Citation- | (1982) 2 SCR 272 |
Date of judgment | 28 December, 1981 |
Case no | 1982 AIR 710 |
Case type | ordinance |
Petition/appellant | A. K. Roy |
Defendant/respondent | Union of India |
Bench | Justice Y. V. Chandrachud; Justice P. N. Bhagwati; Justice A.C. Gupta; Justice V. D. Tulzapurkar; andJustice D. A. Desai |
Court | Supreme Court of India |
Statue reffered :
- Article 123 of the constitution of India.
- Article 21 of the constitution of India.
Introduction-
The constitution of India grants two crucial rights to every individual: the right to personal liberty and the right to life. These rights are often perceived as needing to be safeguarded from coercion and restriction. Preventive detention rights have existed in our country for centuries, and during the tenure of Indira Gandhi, this law was misused through the enactment of the National Security Ordinance. This led to individuals being placed in detention for months without access to a lawyer. This law is commonly acknowledged as draconian, as it curtails the personal liberty of people.
It is frequently likened to the British-era Rowlatt Act, which also curtailed the fundamental rights of the people. The National Security Act, which is often criticized and considered arbitrary, was upheld by this judgment. This article provides an analysis of the case of A. K. Roy v. Union of India and the topic of preventive detention rights in India.
Background of the case-
Preventive detention laws have been in existence in India for centuries. During the Indira Gandhi regime, the National Security Ordinance was issued and subsequently enacted as an act. This is a stringent law that permits preventive detention for months if officials are satisfied that an individual poses a threat to national security or law and order. Its primary objective was “to provide for preventive detention in certain cases and for matters connected therewith.” However, the NSA has been subject to constant criticism due to its arbitrary rules, such as the maximum detention period for a person in any category being 12 months and not informing the arrested individual of the charges against them until 10 days have passed. The arrested individual is also denied the right to have a lawyer. Such harsh regulations have also drawn comparisons to the Rowlatt Act of the British era, where certain basic fundamental rights were denied to people.
Facts of the case-
- An order was issued by the Dhanbad District Magistrate under the 1980 National Security Ordinance, resulting in the detention of Shri A. K. Roy, a Member of Parliament, on the grounds that activities posing a threat to public order were being engaged in by him.
- Petitions were filed by various opposition members of Parliament, asserting that the issuance of ordinances by the President impairs the country’s parliamentary democracy and that there is a need to define the scope of the President’s ordinance-issuing power.
- Furthermore, numerous petitions were submitted under Article 32 of the Constitution challenging the validity of the 1980 National Security Ordinance and certain provisions of the 1980 National Security Act, with them being labeled as draconian and arbitrary.
- All these petitions were granted by the court.
- The lawyers who represented the petitioners included Shri R K Garg, Shri Ram Jethmalani, Dr. Ghatate, Shri Tarkunde, Dr. L.M. Singhvi, and Shri Kapil Sibal.
- The government was represented by the Attorney General and the Solicitor General.
Issue:
Did the detention of Shri A. K. Roy under the 1980 National Security Ordinance infringe upon his rights, considering the allegations of activities threatening public order?”
Arguments:
The Petitioner contended that
On this issue, arguments were presented by Shri R. K. Garg, who served as counsel for the petitioners. The power of the President to issue an ordinance that deprives an individual of their life and liberty was challenged by him.
This challenge to the ordinance-making authority centers on a central theme, namely, that “Ordinance is not law.” The emphasis was placed by the petitioner on the statement made by Montesquieu, who asserted that “when the legislative and executive powers are united in the same body, there can be no liberty, because of the danger that the same monarch should enact and execute tyrannical laws.”
Additionally, a quote from Blackstone was cited, stating that “wherever the right of making and enforcing the law is vested in the same, there can be no public liberty.” The petitioner’s argument that the fundamental right conferred by Article 21 cannot be taken away by an ordinance essentially aims to introduce a proviso to Article 123(1) with the following effect: “Provided that such ordinances shall not deprive any person of their right to life or personal liberty conferred by Article 21 of the Constitution.”
Judgement:
The plausibility of the Petitioners’ contention, which argued that the power to promulgate an ordinance is executive, not legislative, and thus, not law, was disapproved by the Supreme Court on three grounds. Firstly, it was based on Article 13, Clause (2) of the Constitution, which stipulates that “the State shall not make any law that takes away or abridges the rights conferred by Part III.” Clause 3 of the same explicitly stated that the definition of “law” includes ordinances, unless the context provides otherwise.
Secondly, Article 367 (2) was referred to by the Hon’ble Court, which, if correctly interpreted, states that the Constitution does not, in theory, distinguish between an ordinance promulgated by the President and a bill/act enacted by the Legislature.
Thirdly, Article 123 (2) specifies that an Ordinance promulgated under Article 123, and meeting the conditions in Clause (1) of the Article, “shall have the same force and effect as an Act of Parliament.” The Hon’ble Court concluded that the only difference provided by the Constitution between the Ordinance passed by the President and laws drafted by Parliament is the duration of the law.
An ordinance shall cease to exist after seven and a half months of its promulgation unless disapproved by resolutions adopted by both Parliamentary Houses before the expiry of that period, whereas the lifespan of a law enacted by Parliament depends on the terms specified in the law.
Therefore, ordinances issued by the President fall under the purview of legislative power. The fact that the authority to promulgate ordinances has not been subject to any restrictions under the Constitution was also noted by the Hon’ble Court.
Regarding the petitioner’s arguments on the validity of preventive detention, the Apex Court held that since preventive detention is recognized and properly defined within the Constitution, referring to Entry 9 of List I and Entry 3 of List III, it would not violate the fundamental liberties of the people.
The Court also asserted that as long as preventive detention operates within the permissible boundaries of the entries in the lists and does not violate any other restrictions imposed by the Constitution, it would not be invalidated.
Furthermore, the Supreme Court emphasized that the concept of preventive detention was primarily introduced to ensure the nation’s security is not compromised.
The Supreme Court of India also deliberated on the ambiguity of Sections 3 (1) and 3 (2) of the National Security Act, 1980. These sections primarily authorize the Union and State Governments to detain an individual if they are satisfied that the person is acting prejudicially to the “defence of India,” “maintenance of essential supplies,” “security of the state,” etc. The petitioner argued that “defence of India,” “security of India,” and “security of the state” are ambiguous and can be misused by the detaining authority at their discretion, depriving a person of their liberty.
The Court denied the petitioner’s argument, stating that their side had adopted an unrealistic attitude. It was held that just because a definition of an expression can be formulated does not necessarily mean that it will provide certainty to that expression.
The Court provided examples, including expressions like “bring into hatred or contempt,” “ill-will,” and “annoyance to the public” within criminal law, to support their reasoning. The Court refused to strike down the provisions solely on the grounds of ambiguity and uncertainty but remarked that the Courts should strive to interpret the literal words narrowly.
The Apex Court further rejected the petitioner’s argument that Section 1, Clause (2) of the 44th Constitutional Amendment, 1978, is ultra vires the amending power of the Constitution conferred to the Parliament under Article 368 (1) of the Indian Constitution.
The Court stated that it is within the power and discretion of Parliament to exercise its constituent power for amending, repealing, and adding any provision of the Indian Constitution, as long as it follows the procedure stipulated under the said article. Additionally, the petitioner’s contention that the power to appoint a date for bringing a constitutional amendment into force is a constituent power that cannot be delegated to another authority lacked legal backing. The power to issue a notification for bringing provisions of a constitutional amendment into force is not a constituent power because it does not have the power to amend the Constitution in any way whatsoever. Thus, the Parliament is permitted to delegate the said power to any outside agency to bring a constitutional amendment into force.
Conclusion:
The case of AK Roy v Union of India stands as a pivotal moment in constitutional law, particularly within the domains of ordinances and preventive detention laws. A Constitution Bench was convened for this specific purpose, and its decision was rendered, almost completely affirming the validity of the NSA. The interplay between the legislature and executive was expounded upon, and the executive’s authority to enact ordinances was justified. The NSA was also taken into consideration within the judgment. Justice DY Chandrachud’s admirable effort to tackle every issue raised by the petitioners was evident. This case establishes a precedent for the majority of cases that deal with these subject areas.
Drafted by: Jhalak Varshney, Lloyd Law college, Greater Noida, an intern under legal vidhiya
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