Explore the detailed analysis of the landmark case A.K. Roy and Ors. vs. Union of India and Ors., focusing on the National Security Act, 1980. This examination covers key arguments, observations, and the constitutional validity of provisions, shedding light on the complex legal aspects surrounding preventive detention.

Muskan Sethi

A.K. Roy and Ors. v. Union of India and Ors.[1]
National Security Act, 1980

The above judgment is a judgment propounded by the Constitutional Bench comprising of Y Chandrachud C.J., D Desai, P Bhagawati, V Tulzapurkar, and A Gupta JJ. The judgment dealt with Article 22, Article 13 and Article 21 of the Constitution in detail. It also dealt with the issues of preventive detention and National Security Act, 1980. The scope of powers of the President with respect to promulgation of ordinance was also discussed by the court in this case. Thus, various issues were discussed by the Supreme Court in the abovementioned case; I will focus only upon the issue related to National Security Act, 1980.

FACTS OF THE CASE:

This is a group of Writ Petitions filed under Article 32 of the Constitution challenging the validity of the National Security Ordinance, 1980, and certain provisions of the National Security Act, 1980, which replaced the Ordinance. One of such Writ Petitions was filed 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 indulging in activities which were prejudicial to public order. Ten members 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. Such intervention was allowed by the Supreme Court. After the Ordinance became an Act, more writ petitions were filed to challenge the validity of the Act as well.

Pralhadrao Uttarwar Vs State of Gujarat (Gujarat High Court) Analysis

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 it 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 “President is satisfied that circumstances exist which render it necessary for him to take immediate action”.

OBSERVATIONS:

Shri R.K. Garg, appearing for the petitioners, challenged the power of the President to issue an Ordinance depriving any person of his life or liberty. He contended:

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 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 his 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

i. 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, lacking the support of a law made by the legislature. The Ordinance-making power must, therefore, be construed harmoniously with those and other provisions of the Constitution.

However the court on this point held 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 President’s legislative power was devised evidently in order to take care of urgent situations which cannot brook delay. The Constituent Assembly therefore conferred upon the executive the power to legislate, not of course intending that the said power should be used recklessly or by imagining a state of affairs to exist when, in fact, it did not exist; nor, indeed, intending that it should be used mala 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 democratic process. Therefore, the court didn’t accept the contentions of Shri R.K. Garg and held that an ordinance issued by the President or the Governor is as much law as an Act passed by the Parliament.

For the sake of maintaining brevity the arguments made on behalf of various petitioners can be summarized as:

a. The scope, limits and justifiability of the ordinance-making power.

b. The validity of Preventive Detention in the light of the severe deprivation of personal liberty which it necessarily entails.

c. The vagueness of the provisions of the National Security Act, authorizing the detention of persons for the reasons mentioned in Section 3 of the Act.

d. The unfairness and unreasonableness of the procedure before the Advisory Boards.

e. The unreasonableness and harshness of the conditions of detention.

With respect to argument (c) it was contended that the provisions of Section 3(1) and 3(2) of the National Security Act[2] 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 Government to deprive a person of his liberty for any fanciful reason which may commend itself to them.

The court observed that the phrases like ‘defence of India’, ‘security of India’, ‘security of the State’ and ‘relations of India with foreign powers’, which are mentioned in Section 3 of the Act, are not of any great certainty or definiteness. But the court at the same time also held that it is not desirable to set aside the provisions of Section 3 of the said Act merely on this ground of vagueness and uncertainty. But the court said that the provision should be interpreted strictly and not liberally. The vagueness of the said provision of the said Act was also discussed from the standpoint of reasonableness of the procedure prescribed by the Act. The arguments advanced on this question fall under three sub-heads:

(1) 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.

However, the court has denied all these contentions and held that the procedure laid down by the said Act is in conformity with the provisions of Article 22 of the Constitution and is not unreasonable. Thus, the court held that various provisions like section 3, 9, 10, 11 etc. of the said Act are constitutionally valid but efforts should be made that they should be interpreted strictly and not liberally as they interfere with the personal liberty of an individual.

[1] AIR 1982 SC 710.

[2] The National Security Act, 1980 (Act 65 of 1980), s 3. Sub-section (1) and (2) of Section 3 of the Act read thus:

3 (1) The Central Government or the State Government may:

(a) if satisfied with respect to any person that with a view to preventing 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

(b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained.

(2) The Central Government or the State Government 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 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.

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 maintenance of supplies of commodities essential to the community” as defined in the Explanation to Sub-section (1) of Section 3 of the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980, and accordingly no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act.

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