# A. K. ROY, ETC v. UNION OF INDIA AND ANR

- **Citation:** [1982] 2 S.C.R. 272
- **Court:** Supreme Court of India
- **Decided:** 1981-12-28
- **Bench:** Y.V. Chandrachud, P.N. Bhagwatj A.C. Gupta, V.D. Tulzapurkar, D.A. Desai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-k-roy-etc-v-union-of-india-and-anr-8913
- **Pages:** 93

## Headnote

Constitution of India, 1950-Constitution (Fortyforth Amendment) Act,
1978-Power conferred on exeoetive to appoint different dates for different provisions 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.
Natural Justice-Detenu under National Security Act-If entitled to be represented 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 .(Joardlf 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.
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
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
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]
[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
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 executive 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 Ordinancemaking 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
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)
8
c
D
The contention that the procedure prescribed by an Ordinance cannot be
equated with the procedure established by law is equally

## Text

_Characters 0–37,534 of 232,328. This is a partial read: ask again with offset=37534 for what follows._

A
B
c
D
E
F
G
H
272
A. K. ROY, ETC.
v.
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,
1978-Power conferred on exeoetive to appoint different dates for different provisions 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.
Natural Justice-Detenu under National Security Act-If entitled to be represented 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 .(Joardlf 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.
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
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
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]
[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
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 executive 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 Ordinancemaking 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
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)
8
c
D
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
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 Constitution." 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
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.
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
F
G
H
274
SUPREME COURT REPORT
( 1982} 2 S.C.R
A
for the President to take immediate action by promulgating impugned Ordinance, 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
B
c
D
E
F
G
H
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 Government was established, their
second object, equally important, wa< to protect the people against the Government. That is why, while conferring extensive powers on the Government like the
power to declare an emergency, the power to suspend the enforcement of fundamental 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.
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
internal contradiction between the provisions of Article 368(2) and those of section 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 Amendment 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
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, 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
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
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 provisions 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,
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
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
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 executive. 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)
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 exercise a kind of veto over its constituent will by not ever bringing the Amendment or some of its provision 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 Central Government to sit in judgment over the
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'
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
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]
A
B
c
D
E
F
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
A
B
c
276
stiPkEME cotJR'r REPORTS
(1982J 2. S.C.R.
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 procedure 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
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
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.
E
F
G
il
Laws of preventive detention cannot, by the back·door, introduce procedural 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
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
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
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
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, 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 introB
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 consideraD
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
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
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
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
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]
E
F
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
B
c
D
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
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
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)
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 famiE
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)
F
G
H
Persons who are detained under the National Securty 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 lodged in the same ward or cell where the convicts whose crimes are
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]
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
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
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
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.]
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
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] .
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
A
B
c
D
E
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
under Article 123 ceases to operate at the expiration of six weeks of reassembly
of the Parliament at the latest. [363 BJ
G
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
A
280
StlPREME couR.i ilEPORts
ii9s2J 2 s.c.tt
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,
E
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
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 :
G
H
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)
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.
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 InterA
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
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
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.
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 upholding of the
Jammu & Kashmir Public
Safety Act, 1978.
Shri R.K. Garg argued the Writ Petition, respondents being represented by the Attorney General and the Solicitor General.
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
Association.
Broadly, Shri Garg concentrated on the scope and limitations
of the ordinance-making power, Shri Ram Jethmalani on the vagueness and unreasonableness of the provisions of the Act and the
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
by
the
Central
Government
of the provisions of the 44th
Amendment regarding the composition of the Advisory Boards and
B
c
D
E
F
G
H
282
sUl>llEME coUlt't llE!>OkTS
[i981J 1 s.c.k.
A
the broad, undefined powers of detention conferred by the Act.
B
c
a
E
F
G
H
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.
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
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) The power to issue an Ordinance is an executive
power, not a legislative power;
(b) Ordinance is not 'law' because it is not made by an
agency created by the Constitution for making laws
and no law can be made without the intervention of
the legislature;
(c) There is a marked shift towards distrust of power in
order to preserve the people's rights and therefore,
liberty, democracy and the independence of Judiciary
are amongst the principal matters which are outside the
ordinance-making power;
(d) By Article 21 of the Constitution, a person can
be deprived of his life or liberty according only to
the procedure established by law. Ordinance is not
'law' within the meaning of Article 21 and therefore
no person can be deprived of his life or liberty by an
Ordinance;
(e) The underlying object of Article 21 is to wholly deny
to the executive the power to deprive a person of his
life or liberty. Ordinance-making power, which is
-
...
).
A.K. ROY v. UNION OF INDIA (Chandrachud, C.J.)
283
executive power, cannot therefore be used for that
purpose. The executive cannot resort to the power to
make ordinances so as or in order to remove the restraints imposed upon it by Article 21;
(f) The procedure prescribed under an Ordinance is not
procedure established by law because, Ordinances have
a limited duration in point of time. The procedure
prescribed by an Ordinance is neither firm nor certain
by reason of which the procedure cannot be said to be
'established'. From this it follows that no person can
be deprived of bis life or liberty by procedure prescribed by an Ordinance;
(g) The power to issue an Ordinance is ordaining power of
the executive which cannot be used to liberate it from
the discipline of laws made by a democratic legislature.
Therefore, the power to issue ordinances can be used,
if at all, on a virgin land only.
No ordinance can
operate on a subject which is covered by a law made
by the legislature ;
(h) Equating an Ordinance made by the executive with a
law made by the legislature will violate the principle of
separation of powers between the executive and the
legislature, which is a part of the basic structure of the
Constitution; and
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
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.
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
A
B
c
0
E
F
G
General
or whether
it. is
an executive power masquerading
H
as a legislative power, as contended on behalf of the petitio11ers,
A
8
c
D
E
F
.284
SUPREME COURT REPORTS
[ 1982) 2 S.C.R.
In support of these submissions Shri Garg relies on many
texts and decisions which we need not discuss at length since, primarily, 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
(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
laws and execute them in a tyrannical manner."
Blackstone expresses the same thought by saying that "wherever the right of making
and enforcing the law is vested in the same man or one and the same
body of men, there can be no public liberty". 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
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).
" ... 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 invariably poisonous to those who possess it.
They are always
tempted to impose their canon of good upon others,
and, in the end, they assume that the good of the community 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
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.