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A.K. Roy and Ors. Vs. Union of India (UOI) and Ors
AIR 1982 SC 710, 1981 (4) SCALE 1904, (1982) 1 SCC 271, [1982] 2 SCR 272
Hon’ble Judges/Coram : Chandrachud, C.J., Bhagwati, Desai, JJ. Gupta and Tulzapurkar, JJ
Date of Decision: 28.12.1981
FACTS:-
Section 1(2) of the Constitution (Forty fourth 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 notification the Central Government had brought into force all the sections of the Forty fourth Amendment Act except section 3. In the meantime the Government of India issued the National Security ordinance, 1980 which later became the National Security Act 1980. The petitioner was detained under the provisions of the ordinance on the ground that he was indulging in activities prejudicial to public order. The petitioner contended that the power to issue an ordinance is an executive power, not legislative power, and therefore the ordinance is not law. The contention that the word ’law’ in Article 21 must construed to mean a law made by the legislature only and cannot include an ordinance.
ISSUE: –
- Whether the power to issue an Ordinance is an executive power or legislative power?
- Whether an Ordinance is a part of law or not for the purposes of Article 21?
- . Whether section 3 of the National Security Act, 1980 is constitutionally valid or not?
JUDGMENT:-
The power of the President to issue an ordinance under Article 123 of the 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. The interpretation of word Law not including ordinance within its ambit contradicts directly the express provisions of Articles 123 (2) and 367 (2) of the Constitution. Besides, if an ordinance is not law within the meaning of Article 21, it will stand released from the wholesome and salutary restraint imposed upon the legislative power by Article 13(2) of the Constitution.
The word ’established’ is used in Article 21 in order to denote and ensure that the procedure prescribed by law must be defined with certainty in order that those who are deprived of their fundamental right to life or liberty must know the precise extent of such deprivation. There can be no doubt that personal liberty is a precious right. To protect the people against the Government, 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, Constitution Makers 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.
Section 1(2) of the Forty fourth 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.
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, therefore, permissible to the Parliament to vest in an outside agency the power to bring a Constitutional amendment into force. 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.
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 definition, 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.
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 expression “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 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. 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 clause would be a flagrant violation of the fairness and justness of procedure which is implicit 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 prejudicial to the maintenance 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 grounds mentioned in section 3(1) and the other grounds mentioned in section 3(2), it must also have the power to pass order 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.
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 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 ordinary place of residence. In 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 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. It is, therefore, necessary to treat the detenu consistently with human dignity and civilized norms of behaviour.
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 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 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 a part of the Constitution, the amendment introduced 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 tested in the light of the provisions contained in Article 22(4) as it stands now and not according to the amended article 22(4). On a combined reading of clauses (I) and (3)(b) of Article 22, it is clear 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 consult 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 consideration that the detenu has the right of being represented by a legal practioner in the proceedings before the Advisory Board.
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 that 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 denied 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 22. 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. 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”, 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. 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. 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.
HELD: –
The power to issue an ordinance is a legislative power and Ordinance is covered within the ambit of word Law and it cannot be in violation of the Fundamental Rights guaranteed by the Part III of the Indian Constitution and Detenue does not have a legal right of representation by the Legal practitioner before the Advisory board under Article 22 of the Indian Constitution.
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