A. K. Roy Vs. Union of India & ANR [1981] INSC 209 (28 December 1981)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V. ((CJ) BHAGWATI, P.N.
GUPTA, A.C.
TULZAPURKAR, V.D.
DESAI, D.A.
CITATION: 1982 AIR 710 1982 SCR (2) 272 1982 SCC (1) 271 1981 SCALE (4)1905
CITATOR INFO :
R 1982 SC1029 (11,16) F 1982 SC1143 (5,8,9) D 1982 SC1178 (4) R 1982 SC1500 (5) F 1982 SC1543 (16) F 1983 SC 109 (13) R 1983 SC 505 (1,2) RF 1985 SC 551 (32) R 1985 SC 724 (14) R 1985 SC1082 (18) R 1986 SC 207 (4) RF 1986 SC 283 (6,13) E&R 1987 SC 217 (5,6,7,12,13) D 1987 SC 725 (4) E 1988 SC 109 (5,6) D 1988 SC1768 (5) R 1988 SC1883 (176) APL 1989 SC 389 (6,7,9) RF 1989 SC 653 (12) F 1989 SC 764 (19,20) R 1991 SC 979 (7)
ACT:
Constitution of India, 1950-Constitution (Forty forth Amendment) Act, 1978-Power conferred on executive to appoint different dates for different provisions of the Act-If amounts to transfer of legislative power to executive.
Ordinance-Whether law-Whether President has power to issue ordinances-National Security ordinance-Validity of- Constitution of Advisory Boards under section 9 of the Act- Validity of.
Natural Justice-Detenu under National Security Act-If entitled to be represented by a legal practitioner before Advisory Board-Detenu, if has a right to consult a lawyer, or be assisted by a friend before the Advisory Board-If could cross-examine witness-If could present evidence before the Advisory Board in rebuttal of allegations against him- Duties and functions of Advisory Boards-Proceedings of Advisory Board, if open to public.
HEADNOTE:
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 notification the Central Government had brought into force all the sections of the Fortyfourth Amendment Act except section 3.
In the meantime the Government of India issued the National Security ordinance 2 of 1980 which later became the National Security Act 1980.
The petitioner was detained under the provisions of the ordinance on the ground that he was in dulging in activities prejudicial to public order. In his petition under Article 32 of the Constitution the petitioner contended that the power to issue an ordinance is an executive power, not legislative power, and therefore the ordinance is not law.
HELD: [per Chandrachud, C.J., Bhagwati & Desai, JJ.] [Gupta and Tulzapurkar, JJ dissented on the question of bringing into force section 3 read with section 1(2) of the Fortyfourth Amendment Act. Gupta J. dissented on the question whether ordinance is law].
273 The power of the President to issue an ordinance under Article 123 of the Constitution is a legislative and not an executive power.
From a conspectus of the provisions of the Constitution it is clear that the Constituent Assembly was of the view that the President's power to legislate by issuing an ordinance is as necessary for the peace and good government of the country as the Parliament's power to legislate by passing laws. The mechanics of the Presidents legislative power was devised evidently in order to take care of urgent situations which cannot brook delay. The Parliamentary process of legislation is comparatively tardy and can conceivably be time consuming. 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-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, [I 9701 3 SCR 530, 559, referred to.
The contention that the word 'law' in Article 21 must construed to mean a law made by the legislature only and cannot include an ordinance, 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] The contention that the procedure prescribed by an ordinance cannot be equated with the procedure established by law is equally unsound. The word 'established' is used in Article 21 in order to denote and ensure that the procedure prescribed by law must be defined with certainty in order that those who are deprived of t heir fundamental right to life or liberty must know the precise extent of such deprivation. 1293 A-B] The argument of the petitioner that the fundamental right conferred by Article 21 cannot be taken away by an ordinance really seeks to add a proviso to Article 123(1) to the effect: "that such ordinances shall not deprive any person of his right to life or personal liberty conferred by Article 21 of the Constitution." An amendment substantially to that effect moved in the Constituent Assembly was rejected by the Constituent Assembly. [293 D-E] A.K. Gopalan [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 Bhanjl 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. I SCR 806, 860-861, referred to.
Since the petitioners have not laid any acceptable foundation for holding that no circumstances existed or could have existed which rendered it necessary 274 for the President to take immediate action by promulgating impugned ordinance, the contention that the ordinance is unconstitutional for the reason that the pre-conditions to the exercise of power conferred by Article 123 are not fulfilled, has no force. [298 D] 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 Government like the power to declare an emergency, the power to suspend the enforcement of fundamental rights and the power to issue ordinances, they assured to the people a Bill of Rights by Part III of the Constitution, protecting against executive and legislative despotism those human rights which they regarded as fundamental. The imperative necessity to protect those rights is a lesson taught by all history and all human experience. And therefore, while arming the government with large powers to prevent anarchy from within and conquest from without, they took care to ensure that those powers were not abused to mutilate the liberties of the people.
[300 B-D] Section 1(2) of the Fortyfourth Amendment Act is valid.
There is no internal contradiction between the provisions of Article 368(2) and those of section 1(2) of the 44th Amendment Act. Article 368(2) lays down a rule of general application as to the date from which the Constitution would stand amended in accordance with the Bill assented to by the President, section 1(2) of the Amendment Act specifies the manner in which that Act or any of its provisions may be brought into force. The distinction is between the Constitution standing amended in accordance with the terms of the Bill assented to by the President and the date of the coming into force of the Amendment thus introduced into the Constitution. For determining the date with effect from which the Constitution stands amended in accordance with the terms of the Bill, one has to turn to the date on which the President gave, or was obliged to give, his assent to the Amendment. For determining the date with effect from which the Constitution. as amended, came or will come into force, one has to turn to the notification, if any, issued by the Central Government under section 1(2) of the Amendment Act.
[310 D-F] The contention raised by the petitioners, that the power to appoint a date for bringing into force a constitutional amendment is a constituent power and therefore it cannot be delegated to an outside agency is without force. It is true that the constituent power, that is to say, the power to amend any provision of the Constitution by way of an addition, variation or repeal must be exercised by the Parliament itself and cannot be delegated to an outside agency. That is clear from Article 368(1) which defines at once the scope of the Constituent power of the Parliament and limits that power to the Parliament. The power to issue a notification for bringing into force the provisions of a Constitutional amendment is not a constituent power because, it does not carry with it the power to amend the Constitution in any manner. It is, therefore, permissible to the Parliament to vest in an outside agency the power to bring a Constitutional amendment into force, [312 C-E] 275 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 section 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 for the Court to compel the Government to do that which according to the mandate of Parliament, lies in its discretion to do when it considers it opportune to do it. The executive is responsible to the Parliament and if the Parliament considers that the executive has betrayed its trust by not bringing any provision of the Amendment into force, it can censure the executive. It would be quite anomalous that the inaction of the executive should have the approval of the Parliament and yet the court should show its disapproval of it by against mandamus. [314 G-H] In leaving it to the judgment of the Central Government to decide as to when the various provisions of the 44th Amendment should be brought into force, the Parliament could not have intended that the Central Government may exercise a kind of veto over its constituent will by not ever bringing the Amendment or some of its provision into force. The Parliament having seen the necessity of introducing into the Constitution a provision like section 3 of the 44th Amendment, it is not open to the Central Government to sit in judgment over the wisdom of the policy of that section.
If only the Parliament were to lay down an objective standard to guide and control the discretion of the Central Government in the matter of bringing the various provisions of the Act into force, it would have been possible to compel the Central Government by an appropriate writ to discharge the function assigned to it by the Parliament. [316 B-D] Expressions like 'defence of India', 'security of India' security of the State' and 'relations of India with foreign powers', mentioned in section 3 of the Act, are not of any great certainty or definiteness. But in the very nature of things they are difficult to define. Therefore provisions of section 3 of the Act cannot be struck down on the ground of their vagueness and certainty. However, since the concepts are not defined, undoubtedly because they are not capable of a precise definitions, courts must strive to give to those concepts a narrower construction than what the literal words suggest. While construing laws of preventive detention like the National Security Act, care must be taken to restrict their application to as few situations as possible. Indeed, that can well be the unstated premise for upholding the constitutionally of clauses like those in section 3, which are fraught with grave consequences to personal liberty, if construed liberally. [324 E-H] What is said in regard to the expressions 'defence of India', `security of India', 'security of the State' and 'relations of India with foreign powers' cannot apply to the expression "acting in any manner prejudicial to the maintenance of supplies and services essential to the community' which occurs in section 3(2) of the Act. The particular clause in sub-section (2) of section 3 of the National Security Act is capable of wanton abuse in that, the detaining authority can place under detention any person for possession of any commodity on the basis that the authority is of the opinion that the maintenance of supply of that commodity 276 is essential to the community. This particular clause is not only vague and uncertain but, in the context of the Explanation, capable of being extended cavalierly to supplies. the maintenance of which is not essential to the community. To allow the personal liberty of the people to be taken away by the application of that clause would be a flagrant violation of the fairness and justness of procedure which is implicit in the provisions of Article 21. The power given to detain persons under section 3(2) on the ground that they are acting in any manner prejudicial to the maintenance of supplies and Services essential to the community cannot however be struck down because it is vitally necessary to ensure a steady flow of supplies and services which are essential to the community, and if the State has the power to detain persons on the grounds mentioned in section 3(1) and the other grounds mentioned in section 3(2), it must also have the power to pass order of detention on this particular ground. No person can be detained with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community unless, by a law order or notification made or published fairly in advance, the supplies and services, the maintenance of which is regarded as essential to the community and in respect of which the order of detention is proposed to be passed, are made known appropriately, to the public. [325 A-C; 326 BC, FH] R. C. Cooper v. Union of India, [1970] 3 SCR 530, 559, Haradhan Saha, [1975] 1 SCR 778, Khudiram, j 1975] 2 SCR 832, Sambhu Nath Sarkar, [1974] 1 SCR I and Maneka Gandhi, [1978]2 SCR 621, explained.
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. [330 E-F] In order that the procedure attendant upon detentions should conform to the mandate of Article 21 in the matter of fairness, justness and reasonableness, it is imperative that immediately after a person is taken in custody in pursuance of an order of detention, the members of his household, preferably the parent, the child or the spouse, must be informed in writing of the passing of the order of detention and of the fact that the detenu has been taken in custody.
Intimation must also be given as to the place of detention, including the place where 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, 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. [331 C- D] Since section 3 has not been brought into force by the Central Government in the exercise of its powers under section 1(2) of the 44th Amendment Act, that section is still not a part of the Constitution. The question as to whether section 9 of the National Security Act is bad for the reason that it is inconsistent with the provisions of section 3 of the 44th Amendment Act, has therefore to be decided on the basis that section 3, though a part of the 44th Amendment Act, is not 277 a part of the Constitution. If section 3 is not a part of the Constitution, it is difficult to appreciate how. the validity of section 9 of the National Security Act can be tested by applying the standard laid down in that section.
It cannot possibly be that both the unamended and the amended provisions of Article 22(4) of the Constitution are parts of the Constitution at one and the same time. So long as section 3 of the 44th Amendment Act has not been brought into force, Article 22(4) in its unamended form will continue to be a part of the Constitution and so long as that provision is a part of the Constitution, the amendment introduced by section 3 of the 44th Amendment Act cannot become a part of the Constitution Section 3 of the 44th Amendment substitutes a new article 22(4) for the old article 22(4). The validity of the constitution of Advisory Boards has therefore to be tested in the light of the provisions contained in Article 22(4) as it stands now and not according to the amended article 22(4). [335 D-H] On a combined reading of clauses (I) and (3)(b) of Article 22, it is clear that the right to consult and to be defended by a legal practioner of one's choice, which is conferred by clause (1), is denied by clause (3)(b) to a person who is detained under any law providing for preventive detention. Thus, according to the express intendment of the Constitution itself, no person who is detained under any law, which provides for preventive detention, can claim the right to consult a legal practioner of his choice or to be defended by him. It is therefore difficult to hold, by the application of abstract, general principles or on a priori consideration that the detenu has the right of being represented by a legal practioner in the proceedings before the Advisory Board. [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 that the detaining authority or the Government should have the facility of appearing before the Advisory Board with the aid of a legal practioner but that the said facility should be denied to the detenu. In any case, that is not what the Constitution says and it would be wholly inappropriate to read any such meaning into the provisions of Article 22. Permitting the detaining authority or the Government to appear before the Advisory Board with the aid of a legal practitioner or a legal adviser would be in breach of Article 14, if a similar facility is denied to the detenu. Therefore if the detaining authority or the Government takes the aid of a legal practitioner or a legal adviser before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner. [344 H; 345 A-C] 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 Pet 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] 278 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.[352D] Now Prakash Transport Co. Ltd. v. New Suwarna Transport Co. Ltd., [1957] SCR 98, 106, Nagendra 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 Kherr. Chand v. Union of India [1959] 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 Board should be thrown open to the public. The right to a public trial is not one of the guaranteed rights under our Constitution. [354 C-D] Puranlal Lakhanpal 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 families at least once a week and, last but not the least, have reading and writing material according to their reasonable requirements. [355 B-C] Persons who are detained under the National 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 lodged in the same ward or cell where the convicts whose crimes are established are lodged. [355 D] 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 1(2) of the Constitution (Fortyfourth Amendment) Act 1978 cannot be construed to mean that Parliament has 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 effect to all the provisions immediately.
But the 279 Central Government could not in its discretion keep it in a state of suspended A animation for any length of time it pleased. [358 A-B] 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 of 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(1)(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. lt is not the temporary duration of an ordinance that is relevant;
what is relevant is its provisional and tentative character which is apparent from Article 123(2). [362 G] F A.K. Gopalan v. State [1950] SCR, 88, relied on.
A significant difference between the law made by the President under Article 357 and an ordinance promulgated by him under Article 123 is that while a law made under Article 357 continues to be in force until altered, repealed or amended by a competent legislature or authority, an ordinance promulgated under Article 123 ceases to operate at the expiration of six weeks of reassembly of the Parliament at the latest. [363 B] The argument that since Article 367(2) provides that any reference in the Constitution to Acts of Parliament should be construed as including a reference to an ordnance made by the President, an ordinance should be equated with an Act of Parliament is without substance because an ordinance has the force and effect only over an area where it can validly operate. An invalid ordinance can 280 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 Tulzapurkar J. agreed with the majority on all other points]
ORIGINAL JURISDICTION: Writ Petitions Nos 5724, 5874 & 5433 of 1980.
(Under Article 32 of the Constitution of India) R K Garg, V.J. Francis and Sunil R. Jain for the Petitioners in WP. 5724 & 5874 and for interveners 3-12.
N.M. Ghatate, S.V. Deshpande and Shiva Pujan Singh for the petitioner in WP. 5433.
L.N. Sinha, Attorney General, K Parasaran, Solicitor General, M.K Banerjee, Additional Solicitor General, KS.
Gurumurthi Miss A. Subhashini and Girish Chandra for Respondent No. 1 in all the WPs.
Subbash C. Maheshwari, Additional, Advocate General, O.P. Rana, Hansraj Bhardwaj and R.K. Bhatt for Respondents 2 & 3 in WP. 5874180.
L.N. Sinha, Attorney General, Ram Balak Mahto, Additional Advocate General, K.G. Bhagat and D. Goburdhan for Respondents 2 & 3 in WP. 5724/80.
For Interveners:
V.M. Tarkunde, P.H. Parekh, Miss Manik Tarkunde and R.N, Karanjawala for Intervener No 1.
Bhim Singh intervener No. 2 (in person) Dr. L.M. Singhvi, Anand Prakash, S.N. Kaekar, G.
Mukhoty, B.B. Sinha, A.K Srivastava, Randhir Jain, M.L.
Lahoty, Kapil Sibal, L K Pandey and S.S. Khanduja for Intervener No. 13.
Mrs. Subhadra Joshi for Intervener No 14.
Ram Jethmalani and Miss Rani Jethmalani for Intervener No, 15.
281 L.N. Sinha, Attorney General and Altaf Ahmed for Inter- 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 indulging in activities which were prejudicial to public order. Ten members of the Parliament, one an Independent and the others belonging to various political parties in opposition applied for permission to intervene in the Writ Petition on the ground that since the ordinance-making power of the President is destructive of the system of Parliamentary democracy, it is necessary to define the scope of that power. We allowed the intervention. So did we allow the applications for intervention by the People's Union of Civil Liberties, the Supreme Court Bar Association and the State of Jammu and Kashmir which is interested in the upholding of the Jammu & Kashmir Public Safety Act, 1978.
Shri R.K. Garg argued the Writ Petition, respondents being represented by the Attorney General and the Solicitor General.
After the ordinance became an Act, more writ petitions were filed to challenge the validity of the Act as well.
Those petitions were argued on behalf of the petitioners by Dr N. M. Ghatate, Shri Ram Jethmalani, Shri Shiv Pujan Singh and Shri Kapil Sibal. Shri V.M. Tarkunde appeared in person for the People's Union of Civil Liberties and Dr. L.M. Singhvi for the Supreme Court Bar Association.
Broadly, Shri Garg concentrated on the scope and limitations of the ordinance-making power, Shri Ram Jethmalani on the vagueness and unreasonableness of the provisions of the Act and the punitive conditions of detention and Dr. Ghatate on the effect of the 44th Constitution Amendment Act and the validity of its section 1(2). Shri Tarkunde dwelt mainly on the questions relating to the fulfillment 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 282 the broad, undefined powers of detention conferred by the Act. Dr. L.M. Singhvi laid stress on the need for the grant of minimal facilities to detenus, the nature of the right of detenus to make an effective representation against the order of detention and the evils of the exercise of the power to issue ordinances.
The National Security ordinance, 1980, was passed in order "to provide for preventive detention in certain cases end for matters connected therewith." It was made applicable to the whole of India except the State of Jammu & Kashmir and it came into force on September 23, 1980. The Parliament was not in session when it was promulgated and its preamble recites that it was being issued because the "President is satisfied that circumstances exist which render it necessary for him to take immediate action".
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 283 executive power, cannot therefore be used for that purpose. The executive cannot resort to the power to make ordinances so as or in order to remove the restraints imposed upon it by Article 21;
(f) The procedure prescribed under an ordinance is not procedure established by law because, ordinances have a limited duration in point of time. The procedure prescribed by an ordinance is neither firm nor certain by reason of which the procedure cannot be said to be 'established'. From this it follows that no person can be deprived of his life or liberty by procedure prescribed by an ordinance;
(g) The power to issue an ordinance is ordaining power of the executive which cannot be used to liberate it from the discipline of laws made by a democratic legislature. Therefore, the power to issue ordinances can be used, if at all, on a virgin land only. No ordinance can operate on a subject which is covered by a law made by the legislature;
(h) Equating an ordinance made by the executive with a law made by the legislature will violate the principle of separation of powers between the executive and the legislature, which is a part of the basic structure of the Constitution; and (i) Articles 14, 19 and 21 of the Constitution will be reduced to a dead letter if the executive is permitted to take away the life and liberty of the people by an ordinance, lacking the support of a law made by the legislature. The ordinance-making power must, therefore, be construed harmoniously with those and other provisions of the Constitution.
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 legislative power as contended by the learned Attorney General or whether it is an executive power masquerading as a legislative power, as contended on behalf of the petitioners.
284 In support of these submissions Shri Garg relies on many texts and decisions which we need not discuss at length since, primarily, we have to consider the scheme of our Constitution and to interpret its provisions in order to determine the nature and scope of the ordinance-making power. Counsel drew our attention, with great emphasis, to the statements in Montesquieu's Esprit des lois (1748) and Blackstone's Commentaries on the laws of England' (1756) which are reproduced in 'Modern Political Constitution's by C.F. Strong (8th edition) at page 291. According to Montesquieu, "when the legislative and executive powers are united in the same person or body of persons there can be no liberty, because of the danger that the same monarch or senate should enact tyrannical laws and execute them in a tyrannical manner." Blackstone expresses the same thought by saying that "wherever the right of making and enforcing the law is vested in the same man or one and the same body of men, there can be no public liberty". Reliance was also placed on views and sentiments expressed to the same effect in Walter Bagehot's 'The English Constitution (1867), Wade's Administrative Law' (3rd edition) pages 323-324, 'Constitutional Laws of the British Empire' by Jennings and Young, 'Law and orders' by C.K. Allen (1945) and Harold 'Laski's Liberty in the Modern State' (1961). According to Laski (pages 42-43).
".. if in any state there is a body of men who possess unlimited political power, those over whom they rule can never be free. For the one assured result of historical investigation is the lesson that uncontrolled power is invariably poisonous to those who possess it. They are always tempted to impose their canon of good upon others, and, in the end, they assume that the good of the community depends upon the continuance of their 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, 1936) in which he referred to the rule by ordinances as "the humiliation 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 from what is 285 called the try any of the majority. Uncontrolled power in the executive is a great enemy of freedom and therefore, eternal vigilance 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 historical origin of the ordinance-making power conferred by our Constitution and consider 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 overgenerous 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 contracts. The Union Government too, so we are informed, passed about 200 ordinances between 1960 and 1980, out of which 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 deliberation, 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 ordinance-making power conferred by that Act. They were also aware that such a power was not claimed by the Governments of two lading democracies of the world, the English and the American, 286 And yet, they took the Government of India Act of 1935 as their model, Section 42 of that Act ran thus:
Power of "42(1) If at any time when the Federal Legis- Governer lature is not in section the Governor- General to General is satisfied that circumstances promulgate exist which render it necessary for him ordinances to take immediate action, he may during recess promulgate such ordinances as the of Legisla- circumstances appear to him to require: ture.
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 Legislature, or, if before the expiration of that 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 Legislature assented to by the Governor General; and (c) may be withdrawn at any time by the Governor-General.
287 (3) If and so far as an ordinance under this 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 purpose 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 "Legislative Power of the President".
It reads thus:
Power of "123 (1) If at any time, except when both Houses President of Parliament are in session, the to promul- President is satisfied that gate Ordi-circumstances exist which render it nances necessary for him to take immediate during action, he may promulgate such recess of ordinances as the circumstances appear parliament. recess of to him to require.
(2) An ordnance 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.
288 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 Parliament would not under this Constitution be competent to enact, it shall be void." Article 213, which occurs in Part VI, 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 7 Dan executive power, not a legislative power, and consequently, is not law. In view of the clear and specific provisions 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 Constitution makes between a law made by the Parliament and an ordinance issued by the President is that whereas the life of a law made by the Parliament would depend upon the terms of that law, an ordinance, by reason of sub clause (a) of clause (2), ceases to operate at the expiration of six weeks from the reassembly of Parliament, unless resolutions disapproving it are passed by both Houses before the expiration of that period. Article 13 (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 follow from the combined operation of clauses (2) 'and (3) of Article 13 that an ordinance 289 issued by the President under Article 123, which is equated by clause (2) of that article with an Act of Parliament, 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 exercise of that power. An ordinance, like a law made by the Parliament, 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 Constitution. Article 367 which supplies a clue to the "Interpretation" of the Constitution provides by clause (2) that- "Any reference in this Constitution to Acts or laws of, or made by, Parliament, or to Acts or laws of, or made by, the Legislature 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." 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, equally, 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 envisages 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 necessary for him to take immediate action An ordinance which satisfies these pre-conditions has the same force and effect as an Act of Parliament. Article 356 empowers the President to issue a proclamation in case of failure of constitutional machinery in the States. By Article 357 (I) (a), if by a proclamation issued under Article 356 (1) it has been declared that the powers of the Legislature of the State shall be 290 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 laws. 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 authorise the President to delegate the power so conferred to any authority 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 legislative power by the legislature properly so called is the only source of law. Ordinances issued by the President and the Governors and the laws made by the President or his delegate under Article 357 (1) (a) partake fully of legislative character and are made in the exercise of legislative power, within the 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 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 preposition 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 necessary to equip the president with legislative powers in urgent situations.
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 promulgated to take the place of the law declared void". Speaking for 291 the majority in R.C. Cooper v. Union of India(l), Shah J.
said: "The President is under the Constitution not the repostory of the legislative power of the Union, but with a view to meet extraordinary situations demanding immediate enactment of laws, provision is made in the Constitution investing, the President with power to legislate by promulgating ordinances." The Constituent Assembly therefore conferred upon the executive the power to legislate, not of course intending that the said power should be used recklessly or by imagining a state of affairs to exist when, in fact, it did not exist; nor, indeed, intending that it should be used mala fide in order to prevent the people's elected representatives from passing or rejecting a Bill after a free and open discussion, which is of the essence of democratic process. 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 subjected 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 President 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 extraordinary 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 292 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. Gopalan(1) establishes that the supremacy 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 R 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 depriving the people of their life and liberty. The extent of protection afforded to the right conferred by Article 21 consists, according to counsel, in the obligation imposed upon a democratic legislature to devise a fair, just and reasonable procedure for attenuating the liberties 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 acquire the right to trample upon the freedoms of the people rather than the people acquiring 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 ordinance-making power. 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.
293 The contention that the procedure prescribed by an ordinance cannot be equated with the procedure established by law is equally unsound. The word 'established' is 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 purposes of Article 21 so long as the procedure prescribed by it is definite and reasonably 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 conferred 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 Constitution."; An amendment substantially 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 102 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 Constitution.
294 Another answer to Shri Garg's contention is that what Article 21 emphasise is that the deprivation of the right to life or 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. Asitt. 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 'law' within the meaning of Article 21 of the Constitution.
There is no substance in the argument that the ordinance-making 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 separation 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 circumstances. 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 295 they must be such as to satisfy a reasonable person that, by A reason thereof it was necessary to take immediate action and issue all 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 the amendment introduced 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 (1) 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 particular clause is a positive indication that the Parliament did not consider it safe or proper to entrust untrammeled powers to the executive to issue ordinances. It therefore decided that the President'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 ordinance being especially within the knowledge of the executive, the burden lies upon it to prove the existence of those circumstances.
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 Case(2) on this aspect by saying that Article 356 which was under consideration in that case uses language which 296 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 political and orders made in exercise 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 one of the princi
