A

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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 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.

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.

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].

..

...

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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 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

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

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)

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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 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

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

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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

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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 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.

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 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

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

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 provi­

sions 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]

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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

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)

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

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]

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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

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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 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

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

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il

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

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

decid­

ed on the basis that section 3, though a part of the 44th Amendment Act, is not

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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

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

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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 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)

F

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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

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"'

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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

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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.

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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

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 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.

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 vague­

ness 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 res­

traints 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 pre­

scribed

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 peti­

tio11ers,

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,

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

(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 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

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

invari­

ably 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

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

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

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

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

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.

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

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.

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

that such a power was not claimed by the Governments of two

Jadin~ democr~cies of the world, the English and the American,

A

B

c

D

E

F

G

H

A

B

c

D

E

F

G

H

286 SUPREME COURT REPORTS (1982) 2 s.c.tt.

And yet, they took the Government of India Act of 1935 as their

model, Section

42 of that Act ran thus :

Power of

Governor

General to

promulgate

ordinances

during recess

of Legisla­

ture.

"42 (1) If at any time when the Federal Legis­

lature is not in section the Governor­

General is satisfied that circumstances

exist

which render it necessary for him to

take immediate action, he may

promul­

gate such ordinances as the circumstances

appear to him to require :

Provided that the

Governor-General-

(a)

(b)

(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-

(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,

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

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

(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

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.

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

of Parliament are in session, the President

is satisfied that circumstances exist which

render it necessary for him to take imme­

diate action, he may promulgate such

Ordinances as the circumstances appear

to him to require.

President

to promul-

gate

Ordi-

nances

during

recess

of

Parliament,

(2) An Ordiance 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 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

(b) may be

withdraw11 at any time hr

the President. ...... -.. _.,. ____ ,

8

c

D

E

F

G H

A

B

c

D

E

F

G

H

288

SUPREME COURT REPORTS {I 982) 2 S.C.R

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.

(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."

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

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

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

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.

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

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

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

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

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

A

B

c

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

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

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

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

E

F

G

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

A

B

c

D

E

F

G

JI

290 SUPREME COURT REPORTS ( 1982) 2 S.C.R.

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·

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

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

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

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

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.

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

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

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

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

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

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.

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

(I] [1970] 3 SCR 530, 559,

B

0

D

F

G

ff

A

B

c

D

E

G

H

292 SUPREME COURT REPORTS (1982] 2 s.c.tt.

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 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

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,

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

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

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.

(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

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

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,

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

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

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

(2) (1962] Supp. 3 SCR 875.

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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

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

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.

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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

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

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

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.

(3) [1975] 3 SCR 946, 955-56.

(4)

f1967] 3

SCR 926, 928-931.

(5) [1959] Supp. I SCR 806, 860-861.

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A.k. ROY v. UNiON OF INDIA (Chandrachud, C.J.) 295

they must be such as to satisfy a reasonable person that, by

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

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

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."

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

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,

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

stances.

It is strongly pressed upon us that we should not avoid the

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

(I) [1978] 1 SCR I.

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SUl>R.BME COURT REPORTS (1982) 2 s.c.R.

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

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

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

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

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 ·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

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

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,

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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

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

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

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

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

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

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

firmly established in the field of constitutional adjudiction that the

Court

will decide no more than needs to be decided in any particular

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.

The other reason

why we are not inclined to go into the

ques­

tion as regards the justiciability of the President's satisfaction under

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298 SUPREME COURT REPORTS [1982] 2 s.C.R.

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

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

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

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

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

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)

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A.K. ROY v. UNION OF INDIA (Chandrachud, C.J.) 299

of the Constitution. Besides, legislative activity, properly so called,

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.

As regards Articles

J 4, 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

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

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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

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

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,

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

(I) p982) 1 SCR 947.

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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.

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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,

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 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

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.

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

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 subjeckd to such detention."

Entry 3, List Ill:

"Preventive detention for reasons connected with the

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:·

•

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A.I<.. ROY v. UNION OF INDIA (Chandrachud, C.J.) 301

The practical need and reality of the laws of preventive detention

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

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

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

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

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.

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·

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

(I) L.R. 5 I.A. 178, 193-194 per Lord Selborne.

(2) [1976] Supp. SCR m, 29l-29'.<l, 494-~9(j,

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302 SUPREME COURT REPORTS [ 1982] 2 s.c.R.

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

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 ..

c

life, liberty or property "without due process of law".

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

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·

r

j.

_,...

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A.K. ROY v. UNION OF INDIA (Chandrachud, C.J.) 303

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

in excess

of the authority of the legislature, but also on the

ground whether the law was good law, apart from the

ques­

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

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

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

'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

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

must reject the, contention that preventive detention is basically

impermissible

under the Indian Constitution.

The third contention centres

around the 44th Constitution

Amendment Act, J 978, with particular reference

tQ ~ection I (2) and

m:tioJJ ~ thereof. Section I reads thus :

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304 SUPREME COURT REPORTS ( 1982) 2 S.C.R

"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

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 :

"3. Amendment of article 22.-In article 22 of the Cons­

titution. -

(a) for clause (4), the following clause shall be sub·

stituted, namely :

"(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

that there is in its

opinJon suflicient cause for such

detention :

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 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 sub-clause (a) of clause (7).

Exp/anation.-In this clause, 'appropriate High Court'

means,

(i) in the case of the detention of a person in pursuance

of an order of detentio11 made by tbtJ Government of

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A.K. ROY v. UNION OF INDIA (Chandrachud, c J.) 305

India or an officer or authority subordinate to that

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 :

"22. (4) No law providing for preventive detention shall

authorise the detention

of a person for a longer

period than three months

unless-

(a) an Advisory Board consisting of persons

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 ;

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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

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-

"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

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

(c) the procedure to be followed by an Advisory

Board

in an inquiry under sub-clause (a) of

clause

(4)." ·

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

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

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A.ic ROY v. UNiON OF INDIA (chandrachud, c.i.) 307

having been brought into force by the Central Government by

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

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,

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

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.

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

.

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

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

power

in the executive to amend the Constitution at its sweet will,

which is violative

of the basic structure of the Constitution. Section

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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

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

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

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

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

Act passed by a legislature, accor<ling to

Shri Jethamalani, can flout

the constituent view

or decision of the

Parliament, whether or not

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A.it. ROY v. UNION OF INt>lA (ChandrachuJ, C.J.) 309

the Constitutional Amendment has been brought into force. In any

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

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

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.

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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

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

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

his assent to it and secondly,

that nothing more than the President's

assent

to an amendment duly passed by the

Parliament is required,

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310 SUPREME cotJil.t REPORTS [ l 982j 2 s.c.it

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.

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

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

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

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

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

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A.k. ROY v. UNiON OF INDIA (Chandraciiud, C.J.) 31 i

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

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

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

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

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

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

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

tution. The constituent power, subject to the limitation aforesaid,

cannot

be any the less plenary than the legislative pJwer, especially

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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

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

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,

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

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

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,

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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

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·

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

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

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

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

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.

(3) (1951]

SCR 747.

(4) (1949] FCR 595.

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"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

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

at the time when the

laws are made. It, therefore, becomes neces­

sary to leave to the judgment of an ouside agency the question

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.

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We may now take up for consideration the question which was

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

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

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

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

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A.K. ROY v. UNION OF INDIA (Chandrachud, C.J.) 315

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 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

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

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.

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

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,

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

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

argument as regards the reasonableness of the procedure prescribed

by the Act.

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SUPREME COURT REPORTS [1982) 2 S.C.R.

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

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

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

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

have been made by the Parliament to the Constitution, some of

which were given retrospective effect, some were given immediate

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

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

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

1

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A.K. ROY v. UNION OF INDIA (Chandrachud, C.J.) 317

extensively, gave power to the Central Government to bring it into

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

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

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

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

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

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

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

(I) [1957) SCR 605.

(2) [1972] 2 SCR 14L

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SUPREME COURT REPORTS {1982] 2 S.C. R.

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".

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

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

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.

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

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.

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,

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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

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

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.

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

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:-

(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 (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,

it

is necessary so to do, make an order

directins !Pat such person be detained,

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SUPREME COURT REPORTS [1982] 2 s.c.11..

(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

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 main­

tenance of supplies of commodities essential to the com­

munity" as defined in the Explanation to sub-section ( !)

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

under this Act

on any ground on which an order of

deten­

tion may be made under that Act,"

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

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

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

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

...

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A.K. ROY v. UNION OF INDIA (Chandrachud, C.J.) 321

open to grave objection because, it can take in any and every piece

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·

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

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

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

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. 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.

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

(l) 65 Law Ed. 516, 520.

(2) 76 Law Ed.

1062, 1082.

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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 :

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"Fundamental fairness requires that a person cannot

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."

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

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

security

of State 'and' acting in any manner prejudicial to the

maintenance of public order.' Where there is a

will there is a way,

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.

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

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:

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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

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",

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

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

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

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

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

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

adjudicative process which does not involve that possiblity.

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324 SUPREME COURT REPORTS [1892] 2 s.c k·

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

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.

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

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

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.

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A.k. ROY v. UNioN OF INDIA (Chandraci1ud, CJ.) 325

What we have said above in regard to the expressions 'defence

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

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

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

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

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

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

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

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326 sui•ilili.fE couitr REi>ORrs [1982] 2 s.c.R..

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,

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.

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

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

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

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

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

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

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A.It. ROY v. UNiON OF INDIA (Chandrachud, C.J.) 321

respect of which the order of detention is proposed to be passed,

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

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

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

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

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

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

Z 1 excluded the personal freedom conferred by

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,

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S01>REME COORt REPORTS

[ J 982) 2 s.c.Il.

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 :

"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)

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

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

guarantee

of fair procedure and they did not provide for an

impar·

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

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

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

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,

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A.k. kOY v. ONION OF INDIA (Chandrachud, C.J.) 329

we find it impossible to accept the argument that the National

Security Act, which is in pari materia with the Maintenance of

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.

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

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.

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

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

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-

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SUPREME COURT REPORTS [1981) i s.c.R..

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agistrate or the Commissioner

of

Police to pass orders under sub-section (2).

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

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

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

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. 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

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

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

J

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

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

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

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

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.

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

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

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.

Sections 9,

JO and 11 deal respectively with the constitution of

Advisory Boards

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SUl'REME COURT REPORTS [1982] 2 s.c.R.

Advisory Boards. We will deal with these three sections a little

later while considering the elaborate submissions made by Shri

Jethmalani

in regard thereto.

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

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

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.

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

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

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,

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A.K. ROY v. UNION OF INDIA (Chandrachud, C.J.) 333

Shri Jethmalani also challenged the provisions of section 16

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,

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

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

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

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,

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-

(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-<;i~nt c;~us~ for such d~tention; · ·

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334 SUPREME COURT REPOR1S (1982J 2 S.C.R.

(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

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

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

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

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

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

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

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.

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A.K. ROY v. UNION OF INDIA (Chandrachud, CJ.) 335

We find considerable difficulty in accepting this submission. Earlier in

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

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

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

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

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

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

Security Act provides

for the constitution of the Advisory Boards

in conformity with

that provision. We

fipg it impossible \o hold

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336 SUPREME COURT REPOR1 S (1982] 2 S.C.R.

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

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

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

qualified to be appointed as Judges

of a High

Court" does not

mean that the Central Government or the State Governments

i

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

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

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

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

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

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

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

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

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

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

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

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

perative to provide for the maximum safeguards to the detenu in

order to preserve and protect his liberty, which can be achieved by

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338 SUPREME COURT REPbRTS [1982] 2 s.c.11.

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

him

and to disprove them.

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

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

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

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

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

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

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

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A.k. ROY v. tJNiON OF JNDIA (Chandrachud, C.J.) 339

of such arrest and that no person shall be detained in custody

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 ࠩ 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

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).

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

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

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

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

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

representation

is unfair. unjust or unreasonab'e. If Article 22 were

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340 SUPREME COURT Rei>oilts t 1982} i s.c.ll.

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).

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

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

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

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

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

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

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

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

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

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

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

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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,

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342 SUPREME COURT REPORTS (1982] 2 S.C.R.

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

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

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

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

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.

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

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

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.

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

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,

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,

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

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

vices avail to

him." (Page I 03).

(I) [1975] 1 S.C.R. 778.

(2) [1975] 2 SCR 832.

(3) [1974] I SCR I.

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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,

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

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

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.

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

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

"

' •

/

A.K. ROY v. UNION OF INDIA (Chandrachud, C.J.) 345

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~

A

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

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~

tied, nervous, confused or wanting in intelligence", (see Pett v.

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346' SUPRlME COURT REPORTS ( 1892) 2 S.CR,

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

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

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:

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"Certain principles have remained relatively immutable

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

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.

(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

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

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

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

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,

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

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 :

"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"

(I) 25 L.ed. 2d 307, 311.

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348 SUPREME COURT REPORTS [1982] 2 s.c.R.

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

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

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

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

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

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

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. 40

1

64-65.

r

A.K. ROY V. UNION OF INDIA (Chandrachi.d, CJ.) 349

in evidence in order to prove a point. Cross-examination then

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

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,

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

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

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

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

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

(1) [1957] S.C.R. 98, 106.

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350 SUPREME COURT REPORTS (1982) 2 S,C,R.

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

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

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

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

of the opponent should be taken in his presence, that

"he should be

given the

opportunity of cross

0examining the witnessess examined 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

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

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.

(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.

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

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

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,

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

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

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

takes away these provisions

it is unnecessary to make any

provision

of• that sort. Defending includes cross exami­

nation."

x x x x x

"If you can give a single instance

right

of cross-examination has been

x x

in India where the

taken away, I can

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352 SUPREME COltRT REPORtS [ 1982] 2 S.C.ll.

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 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

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

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 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

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

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

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

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 1 I (2) of the Act provides speci·

fically that the report of the Advisory Board shall specify its opinion

"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

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

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

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

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,

(I) [1958]

SCR 460, 475.

(2) [1952] SCR 612, 626.

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354 SUPREME COURT REPORTS [1982] 2 s.c.~.

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.'' *

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

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

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

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

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

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

l-

A.k. ROY v. UNION OF 1NDIA (Chandrachud, C.i.) 355

treat even the convicts in a manner consistent with human dignity.

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.

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

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

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

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

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-

OJ [1980J 2:scR 557.

(2) [1969] 3 SCR 574, 580.

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356

StJPlU!ME cotJR.t REPOllts (1982) 2 S.C.l.

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

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

tion, be

minimal."

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.

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

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

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

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

"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

1

A.K. ROY v. UNlON OF-INDIA (Gupta, J.) 357

Act". Section 3 of the Amendment Act substitutes a new clause

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,-

(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

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 :

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

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

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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

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time; the power to appoint dates for bringing into force the

provi­

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

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

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

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

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

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

Board shall be a serving Judge

of the appropriate High

l

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

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

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

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)

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

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

within two

months from this date. On the other point, I find it difficul~ to agree that an ordinance

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."

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

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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

1

ature

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 :

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"(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.

(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

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

(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.

(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."

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

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

.l..

AK. ROY v. UNION OF INDIA (Gupta, J.) 361

to promulgate Ordiances: article 213 is in chapter IV of part VI

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

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

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

A

B

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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

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

State shall be exercisable by or under th~ autho­

rity of Parliament;"

Article 357 provides :

E

F

(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-

(a) for Parliament to confer on the President the

power of the Le~islature of the State to make

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362 SUPREME COURT REPORTS ( 1982] 2 S.C.R.

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

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) 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

(

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."

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

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

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'

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

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·

,; : 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 :

"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

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

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.

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

A

B

c

D

E

F

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.

On all the other points l agr~e with conclusions reached by

the learned Chief Justice.

H

A

B

364 SUPRBMB COUllT REPORTS (1982] 2 S.C.ll.

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.

P.B.R.

:A

.(

,.

..