A.K. Roy v. Union of India, AIR 1982 SC 710

Citation	AIR 1982 SC 710
Date of Judgement	28/12/1981
Court	Supreme Court of India
Petitioner	K. Roy, Etc.
Respondent	Union of India and Anr.
Bench	Chandrachud, Y.V. ((CJ),Bhagwati, P.N.,Gupta, A.C.,Tulzapurkar, V.D.,Desai, D.A.

INTRODUCTION – 

The two most significant rights granted to each and every person by the Indian constitution are the right to personal liberty and the right to life. These rights are frequently thought to be unfettered by compulsion and restrictions. Our nation has long had the right to preventative detention, but during the rule of Indira Gandhi, this power was abused by passing the National Security Ordinance. which resulted in the victim being held without access to a lawyer for months. This law is frequently regarded as being overbearing and restricting people’s personal freedom.

It is sometimes linked to the Rowlatt Act of the British era, which restricts people’s basic rights. The National Security Act, which is frequently criticised and seen as arbitrary, was supported by this ruling. This case analysis examines preventative detention rights in India through a case study of the case of A. K. Roy v. Union of India.

BACKGROUND – 

In India, regulations governing preventive detention have been in place for almost centuries. Detaining someone in a preventive setting is done to stop them from committing crimes in the future or fleeing justice. The National Security Ordinance, which later became the National Security Act and was passed in 1980, was a piece of legislation that had been enacted by the government of Indira Gandhi. It had been passed by the Parliament to uphold national security and public order. In accordance with a strict law, the Central or State Government may preventative detain someone if they are of the opinion that he or she poses a risk to national security and law and order.”To provide for preventive detention in certain cases and for matters connected therewith,” is its primary goal. Two of the act’s clauses have received the most criticism. First of all, a person may be held without charge for a maximum of 12 months as a preventive measure. Secondly, the person being held must be informed of the reason(s) for their arrest within 10 days.

FACTS OF THE CASE – 

By decision of the Dhanbad District Magistrate and in accordance with the 1980 National Security Act, Marxist MP Shri A.K. Roy was placed under house arrest for engaging in activities that posed a threat to public order.

Following these events, numerous opposition lawmakers petitioned the court, arguing that the president’s ability to enact laws is incompatible with India’s parliamentary democracy. They ask for a definition of the president’s authority to issue ordinances and cast doubt on its legality.

Along with this, numerous petitions were submitted questioning the legality of the National Security Act of 1980 and the National Security Ordinance, calling them draconian and highly arbitrary.

The court granted each of these applications. They also accept the intervention requests made by the Supreme Court Bar Association, the People’s Union of Civil Liberties, and the State of Jammu and Kashmir, which is concerned with preserving the Jammu & Kashmir Public Safety Act, 1978.

The petitioners were represented by Dr. Ghatate, Shri Ram Jethmalani, and Shri R.K. Garg. Shiv Singh, Shri Kapil Sibal, Shri. Dr. L.M. Singhvi and Shri V.M. Tarkunde.

The respondent (Government) was represented by India’s Attorney General and Solicitor General.

ISSUES – 

1. Shri Garg doubts both the scope and complexity of the president’s authority to enact laws. He said the following under that:

• The legislative branch, not the executive, has the authority to enact laws.
•  According to Article 21 of the Constitution, “Ordinance is Not Law,” which states that an ordinance cannot take away someone’s life or freedom.
• According to Shri Tarkunde ji, if the prerequisites for the promulgation of an ordinance are not met, the law is invalid.
• Articles 14, 19, and 21 of the Constitution will be reduced to a mere dead letter if the executive branch is given the authority to make ordinances.

2. Since preventive detention rules severely restrict a person’s right to personal freedom, Shri Garg disputes their legality.
3. Shri Garg further focuses on the following issues when contesting the legality of the 44th Amendment Act, 1978’s unenforced portion:

•  Inconsistency between Article 368(2) of the Constitution and Section 1(2) of the 44th Amendment Act.
• Section 1(2) of the 44th Amendment Act violates the authority granted by Article 368 of the Constitution, which gives the parliament the authority to amend the Constitution.
• Failing to implement Section 3 of the 44th Amendment Act to the extent that it impacts the Advisory Boards’ Framework.
• The government’s failure to implement Section 3 of the 44th Amendment Act constitutes a False Act.

4. The National Security Act’s sections 3(1) and 3(2) are deemed unclear by Shri Ram Jethmalani ji because he challenges its applicability. Finally, he challenges whether the National Security Act’s method is reasonable.

JUDGEMENT – 

Issue 1: Shri Garg concerns the breadth and depth of the president’s authority to enact laws. 

Shri Garg’s key point in this argument is that “ordinance is not law” and that the president, who is an executive, cannot have legislative authority or take away someone else’s life or freedom by an ordinance.

1. The power of making ordinance lies with the legislature and not with the executive.

The petitioner cited Montesquieu’s remark that “there can be no liberty when the legislative and executive powers are united in the same body, because there is a risk that the same monarch should enact and carry out tyrannical laws.” He also used Blackstone’s dictum that there cannot be public liberty “wherever the right of making and enforcing the law is vested in the same.”

Then Shri Garg made reference to the pre-independence ordinance law. He also focused on the state of the ability to enact ordinances in the United Kingdom and the United States of America and compared it to Indian law.

According to the petitioner, the executive branch’s absolute and unchecked power might be detrimental to democracy as well as to the citizens’ right to life and liberty. Executive authority to enact an ordinance is not recognised in England or America. This authority in India dates back to the colonial era, and the administration can currently use it as needed. Prior to Independence, authority was used freely, which caused a great deal of suffering for the populace. There were many members of the constituent assembly who had already experienced the anguish and suffering of the ordinance when The Government of India Act, 1935 was presented to them. This power is not guaranteed by the two strong nations of the UK and the USA. However, they take their cue from the Government of India Act of 1935, which gave the Governor General the authority to promulgate an ordinance but only in very dire circumstances and also during a break in the parliamentary session.

According to Article 123 of the Constitution, which was adapted from The Government of India Act, 1935’s Chapter III of Part V, titled “Legislative Power of the President,” the president may issue an ordinance for national security even when neither house is in session. If it is not passed into an act within six weeks of the start of the legislative session, the ordinance will expire. Shri Garg deduced from this that the executive can only pass an ordinance, not an act. Therefore, an ordinance is not a law.

The above stated argument was denied by the court by stating that – 

•  In accordance with Article 123, clause (2), an ordinance signed by the president has the same legal force as a legislation passed by the legislature. The sole distinction is that an ordinance’s existence will end six weeks after the parliament reconvenes unless a resolution to that effect is passed by both chambers. The provisions of law determine the law’s lifespan.
• The state should not enact any laws that restrict the rights guaranteed by Part III of the constitution, as stated in Article 13 clause (2). Additionally, Article 13’s language states that a parliamentary ordinance is considered a law.
•  In certain circumstances, such as those described in Article 356, the executive is permitted to use the legislative power. Additionally, under Article 357(1)(a), all of the powers that the president or the president’s representative exercises are legislative in nature.
• The court noted in R.C. Cooper v. Union of India  that “The President is under the Constitution not the repository 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.” Even though the Pre-Independence era ordinance caused the constituent assembly members harm and suffering, they chose to give the President legislative authority.
• Even while the administration is given legislative powers, this does not mean that they can be utilised carelessly or maliciously to further political purposes. Only deploy it in rare circumstances, according to the president. Because of this, the judges rejected the petitioner’s claim that “Ordinance making power lies with legislature and not executive.”

2. According to Article 21 of the Constitution, “Ordinance is Not Law,” which states that an ordinance cannot take away someone’s life or freedom.

Article 21 of the Constitution, according to the petitioner, stipulates that “No person shall be deprived of his life or personal liberty except in accordance with the procedure established by law.” According to the court’s ruling in the case of A.K. Gopalan v. State of Madras, “supremacy of the legislature is a fundamental right under Article 21 and it cannot be replaced by the executive supremacy to promulgate ordinances which rob people of their life and liberty.” If the ordinance is referred to as a legislative act, it will violate the doctrine of the separation of powers and also cannot be said to “establish” the procedure because the ordinance is only in place.

The petitioner’s argument was rejected by the judges on the grounds that:

•  The Constitution’s Sections 123(2) and 367(2) provide the counterargument to the petitioner’s claim that the term “law” in Article 21 only refers to legislation passed by the legislature and does not include an ordinance.
• The word “establish” in Article 21 refers to the legal process established to ensure that people whose rights to life and liberty (a fundamental right) are being violated be aware of the extent of such violations. Additionally, as long as the legislation’s procedure is fair and verifiable, the duration of the law does not important for the purposes of Article 21.
• The strict rule of separation of powers is not being followed by the Constitution of India and therefore the argument regarding the violation of separation of powers is not valid.

The petitioner’s claim that the “ordinance is not law” is refuted by the court on the basis of this justification by the judges.

3. Ordinances are unconstitutional, according to Shri Tarkunde Ji, if the prerequisites for their promulgation are not met.

Shri Tarkunde, the petitioner, said that there should be an emergency circumstance that truly requires the passage of an ordinance and compels the president to take urgent action in order to issue an ordinance. He focuses on the deleted clause of Article 123(4), which ensures that the president’s subjective satisfaction should be just and conclusive so that Parliament would not feel the need to provide the Executive unrestricted authority to create ordinances. It is the president’s responsibility to demonstrate the emergency situation’s existence.

But the court decided against having a lengthy discussion on this matter for the following reasons-

•  The ordinance can either expire or become a law; the satisfaction of the president is not the only factor in this decision; these talks are intellectual in nature and are not intended to be used in court.
• In the current instance, no convincing arguments were made to the courts to demonstrate that there were no prerequisites for passing the ordinance.

Judges therefore rejected the claim that if the prerequisites for promulgating an ordinance are not met, the ordinance is unconstitutional. The president’s level of pleasure is arbitrary and probably depends on the resources he has access to while making decisions.

4. Is the act done by the Government Mala Fide?

The judge rejected this claim by stating that since the administration has the discretionary power and has been granted authority by parliament to enact any alteration, the judiciary is powerless to intervene in this situation simply because there has been a delay. Furthermore, there is no evidence to support any ill-intentioned attempts by the federal government to delay the implementation of Section 3 of the 44th Amendment Act.

RATIO DECIDENDI –

In the ruling, the court found that:

• The executive has the authority to enact laws, which are legislative in nature.
•  An executive order has the same impact as a law passed by the legislature.
• The right to preventive detention is recognised under the Indian constitution.
• The National Security Act of 1980’s provisions are reasonable and not ambiguous.
• The 44th Amendment Act’s Section 1(2) is not ultra vires and is in accordance with the Constitution’s provisions.

CONCLUSION – 

It is a major ruling in constitutional law about ordinance and preventive detention, A. K. Roy v. Union of India (1982). This ruling upheld the National Security Act’s legality. The court also provided an explanation of the essence of the power to enact ordinances and how it is similar to legislative authority. Justice Chandrachud made a great effort to answer all of the petitioners’ points with ease.The court further ruled that the restrictions outlined in Article 21 of the Indian Constitution must apply to an ordinance. The document went on to make clear that the executive is not an independent body and can be held accountable to the Legislature. It also stated that because the Parliament has given the Executive the authority to bring an amendment into effect, the Parliament may hold the executive accountable for unreasonable delays.

Written by Shashank Sandesh Verma an intern under legal vidhiya.