power, which is not friendly
with India, is adopting ruthless measures to suppress huma<i liber· B
ties, it would be open to the detaining authority to detain a person
for making that statement. The vice, therefore, of-section 3 consists
in the fact that the governing factor for the application of that
section is the passing and personal opinion of ti•e detaining autho-
rity in regard to the security and defence of the country and its
c
- external affairs. A cardinal requirement of the rule of law is that
citizens must know with certainty where lawful conduct ends and
unlawful conduct begins; but more than that, the bureaucrats must
know the limits of their power. The vagueness of the expressions
used in section 3 con ft rs uncontrolled discretion on the detaining,
authority to expand the horizon of their power, to the detriment of
the liberty of the subject. Even the right to peaceful demonstration
D
which has been upheld by this Court, may be treated by the
detaining authority as falling within the mischief of section 3. The
circumstance that, if a habeas corpus petition is filed, the Court may
release the detenu is hardly any answer to the vice of the section
because, the fundamental principle is that a person cannot be
E
d:prived of his liberty on the basis of a vague and uncertain law.
The provisions of the Northern Ireland (Emergency Pr0visions)
Act 1973 (Halsbury's Statutes of England, 3rd edition, Volume 43,
page I 235) is an instance of a statute wl1ich delfoes with precision
-"" the reasons for which a person can be detained. That Act was
passed inter alia for the detention of terrorists in Northern Ireland. F
Sec ti on 10 (I) provides that any constable may arrest without
warrant any person whom he suspects of being a terrorist. Section
20 of that Act defines the :erms 'terrorist' and 'terrorism' with great
care and precision in order that the power of detention may not be
abused.
G
In support of these propositions Shri Jethmalani relies on
the decisions of the American Supreme Court in United States of
America v. L. Cohen Grocery Company,( 1 ) Champlin Refining Com-
pany v. Corporation Commission of,' 1he State of Oklahoma,(2 ) Ignatius
H
(l) 65 Law Ed. 516, 520.
(2) 76 Law Ed. 1062, 1082.
322 SUPREME COURT REPORTS (1982] 2 S.C.R.
A Lanzetta v. Srate of New Jersey{ 1 ) and David H. Scull v., Common-
wealth of Virginia Ex Rel., Commiflee on Law Reform and Racial
Activities.(2) The ratio of these cases may be Summed up by repro-
ducing the third head note of the case last mentioned :
"Fundamental fairness requires that a person cannot
B be sent to jail for a crime he could not with reasonable
certainty know be was committing; reasonable certainty in
that respect is all the more essential when vagueness might
induce individuals to forgo their rights of speech, press, and
association for fear of violating an unclear law."
c Counsel has also drawn our attention to the decision of this Court
in the State of Madhya Pradesh & Anr. v. Balrko Prasad( 3 ) where a
law was struck down on the ground, inter alia that the word
.
'goonda' is of uncertain import, which rendered unconstitutional a
law which permitted goondas to be externed
D In this behalf Dr. Singhvi, intervening on behalf of the
Supreme Court Bar Association, has drawn our attention to section
8(3) of the Jammu & Kashmir Public Safety Act, 6 of 1968, which
defines the expressions "acting in any manner prejudicial to the .L
security of State 'and' acting in any manner prejudicial to the
maintenance of public order.' Where there is a will there is a way,
E and counsel contends that the way shown with admirable precision by
the Jammu & Kashmir Legislature is there for the Parliament to
follow, provided its intention is, as it ought to be, that before the
people are deprived of their liberty, they must have the opportunity
to regulate their conduct in order to ensure that it may conform to
the requirements of law.
F
In making these submissions counsel seem to us to haveover-
stated their case by adopting an unrealistic attitude. It is true that
the vagueness and the consequent uncertainty of a Jaw of preventive
detention bears upon the unreasonableness of that law as much as
G the uncertainty of a punitive law like the Penal Code does. A per-
son cannot be deprived of his liberty by a law which is nebulous and
uncertain in its definition and application. But in considering
the question whether the expressions aforesaid which are used in
H (t) 83 Law Ed. 888.
(2) 3 Law Ed. 2d. 865.
(3) ~1961] I SCR 979:
A.k. ROY v. tJNION OF INDIA (Chandrachud, C.J.) 313
section 3 of the Act are of that character, we must have regard to A
the consideration whether concepts embodied in those expressions
are at all capable of a precise definition. The fact that some defini-
tion or the other can be formulated of an expression does not mean
that the definition can necessarily give certainty to that expression.
The British Parliament has defined the term "terrorism" in section 28
of the Act of 1973 to mean "the use of violence for political ends", 8
which, by definition, includes 'any use of violence for the purpose
of putting the public or any section of the public in fear." The
phrases "political ends" itfelf of an uncertain character and
comprenends within its scope a variety of nebulous situations. Simi-
larly, the definitions contained in section 8 (3) of the Jam mu and
Kashmir Act of 1978 themselves depend upon the meaning of con- c
cepts like 'overawe the Government.' The formulation of definitions
- cannot be a panacea to the evil of vagueness and uncertainty. We
do not, of course suggest that the legislature should not attempt to
define or at least to indicate the contours of expressions, by the use,
of which people are sought to be deprived of their liberty. The
impossibility of framing a definition with mathematical precision can- D
not either justify the use of vague expressions or the total failure to
frame any definition at all which can furnish, by its inclusiveness at
least, a safe guideline for understanding the meaning of the expres-
sions used by the legislature. But the point to note is that there
are expressions which inherently comprehend such an infinite variety
of situations that definitions, instead of lending them a definite
E
meaning, can only succeed either in robbing them of their intended
amplitude or in making it necessary to frame further definitions
of the terms defined. Acts prejudicial to the 'defence of India'.
'security of India', 'security of the State', and 'relations of India with
- foreign powers' are concepts of that nature which are difficult to
encase within the strait-jacket of a definition. If it is permissible to
the legislature to enact Jaws of preventive detention, a certain amount
F
of minimal latitude has to be conceded to it in order to make those
laws effective. That we consider to be a realistic approach to the
situation. An administrator acting bona fide, or a court faced with
the question as to whether certain <.cts fall within the mischief of the
G
aforesaid expressions used in section 3, will be able to find an accept-
able answer either way. In other words though au expression may
appear in cold print to be vague and uncertain, it may not be difficult
to apply it to life's practical realities. This process undoudtedly in-
.... volves the possiblity of error but then, there is hardly any area of H
adjudicative process which does not involve that possiblity.
324 SUPREME COURT REPORTS [1892] 2 s.c k·
A. The requirement that crimes must be defined with appropriate
definiteness is regarded as a fundamental concept in criIT\inal law
and must now be regarded as a pervading theme of our Constitution
since the decision in Maneka Go 11dhi(1). The underlying Pjinciple is
that every person is entitled to be informed as to what the State
commands or forbids and that the life and liberty of a person cannot
be put in peril on an ambiguity. However, even in the domain
of criminal law, the processes of which can result in the taking away
of' life itself, no more than a reasonable degree of certainty has to be
accepted as a fact. Neither the criminal law nor the Constitution
requires the application of impossible standards and therefore, what
c is expected is that the language of the law must contain an adequate
warning of the conduct which may fall within the prescribed area,
when measured by common understanding. In criminal law, the
legislature frequently uses vague expressions like 'bring into hatred or
contempt', 'maintenance of harmony between different religious
groups' or 'likely to cause disharmony or hatred or ill-will', or
'annoyance to the publi.;'. (see sections I 24A, I 53A(I) (b), I 53B(I ((c),
and 268 of tJ-e Penal Code). These expressions, though they are
difficult to define, do not elude a just application to practical situa-
tions. The use of language carries with it the inconvenience of the
imperfections of language.
_A.
F.: We see that the concepts aforesaid, namely, 'defence of India',
'security of India', 'security of the State' and 'relations of India with
foreign powers', which are mentioned in section 3 c.f the Act, are
not of any great certainty or definiteness. But in the very nature
of things they are defficult to define. We cannot therefore strike
down these provisions of section 3 of the Act on the ground
F of their vagueness and uncertainty. We must, however, utter
a word of caution that since the concepts are not defined,
undoubtedly because they are not capable of a precise definition,
courts must strive to give to those concept a narrower construction
than what the literal words suggest. While construing laws of pre-
ventive detention like the National Security Act, care must be taken
G to restrict their application to as few situations as possible. Indeed,
that can well be the unstated premise for upholding the constitution-
ality of clauses like those in section 3, which are fraught with grave
ccnsequences to perscnal liberty. if construed liberally.
(1) [1978] 2 SCR 621.
A.k. ROY v. UNioN OF INDIA (Chandraci1ud, CJ.) 325
What we have said above in regard to the expressions 'defence A
of fndia', 'security of India', 'security of the State' and 'relations of
Indi~ with foreign powers' cannot apply to the expression "acting
in any manner prejudicial to tne maintenance of supplies and services
essential to the community which occurs in section 3(2) of the Act.
Which supplies and services are essential to the community can
easily be defined by the Legislature and indeed, legislations which B
regulate the prices and possession of essential commodities either
enumerate those commodities or confer upon the appropriate
Government the power to do so. In the absence of a definition of
·supplies and services essential to the community', the detaining
authority will be free to extend the application of this clause of sub-
section (2) to any commodities or services the maintenance of supply c
of which, according to him, is essential to the community.
But that is not all. The explanation to sub-section (2) gives to
the particular phrase in that sub-~ection a meaning which is not only
uncertain but which, at any given point of time, will be difficult
to ascertain or fasten upon. According to the Explanation, no
order of detention can be made under the National Security Act
on any ground on which an order of detention may be made under
the Prevention of Black-marketing and Maintenance of Supplies of
Essential Commodities Act, 1980. The reason for this, which is
stated in the Explanation itself, is that for the purposes of sub-sec-
tion (2) "acting in any ma!lner prejudicial to the maintenance of
supplies essential to the community" does not include ''acting in any
E
manner prejudicial to the maintenance of supplies of commodities
essential to the community" as defined in the Explanation to sub-
section (I) of section 3 of the Act of 1980 Clauses (a) and (b) of
the Explanation to section 3 of the Act of 1980 exhaust almost the
entire range of essential commodities. Clause (a) relates to committ-
- ing or instigating any penon to commit any offence punishable under
the Essential Commodities Act, 10 of 1955, or under any other law
F
for the time being in force relating to the control of the production,
supply or distribution of, or trade and commerce in, any commodity
essential to the community. Clause (b) of the Explanation to section
3 of the Act of 1980 relates to dealing in any commodity which is an G
essential commodity as defined in the Essential Commodities Act,
1955, or with respect to which provisions have been made in any
such other law as is referred to in clause (a). We find it quite
difficult to understand as to which are the remaining commodities
outside the scope of the Act of 1980, in respect of which it can be H
said that the maintenance of their supplies is essential to the commu-
nity. The particular clause in sub-seclion (2) of section 3 of the
326 sui•ilili.fE couitr REi>ORrs [1982] 2 s.c.R..
A National Security Act is, therefore, capable of wanton abuse in that,
the detaining authority can place under detention any person for
possession of any commodity on the basis that the authority is of
the opinion that the maintenance of supply of that commodity is
essential to the community. We consider the particular clause not
only vague and uncertain but, in the context or the Explanation,
B capable of being extended cavalierly to supplies, the maintenace of
which is not essential to the community. To allow the personal
liberty of the people to be taken away by the application of that
clause would be flagrant violation of the fairness and justness of
procedure which is implict in the provisions of Article 21.
c
In so far as "services essential to the community" are con-
cerned, they are not covered by the Explanation to section 3 (2) of
the Act. But in regads to them also, in the absence of a proper
definition or a fuller description of that or a prior enumeration
of such services, it will be difficult for any person to know with
D reasonable certitude as to which services are considered by the
detaining authority as essential to the community. The essentia-
lity of services varies from time to time depending upon the circum-
stances existing at any given time. There are, undoubtedly, some
services like water, electricity post and telegraph, hospitals, railways,
ports, roads and air transport which are essential to the com-
E munity at all times but, people have to be forewarned if new cate-
gories are to be added to the list of services which are . commonly
·accepted as being essential to the community.
We do not, however, prose to strike down the power given
F to detain persons under section 3 (2) on the ground that they are ...
acting in any manner prejudicial to the maintenance of supplies
and services essential to tht~ community. The reason for this is
that it is vitally necessary to ensure a steady flow of supplies and
services which are essential to the community, and if the State has
the power to detain persons on the grounds mentioned in sec-
G tion 3 (I} and the other grounds mentioned in section 3 (2), it must
also have the power to pass orders of detention on this particular
ground. What we propose to do is to hold that no person can be
detained with a view to preventing him from acting in any manner
prejudicial to the maintenance of supplies and services essential to
H the community unless, by a law, order or notification made or
published fairly in advance, the supplies and services, the main -
tenance of which is regarded as essential to the community and in
A.It. ROY v. UNiON OF INDIA (Chandrachud, C.J.) 321
respect of which the order of detention is proposed to be passed, A
are made known appropriately, to the public.
That disposes of the question as to the vagueness of the provi-
sions of the National Security Act. We will now proceed to the
consideration of a very important topic, namely, the reasonableness
of the procedure prescribed by the Act. The arguments advanced
I
on this question fall under three sub-heads : (I) the reasonableness
of the procedure which is generally prescribed by the Act; (2) the
fairness and reasonableness of the substantive provisions in regard
to the constitution of Advisory Boards; and (3) the justness and
reasonableness of the procedure in the proceedings before the
Advisory Boards. The discussion of these questions will conclude
c
this judgment.
Shri Jethmalani attacked the constitutionality of the very
National Security Act itself on the ground that it is a draconian
piece of legislation which deprives people of their personal liberty
D
excessively .and unreasonably, confers vast and arbitrary powers of
detention upon the executive and sanctions the use of those powers
by following a procedure which is unfair and unjust. The Act,
according to the counsel, thereby violates Articles 14, 19 and 21 and
and is therefore wholly unconstitutional. This argument, it
must be stated, is not to be confused with the fundamental premise E
of the petitioners that, under our Constitution, no law of preventive
detention can at all he passed, whatever be the safeguards it pro-
vides for the protection of personal liberty. We have already dealt
with that argument.
- The argument of Shri Jethmalani against the validity of the
National Security Act can be disposed of briefly. We need not
enter into the controversy which is reflected in the dissenting judg-
F
ment of Kailasam, J. in Maneka G·mdhi as to whether the major
premise of Gopalan' s case really was that Article 22 is a complete
code in itself and whether because of that premise, the decision in
that case that Article Z1 excluded the personal freedom conferred by G
Article 19 (I) is incorrect. We have the authority of the decisions in
the Bank Natimn/isation case, Haradhan Saha,( 1) Khudiram,(2) Sambhu
Nath Sarkcr( 3 ) and Maneka Gandhi for saying that the fundamental
- (l) [1975] 1 SCR 778.
(2) (19751 2 SCR 832.
(3) (1974] l SCR 1,
H
328 S01>REME COORt REPORTS [ J982) 2 s.c.Il.
A rights conferred by the different Articles of Part III of the Constitu-
tLm ae not mutually exclusive and that therefore a law of preven-
tive detention which falls within Article 22 must also meet the
requirements of Articles 14, 19 and 21. Speaking for the Court in
Khudiram, one of us, Bhagwati, J. said :
B "This question, thus, stands concluded and a final
seal is put on this controversy and in view of these decisions,
it is not open to any one now to contend that a law of
preventive detention, which falls within article 22, does
not have to meet the requirement of article 14 or article
19." (page 847)
c
But just as the question as to whether the rights conferred by the
different articles of Part III are mutually exclusive is concluded by
the aforesaid decisions, the question whether a law of preventive
detention is unconstitutional for the reason that it violates the free-
doms conferred by Arlicles 14, 19, 21 and 22 of the Constitution is
D also concluded by the decision in Haradhan Saha. In that case the
validity of the Maintenance of Internal Security Act, 1971 was
challenged on the ground that it violates these articles since its pro~
visions were discrim'inatory, they constituted an unreasonable
infringement of the rights conferred by Article 19, they infringed the
A.
guarantee of fair procedure and they did not provide for an impar·
E
tial machinery for the consideration of the representation made by
the detenu to the Government. The Constitution Bench which
heard the case considered these contentions and rejected them by
holding that the MISA did not suffer from any constitutional
infirmity. The MISA was once again challenged in Khudiram, but
the Court refused to entertain that challenge on the ground that the
F
question was concluded by the decision in Haradhan Saha and that
it was not open to the petitioner to challenge that Act on the ground
that some argument directed against the constitutional validity of
-
the Act under Article 19 was not advanced or considered in
Haradhan Saha. The Court took the view that the decision in
Haradhan Saha must be regarded as having finally decided all
G
questions as to the constitutional validity of MISA on the ground
of challenge under Article 19. We would like to add that in
Haradhan Saha tbe challenge to MISA on the ground of violation
of Articles 14, 21 and 22 was also considered and rejected. The
H question therefore as to whether MISA violated the provisions of
these four articles, namely, Articles 14, 19, 21 and 22, must be consi·
dered as having been finally decided in Haradlwn Saha. Accordingly,
A.k. kOY v. ONION OF INDIA (Chandrachud, C.J.) 329
we find it impossible to accept the argument that the National A
Security Act, which is in pari materia with the Maintenance of
J Internal, Security Act, 1971, is unconstitutional on the ground that,
by its very nature, it is generally violative of Articles 14, 19, 21
and 22.
B
Though the Act, as a measure of preventive detention, cannot
be challenged on the broad and general ground that such Acts are
calculated to interfere unduly with the liberty of the people, we shall
have to consider the challenge made by the petitioners' counsel,
particularly by Shri Jethmalani and Dr. Ghatate, to certain specific
provisions of the Act on the ground that they cause excessive and c
unreasonable interference with the liberty of the detenus and that the
procedure prescribed by those provisions is not fair, just and reason-
able. Dr. Ghatate has, with particular emphasis, challenged on
these grounds the provisions of sections 3(2), 3(3), 5, 8, 9, 10, 11, 13
and 16 of the Act. Shri Tarkunde challenged the provisions of
sections 8 and 11(4) of the Act. D
We have already dealt with the argument arising out of the
provisions of section 3(2) read with the Explanation, by which power
is conferred to detain persons in order to prevent them from acting
in any manner prejudicial to the maintenance of supplies and services
essential to the community. In so far as sub·section (3) of section 3
is concerned, the argument is that it is wholly unreasonable to confer
upon the District Magistrate or the Commissioner of Police the
power to issue orders of detention for the reasons mentioned in
sub-section (2) of section 3. The answer to this contention
is that the said power i> conferred upon these officers only if
F
the State Government is satisfied that having regaed to the circums.
tances prevailing or likely to prevail in any area witbin the local
limits of the jurisdiction of these officers, it is necessary to empower
them to take action under sub-section (2). The District Magistrate
or the Commissioner of Police can take action under sub-section (2)
during the period specified in the order of the State Government G
only. Another safeguard provided is, that the period so specified in
the , rd er made by the State Government during which these officers
can exercise the powers under sub-section (2) cannot, in the first
- instance, exceed three 11101•ths and can be extended only from time
to time not exceeding three months at any one time. By sub-section
( 4) of section 3, the District Magistrate or the Commissionerjof Police
has to report forthwith the fact of detention to the State Govern-
H
SUPREME COURT REPORTS [1981) i s.c.R..
A ment and no such or.der of detention can remain in force for more
than 12 days after the making thereof unless, in the meantime, it
has been approved by the State Government. In view of these in
built safeguards, it cannot be said that excessive o.r unreasonable
power is conferred upon the District l\fagistrate or the Commissioner
of Police to pass orders under sub-section (2).
B
By section 5, every person in respect of whom a deteitnon
order has been made is liable- ~·
(a) to be detained in such place and under such conditions,
including conditions as to maintenance, discipline and
c punishment for breaches of discipline, ·as the appro-
priate Government may, by general or special order,
specify, and
(b) to be removed from one place of detention to another
place of detention, whether in the same State, or in
D another State, by order of the appropriate Government.
The objection of the petitioners to these provisions on the ground of
their unreasonableness is not wholly without substance. Laws of
preventive detention cannot, by the back-door, introduce procedural
measures of a punitive kind. Detention without trial is an evil to
E be suffered, but to no greater extent and in no greater measure
than is minimally necessary in the interest of the country and
the community. It is neither fair nor just that a detenu
should have to suffer detention in "such place" as the Government
may specify. The normal rule has to be that the detenu will be kept
in detention in a place which is within the environs of his or her
F ordinary place of residence. If a person ordinarily resides in Delhi
to keep him in detention in a far of place like Madras or Calcutta is
a punitive measure by itself which, in matters of preventive detentioin
at any rate, is not to be encouraged. Besides, keeping a person in
detention in a place other than the one where he habitually resides
makes it impossible for his friends and relatives to meet him or for
G
the detenu to claim the advantage of facilities like having his own
food. The requirements of administrative convenience, safety and
security may justify in a given case the transfer of a detenu to a place
other than that where he ordinarily resides, but that can only be
H by way of an exception and not as a matter of general rule .. Even
when a detenu is required to be kept in or transferred to a place
which is other than his usual place of residence, he ought not to be
A.K. ROY v. UNION OF INDIA (Chandrachud, C.J.) 331
sent to any far off place which, by the very reason of its distance, is A
J
likely to deprive him of the facilities to which he is entitled. What-
ever smacks of punishment must be scruplously avoided in matters
of preventive detention.
Since section 5 of the Act provides for, as shown by its margi-
nal note, the power to regulate the place and conditions of detention B
there is one more observation which we would like to make and
which we consider as of great importance in matters of preventive
detention. In order that the procedure attendant upon detentions
should conform to the mandate of Article 21 in the matter of fairness,
justness and reasonableness, we consider it imperative that immedia-
tely after a person is taken in custody in pursuance of an order of c
detention, the members of his household, preferably the parent, the
child or the spouse, must be informed in writing of the passing
of the order of detention and of the fact that the detenu
has been taken in custody. Intimation must also be given as to the
place of detention, including the place where the detenu is transferred
D
from time to ti me. This Court bas stated time and again that the
person who is taken in custody does not forfeit, by reason of his
arrest, all and every one of his fundamental rights. It is therefore,
necessary to treat the detenu consistently with human dignity and
civilized norms of behaviour.
E
The objection of the petitioners against the provision contained
in section 8(1) is that it unreasonably allows the detaining authority
to furnish the grounds of detention to the detenu as late as five days
and in exceptional cases I 0 days after the date of detention. This
argument overlooks that the primary requirement of section 8(1) is
that the authority making the order of detention shall communicate F
the grounds of detention to the detenu "as soon as may be". The
normal rule therefore is that the grounds of detention must be
comrni1nicateJ t-i the dctenu without avoidable delay. It is only in
order to meet th~ practical exigencies of administrative affairs that
detaining authority is permitted to communicate the grounds of
detention not later than five c'ays ordinarily, and not later.than 10 c
days if there are exceptional circumstances. If there are any such
circumstances, the detaining authority is required by section 8(1) to
record its reasons in writing. We do not think that this provision
is open to any objection.
H
Sections 9, JO and 11 deal respectively with the constitution of
Advisory Boards 1 reference to Advisory Boarcls and procedQre of
332 SUl'REME COURT REPORTS [1982] 2 s.c.R.
A
Advisory Boards. We will deal with these three sections a little
later while considering the elaborate submissions made by Shri
Jethmalani in regard thereto.
6 Dr. Ghatate's objection against section 13 is that it provides
for a uniform period of detention of 12 months in all cases, regard-
less of the nature and seriousness of the grounds on the basis of
which the order of detention is passed. There is no substance in
this grievance because, any law of preventive detention has to provide
for the maximum period of detention, just as any punitive law like
c the Penal Code has to provide for the maximum sentence which can
be imposed for any offence. We should have thought that it would
have been wrong to fix a minimum period of detention, regardless of
the nature and seriousness of the grounds of detention. The fact
that a person can be detained for the maximum period of 12 months
does not place upon the detaining authority the obligathn to direct
D that he shall be detained for the maximum period. The detaining
authority can always exercise its discretion regarding the length of
the period of detention. It must also be mentioned that, under the
proviso to section 13, the appropriate Government has the power
to revoke or modify the order of detention at any earlier point of
time.
E
Section 16 is assailed on behalf of the petitioners on the ground
that it confers a wholly unwarranted protection upon officers who
may have passed orders of detention m'da fide. That section pro-
vides that no suit or other legal proceeding shall lie against the
F Central Government or a State Government and no suit, prosecution
or other legal proceeding shall lie against a person, for anything in
good faith done or intended to he done in pursuance of the Act. The
grievance of Dr. Ghatate is that even if an officer has in fact passed
an order of detention ma/a fide, but intended to pass in good faith,
he will receive the protection of this provision. We see a contra-
G
diction in this argument because, if an officer intends to pass an
order in good faith and if he intends to pass the order ma/a fide he
will pass it likewise Moreover, an act which is not done in good
faith will not receive the protection of section 16 merely because it
was intended to be done in lgood faith. It is also necessary that
the 11ct complained of m1.1St have been in pursuance of the Act,
A.K. ROY v. UNION OF INDIA (Chandrachud, C.J.) 333
.J Shri Jethmalani also challenged the provisions of section 16 A
on the ground of their unreasonableness. He contends that the
expression "good faith", which occurs in section 16, has to be cons-
trued in the sense in which it is defined in section 3(22) of the
General Clauses Act, 10 of 1897, according to which, a thing shall
be deemed to be done in "good faith" where it is in fact done
honestly, whether it is done negligently or not. On the contrary,
B
sction 52 of the Indian Penal Code provides that 'nothing is said to
be done or believed in "good faith" which is done or believed with-
out due care and attention. If the delinition contained in section 52
of the Penal Code were made applicable, a suit or other proceed-
ing could have lain against the detaining authrity on the ground
c
.. that the order was passed carelessly or without a proper application
of mind. Counsel contends that since the General Clauses Act
would apply, the detaining authority can defend the order and defeat
the suit or other proceeding brought against it by showing merely
that the order was passed honestly. We do not see any force in this
grievanc~. lf the policy of a law is to protect honest acts, whether
D
they are done with care or not, it cannot be said th it the law is un-
reasonable. In fact, honest acts deserve the highest protection.
Then again, the line which divides a dishonest act from a negligent
act is often thin and, speaking generally, it is not easy for a defen-
dant to justify his conduct as honest, if it is accompanied by a degree
of negligence. The fact, therefore, that the definition contained in E
section 3(22) of the General Clauses Act includes negligent acts in
the category of the acts done in gJod faith will not always make
material difference to the pr0of of matters arising in proceedings
under section 16 of the Act.
That takes us to the last of the many points urged in this case, F
which relates to the constitution of Advisory Boards and the pro-
cedure before tllern. Three section of the National Security Act
are relevant in this context, namely, section 9, 10 and 11. [t may
tie recalled that section 3 of the 44th Constitution Amendment Act
1978 made an important amendment to Article 22(4) of the Consti'.
tution by providing that- G
(i) No law of preventive detention shall authorise the
detention of any ~person for more than two months
unl~ss an Advisory Board has reported before the
expiry of that period that there is in its opinion sulf- H
<;i~nt c;~us~ for such d~tention; · ·
334 SUPREME COURT REPOR1S (1982J 2 S.C.R.
A (ii) the Advisory Board must be constituted in accordance
with the recommendation of the Chief Justice of the
appropriate High Court; and
-
(iii) the Advisory Board must consist of a Chairman and
not less than two other members, the Chairman being
B
a serving Judge of the appropriate Hi!!h Court and the
other members being serving or retired judges of any
High Court.
The main points of distinction between the amended provisions and
c the existing provisions of Article 22(4) are that whereas, under the
amended provisions, (i) the constitution of the Advisory Boards has
to be in accordance with the recommendation of the Chief Justice
•
of the appropriate High Court, (i1) the Chairman of the Advisory
Board has to be a serving Judge of the appropriate High Court, and
(iii) the other members of the Advisory Board have to be serving or
D retired Judges of any High Court, under the existing procedure,
(i) it is unnecessary to obtain the recommendation of the Chief
Justice of any High Court for constituting the Advisory Board and
(ii) the members of the Advisory Board need not l:Je serving or
retired Judges of a High Court : it is sufficient if they are "qualified
to be appointed as Judges of a High Court". By Article 217(2) of
E the Constitution, a citizen of India is qualified for appointment as a
Judge of a High Court if he has been advocate of a High Court for
ten years.
The distinction between the provisions of the amended and the
F unamended provisions of Article 22( 4) in regard to the constitution
of Advisory Boards is of great practical importance from the point
of view of the detenu. The safeguards against unfounded accusation
and the opportunity for establishing innocence which constitute the
ha! !mark of an ordinary criminal trial are not available to the detenu.
He is detained on the basis of ex parte reports in regard to his past
G conduct, with a view to preventing him from persisting in that course
of conduct in future. It is therefore of the utmost importance from
the detenu's point of view that the Advisory Board should consist
of persons who are independent, unbiassed and competent and who
possess a trained judicial mind. But the question for our considera-
II tion is whether, as urged by Shri Jethmalani, section 9 of the Nation-
al Security Act is bad for the reason that its provisions do not accord
with the requirements of section 3 of the 44th Amendment Act.
A.K. ROY v. UNION OF INDIA (Chandrachud, CJ.) 335
We find considerable difficulty in accepting this submission. Earlier in A
this judgment, we have upheld the -validity of section 1(2) of the
44th Amendment Act, by which the Parliament has given to the
Central Government the power to bring into force all or any of the
provisions of that Act, with option to appoint different dates for the
commencement of different provisions of the Act. The Central
8
Government has brought all the provisions of the 44th Amendment
Act into force except one, namely, section 3, which contains the
provision for the constitution of Advisory Hoards. We have taken
the view that we cannot compel the Central Government by a writ
of mandamus to bring the provisions of section 3 into force. We
have further held that, on a true interpretation of Article 368(2) of the c
Constitution, it is in accordance with the terms of the 44th Consti-
tution Amendment Act that, upon the President giving his assent to
that Act, the Constitution stood amended. Since section 3 has not
been brought into force by the Central Government in the exercise
of its powers under section 1(2) of the 44th Amendment Act, that
section is still not a part of the Constitution. The question as to D
whether section 9 of the National Security Act is bad for the reason
that it is inconsistent with the provisions of section 3 of the 44th
Amendment Act, has therefore to be decided on the basis that
section 3, though a part of the 44th Amendment Act, it is not a part
of the Constitution. If section 3 is not a part of the Constitution,
it is difficult to appreciate how the validity of section 9 of the E
National Security Act can be tested by applying the standard laid
down in that section. It cannot possibly be that both the unamend-
ed and the amended provisions of Article 22(4) of the Constitution
are parts of the Constitution at one and the same time. So long as
section 3 of the 44th Amendment Act has not been brought into
force, Article 22(4) in its unamended form will continue to be a part
of the Constitution and so long as that provision is part of the Consti-
tution, the amendrr.ent introduced by section 3 of the 44th Amend-
ment Act cannot become a part of the Constitution. Section 3 of
44th Amendment substitutes a new Article 22(4) for the old Anic[e
22(4). The validity of the constitution of Advisory Boards has G
therefore to be tested in the light of the provisions contained in
Article 22(4) as it stands now and not accorcting to the amended
Article 22(4). According to that Article as it stands now, an Advi-
sory Board may consist of persons, inler alia, who are qualified to
be appointed as Judges of a High Court. Section l) of the National H
Security Act provides for the constitution of the Advisory Boards
in conformity with that provision. We fipg it impossible \o hold
336 SUPREME COURT REPOR1 S (1982] 2 S.C.R.
A that the prov1s1on of a statute, which conforms strictly with the
existing provisions of the Constitution, can be declared· bad either
on the ground that it does not accord with the provisions of a
constitutional amendment which has not yet come into force, or on
the ground that the provision of the section is harsh or unjust. The
.standard which the Constitution, as originally enacted, has itself
B laid down for constituting Advisory Boards, cannot be characterised
as harsh or unjust. The argument, therefore, that section 9 of the
National Security Act is bad for either of these reasons must fail.
We must hasten to add that the fact that section 3 of the
44th Amendment has not yet been brought into force does not mean
c that the Parliament cannot provide fur the constitution of Advisory
Boards in accordance with its requirements. The Parliament is free
to amend section 9 of the National Security Act so as to bring
it in line with section 3 of the 44th Amendment. Similarly, the
fact that section 9 provides for the constitution of Advisory
Boards consisting of persons "who are, or have been, or are
D
qualified to be appointed as Judges of a High Court" does not
mean that the Central Government i
or the State Governments
cannot ~'constitute Advisory Boards consisting of serving or retired
Judges of the High Court. The minimal standard laid down in
Article 22(4)(a), which is adopted by section 9 of the Act, is binding
E on the Parliament while making a Jaw of preventive detention and
on the executive while constituting an Advisory Board. That
standard cannot be derogated from. But, it can certainly be im-
proved upon. We do hope that the Parliament will take the earliest
opportunity to amend section 9 of the Act by bringing it in line
with section 3 of the 44th Amendment as the Ordinance did and
f that, the Central Government and the State Governments will consti·
tute Advisory Boards in their respective jurisdictions in accordance
with section 3, whether or not section 9 of the Act is so amended.
We are informed that some enlightened State Governments have
·already given that lead. We hope that the other Governments will
follow suit. After all, the executive must strive to reach the highest
G standards of justice and fairness in all its actions, whether or not
it is compellable by law to adopt those standards. Advisory Boards
consisting of serving or retired Judges of High Courts, preferably
serving, and drawn from a ·panel recommended by the Chief Justice
of the concerned High Court will give credibility to their proceed-
H ings. There will then be a reasonable assurance that Advisory
!3011rds will express their opinion on the .sufficiency of the cause for
A.k. ROY v. UNION OF INbIA (Chandrachud, C.J.) 331
A
detention, with objectivity, fairness and competence. That way, the
implicit promise of the Constitution shall have been fulfilled.
Now, as to the procedure of Advisory Boards. Shri Jethmalani
laid great stress on this aspect of the matter and, in our opinion,
rightly. Consideration by the Advisory Board of the matters and
material used against the detenu is the only opportunity available to 8
him for a fair and objective appraisal of his case. Shri Jethmalani
argues that the Advisory Boards must therefore adopt a procedure
which is akin to the procedure which is generally adopted by judicial
and quasi-judicial tribunals for resolving the issues which arise
before them. He assails the procedure prescribed by sections 10 and
11 of the National Security Act on the ground that it is not in conso- c
nance with the principles of natural justice, that it does not provide
the detenu with an effective means of establishing that what is
alleged against him is not true and that it militates against the
requirements of Article 2 l. Learned counsel enumerated twelve
requirements of natural justice which, according· to him, must be
observed by the Advisory Boards. Those requirements may be
D
summed up, we hope without injustice to the argument, by saying
that {il the detenu must have the right to be represented by a lawyer
of his choice; (ii) he must have the right to cross-examine persons
on whose statements the order of detention is founded; and {iii) he
must have the right to present evidence in rebuttal of the allegations
E
made against him. Counsel also submitted that the Advisory Board
must give reasons in support of its opinion which must be furnished
to the detenu, that the entire material which is available to the
Advisory Board must be disclosed to the detenu and that the pro-
ceedings of the Advisory Board must be open to the public. Accord-
ing to Shri Jethmalani, the Advisory Board must not only consider F
whether the order of detention was justified but it must also con-
sider whether it would have itself passed that order on the basis of
the material placed before it. Counsel says that the Advisory Board
must further examine whether all the procedural steps which are
obligatory under the Constitution were taken until the time of its
report, the impact of Joss of time and altered circumstances on the G
necessity to continue the detention and last but not the least, whether
there is factual justification for continuing the order of detention
beyond the period of three months. Counsel made an impassioned
plea that 25 years of the Gopalan jurisprudence have desensitised the
community to the perils of preventive detention and that, it is im- H
perative to provide for the maximum safeguards to the detenu in
order to preserve and protect his liberty, which can be achieved by
338 SUPREME COURT REPbRTS [1982] 2 s.c.11.
A making at least the rudiments of due process available to him. How
much process is due must depend, according to Shri Jethmalani, on
the extent of grievous Joss involved in the case. The loss in preven-
tive detention is of the precious right of personal liberty and there-
fore, it is urged, all >uch procedural facilities must be afforded to
the detenu as will enable him to meet the accusations made against
B him and to disprove them.
--r
First and foremost, \we must consider whether and to what
extent the detenu is entitled to exercise the trinity of rights before
the Advisory Board : (i) the right of legal representation; (ii) the
right of cross examination and (iii) the right to present his evidence
c in rebuttal. Th~se rights undoubtedly constitute the core of just
process because without them, it would be difficult for any person
to disprove the allegations made against him and to establish the
truth. But there are two considerations of primary importance
D which must be borne in mind in this regard. There is no prescribed
standard of reasonableness and therefore, what kind of processual
rights should be made available to a person in any proceeding
depends upon the nature of the proceeding in 1 elation to which the
rights are claimed. The kind of issues involved in the proceeding
determine the kind of rights available to the persons who are parties
E to that proceeding. Secondly, the question as to the availability
of rights has to be decided not generally but on the basis of the
statutory provisions which govern the proceeding, provided of
course that those provisions are valid. In the instant case, the
question as to what kind of rights are available to the detenu in
the proceeding before the Advisory Board has to be decided in the
F light of the provisions of the Constitution, and on the basis of the
provisions of the National Security Act to the extent to which
they do not offend against the Constitution.
-
Turning first to the right of legal representation which is
claimed by the petitioners, the relevant 'article of the Constitution
G to consider is Article 22 which bears the marginal note "protection
against arrest and detention in certain cases." That article provides
by clause (I) that no person who is arrested shall be detained in
cu.tody without being informed, as soon as may be, of the grounds
for such arrest nor shall he be denied the right to consult, and to
H be defended by, a legal practitioner of his choice. Clause (2) requires
that every person who is arrested and detained in custody shall be
produced before the nearest magistrate within a period of 24 hours
A.k. ROY v. tJNiON OF JNDIA (Chandrachud, C.J.) 339
of such arrest and that no person shall be detained in custody
A
beyond the said period without the authority of a magistrate.
Clause (3) provides that nothing in clauses (I) and (2) shall apply (a)
to any person who for the time being is an enemy alien; or \b) to
any person who is arrested or detained under any law providing for
preventive detention. It may be recalled that clause 4(a) of Article 8
22 provides that no Jaw of preventive detention shall authorise the
detention of a person for a period longer than three months unless
the Advisory Board has reported before the expiry of the said period
of three months that there is in its opinion sufficient cause for such
detention. By clause 7(c) of Article 22, the Parliament is given the
power to prescribe by law the procedure to be followed by the
Advisory Board in an inquiry under clause 4(a).
c
On a combined reading of clauses (1) and (3) (b) of Article 22,
it is clear that the right to consult and to be defended by a legal
practitioner~of one's choice, which is conferred by clause (!), is
denied by clause 3(b) to a person who is detained under any law D
providing for preventive detention. Thus, according to the express
intendment of the Constitution itself, no person who is detained
under any Jaw, which provides for preventive detention, can claim
the right to consult a legal practitioner of his choice or to be
defended by him. In view of this, it seems to us difficult to hold,
by the application of abstract, general principles or on a priori con- E
siderations that the detenu has the right of being represented by a
legal practitioner in the proceedings before the Advisory Board,
Since the Constitution, as originally enacted, itself contemplates that
such a right should not be made available to a detenu, it cannot be
said that the denial of the said right is unfair, unjust or unreason-
able. It is indeed true to say, after the decision in the Bank
F
Nationalisation case, that though the subject of preventive detention
is specifically dealt with in Article 22, the requirements of Article 21
have nevertheless to be satisfied. It is therefore necessary that the
procedure prescribed by law for the proceedings before the Advisory
Boards must be fair, just and reasonable. But then, the Constitution
G
itself has provided a yardstick for the application of that standard,
throngh the medium of the provisions contained in Article 22(3)(b).
Howsoever much we would have liked to hold otherwise, we experie-
nce serious difficulty in taking the view that the procedure of the
Advisory Boards in which the detenu is denied the right of legal H
representation is unfair. unjust or unreasonab'e. If Article 22 were
340 SUPREME COURT Rei>oilts t1982} i s.c.ll.
A silent on the question of the right of legal representation, it would
have been possible, indeed right and proper, to hold that the detenu
cannot be denied the right of legal representation in the proceedings
before the Advisory Boards. It is unfortunate that courts have been
deprived of that choice by the express language of Article 22(3)(b)
read with Article 22(1).
B
It is contended by Shri Jethmalani that the provision contained
in clause 3(b) of Article 22 is limited to the right which is specifically
conferred by clause (I) of that article and therefore, if the right to
legal representation is available to the detenu apart from the pro-
c visions of Article 22(1), that right cannot of denied to him by reason
of the exclusionary provision contained in Article 22(3)(b). Counsel
says that the right of legal representation arises out of the provisions
of Articles 19 and 21 and 22(5) and therefore, nothing said in Article
22(3)(b) can affect that right. In a sense we have already answered
this contention because, what that contention implies is that the
D denial of the right of legal representation to the detenu in the pro-
ceedings before the Advisory Board is an unreasonable restriction,
within the meaning of Article 19(1), on the rights conferred by that
article. If the yardstick of reasonableness .is provided. by Article
22(3), which is as much a part of the Constitution as originally
enacted, as Articles 19, 21 and 22(5), it would be difficult to hold
E that the denial of the particular right introduces an element of un-
fairness, unjustness or unreasonableness in the procedure of the
Advisory Boards. It would be stretching the language of Articles
19 and 21 a little too far to hold that what is regarded as reasonable
by Article 22(3)(b) must be regarded as unreasonable within the
meaning of those articles. For illustrating this point, we may take
F. the example of Jaw which provides that an enemy alien need not be
produced before a magistrate within twenty-four hours of his arrest
or detention in custody. If the right of production before the
magistrate within 24 hours of the arrest is expressly denied to the
enemy alien by Article 22(3)(a), it would be impossible to bold that
the said right is nevertheless available to him by reason of the pro-
G visions contained in Article 21. The reason is, that the answer to
the question whether the procedure established by Jaw for depriving
an enemy alien of his personal liberty is fair or just is provided by
the Constitution it>elf through the provisions of Article 22(3)(a).
What that provision considers fair, just and reasonable cannot, for
H the purposes of Article 21, be regarded as unfair unjust or
unreasonable.
A.K. ROY v. UNION OF INDIA (Chandrachud, C.J.) 341
To read the right ·of legal representation in Article 22(5) is A
straining the language of that article. Clause (5) confers upon the
detenu the right to be informed of the grounds of detention and the
right to be afforded the earliest opportunity of making a represen-
tation against the order of detention. That right has undoubtedly
to be effective, but it does not carry with it the right to be repre-
sented by a legal practitioner befo~e the Advisory Board merely B
because, by section IO of the National Security Act, the represen-
tation made by the detenu is required to be forwarded to the Advi-
sory Board for its consideration. If anything, the effect of section
11 (4) of the Act, which conforms to Article 22(3) (b), is that the
detenu cannot appear before the Advisory Board through a legal
practitioner. The written representation of the detenu does not
c
have to be expatiated upon by a legal practitioner.
Great reliance was placed by Shri Jethmalani on the decision
of the American Supreme Court in Ozie Powell v. State of Alabama(1),
in which it was held that the dght of hearing includes the right to
the aid of counsel because, the right to be heard will in many cases D
be of little help if it did not comprehend the right to be heard by a
counsel. Delivering the opinion of the court, Sutherland. J. said :
"Even the intelligent and educated layman has small
and sometimes no skiJI in the science of law. If charged E
with crime, he is incapable, generally, of determining for
himself whether the indictment is good or bad. He is un-
familiar with the rules of evidence. Left without the aid
of counsel he may be put on trial without a proper charge,
and convicted upon incompetent evidence, or evidence
irrelevant to the issue or otherwise inadmissible. He lacks
both the skill and knowledge adequately to prepare his F
defence, even though he have a perfect one. He requires
the guid:ng hand of counsel at every step in the proceedings
against him. Without it, though he be not guilty, he faces
the danger of conviction because he does not know how
lo est~blish his innocence. If that be true of men of intelli- G
gence, how much more true is it of the ignorant and illite-
rate, or those of feeble intellect. If in any case, civil or
criminal, a state or federal court were arbitrarily to refuse
to hear a party by counsel, employed by and appearing for
ff
P) 77 L.ed. 158,
342 SUPREME COURT REPORTS (1982] 2 S.C.R.
A
him, it reasonably may not be doubted that such a refusal
would be a denial of a hearing, and, therefore, of due pro-
cess in the constitutional sense." (page 170)
The aforesaid decision in Powell is unique in more than one way
B and has to be distinguished. The petitioners therein were charged
with the crime of rape comitted upon two white girls. At the trial,
no counsel was employed on behalf <'f petitioners but the trial
Judge had stated that "he had appointed all the members of the Bar
for the purpcse of arranging the defendants and then of course anti-
cipated that the members of t~e bar would continue to help the
c defendants if no counsel appeared". The trial of the petitioners
was completed within a single day, at the conclusion of which the
petitioners were sentenced to death. That verdict was assailed on
the ground, inter alia, that the petitioners were denied the right of
counsel. It must be stated that the Constitution of Alaboma pro-
vided that in all criminal prosecutions, the accused shall enjoy the
D
right to have the assistance of counsel; and a state statute required
that the court must appoint a counsel for the accused in all capital
cases where the accused was unable to employ one. It is in tlie
light of these provisions and as a requirement of the due process
clause of the American Constitution that it was held that the right
to hearing, which is a basic element of due process, includes the
right to the aid of counsel. The patent distinction between that
case and the matter before us is that , our Constitution, at its very
inception, regarded it reasonable to deny to the detenu the right to
consult and be defended by a legal practitioner of his choice.
Secondly, a criminal trial involves issues of a different kind from
F those which the Advisory Board has to consider. The rights avail-
able to an accused can, therefore, be of a different character than
those available to the detenu, consistently with reason and fairplay.
Shri Jethmalani also relied upon another decision of the
Supreme Court which is reported in John J. Morrissey v. Lou B.
G Brewer.(1) In that case, two convicts whose paroles were revoked
by the Iowa Board of Parole, alleged that they were denied due
process because their paroles were revoked without a hearing.
Burger C.J., expressing the view of six members of the court, ex-
pressly left upon the question whether a prolee is entitled, in a
H parole revocation proceeding, to the assistance of counsel. The
(1) 33 L.ed. Znd 484,
A.K. ROY I'. U/\llON OF INDIA (Chandrachud, C.J.) 343
three other learned Judges held that due process requires that the A
parolee be allowed the assistance of counsel in the parole revocation
proceeding. It must be appreciated that the American decisions on
the right to counsel turn largely on the due process clause in the
American Constitution. We cann it invoke that clause for spelling
out a right as part of a reasonable procedure, in matters wherein our
Constitution expressly denies that right. II.
In support of his submission that for detenu is entitl<!d to
appear through a legal practitioner before the Advisory Board,
Shri Jethmalani relies on the decisions of this Court in Madhav
Haywadanroo Hoskot v. State of Maharashtra(1) Hussainara Khatoon c
v. Home Secretary, State of Bihar( 2) and Francis Coralie Mullin v.
The Administrator, Union Territory of De/hi(3 ). Speaking for the
Court, Krishna Iyer, J. said in Hoskot :
"The other ingredient of fair procedure to a prisoner, D
who has to seek his liberation through the court process is
lawyer's services. Judicial justice, with procedural intri-
cacies, legal submissions and critical examination of evi-
.. dence, leans upon professional expertise; and a failure of
equal justice under the law is on the carde where such
supportive skill is absent for one side. Our judicature, E
moulded by Anglo-American models and our judicial pro-
cess, engineered by kindred legal teehnology, compel the
collaboration of lawyer-power for steering the wheels of
equal justice under the law," Page (204)
In Hussainara Khatoon, one of us, Bhagwati, J. voiced the
F
concern by saying :
( "It is an essencial ingredient reasonable, fair and
' just procedure to a prisoner who is to seek his liberation
through the court's process that he should have legal ser- G
vices avail to him." (Page I 03).
(I) [1975] 1 S.C.R. 778.
(2) [1975] 2 SCR 832.
(3) [1974] I SCR I.
H
344 SUPREME COURT REPORTS (1982) 2 S.C.R.
These observations were made in the context of rights available to
an accused in a criminal trial and cannot be extended to the pro-
ceedings of Advisory Boards in order to dete1mine the rights of
detenus in relation to those proceedings The question as regards
the kind and nature of rights available in those proceedings has to
be decided on the basis of the provisions contained in Article 22
of the constitution and sections I 0 and 11 of the National Security
Act.
In Francis Caralie Mullin, the petitioner, while in detention,
c wanted to have an interview with her lawyer, which was rendered
almost impossible by reason of the· stringent provisions of clause
3(b)(i) of the 'Conditions of Detention' formulated by the Delhi
Administration. In a petition filed in this Court to challenge the
aforesaid clause, inter alia, it was held by this Court that the clause
was void, since it violated Articles 14 and 21 by its discriminatory
0 nature and unreasonableness. The Court directed that the detenu
should be permitted to have an interview with her legal adviser at
any reasonable hour during the day after taking an appointment
from the Superintendent of the jail and that the interview need not
necessarily take place in the presence of an officer of the Customs
or Central Excise Department. The Court also directed that the
E officer concerned may watch the interview but not so as to be within
the hearing distance of the detenu and the legal adviser. This
decision has no bearing on the point which arises before us, since
the limited question which was involved in that case was whether
the procedure prescribed by clause (3), governing the interviews
which a detenu may have with his legal adviser was reasonable.
F The Court was not called upon to consider the question as regards
the light of a detenu to be represented by a legal practitioner before
the Adviso'ry Board.
We must therefore, held, regretfully though, that the detenu "
G has no right to appear through a legal practitioner in the proceed- '•
ings before the Advisory Board. It is, however, necessary to add
an important caveat. The reason behind the provisions contained
in Artice 22(4) {b) of the Constitution clarly is that a legal practi-
tioner should not be permitted to appear before the Advisory
B
A.K. ROY v. UNION OF INDIA (Chandrachud, C.J.) 345
A
Board for any party. The.Constitution d )CS not contemplate that
the detaining authority or the Government should have the facility
of appearing before the Advisory .B:iard with the aid of a legal
practitioner but that the said facility should be denied to the detenu-
In any case, that is not what the Constitution says and it WJuld b~
wholly inappropriate to read any such meaning into the provisions B
of Article 22. Permitting the detaining authority or the GJvern-
ment to appear before the Advisory BJard with the aid of a legal
practitioner or a legal adviser would be in breach of Article I ~. if a
similar facility is denied to the detenu. We must ]therefore make
it clear that if the detaining authority or the Government takes the
aid of a legal practitioner or a legal adviser berore the Advisory C
Board, the detenu must be allowed the facility of appearing before
the Board through a leg.11 practitioner. We are informed that
officers of the Government in the concerned departments often
appear before the Board and assist it with. a view to justifying the
detention orders. If that be so, we must clarify that the BJards
should not permit the authorities to do indirectly what they cannot D
do directly; and no one shonld be enabled to take shelter behind ~·
the excuse that such olpcers are not "legal practitioners" or legal
advisers, .Regard must be had to the substance and not the form
since, especially, in matters like the proceedings of Advisory Bo1rds,
whosoever assist or advises on facts or law must be deemed to be
in the position of a legal adviser. We do hope toat Advisory Boards E
will take care to ensure that the:.Jprovisions of Article 14 are not
:violated in any manner in the proceedings before them. Serving or
retired Judges of the High Court will have no difficulty in under
standing this position. Those who are merely •·qualified to l;>e
appointed" as High Court 6udges may have to do ,a little home-
work inorder to appreciate. F
Another aspect of this matter which needs to be mentioned is
that the embargo on the appearance of legal practitioners should
/ not be extended so as to prevent the detenu from being aided or
assisted by a friend who, in truth and substance, is not a legal prac-
titioner. Every person whose Interests are adversely affected as a
G
result of the proceedings which have a serious import, is entitled to
be heard in those proceedings and be assisted by a friend. A detenn,
taken straight from ois cell to the Board's room, may lack tbe ease
and composure to present his point of view. He may be "tongue~
H
tied, nervous, confused or wanting in intelligence", (see Pett v.
346' SUPRlME COURT REPORTS (1892) 2 S.CR,
A Greyhound Racing Association Ltd.)(1), and if justice to be done.
he must at least have the help of a friend who can assist him to give
coherence to his stray and v.andering ideas. Incarceration makes a
man and his thoughts dishevelled. Just as a person who is domb is
entitled, as he must, to be represer.ted by a person who has speech,
even so, a person who finds himself unable to present his own case
8 is entitled to take the .aid and advice of a person who is better
situated to appreciate the facts of the case and the language of the
law. It may be that denial of legal representation is not denial of
natural justice per se, and therefore, if a statute excludes that facility
expressly, it would not be open to the tribunal to allow it. Fairness,
as said by Lord Denning M.R., in Maynard v. Osmond("} can be
c obtainted without legal rrpresentation. But, it is not fair, and the
statute does not exclude that right, that the detenu should not
·even be allowed to take the aid of a friend. Whenever dema1nded.
the Advisory Boards must grant that facility.
D Shri Jetbmalani laid equally great stress on the need to give
the detenu the right of cross-examination and in support of his sub-
mission in that behalf, he relied on the decisions of the American
Supreme Court in Jack R. Go1dberg v. John Kelly( 3 ), Morrissey,
Norvai Goss v. Eileen Lopez(4 ) and Powell. In Goldberg, Brennan.
J., expressing the view of five members of the court said that in
E almost every setting where important decisions turn on questions of
fact, due process requires opportunity to confront and cross-examine
adverse witnesses. The learned Judge reiterated the court's obser-
vations in Greeny v. McElorey( 6) to the following effect:
"Certain principles have remained relatively immutable
F in our jurisprudence. One of these is that where govem-
mental action seriously injures an individual, and toe reason-
ableness of the action depends on fact findings. the eviden.ce
used to prove the Government's case must be disclosed to
the individual so that he bas an opportunity to show that
it is untrue. While this is important in the case of docu-
G mentary evidence, it is even more important where the
evidence consists of the testimony of individuals whose
(1) [1969] 1 Q. B. 125.
(2) [1977] l Q. B. 240, 253.
H (3) 25 Led. 2d. 287, 300, 301.
(4) 42 Led. 2d 725.
(5) 3 L.ed. 2d 1377, 13 90, 1391.
A.K. ROY v. UNION OF !NOIA (Chandrachud, C.J.) 347
memory might be faulty or who, in fact, might be prejurers A
or persons motivated by malice, vinditiveness, intolerance,
prejudice, or jealousy. We have formalized these protec-
tions in the requirements of confrontation and cross-exami-
nation. They have ancient roots. They find expression
in the Sixth Amendment ...... This Court has been zealous
to protect these right from erosion. It has spoken out B
not only in criminanal cases, ......... but also in all types
of cases where administrative ......... actions were under
scrutiny".
Welfare recipients whose aid was terminated or was about to be
terminated were held entitled to be given an opportunity to confront
c
and cross-examine the witnesses relied on by the department. The
right to confront and cross-examine adverseZwitne>ses was upheld in
the other American cases also which counsel has cited.
For reasons which we have stated more than once during the D
course of this judgment, the decisions of the U.S. Suprme Court
which turn peculiarly on the due process clause in the American
L. Constitution cannot be applied wholesale for resolving questions
which arise under our Constitution, especially when, after a full
discussion of that clause in the Constituent Assembly, the proposal
to incorporate it in Article 21 was rejected. In U.S.A. itself, E
Judges have expressed views on the scope of the clause, which are
not only divergent but diametrically opposite. For exmple, in
Goldberg on which Shri Jethmalani has placed considerable reliance,
Black, J., said in his dissenting opinion that the majority was using
the judicial power for legislative purposes and that "they wander
out of their filed of. vested powers and transgress into the area F
constitutionally assigned to the Congress and the people". The
dissenting opinion of Chief Justice Burger in that case is reported in
v Mue Wheeler v. John Montgomery( 1 ), in the some volume. Describing
the majority opinion as 'unwise and precipitous" the learned Chief
Justice said :
G
"The Court's action today seems anorher manifestation
of the now familiar constitionalizing syndrome : once
some presumed flaw is observed, the Court then eagerly
accepts the inviation to find a constitutionally "rooted"
H
(I) 25 L.ed. 2d 307, 311.
348 SUPREME COURT REPORTS [1982] 2 s.c.R.
A remedy. If no provision is explicit on the point it is then
seen as implicit" or commanded by the vague and nebulous
concept of "fairness".
It is only proper that we must evolve our own solution to problems
arising under our Constitution without, of course, spurning the
B learning and wisdom of our counterparts in comparable jurisdictions.
The principal question which arises is whether the right of
cross·examination is an integral and inseparable part of the princi-
ples of natural justice. Two fundamental principles of natural justice
c are commonly recognised, namely, that an adjudicator should be
disinterested and unbiased (nemo judex in cause sua) and that, the
parties must be given adequate notice and opportunity to be heard
(audi a/term partem). There is no fixed or certain standard of
natural justice, substantive or procedural, and in two English cases
the expression 'natural justice' was described as one 'sadly lacking
0 in precision'(1) and as 'vacuous'(2). The principles of natural justice
are, in fact, mostly evolved from case to case, according to the broad
requirements of justice in the given case.
We do not suggest that the principles of natural justice, vague
and variable as they may be, are not worthy of preservation. As
E observed by Lord Reid in Ridge v. Baldwin(3), the view that natural
justice is so vague as to be practically meaningless" is tainted by
"the perennial fallacy that because something cannot be cut and
dried or nicely weighed or measured therefore it does not exist".
But the importance of the realisation that the rules of natural justice
are not rigid norms of unchanging content, consists in the fact that
F the ambit of those rules must vary according to the context, and
they have to be tailored to suit the nature of the proceeding in
relation to which the particular right is claimed as a component of
natural justice. fodged by this test, it seems to us difficult to hold
that a detenu can claim the right of cross-examination in the pro-
G ceeding before the Advisory Board. First and foremost, cross-
examination of whom ? The principle that witnesses must be con-
fronted and offered for cross-examination applies generally to pro-
ceedings in which witnesses are examined or documents are adduced
H (l) Local Govt. Boardv. Arlidge [1915] A.C. 120, 138.
(2) (1914] 1 K.B.@ 199.
(3) [1964) A.C. 401 64-65.
A.K. ROY V. UNION OF INDIA (Chandrachi.d, CJ.) 349
in evidence in order to prove a point. Cross-examination then A
becomes a powerful ~eapon for showing the untruthfulness of that
evidence. In proceedings before the Advisory Board. the question
for consideration of the Board is not whether the detenu is guilty of
any charge but whether there is sufficient cause for the detention of
the person concerned. The detention, it must be remembered, is
based not on fact proved either by applying the test of preponder- 8
r ance of pr,obabilities or of reasonable doubt. The detention is based
on the subjective satisfaction of the detaining authority that it is
necessary to detain a particular person in order to prevent him from
acting in a manner prejudicial to certain stated objects. The pro-
ceeding of the Advisory Board has therefore to be structured differ-
ently from the proceeding of judicial or quasi-judicial tribunals, c
before which there is a /is to adjudicate upon,
Apart from this consideration, it is a matter of common
experience that in cases of preventive detention, witnesses are either
unwilling to come forward or the sources of information of the
detaining authority cannot be disclosed without detriment to public n
interest. Indeed, the disclosure of the identity of the informant may
abort the very process of preventive detention because, no one will
be willing to come forward to give information of any prejudicial
activity if his identity is going to be disclosed, which may have to be
done under the stress of cross-examination. It is therefore difficult,
in the very nature of things, to give to the detenu the full panoply E
of rights which an accused is entitled to have in order to disprove
the charges against him. That is the importance of the statement
that the concept of what is just and reasonable is flexible in its scope
and calls for such procedural protections as the particular situation
demands. Just as there can be an effective hearing without legal
representation even so, there can be an effective hearing without
F
the right of cross-examination. The nature of the inquiry involved
in the proceeding in relation to which these rights are claimed deter-
mines whether these rights must be given as components of natural
justice.
In this connection, we would like to draw attention to certain G
decisions of our Court. In New Prakash Transport Co. Ltd. v. New
Suwarna Transport Co. Lu/(1), it was observed that "the question
whether the rules of natural justice have been observed in a parti-
cular case must itself be judged in the light of the constitution of
H
(1) [1957] S.C.R. 98, 106.
350 SUPREME COURT REPORTS (1982) 2 S,C,R.
A the statutory body which has to function in accordance with the
rules laid down by the legislature and in that sense the rules them-
selves must vary". In Nagendra Nath Bora v. Commissioner of Hills
Division and Appeals, Assam(1), the aforesaid statement was cited
with approval by another Constitution Bench. In State of Jammu
Kashmir v. Bakshi Ghulam Mohammed(2), it was argued that the
B right to hearing included the right to cross-examine witnesses. That
argument was rejected by the Court by observing that the right of
cross-examination depends upon the circumstances of each case and
on the terms of the statute under which the matter is being enquired
into. Citing with approval the passage in Nagendra Nath Bora, the
Court held that the question as to whether the right to cross-examine
c was available had to be decided in the light of the fact that it was
dealing with a statute under which a Commission of Inquiry was
set up for fact-finding purposes and that the report of the Com-
mission had no force proprio vigore.
In support of his submission that the right of cross-examination
D
is a necessary part of natural justice, Shri Jethmalani relies upon
the decisions of this Court which are reported in Union of India v.
T. R. Varma(3) and Khem Chand v. Chand Union of Jndia( 4). It was
observed, in the first of these two cases that the rules of natural justice
require that the party concerned should have the opportunity of
adducing the relevant evidence on which he relies, that the evidence
E
of the opponent should be taken in his presence, that "he should be
given the opportunity of cross examining the witnessess examined
0
by" the other side and that no materials should be relied on against
him without his being given an opportunity of explaining them. In
Khem Chand it was held that if the purpose of Article 311(2) was to
F give the Government servant an opportunity to exonerate himself
from the charge and if this opportunity is to be a reasonable one,
he should be allowed to show that the evidence against him is not
worthy of credence or consideration and, "that he can only do if
he is given a chance to cross-examine the witnesses called against
him "and to examine himself or any other witnesses in support of
G his defence. These observations must be understood in the context
of the proceedings in which they are made and cannot be taken as
laying down a general rule that the right of cross-examination is
(I) [1958] S.C.R. 1240, 1261.
H (2) [1966) supp. S.C.R. 401, 415.
(3) [1958] S.C.R. 499, 507.
(4) [1958~ S.C.R. 1080? 109(i,
A.it. ROY v. trnioN OF INDIA ( Chandrachud, C.J.) 3Sl
available as a part of natural justice in each and every proceeding. A
In both of these cases, the question which arose for consideration
of the Court was whether a Government servant, who was dismissed
from service, was given "a reasonable opportunity" of showing
cause against the action proposed to be taken against him, within
the meaning of Article 311( 2) of the Constitution. It shall have
been noticed that the . emphasis in these cases is on the right to B
cross-examine the witnesses who are examined by the opposite party.
In T. R. Varma the right of cross-examination is described as the
right in regard to the witnesses examined by the other party while in
Khem Chand, the right is described as an opportunity to defend
oneself by cross-examining the witnesses produced by the other side.
No witnesses are examined in the proceedings before the Advisory
c
Board on behalf of the detaining authority and therefore, the rule
laid down in the two decisions on which Shri Jethmalani relies can
have no application to those proceedings.
If the debates of the Constituent Assembly are any indication,
D.
it would appear that Dr. B. R. Ambedkar, at any rate, was of the
opinion that the detenu should be given the right to cross-examine
witnesses before the Advisory Board. In his reply to the debate on
the procedure of the Advisory Board, he said on September 16,
1949 that a "pointed question has been asked whether the accused
person would be entitled to appear before the Board, cross-examine E
the witnesses, and make his own statement". Dr. Ambedkar's
answer was that the Parliament should be given the power to pres-
cribe the procedure to be followed by the Advisory Board. That is
how clause 7(c) came to be incorporated in Article 22 of the Consti-
tution, giving that power to the Parliament. Pandit Thakur Dass
Bhargava thereafter asked as to what was the position regarding F
the safeguard of cross-examination. The reply of Dr. Ambedkar,
significantly, was :
"The right of cross-examination is already there in the
Criminal Procedure Code and in the Evidence Act. Unless
a provincial Government goes absolutely stark mad and G
takes away these provisions it is unnecessary to make any
provision of• that sort. Defending includes cross exami-
nation."
x x x x x x x H
"If you can give a single instance in India where the
right of cross-examination has been taken away, I can
352 SUPREME COltRT REPORtS [1982] 2 S.C.ll.
A understand it. I have not seen any such case." (see Consti-
tuent Assembly Debates, Vol. 9, pages 1561, 1562, 1563).
Dr. Ambedkar, unfortunately, was not prophetic and the authors
of the various Preventive Detention Acts did not evidently share his
view. In fact, the right of cross-examination under the Criminal
B Procedure Code and the Evidence Act, by which Dr. Ambedkar
laid great store, has nothing to do with the detenu's right of cross-
examination before the Advisory Board. With great respect, Dr.
Ambedkar seems to have nodded slightly in referring to the pro-
vision for cross examination under those Acts. Whatever it is,
Parliament has not made any provision in the National Security
c Act, under which the detenu could claim the right of cross-exami-
nation and the matter must rest there.
We are therefore of the opinion 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
D is made or the detaining authority.
The last of the three rights for which Shri Jethmalani contends
is the right of the detenu to lead evidence in rebuttal before the
Advisory Board. We do not see any objection to this right being
granted to the detenu. Neither the Constitution nor the National
E Security Act contains any provision denying to the detenu the right
to present his own evidence in rebuttal of the allegations made
against him. The detenu may therefore offer oral and documentary
evidence before the Advisory Board in order to rebut the allegations
which are made against him. We would only like to add that if the
detenu desires to examine any witnesses, he shall have to keep them
F
present at the appointed time and no obligation can be cast on the
Advisory Board to summon them. The Advisory Board, like any
other tribunal, is free to regulate its own procedure within the cons-
traints of the Constitution and the statute. It would be open to it,
in the exercise of that power, to limit the time within which the
detenu must complete his evidence. We consider. it necessary
G to rnake this observation particulary in view of the fact that the
Advisory Board is under an obligation under section 11 (I) of the
Act to submit its report to the appropriate Government within seven
weeks from the date of detention of the person concerned. The pro-
ceedings before the Advisory Board have therefore to be completed
H
with the utmost expedition.
A.K. ROY v. UNION OF INDIA l Chrmdrachud, C.J.) 353
It is urged by Shri Jethmalani that the Advisory Board "must A
decide two questions which are of primary importance to the d·etenu:
One, whether there was sufficient cause for the detention of the
person concerned and two, whether it is necessary to keep the person
in detention any longer after the date of its report. We are unable
to accept this contention. Section 1I (2) of the Act provides speci·
fically that the report of the Advisory Board shall specify its opinion B
"as to whether or not there is sufficient cause for the detention of
the person concerned". This implies that the question to which the
Advisory Board bas to apply its mind is whether on the date of its
report there is sufficient cause for the detention of the person. That
inquiry necessarily involves the consideration of the question as to
whether there was sufficient cause for the detention of the person c
when the order of detention was passed, but we see no justification
for extending the jurisdiction of the Advisory Board to the con-
sideration of the question as to whether it is necessary to continue
the detention of the person beyond the date on which it submits its
report or beyond the period of three months after the date of deten·
tion. The question as to whether there are any circumstances on the 0
basis of which the detenu should be kept in detention after the
Advisory Board submits its report, and how long, is for the detaining
authority to decide and not for the Board. The question as regards
the power of the Advisory Board in this behalf had come up for
k consideration before this Court in Puranfol Lakhanpal v. Union of
India(1). While rejecting the argument that the words "such deten·
tion '' which occur in Article 22(4)(a) of the : Constitution mean
detention for a period longer than three months, the majority held
that the Advisory Board is not called upon to consider whether the
detention should continue beyond the period of three months. In
coming to that conclusion the majority relied upon the decision in
D:ittatraya Moreshwar Pangarka~ v. State of Bombay(2} in which F
Mukherjea, J., while dealing with a similar question, observed :
"The Advisory Board again has got to express its
opinion only on the point as to whether there is sufficient
cause for detention of the person concerned. It is neither G
called upon nor is it competent to say anything regarding
the period for which such person should be detained. Once
the Advisory Board expresses its view that there is sufficient
cause for detention at the date when it makes its report,
H
(I) [1958] SCR 460, 475.
(2) [1952] SCR 612, 626.
354 SUPREME COURT REPORTS [1982] 2 s.c.~.
A what action is to be taken subsequently is left entirely to
the appropriate Government and it can under s. 11 (I) of the
Act confirm the detention order and continue detention of
the person concerned for such period as it thinks fit.''
B The contention that the Board must determine the question as to *
whether the detention should continue after the date of its report
must therefore fail. The duty and function of the Advisory Board
is to determine whether there was sufficient cause for detention of 1
the person concerned on the date on which the order of detention
was passed and whether or not there is sufficient cause for the deten-
c tion of that person on the date of its report.
We are not inclined to accept the plea made by the learned
counsel that the proceedings of the Advisory Board should be thrown
open to the public. The right to a public trial is not one.of the
guaranteed rights under our Constitution as it is under the 6th
D Amendment of the American Constitution which secures to persons
charged with crimes a public, as well as a speedy, trial. Even under
the American Constitution, the right guaranteed by the 6th Amend-
ment is held to be personal to the accussed, which the public in
general cannot share. Considering the nature of the inquiry which _...i.
the Advisory Board has to undertake, we do not think that the
E interests of justice will be served better by giving access to the
public to the proceedings of the Advisory Board.
This leaves for consideration the argument advanced by Shri
Jethmalani relating to the post-detention conditions applicable to
detenus in the matter of their detention. The learned counsel made
F a grievance that the letters of detenus are censored, that they are not
provided with reading or writing material according to their require-
ments and that the ordinary amenities of life are denied to them.
It is difficult for us to frame a code for the treatment of detenus
while they are held in detention. That will involve an exercise which
calls for examination of minute details, which we cannot undertake.
\Ve shall have to examine each case as it comes before us, in order
to determine whether the restraints imposed upon the detenu in any
particular case are excessive and unrelated to the object of detention.
If so, they shall have to be struck down. We would, however, like
H to say that the basic commitment of our Constitution is to foster
human dignity and the well-being of our people. In recent times,
we have had many an occasion to alert the authorities to the need to
A.k. ROY v. UNION OF 1NDIA (Chandrachud, C.i.) 355
treat even the convicts in a manner consistent with human dignity. A
The judgment of Krishna Iyer, J. in Sunil Batra v. Delhi Administra-
tion(1) is an instance in point. It highlights that places of incarcera-
tion are "part of the Indian earth" and that, "the Indian Consti
tution cannot be held at bay by jail officials 'dressed in a little, brief
authority". We must impress upon the Government that the detenus
must be afforded all reasonable facilities for an existence consistent
with human dignity. We see no reason why they should not be per-
mitted to wear their own clothes, eat their own food, have interview
with the members of their families at least once a week and, last but
not the least, have reading and writing material according ro their
reasonable requirement. Bo Jks are the best friends of man whether
inside c r outside the jail. c
There is one direction which we feel called upon to give speci-
fically and that is that persons who are detained under the National
Security Act must be segregated from the convicts and kept in a
separate part of the place of detention. It is hardly fair that those
who are suspected of being engaged in prejudicial conduct should be
n
loged in the same ward or cell were the convicts whose crimes are
established are lodged. The evils of "custodial perversity" are well-
k!Jown and have even found a place in our law reports. As observed
by Krishna Iyer, J. in Sunil Batra, the most important right of the
person who is imprisoned is to the integrity of his physical person E
and mental personality. Even within the prison, no person can be
deprived of his guaranteed rights save by methods which are fair,
just and reasonable. "In a democracy, a wrong to some one is a
wrong to every one" and care has to be taken to ensure that the
detenue is not subjected to any indignity. While closing this judg-
ment, we would like to draw attention to what Shah, J. said for the F
Court in Sampat Prakash v. State of Jammu & Kashmir(2) :
"The petitioner who was present in the Court at the
time of hearing of his petition complained that he is
subjected to solitary confinement while in detention. It
must be emphasised that a detenu is not a convict. Our G
Constitution, notwithstanding the broad principles of the
rule of law, equality and liberty of the individual enshrined
therein, tolerates, on account of peculiar conditions pre-
l- H
OJ [1980J 2:scR 557.
(2) [1969] 3 SCR 574, 580.
356 StJPlU!ME cotJR.t REPOllts (1982) 2 S.C.l.
A vailing legislation which is a negation of the rule of law,
equality and liberty. But it is implicit in the Constitu-
tional scheme that the power to detain is not a power to
punish for offences which an executive authority in his
subjective satisfaction believes a citizen to have committed.
Power to detain is primarly intended to be exercised in
B those rare cases when the large interest uof the State
demand that restrictions shall be placed pon the liberty
of a citizen curbing his future activities. The restrictions
so placed must consistently with the effectiveness of deten- 1
tion, be minimal."
c If any of the persons detained under the National Security Act are
at present housed in the same ward or cell where the convicts are
housed, immediate steps must be taken to segregate them appro-
priately. "The Indian human", whenever necessary, has of course
"a constant companion-the Court armed with the Constitution"
and informed by it.
D
In the result, the Writ Petitions shall stand disposed of in
accordance with the view expressed herein and the orders and
directions given above.
GUPTA, J. I find myself unable to agree with the views ex-
E
pressed in the judgment of the learned Chief Justice on two of the
points that arise for decision in this batch of writ petitions, one of
them relates to the failure of the Central Government to bring into
operation the provisions of section 3 of the Constitution (Forty-
Fourth Amendment) Act, 1978 and the other concerns the question
whether an ordinance is 'law' within the meaning of article 21 of the
F
Constitution.
The Constitution (Forty-Fourth Amendment) Act, 1978 re-
ceived assent of the President on April 30, 1979. Article 368(2)
says, inter alia, that after a Bill for the amendment of the Consti-
G tution is passed in each House of Parliament by the prescribed
majority "it shall be presented to the President who shall give his
assent to the Bill and thereupon the Constitution shall stand amend-
ed in accordance with the terms of the Bill". Section 1(2) of the
Constitution (Forty-Fourth Amendment) Act states that the Act
H "shall come into force on such date as the Central Government,
may, by notification in the Official Gazette, appoint," and that
"different dates may be appointed for different provisions of this
A.K. ROY v. UNlON OF-INDIA (Gupta, J.) 357
Act". Section 3 of the Amendment Act substitutes a new clause A
for the existing clause (4) of article 22 of the Constitution which
provides inter alia for the constitution of Advisory Boards. The
relevant part of section 3 reads as follows ;
"Amendment of article 22.-ln article 22 of the Consti-
tution,- B
(a) for clause (4), the following clause' shall be substi-
tuted, namely :
(4) No law providing for preventive detention
shall authorise the detention of a person for a longer c
period than two months unless an Advisory Board
constitnted in accordance with the recommendations
of the Chief Justise of the appropriate High Court
has reported before the expiration of the said period
of two months that there is in its opinion sufficient
cause for such detention :
D
Provided that an Advisory Board shall consist of a
Chairman and not less than two other members, and the
Chairman shall be a serving Judge of the appropriate High
Court and the other members shall be a serving or retired
E
Judges of any High Court."
The provision requiring the Advisory Board to be constituted in
accordance with the recommendations of the Chief Justice of the
appropriate High Court and that the Chairman of the Advisory
Board shall be a serving Judge of the High Court and the other F
members of the Board shall be serving or retired Judges of any
High Court is absent in the existing clause (4) under which persons
who are only qualified to be appointed as Judges of a High Court
are eligible to be members of the Advisory Board. Many of the
provisions of the Act were brought into force on different dates in
the year 1979 but the provisions of section 3 were not given effect G
to for more than one year and seven months when the hearing of
these writ petitions commenced on December 9, 1980. Now though
more than two and a half years have passed the provisions of section
3 have not yet been brought into force. The question is whether
under section 1(2) the Central Government had the freedom to bring H
into force any of the provisions of the Amendment Act at any time
it liked. I do not think that section I (2) can be construed to mean
358 SUPREME COURT REPOil'fS [1982} 2 S.C.lt
A that Parliament left is to the unfettered discretion or judgment of
the Central Government when to bring into force any provision of
the Amendment Act. After the Amendment Act received the
President's assent, the Central Government was under an obligation
to bring into operation the provisions of the Act within a reasonab:le
time; the power to appoint dates for bringing into force the provi-
B sions of the Act was given to the Central Government obviously
because it was not considered feasible to give effect to all the pro-
visions immediately. After the Amendment Act had received the
President's assent the Central Government could not in ii discn::-
tion keep it in a state of suspended animation for any length of
time it pleased. That Parliament wanted the provisions of the
c Constitution (Forty-Fourth Amendment) Act, 1978 to be made
effective as early as possible would appear from its Objects and
Reasons. The following extract from the Objects and Reasons
clearly discloses a sense of urgency :
"Recent experience has shown that the fundamental
D
rights, inciuding those of life and liberty, granted to citizens
by the Constitution are capable of being taken away by a
transient majority. It is, therefore, necessary to provide
adequate safeguards against the recurrence of such a con-
tingency in the future anc! to ensure to the people them-
selves an effective voice in determining the form of govern-
E
ment under which they are to live. This is one of the
primary objects of this Bill.
x x x x x x x
As a further check against the misuse of the fanergency
F provisions and to put the right to life and Ii berty on a
secure footing, it would be provided that the power to sus-
pend the right to move the court for the enforcement of a
fundamental right cannot be exercised in respect of the
fundamental right to life and liberty. The right to liberty
is further strengthened by the provision that a law for
G preventive detention cannot authorise, in any case, deten-
tion for a longer period than two months, unless an Advi-
sory Board has reported that there is sufficient cause for
such detention. An additional safeguard would be pro-
vided by the requirement that the Chairman of an Advisory
H
Board shall be a serving Judge of the appropriate High
A.K. RO>< v. UNION OF INDIA (Gupta, J.) 359
Court and that the Board shall be constituted in accor- A
dance with the recommendations of the Chief Justice of
that High Court."
I have already said that Parliament must have taken into con-
sideration the practical difficulties in the way of the executive· in 8
bringing into operation all the provisions of the Act immediately,
and by enacting section I (2) it relied on the Central Government to
give effect to them. Now when more than two and a half years
have passed since the Constitution (Forty-Forth Amendment) Act,
1978 received the assent of the President, it seems impossible that
any such difficulty should still persist preventing the Government c
from giving effect to section 3 of the Amendment Act. It is interes·
ting to note that clause 9 of the National Security Ordinance, 1980
provided for the constitution of Advisory Boards in conformity
with article 22 of the Constitution as amended by section 3 of
the Constitution (Forty-Fourth Amendment) Act, 1978. This
makes it clear that non-implementation of the provis!ons of D
section 3 was not due to any practical or administrative difficulty.
However, the National Security Act, 1980 which replaced the Ordi-
nance does not retain the provison of clause 9 of the Ordinance
and prescribes the constitution of the Advisory Boards in
section 9 in accordance with unamended article 22(4). I do not
think it can be seriously suggested that a provision like section 1(2)
E
of the Constitution (Forty-Fourth Amendment) Act empowered the
executive to scotch an amendment of the Constitution passed by
Parliament and assented to by the President. The Parliament is
competent to take appropriate steps if it considered that the execu-
F
cutive bad betrayed its trust does not make the default lawful or
relieve this Court of its duty. I would therefore issue a writ of
mandamus directing the Central Government to issue a notification
under section l (2) of the Constitution (Forty-Fourth Amendment)
Act, 1978 bringing into force the provisions of section 3 of the Act G
within two months from this date.
On the other point, I find it difficul~ to agree that an ordinance
l is 'law' within the meaning of article 21 of the Constitution. Article
21 reads :
"No person shall be deprived of his life or personal
liberty except according to procedure established by law."
H
The National Security Ordinance, 1980 has been challenged on a
!lumber of iirounds, one of wb id1 is tl-11t the life and liberty of
360 SUPREME COURT REPORTS ( 1982] 2 S.C. R..
A person cannot be taken away by an ordinance because it is not 'law''
within the meaning of article 21. Normally it is the legis 1ature
that has the power to make laws. Article 123 of the Constitution
deals with the President's power to promulgate ordinances and the
nature and effect of an ordinanue promulgated under this article,
Article 123 is as follows :
B
"(I) It at any time, except when both Houses of Parliament
ar'~ in session, the President is satisfied that circums-
tances exist which render it necessary for him to take
immediate actien, he may promulgate such Ordinances
as the circumstances appear to him to require.
c
(2) An Ordinance promulgated under this article shall have
the same force and effect as an Act of Parliament, but
every such Ordinance-
(a) shall be laid before both Houses of Parliament and
.l..
D shall cease to operate at the expiration of six
weeks from the reassembly of Parliament, or, if
before the expiration of that period resolutions
disapproving it are passed by both Houses, upon
the passing of the second of those resolutions; and
E (b) may be withdrawn at any time by the President.
Explanation-Where the Houses of Parliament are
summoned to reassemble on different dates, the period of
six weeks shall be reckoned from the later of those dates
for the purpose of this clause.
F
(3) If an<l so far as an Ordinance under this article makes
any provision which Parliament would not under this
Consititution be competent to enact, it shall be void."
G To show that there is no difference between a law passed by
Parliament and an Ordinance promulgated by the President under
article 123 reliance was placed on behalf of the Unioa of India on
clause (2) of the article which says that an Ordinance shall have the
same force and effect as an Act of Parliament. It was further pointied
H out that chapter III of part V of the Constitution which includes
article 123 is headed "Legislative Powers of the President." Reference
was made to article 213 which concerns the power ~of the Governor
AK. ROY v. UNION OF INDIA (Gupta, J.) 361
to promulgate Ordiances: article 213 is in chapter IV of part VI A
of the Constitution which hears a similar decsription : Legislative
Power of the Governor." From these provisions it was contended
that the President in promulgating an Ordinance under article 123
exercises his legislative power and therefore an ordinance must be
regarded as 'law' within the meaning of article 21. But the nature
of the power has to be gathered from the provisions of article 123 B
and not merely from the heading of the chapter. It is obvious that
when something is said·to have the force and effect of an Act of
Parliament, that is beacse it is not really an Act of Parliament.
Article 123 (2) does say that an Act of Parliament to make
the two even fictionally identical. The significance of the distinction
will be clear by a reference to articles 356 and 357 which are in part c
XVIII of the Constitution that contains the emergency provisians.
The relevant part of article 356 reads :
"(I) If the President, on receipt of a report from the
Gavernor of a State or otherwise, is satisfied that a D
situation has arisen in which the government of the
State cannot be carried on in accordance with the
provisions of this Constitution, the President may by
Proclamation-
(a) assume to himself all or any of the functions of
the Government of the State and all or any of
E
the powers vested in or exercisable by the Gover-
nor or any body or authority in the State other
than the Legislature of the State;
(b) declare that the powers of the Legislature of the
F
State shall be exercisable by or under th~ autho-
rity of Parliament;"
Article 357 provides :
(1) Where by a Proclamation issued under clause (I) of G
article 356, it has been declared that the powers of the
Legislature of the State shall be exercisable by or
under the authority of Parliament, it shall be
competent-
H
(a) for Parliament to confer on the President the
power of the Le~islature of the State to make
362 SUPREME COURT REPORTS (1982] 2 S.C.R.
A laws, and to authorise the President to delegate,
subject to such conditions as he may think fit to
impose, the power so conferred to any other
authority to be specified by him in that behalf;
(b) for Parliament, or for the President or other
B authority in whom such power to make laws is
vested under sub-clause (a), to make laws con-
ferring powers and imposing duties, or authorising
the conferring of powers and the imposition of
duties, upon the Union or officers and authorities
ther1;:of;
c
(c) x .X x x x x
(2) Any law made in exercise of the power of the Legis-
lature of the State by Parliament or the President or
other authority referred to in sub-clause (a) of clause
D ( 1) which Parliament or the President or such other
authority would not, but for the issue of a proclama-
tion under article 356, have been competent to make
shall, after the Proclamation has ceased to operate,
continue in force until altered or repealed or amended
by a competent Legislature or other authority."
E
It will appear that whereas an ordinance issued under article l ?3
has the same force and effect as an Act of Parliament, under article
357(1) (a) Parliament can confer on the President the power of the
legislature of the State to make laws. Thus, where the President is
requir~d to make laws, the Constitution has provided for it. The
F difference in the nature of the power exercised by the President
under article 123 and under article 357 is clear and cannot be
ignored. Under article 2 I no person can be deprived of life and
liberty except according to procedure established by law. Patanjali
Sastri J_, in A. K. Gopalan v. State(1) observed that the word
"established" in article 21 "implies some degree of firmness, perma-
G nence and general acceptance". An ordinance which bas to be
laid before both Houses of Parliament and ceases to operate at the
expiration of six weeks from the reassembly of Parliament, or, if
before the expiration of that period resolutions disaproving it are
passed by both Houses can hardly be said to ha\le that 'firmness'
H
and 'permanence' that th( word 'established' implies. It is not the
i) p9SOJ SCR 88.
A.K. ROY v. UNION OF INDIA (Gupta, J.) 363
temporary duration of an ordinance that is relevant in the present A
context, an Act of Parliament m ay also he temporary; what is rele-
vant is its provisional and tentative character which is apparent from
clause 2 (a) of article 123. On this aspect also the difference between
a law made by the President under article 357 and an ordinance
promulgated by him under article 123 should be noted. A law made
under article 357 continues in force until altered, repealed or amend·
B
,; : ed by a competent legislature or authority; an ordinance promul-
r gated under arttcle 123 ceases to operate at the expiration of six
weeks from the reassembly of Parliament at the latest. On behalf
of the Union of India learned Attorney General referred to article
367 (2) to argue that the Constitution itself equates an ordinance
with an Act of Parliament. Article 367 (2) reads : c
"Any reference in this Constitution to Acts or laws of,
or made by, Parliament, or to Acts or laws of, or made by,
the Legilature of a State, shall be construed as including
a reference to an Ordinance made by the President or, to D
an.Ordinance made by a Governor, as the case may be."
"' Any reference in the Constitution to Acts of Parliament has to be
construed as including a reference to an ordinance made by the
President as article 367 (2) provides because an ordinance has been E
given the force and effect of an Act, But clearly an ordinance has
this force and effect only over an area where it can validly operate.
An .invalid ordinance can have no force or effect and if it is not
'law' in the sense the word has been used in article 21, article 367 (2)
cannot make it so.
F
There is also another aspect of the matter. Article 21 not
only speaks of a situation in normal times which left no time for the
to think of a situation in normal times which left no time for the
President to summon Parliament and required him to promulgate
ordinances to take away the life or liberty of persons, unless one G
considered life and liberty as matters of no great importance.
However, in view of the opinion of the majority upholding the
validity of the Ordinance, it is unnecessary to dilate on this aspect.
H
On all the other points l agr~e with conclusions reached by
the learned Chief Justice.
364 SUPRBMB COUllT REPORTS (1982] 2 S.C.ll.
A TULZAPURKAR, J. On the question of bringing into force,
section 3 read with section 1(2) of the Constitution (Forty-Fourth
Amendment) Act, 1978 I am in agreement with the view expressed
by my learned brother A. C. Gupta in his judgment. Barring this
aspect, I am in agreement with the rest of the judgment delivered
by my Lord the Chief Justice.
B
P.B.R.
:A
.(
..
,.
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