PETITIONER:
A. K. ROY, ETC.
Vs.
RESPONDENT:
UNION OF INDIA AND ANR.
DATE OF JUDGMENT28/12/1981
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
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 (Fortyforth
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 can not 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 affect 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]
JUDGMENT:
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 tryanny 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 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 function 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 the 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 has been the subject matter of adverse
criticism
297
It is said that all that the doctrine really means is that
in the exercise of the power of judicial review, the courts
must adopt a ‘prudential’ 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 conflict. 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 proposition 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 inserted by the 38th Amendment, by
which the satisfaction of the President mentioned in clause
(1) was made final and conclusive and that satisfaction 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 (1) of the Constitution. In the first place, the
ordinance has been replaced by an Act. It is true, as
contended by Shri Tarkunde, that if the question as regards
the justiciability of the President’s satisfaction is not to
be considered for the reason that the 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
question as regards the justiciability of the President’s
satisfaction under
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Article 123 (1) 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 section 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 facie 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
President to take immediate action by promulgating the
impugned ordinance, we are unable to entertain the
contention that the ordinance is unconstitutional 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 ordinance 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 executive 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 Article 13 (2)
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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 14, 19 and 21 being reduced to a
dead letter, we are unable to appreciate how an ordinance
which is subject 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 judgment dated October 20, 1981
delivered by a Constitution Bench 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 ordinance-
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: (1)
The scope, limits and justiciability of the ordinance-making
power; (2) The validity of Preventive Detention in the light
of the severe deprivation of personal 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 provisions 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
frequently 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
300
second question relating to the validity of Preventive
Detention as a measure for regulating the liberties of the
subject.
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 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. 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 Parliament and the
State legislatures by Article 246 to pass laws of preventive
detention. These entries read thus:
Entry 9, List I:
“Preventive detention for reasons connected with
Defence, Foreign Affairs, or the security of India ‘
persons subjected to such detention.”
Entry 3, List III:
“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.”
301
The practical need and reality of the laws of preventive
detention find concrete recognition in the provisions of
Article 22 of the Constitution. 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 determine that question; and the only way in which
they can properly do so, is by looking to the terms of the
instrument by which, affirmatively, the legislative powers
were created, and by which, negatively, 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.
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
Constitution 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 give 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 our
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 Constitution.
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
302
justness of procedure established by a law for the purposes
of Article 21 is one thing: that power can be spelt out from
the language 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 individual 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 and 14th Amendments
of the American Constitution by which no person can be
deprived of 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 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
mind on the vexed question of ‘due process’, said:
“…I must confess that I am somewhat in a
difficult position with regard to article 15 and the
amendment moved by my friend Pandit Bhargava for the
deletion of the words “procedure according to law” and
the substitution of the words “due process”.
“The question of “due process” raises, in my
judgment, the question of the relationship between the
legislature and the judiciary. in a federal
constitution, it is always open to the judiciary to
decide whether any particular 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-
303
ciary the power to question the law made by, the
legislature on another ground. That ground would be
whether that law is in keeping with certain fundamental
principles relating to the 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 question of the powers of the
legislature making the law. 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 negatived.
In view of this background and in view of the fact that the
Constitution, 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 III, 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, 1978, with particular reference
to section 1(2) and section 3 thereof. Section 1 reads thus
304
“1. Short title and commencement.-
(1) 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 thus:
“3. Amendment of article 22.-In article 22 of the
Constitution.-
(a) for clause (4), the following clause shall be
substituted, 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
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 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 serving or
retired Judges of any High Court:
Provided further that nothing in this clause shall
authorise the detention of any person beyond the
maximum period prescribed by any law made by Parliament
under sub-clause (a) of clause (7).
Explanation.-In this clause, ‘appropriate High Court’
means,
(i) in the case of the detention of a person in
pursuance of an order of detention made by the
Government of
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 the
administrator or a Union territory or an officer
or authority subordinate 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 sufficient cause
for such detention
306
Provided that nothing in this sub-clause shall
authorise 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
provisions 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 44th 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 obtaining 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 brought into force
with effect from June 20, 1979 by a notification issued by
the Central Government on June 19. 1979. The rest of the
provisions of the Amendment were brought into force with
effect from August 1, 1979 except section 3 whereby Article
22 was amended, which has 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 constituted to
consist of persons who are, or have been, or are qualified
to the appointed as, Judges of a High Court in accordance
with the provisions of Article 22 (4) (a) in its original
form, The amendment made to that article by section 3 of the
44th Amendment not
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, a 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 original form
and not in accordance 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 Central
Government to issue a notification under section 1(2) of the
Amendment, bringing it into force without any further delay.
Alternatively, Dr. Ghatate contends that clause (2) of
section I 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 I 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
308
1(2) is also bad because by conferring an unreasonable,
arbitrary and unguided power on the executive, it violates
Articles 14 and 19 which are 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 the
Amendment 13 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 violative of Article
21. No law of preventive detention can be valid unless it
complies with Article 22 of the Constitution, particularly
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 nullify 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 arising out of the inherent nature of the
provisions which are to be brought into force. But 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 Amendment.
Shri Jethamalani, like Shri Tarkunde, relies upon the
provisions of the 44th Amendment 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, despite the fact that the
said section has not been brought into force. No Act passed
by a legislature, according to Shri Jethamalani, can flout
the constituent view or decision of the Parliament, whether
or not
309
the Constitutional Amendment has been brought into force. In
any event, contends the learned counsel, even if section 3
of the 44th Amendment 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 Constituent 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 1 (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 on April 30, 1979.
In so far as the arguments set out above bear on the
reasonableness of the provisions of the National Security
Act, we will consider them later when we will take up for
examination the contention that the Act is violative of
Articles 19 and 21 on account of the unreasonableness or
unfairness of its provisions and of the procedure 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 1 (2) of the 44th Amendment
Act, the consequences of the failure of Central Government
to issue a notification 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 1(2), the 44th Amendment Act must be
deemed to have come into force on the date on which the
President gave his 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
368 (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
constitutional 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,
310
in order that the Constitution should stand amended in
accordance with the terms of the Bill. It must follow from
this that the Constitution stood amended in accordance with
the terms of the 44th Amendment Act when the President gave
his 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 44th Amendment Act
itself prescribes by section 1(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
Government 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 different 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 1(2).
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.
The Amendment Act may provide that the amendment
introduced by it shall come into force immediately upon the
President giving his assent to the Bill or it may provide
that the amendment shall come the 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 Act. The
311
point of the matter is that the Constitution standing
amended in accordance with the terms of the Bill and the
amendment thus introduced 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 1(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 Government 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) of the 44th Amendment Act is ultra vires the power
conferred of the Parliament 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, variation or
repeal any provision of the Constitution in accordance with
the procedure laid down in that article. The power thus
conferred on the Parliament is plenary subject to the
limitation that it cannot 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 Constitution. The constituent power,
subject to the limitation aforesaid, cannot be any the less
plenary that the legislative power, 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 outside 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 (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. In the instant case, that power is conferred by
the Parliament on another organ of the State, namely, the
executive, which is responsible to the Parliament for all
its actions. The Parliament does not irretrievably lose its
power to bring the Amendment into 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 much debated question
relating to the delegation of legislative powers. In The
Queen v. Burah the Privy Council upheld the delegated power
to bring a law into force in a district and to apply to it,
the whole or part of the present or
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future laws which were in force in other districts. In
Russell v. The Queen 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, it upheld
the power conferred upon a Board to create offences and
annex penalties. The American authorities 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 as 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 case, which is
considered as a leading authority on the question of
delegated legislation. The Reference made in that case by
the President under Article 143(1) of the Constitution 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 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 legislative power and
that the provisions of section 1(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 difference amongst the learned Judges in
their perception and understanding 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 conditional
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
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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 necessary to leave to the judgment of an
outside agency the question as to when the law should be
brought into force and to which areas it should be extended
from time to time. What is permissible to the Legislature by
way of conditional legislation cannot be considered
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 to the judgement of the executive.
We are, therefore, of the opinion that section 1 (2) of the
44th Amendment Act is not ultra vires the power of amendment
conferred upon the Parliament by Article 368 (1) of the
Constitution.
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 Amendment received the
assent of the President on April 30, 1979 and more than 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 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
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 practical difficulty can possibly prevent the
Government from bringing into force the provisions of
section 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 the 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
standard or test prescribed by the Parliament. But, the
Parliament has left the matter to the judgment of the
Central Government without prescribing any objective 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 particularly 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. In 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 mandamus, 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 part 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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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
long and unexplained failure on the part of the Central
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 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 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
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. 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 (1) (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, provided by section 1 (2) that it shall come into
force on such date as the Central Government may, by
notification in the official Gazette, appoint. That
amendment was brought into force by the Central Government
on December 1, 1963. The 27th Amendment, 1971 brought
section 3 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 1(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 1 (2) that it 11 shall come
into force on a date appointed by the Central Government.
That amendment was brought into force on July 1, 1974. The
42nd Amendment, 1976. by which the Constitution was recast
317
extensively, gave power to the Central Government to bring
it into force. By a notification dated January 1, 1977 parts
of that Amendment were brought into force in three stages
(see Basu’s Commentary 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 Government 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
remembered, affords to the detenu an assurance that his case
will be considered 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, 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 extended 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 ultra vires.
The Court dissented from the view expressed in Jetindra Nath
Gupta v. The State of Bihar, (supra) that the power to
extend the life of an enactment cannot validly be conferred
on an outside authority. In Sita Ram Bisaambhar Dayal and
Ors. v. State of U.P. and others, 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
Despotism” of the executive, the very complexity of the
modern
318
society and the demand it makes on its Government have
set in motion force which have made it absolutely
necessary 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 of Sales Tax, 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 purchase of good inside
the appropriate State, had not laid down any legislative
policy, abdicating 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, J. speaking on behalf of himself
and Ray, C.J. agreed with the conclusion that section 8 (2)
(b) did not suffer from the vice of excessive delegation of
legislative power. The decisions bearing on the subject 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, it was contended for
the appellants 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 legislature of its essential
legislative function. The Court, 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 that section 1 (2) confers an
uncontrolled power on the executive and is, by its
unreasonableness, violative of Articles 14 and 19 of the
Constitution.
We are also unable to accept Shri Tarkunde’s argument
that the Central Government’s failure to bring section 3 of
the 44th
319
Amendment into force is mala fide. The Parliament has chosen
to 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 implementing 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 reasonable 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 indicated 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 Government to deprive a person of his liberty
for any fanciful reason which may commend itself to
them. Sub-section (1) and (2) of section 3 of the Act
read thus:
“3 (1) The Central Government or the State
Government may:- F
(a) if satisfied with respect to any person
that with a view to preventing him from
acting in any manner prejudicial to the
defence of India, the relations of India
with foreign powers, or the security of
India, or
(b) if satisfied with respect to any
foreigner that with a view to regulating
his continued presence in India or with
a view to making arrangements for his
expulsion from India, it is necessary so
to do, make an order directing that such
person be detained.
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(2) The Central Government or the State
Government may, if satisfied with respect to
any person that with a view to preventing him
from acting in any manner prejudicial to the
security of the State or from acting in any
manner prejudicial to the maintenance of
public order or from acting in any manner
prejudicial to the maintenance of supplies
and services essential to the community it is
necessary so to do, make an order directing
that such person be detained.
Explanation:-For the purposes of this sub-section,
“acting in any manner prejudicial to the maintenance of
supplies and services essential to the community” does
not include “acting in any manner prejudicial to the
maintenance of supplies of commodities essential to the
community” as defined in the Explanation to sub-section
(1) of section 3 of the Prevention of 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 detention 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 (1) (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 expressions,
depending upon the whim and caprice of the detaining
authority. The learned counsel argues: These expressions are
transposed from the legislative entries into the aforesaid
two sub-sections without any attempt at precision or
definition. In so for as ‘Defence of India’ 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 installations or disclosing defence secrets. In the
absence of such definition, a statement that corrupt
officials are responsible for the purchase of defence
equipment from a foreign power, may be considered as falling
within the mischief of that expression. The expression
‘acting in any manner prejudicial to the relations of India
with foreign powers’, is particularly
321
open to grave objection because, it can take in any and
every piece of conduct. In the absence of a precise
definition it is impossible for any person to know with
reasonable certainty as to what in this behalf are the
limits of lawful conduct which he must not transgress. 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 human liberties, 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 the detaining authority 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 confers
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 deprived of
his liberty on the basis of a vague and uncertain law. The
provisions of the Northern Ireland (Emergency Provisions)
Act 1973 (Halsbury’s Statutes of England, 3rd edition,
Volume 43, page 1235) is an instance of a statute which
defines 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. Section 10 (1) provides
that any constable may arrest without warrant any person
whom the suspects of being a terrorist. Section 20 of that
Act defines the terms ‘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, Champlin
Refining Company v. Corporation Commission of the State of
Okalahoma, Ignatius
322
Lanzetta v, State of New Jersey and David H. Scull v.
Commonwealth of Virginia Ex Rel., Committee on Law Reform
and Racial Activities, The ratio of these cases may be
Summed up by reproducing the third head note of the case
last mentioned:
“Fundamental fairness requires that a person
cannot be sent to jail for a crime he could not with
reasonable certainty know he 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. Baldeo Prasad
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 have
overstated their case by adopting an unrealistic attitude.
It is true that the vagueness and the consequent uncertainty
of a law 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 person 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
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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 definition 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” itself of an uncertain character and
comprehends within its scope a variety of nebulous
situations. Similarly, the definitions contained in section
8 (3) of the Jammu and Kashmir Act of 1978 themselves depend
upon the meaning of concepts 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 cannot 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
expressions 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
laws 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 Acts
fall within the mischief of the aforesaid expressions used
in section 3, will be able to find an acceptable answer
either way. In other words though an 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 undoubtedly involves the possibility of error but
then, there is hardly any area of adjudicative process which
does not involve that possibility.
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The requirement that crimes must be defined with
appropriate definiteness is regarded as a fundamental
concept in criminal law and must now be regarded as a
pervading theme of our Constitution since the decision in
Maneka Gandhi. The underlying principle 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
public’. (see sections 124A, 153A(1) (b), 153B (1)(c), and
268 of the Penal Code). These expressions, though they are
difficult to define, do not elude a just application to
practical situations. 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 of the Act, are not of any great certainty or
definiteness. But in the very nature of things they are
difficult 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 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 constitutionality of
clauses like those in section 3, which are fraught with
grave consequences to personal liberty, if construed
liberally.
325
What we have said above 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. 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 subsection
(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-section 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-
section (2) “acting in any manner 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 subsection (1) 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 committing
or instigating any person 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 community. The particular
clause in sub-section (2) of section 3 of the
326
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 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 flagrant violation of the fairness and
justness of procedure which is implicit in the provisions of
Article 21.
In so far as “services essential to the community” are
concerned, they are not covered by the Explanation to
section 3 (2) of the Act. But in regards 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 essentiality of
services varies from time to time depending upon the
circumstances 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 community at all times
but, people have to be forewarned if new categories 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 the
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 it 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 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 maintenance of which
is regarded as essential to the community and in
327
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 provisions 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: (1) the reasonableness of the procedure
which is generally prescribed by the Act; (2) the fairness
and reasonableness of the substantive provisions in regard
to the constitution of Advisory Boards; and (3) the justness
and reasonableness of the procedure in the proceedings
before the Advisory Boards. 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 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 be passed, whatever be the
safeguards it provides 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 judgment of Kailasam, J. in Maneka Gandhi 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 21 excluded the personal freedom conferred by
Article 19 (1) is incorrect. We have the authority of the
decisions in the Bank Nationalization case, Haradhan Saha,
Khudiram, Sambhu Nath Sarkar and Maneka Gandhi for saying
that the fundamental
328
rights conferred by the different Articles of Part III of
the Constitution are not mutually exclusive and that
therefore a law of preventive 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 freedoms conferred by
Articles 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 discriminatory, 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 impartial 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 the challenge to MlSA 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 considered as having been finally
decided in Haradhan Saha. Accordingly,
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 reasonable. 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 section 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 is
conferred upon these officers only if the State Government
is satisfied that having regard to the circumstances
prevailing or likely to prevail in any area within 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
Order made by the State Government during which these
officers can exercise the powers under sub-section (2)
cannot, in the first instance, exceed three months 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 Commissioner of Police has to
report forthwith the fact of detention to the State Govern-
330
ment and no such order 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 or unreasonable power is conferred upon the
District Magistrate or the Commissioner of Police to pass
orders under sub-section (2).
By section 5, every person in respect of whom a
detention 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 appropriate
Government may, by general or special order,
specify, and
(b) to be removed from one place of detention to
another place of detention, whether hl 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 detention 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
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. Whatever smacks of punishment must be
scruplously avoided in matters of preventive detention.
Since section 5 of the Act provides for, as shown by
its marginal 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
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 behavior.
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 10
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 communicated to the detenu without avoidable delay.
It is only in order to meet the practical exigencies of
administrative affairs that detaining authority is permitted
to communicate the grounds of detention not later than five
days 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, 10 and 11 deal respectively with the
constitution of Advisory Boards? reference to Advisory
Boards and procedure of
332
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 obligation 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 mala
fide. That section provides 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 mala 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 mala 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 good faith. It is also
necessary that the act complained of must have been in
pursuance of the Act.
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 construed 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, section 52
of the Indian Penal Code provides that nothing is said to be
done or believed in “good faith” which is done or believed
without due care and attention. If the definition contained
in section 52 of the Penal Code were made applicable, a suit
or other proceeding could have lain against the detaining
authority 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 grievance. If the policy of a law is to protect
honest acts, whether they are done with care or not, it
cannot be said that the law is unreasonable. In fact, honest
acts deserve the highest protection. T hen again, the line
which divides a dishonest act from a negligent act is often
thin and, speaking generally, it is not easy for a defendant
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 good faith will not always make material difference to
the proof 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 procedure before them. Three section of the
National Security Act are relevant in this context, namely,
section 9, 10 and 11. It may he recalled that section 3 of
the 44th Constitution Amendment Act, 1978 made an important
amendment to Article 22(4) of the Constitution by providing
that-
(i) No law of preventive detention shall authorise the
detention of any person for more than two months
unless an Advisory Board has reported before the
expiry of that period that there is in its opinion
sufficient cause for such detention;
334
(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 High
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, (ii) 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 be 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 hallmark 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, unbiased and competent and who possess
a trained judicial mind. But the question for our
consideration is whether, as urged by Shri Jethmalani,
section 9 of the National Security Act is bad for the reason
that its provisions do not accord with the requirements of
section 3 of the 44th Amendment Act.
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 Boards. 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
Constitution 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. lt 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 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 44th
Amendment substitute 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). According to that
Article as it stands now, an Advisory Board may consist of
persons, inter alia, who are qualified to be appointed as
Judges of a High Court. Section 9 of the National Security
Act provides for the constitution of the Advisory Boards in
conformity with that provision. We find it impossible to
hold,
336
that the provision 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 for 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 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 law of preventive detention and on the executive
while constituting an Advisory Board That standard cannot be
derogated from. But, it can certainly be improved 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 constitute 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
proceedings. There will then be a reasonable assurance that
Advisory Boards will express their opinion on the
sufficiency of the cause for
337
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 C 11 of the National Security
Act on the ground that it is not in consonance 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 (i) 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 proceedings of
the Advisory Board must be open to the public. According to
Shri Jethmalani, the Advisory Board must not only consider
whether the order of detention was justified but it must
also consider 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 loss
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 imperative to provide for the
maximum safeguards to the detenu in order to preserve and
protect his liberty, which can be achieved by
338
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 loss involved in the
case. The loss in preventive detention is of the precious
right of persona’ liberty and therefore, it is urged, all
such 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. These
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 relation 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 of lend 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 (l) that no
person who is arrested shall be detained in custody 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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Of such arrest and that no person shall be detained in
custody A beyond the said period without the authority of a
magistrate. Clause (3) provides that nothing in clauses (1)
and (2) shall apply (a) to any person who for the time being
is an enemy alien; or (b) 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 law 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 (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
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
considerations 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
unreasonable. 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, through the medium of the
provisions contained in Article 22(3)(b). Howsoever much we
would have liked to hold otherwise, we experience 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 unreasonable. If
Article 22 were
340
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 hl clause 3(b) of Article 22 is limited to the
right which is specifically conferred by clause (1) of that
article and therefore, if the right to legal representation
is available to the detenu apart from the provisions 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
proceedings 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(S), it would be difficult to hold
that the denial of the particular right introduces an
element of unfairness, 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 law 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 hold that the said right
is nevertheless available to him by reason of the provisions
contained in Article 21. The reason is, that the answer to
the question whether the procedure established by law for
depriving an enemy alien of his personal liberty is fair or
just is provided by the Constitution itself 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.
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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 representation against the
order of detention. That right has undoubtedly to be
effective, but it does not carry with it the right to be
represented by a legal practitioner before the Advisory
Board merely because, by section 10 of the National Security
Act, the representation made by the detenu is required to be
forwarded to the Advisory 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 right of
hearing includes the right to the aid of counsel because,
the right Lo 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 and sometimes no skill in the science of law. If
charged with crime, he is incapable, generally, of
determining for himself whether the indictment is good
or bad. He is unfamiliar 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 defence, even
though he have a perfect one. He requires the guiding
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 to establish his innocence. If that be true of men
of intelligence, how much more true is it of the
ignorant and illiterate, 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
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him, it reasonably may not be doubted that such a
refusal would be a denial of a hearing, and, therefore,
of due process 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 committed upon two white
girls. At the trial, no counsel was employed on behalf (If
petitioners but the trial Judge had stated that “he had
appointed all the members of the Bar for the purpose of
arranging the defendants and then of course anticipated that
the members of the 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 provided 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
the 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
available 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.(l) 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, expressly left upon the question
whether a prolee is entitled, in a parole revocation
proceeding, to the assistance of counsel. The
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
cannot 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
entitled 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
Maharashtrara(1) Hussainara Khatoon v. Home Secretary, State
of Bihar(2) and Francis Coralie Mullin v. The Administrator,
Union Territory of Delhi(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 intricacies, legal submissions and
critical examination of evidence, 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 process,
engineered by kindred legal technology, 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 essential 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 services avail to him.” (Page 103).
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These observations were made in the context of rights
available to an accused in a criminal trial and cannot be
extended to the proceedings of Advisory Boards in order to
determine 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 10 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 right of a detenu to be represented
by a legal practitioner before the Advisory Board.
We must therefore, held, regretfully though, that the
detenu has no right to appear through a legal practitioner
in the proceedings before the Advisory Board. It is,
however, necessary to add an important caveat. The reason
behind the provisions contained in Article 22(4) (b) of the
Constitution slate is that a legal practitioner should not
be permitted So appear before the Advisory
345
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 practitioner 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. 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 before the Advisory
Board, the detenu must be allowed the facility of appearing
before the Board through a legal 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 Boards should not permit the
authorities to do indirectly what they cannot do directly;
and no one should be enabled to take shelter behind the
excuse that such officers are not “legal practitioner” or
legal advisers, Regard must be had to the substance and not
the form since, especially, in matters like the proceedings
of Advisory Boards, whosoever assist or advises on facts or
law must be deemed to be in the position of a legal adviser.
We do hope that Advisory Boards will take care to ensure
that the provisions 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
be appointed” as High Court Judges may have to do a little
homework in order to appreciate.
Another aspect of this matter which needs to be
mentioned is that the embargo on the appearance of legal
practitioner 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.
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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 wandering
ideas. Incarceration makes a man and his thoughts
dishevelled. Just as a person who is domb is entitled, as he
must, to be represented 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(2) can be
obtained without legal representation. 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 demanded, the Advisory Boards must grant that
facility.
Shri Jethmalani 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. Goldberg
v. John Belly(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 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
observations in Greeny v. McElore(5) to the following
effect:
“Certain principles have remained relatively
immutable in our jurisprudence. One of these is that
where govern mental action seriously injures an
individual, and toe reasonableness of the action
depends on fact findings. the evidence used to prove
the Government’s case must be disclosed to the
individual so that he has an opportunity to show that
it is untrue. While this is important in the case of
documentary evidence, it is even more important where
the evidence consists of the testimony of individuals
whose
347
memory might be faulty or who, in fact, might be
perjurers or persons motivated by malice,
vindictiveness, intolerance, prejudice, or jealousy. We
have formalized these protections in the requirements
of confrontation and cross-examination. 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
criminal 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 adverse
witnesses 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.
Supreme Court which turn peculiarly on the due process
clause in the American 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
example, 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 Mue Wheeler v. John Montgomery(l), in the
some volume. Describing the majority opinion as ‘unwise and
precipitous” the learned Chief Justice said:
“The Court’s action today seems another
manifestation of the now familiar conventionalizing
syndrome: once some presumed flaw is observed, the
Court then eagerly accepts the inviation to find a
constitutionally “rooted”
348
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 principles 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 alterm 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’(l) 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. Judged by this test, it seems to us difficult to
hold that a detenu can claim the right of cross-examination
in the proceeding 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 proceedings in which
witnesses are examined or documents are adduced
349
in evidence in order to prove a point. Cross-examination
then becomes a powerful weapon 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
preponderance of probabilities 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 proceeding
of the Advisory Board has therefore to be structured
differently from the proceeding of judicial or quasi-
judicial tribunals, before which there is a lis 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 E; 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 determines
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. Ltd(1), it was observed
that “the question whether the rules of natural justice have
been observed in a particular case must itself be judged in
the light of the constitution of
350
the statutory body which has to function in accordance with
the rules laid down by the legislature and in that sense the
rules themselves 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 Commission
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 India(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-examining
the witnesses 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
351
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. 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
prescribe the procedure to be followed by the Advisory
Board. That is how clause 7(c) came to be incorporated in
Article 22 of the Constitution, 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 examination.”
x x x x x x
“If you can give a single instance in India where
the right of cross-examination has been taken away, I
can
352
understand it. I have not seen any such case.” (see
Constituent 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, Dry 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-examination 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 constraints 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 make this observation particulary in view of the fact
that the Advisory Board is under an obligation under section
11(1) of the Act to submit its report to the appropriate
Government within seven weeks from the date of detention of
the person concerned. The proceedings before the Advisory
Board have therefore to be completed with the utmost
expedition.
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It is urged by Shri Jethmalani that the Advisory Board
must decide two questions which are of primary importance to
the detenu: 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 11(2) of the Act provides specifically
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 has 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 consideration 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 detention. 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
consideration before this Court in Puranlal Lakhanpal v.
Union of India. While rejecting the argument that the words
“such detention” 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
Dattatraya Moreshwar Pangarkar v. State of Bombay 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,
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what action is to be taken subsequently is left
entirely to the appropriate Government and it can under
s. 11(1) 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 the person concerned on the date on
which the order of detention was passed and whether or not
there is sufficient cause for the detention 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
Amendment is held to be personal to the accused, which the
public in general cannot share. Considering the nature of
the inquiry which 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 requirements 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. We 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
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treat even the convicts in a manner consistent with human
dignity. The judgment of Krishna Iyer, J. in Sunil Batra v.
Delhi Administration is an instance in point. It highlights
that places of incarceration are “part of the Indian earth”
and that, “the Indian Constitution 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 permitted 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 to their reasonable
requirement. Books are the best friends of man whether
inside or outside the jail.
There is one direction which we feel called upon to
give specifically 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 lodged in the
same ward or cell were the convicts whose crimes are
established are lodged. The evils of “custodial perversity”
are well-known 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
detenu is not subjected to any indignity. While closing this
judgment, 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-
356
vailing legislation which is a negation of the rule of
law, equality and liberty. But it is implicit in the
Constitutional 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 primarily
intended to be exercised in those rare cases when the
large interest of the State demand that restrictions
shall be placed upon the liberty of a citizen curbing
his future activities. The restrictions so placed must
consistently with the effectiveness of detention, 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 appropriately. “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
expressed 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
received assent of the President on April 30, 1979. Article
368(2) says, inter alia, that after a Bill for the amendment
of the Constitution 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 there
upon the Constitution shall stand amended 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
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Act”. Section 3 of the Amendment Act substitutes a new
clause A 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.-In article 22 of the
Constitution,
(a) for clause (4), the following clause shall be
substituted, 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 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 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 Board shall be a serving Judge of the High Court
and the other 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
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 into force any
of the provisions of the Amendment Act at any time it liked.
I do not think that section 1(2) can be construed to mean
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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 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. After the Amendment Act had received the
President’s assent the Central Government could not in it
discretion 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, including 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 contingency in the future and to
ensure to the people themselves an effective voice in
determining the form of government under which they are
to live. This is one of the primary objects of this
Bill.
x x x x x x
As a further check against the misuse of the
Emergency provisions and to put the right to life and
liberty on a secure footing, it would be provided that
the power to suspend 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, detention for
a longer period than two months, unless an Advisory
Board has reported that there is sufficient cause for
such detention. An additional safeguard would be
provided by the requirement that the Chairman of an
Advisory Board shall be a serving Judge of the
appropriate High
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Court and that the Board shall be constituted in
accordance with the recommendations of the Chief
Justice of that High Court.”
I have already said that Parliament must have taken
into consideration the practical difficulties in the way of
the executive in bringing into operation all the provisions
of the Act immediately, and by enacting section 1(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
interesting 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 provisions of section 3 was not due to
any practical or administrative difficulty. However, the
National Security Act, 1980 which replaced the ordinance
does not retain the provision 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 the 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 executive
had 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 1(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 difficult 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 number of grounds, one of which is that the life and
liberty of
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person cannot be taken away by an ordinance because it is
not ‘law’ within the meaning of article 21. Normally it is
the legislature 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
ordinance promulgated under this article, Article 123 is as
follows:
“(1) It at any time, except when both Houses of
Parliament are in session, the President is
satisfied that circumstances exist which render it
necessary for him to take immediate action, 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 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”
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 Union 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 pointed 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
361
to promulgate ordinances: article 213 is in chapter IV of
part VI of the Constitution which hears a similar
description: 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
because 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 provisions. The relevant part of article 356
reads:
“(1) If the President, on receipt of a report from the
Governor of a State or otherwise, is satisfied
that a 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
or the powers vested in or exercisable by the
Governor 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
the authority of Parliament;”
Article 357 provides:
(1) Where by a Proclamation issued under clause (1) of
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 Legislature of the State to make
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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
conferring powers and imposing duties, or
authorising the conferring of powers and the
imposition of duties, upon the Union or
officers and authorities thereof;
(c) x x x x x
(2) Any law made in exercise of the power of the
Legislature 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 proclamation 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 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 the State
to make laws. Thus, where the President is required 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 21 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 observed
that the word “established” in article 21 “implies some
degree of firmness, permanence and general acceptance”. An
ordinance which has 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 disapproving it are
passed by both Houses can hardly be said to have that
‘firmness’ and ’permanence’ that the word ‘established’
implies. It is not the
363
temporary duration of an ordinance that is relevant in the
present context, an Act of Parliament may also be temporary;
what is relevant 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
amended by a competent legislature or authority; an
ordinance promulgated under article 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 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.”
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 validity 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 ordinances to take away the life
or liberty of persons, unless one 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 I agree with conclusions
reached by the learned Chief Justice.
364
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.
365