CASE ANALYSIS OF

A. K ROY V. UNION OF INDIA

AIR 1982 SC 710

BY
A NITHYA REDDY
INTERN
1nd YEAR,
NATIONAL LAW UNIVERSITY ODISHA,
CUTTACK

www.probono-india.in
 A. K ROY V. UNION OF INDIA, AIR 1982 SC 710

BACKGROUND OF THE CASE

Preventive detention laws in India existed in India from centuries. During the Indira Gandhi
regime, National Security Ordinance was issued and later promulgated as an act. It is a stringent
law that allows preventive detention for months if the officials are satisfied that a person is a
threat to national security or law and order. Its main purpose was “to provide for preventive
detention in certain cases and for matters connected therewith”. But the NSA was criticized
constantly for its arbitrary rules such as the maximum period for detainment of a person in any
category is 12 months and the charges against the arrested person need not be told to him until 10
days. The arrested person is also not allowed to have a lawyer. Such harsh rules were also
compared to the Rowlatt Act of the British era where people are denied certain basic
fundamental rights.

FACTS OF THE CASE

Under the 1980 National Security Ordinance, Shri A. K. Roy, a Member of Parliament, was
detained by an order passed by the Dhanbad District Magistrate on the ground that he was
indulging in activities that were a threat to the public order. Various opposition members of the
parliament filed petitions on the contention that President issuing ordinance is impairment to
parliamentary democracy of a country and there was a need to define the scope of the ordinance-
issuing power of the President. In addition, numerous petitions were lodged pursuant to Article
32 of the Constitution calling into question the validity of the 1980 National Security Ordinance
and few provisions of the 1980 National Security Act citing them as draconian and arbitrary. The
court allowed all these petitions. Shri R K Garg, Shri Ram Jethmalani, Dr. Ghatate, Shri
Tarkunde, Dr. L.M. Singhvi, Shri Kapil Sibal were among the few lawyers who represented the
petitioners. The Attorney General and the Solicitor General represented the government.
 ISSUES RAISED

(1) The extent, drawbacks and justifiability of the ordinance making power;
(2) Justification of Preventive Detention despite the severe limitations of personal freedom th
at it inevitably entails;
(3) The consequences of the failure to enforce the 44th amendment to the degree that it
affects the Framework of the Advisory Boards;
(4) The vagueness of the clauses of the National Security Act, enabling the detention of
individuals for the reasons set out in Section 3 of the above act;
(5) The statutory inequality and unreasonableness before the Advisory Boards.

ISSUE 1: THE EXTENT, DRAWBACKS AND JUSTIFIABILITY OF THE ORDINANCE

MAKING POWER

Shri R. K. Garg, Counsel for the petitioners, had argued on this issue. He challenged the power
of the President to issue an ordinance which deprives a person of his life and liberty. This attack
on the ordinance making power revolves around one central theme which is “Ordinance is not
law”.

SUB ISSUE 1:ANORDINANCE MADE BY THE PRESIDENT IS THE FUNCTION OF

AN EXECUTIVE NOT LEGISLATURE

The petitioner laid emphasis on the statement of Montesquieu who said, “when the legislative
and executive powers are united in the same body, there can be no liberty, because of the danger
that the same monarch should enact and execute tyrannical laws”. He also quoted Blackstone
who said “wherever the right of making and enforcing the law is vested in the same, there can be
no public liberty”.

(Referring to Ordinance law in pre-independent India and comparing it with the laws of
UK and USA) --
Unrestrained power in the executive is a great enemy of democracy and therefore constant
vigilance in the domain of liberty is necessary. The executive enjoys nothing like the right to
issue ordinances in both England and America. In India, the power always has a colonial source
and the executive, and has openly resorted to it as and when it deemed it necessary to do so.

The Government of India Act, 1935 was put before the Constituent Assembly and many of its
members had witnessed the traumas and sufferings arising from the free exercise of the power of
ordinance imposed by that Act. They were also aware that the governments of the world's two
leading democracies, the UK and America, did not assert such a force, and yet they took the act
as their model which says that a Governor- General can promulgate an ordinance if such
situations exist where it is necessary for him to take immediate action during recess of the
parliamentary session.

The same was adopted by the constitution of India in Chapter III of Part V called “Legislative
power of the President” under Article 123. Article 123 says that the ordinance will lapse if it is
not passed into an act within 6 weeks of commencement of parliamentary session. The point of
this statement is that the authority to issue an ordinance is a power of executive, not legislative,
and thus, is not law.

The judge denied this argument stating that

● Article 123, Clause (2), provides that an ordinance passed pursuant to Article 123 "shall
have the same force and effect as an Act of Parliament". The only difference that the
Constitution provides between laws drafted by Parliament and an ordinance given by the
President is that the life of a law drawn up by Parliament depends on the terms of that
law. An Ordinance shall cease to exist at the expiry of six weeks after the re-assembly of
Parliament, unless both Houses adopt resolutions disapproving it before the expiry of that
time.
● Article 13(2) provides that the State shall not make any law which takes away or
abridges the rights conferred by Part III. Clause (3) of Article 13 provides that "law"
includes an ordinance, unless the context otherwise requires.
● Article 367 supplies a clue to the "Interpretation" of the Constitution provided in clause
(2) which says that The Constitution makes no difference between a law drawn up by the
 legislature and a presidential ordinance. Both are results of the exercise of legislative
power, and are thus subject to the limits imposed on that power by the Constitution.
● This adoption of legislative powers by the executive is only in stated circumstances. For
example, Article 356 authorizes the President to issue a decree in the event of
constitutional machinery breakdown in the States. Under Article 357(1)(a), all the powers
exercised under that provision by its representative are legislative in nature.

The Parliamentary legislative process is lengthy and is time-consuming. It is true that it is not
easy to accept the fact that law made by legislative and the law made by executive can be
equated but also it is to be accepted that despite the adverse impact of the ordinances on Indians
in the pre-independent era, the constituent assembly choose to equip the president with
legislative powers which implies that power to issue ordinances was regarded as a necessary evil.
Even in the case of R.C.Cooper v UOI, the bench observed that “The President is under the
Constitution not the repository of the legislative power of the Union, but with a view to meet
extraordinary situations demanding immediate enactment of laws, provision is made in the
Constitution investing the President with power to legislate by promulgating Ordinances.” [7]

By giving the executive the power to legislate ordinances, it doesn’t mean that the power should
be recklessly used with mala-fide intention. It should be put to use in extra-ordinary situations
only.That extraordinary power is not to be used to propagate a constitutional fraud that is
developed with so much faith and ambition and shouldn’t be perverted for political ends.
Therefore, the judges couldn’t accept the contention of petitioners that an ordinance made by the
President is an executive act and not legislative.

SUB ISSUE 2: “ORDINANCE IS NOT LAW” (Within Article 21 of the constitution)

The counsel argues that according to Article 21 of the constitution, "No person shall be deprived
of his life or personal liberty except according to procedure established by law". In the A.K.
Gopalan v State of Madras, the court held that supremacy of the legislature is a fundamental
right under Article 21 and it cannot be replaced by the executive supremacy to promulgate
ordinances which deprive people of their life and liberty. The concept of the division of powers,
which is part of the fundamental framework of the Constitution, has been abused by elevating
ordinances into the status of legislation. Also, an ordinance can never be said to 'establish' a
procedure, because it has a limited duration and it is transient in character. [8]

The judge denied the arguments stating that

● Sections 123(2) and 367(2) of the Constitution explicitly contradict the argument that the
term 'law' in Article 21 must be understood as a law made exclusively by the legislature
and cannot contain an ordinance.
● In Article 21, the word 'established' is used to denote and ensure that the procedure
prescribed by the law must be specified with certainty, such that those deprived of their
fundamental right to life or freedom must know the exact degree of such deprivation.
● Furthermore, for the purposes of Article 21, the fact that every particular law has a
temporary period is immaterial so long as the process prescribed by it is definite and
fairly ascertainable.
● Also, Indian constitution doesn’t follow the American pattern of a strict separation of
powers which rebuts the argument of violation of principle of separation of powers.

Therefore, the judges rejected he contention that Ordinance is not 'law' within the
meaning of Article 21 of the Constitution as there is no substance in the argument.

SUB ISSUE 3: “VALIDITY OF THE NATIONAL SECURITY ORDINANCE”

Shri Tarkunde, lawyer on petitioner’s behalf contends that the power to issue an ordinance is
subject to the pre-conditions that situations must exist which make it appropriate for the
President to take urgent action. Unusual and exceptional circumstances must be shown to have
existed to issue an ordinance. He mentioned the deleted clause of Article 123(4) which said that
the subjective satisfaction of the President shall be final and definitive as a positive sign that the
Parliament did not find it secure or necessary to grant unfettered powers on the Executive to
issue ordinances. Therefore, the burden of proof should lie on the executive to prove the
existence of those circumstances.

However, the court decided not to discuss this issue at a greater length because of two reasons
 ● The National Security Ordinance of 1980 has been replaced by an act. The justifiability
of the President's satisfaction is not to be regarded as the reason that the ordinance has
become an Act and such occasions will rarely arise because inevitably, the ordinance will
either lapse or will become an act. It said that this issue is of academic importance but not
for courts.
● The next reason is that there is no solid evidence placed in front of the judges where it is
difficult for them to arrive at a decision. At least a prima facie case could have been made
to show that there were no pre-existing circumstances that led to the issuance of an
ordinance. But in this case, nothing of that resort has been made.

Therefore, the judges can't entertain the argument that the Ordinance is unconstitutional on the
ground that the preconditions for the exercise of the powers granted by Article 123 are not
accomplished. “Satisfaction” of the President is dependent on the resources which he was
exposed to at the time of decision making which may or may not be disclosed to the public and
hence, the situations leading to issuance of the ordinance are left with the discretion of the
president and are not non-justiciable.

SUB ISSUE 4: “FUNDAMENTAL RIGHTS REDUCED TO A DEAD LETTER”

A contention put forward by Shri Garg is that an ordinance should be operated only on a virgin
land, i.e. an ordinance should be made only on those aspects where a law has never been made. It
has also been argued that Articles 14, 19 and 21 would be reduced to a dead letter if the
executive is allowed to take away the freedom of the people by ordinance and doesn't need to
detain us for a long time. The judge denied the arguments stating

● The constitution nowhere mentioned the rules for ordinance making. It did not mention
the subject matters that should be dealt in the ordinance nor are there any guidelines.
Also, there is no subject possible that the Legislature hasn’t dealt with. Finally, the
primary purpose of Ordinance is only to make decisions in times of emergency but not to
make laws on new subjects.
● On discussing the contention about taking away the fundamental rights, Article 13(2)
mentions that any law can’t be made in contrary to fundamental rights. An ordinance
 which is subject to the same constraints as law made by the legislature will also receive
the same consequences in case of violation of Article 14, 19 and 21. Hence, those being
reduced to a dead letter don’t even arise.

ISSUE 2: VALIDITY OF PREVENTIVE DETENTION

Personal liberty is a precious right. The Indian Constitution makers had only two objectives:
Giving constitution to the people and establishing a government and protecting the people
against the government using the same constitution. Hence, extensive powers were given to the
government such as declaration of emergency, suspension of fundamental rights, issuance of
ordinances, etc. but at the same time, protection of human rights from legislative and executive
despotism was also taken care of.

Also, to prevent excessive liberty of an individual, it has to be subordinates within reasonable

limits for the welfare of the society in total. Therefore, preventivedetention laws made a way into
the central and concurrent lists of the seventh schedule of the constitution. Preventive detention
can be made for reasons connected with defense, foreign affairs, maintenance of public order,
security of the state and nation and maintenance of supplies and services essential to the
community. Therefore, it is evident that to ensure that the security and safety of the country and
the welfare of its people are not put in peril, power of preventive detention was given.

(Referring to the laws of UK and USA)

England and America did not resort to preventive detention and yet our constitution makers
chose it. Both of them are wellestablished democracies. Despite that fact, the Constituent
assembly decided to adopt and legitimize preventive detention. The judges affirmed the fact that
they cannot declare it unconstitutional after such legitimization by having a notion of right and
wrong. The freedom of the citizen can only be secure if he has an assurance that he will be
treated equally.

Preventive Detention is originally conceived and enacted and it is a recognized and permissible
means of abridging the liberties of the people (subject to limitations in Part III of the
Constitution). Therefore, the judges rejected the contention that preventive detention is
impermissible and not in accordance with the fundamental rights of Indian Constitution.

ISSUE 3: VALIDITY OF THE UNENFORCED PART OF 44TH

AMENDMENT ACT, 1978.

Clause (4) of Article 22 of the Constitution says that no law providing for preventive detention
shall authorize the detention of a person for a longer period than three months unless there is an
Advisory board consisting of judges of a High court to decide on the issue. This particular clause
(4) is amended in the 44th Constitution Amendment Act, 1978 where it was said that detention
cannot be don’t for a period longer than two months unless an Advisory board is constituted on
the recommendation of the Chief Justice of the appropriate High court. The amendment also
provided for the composition of the advisory board (Chairman and two other members where the
chairman is a serving judge and other members shall be retired/serving judges) and also the
explanation for an “appropriate” High Court. Also, Section 1(2) of the Act says that various
provisions of the act shall come into force on such date/s, the central government notifies
through gazettes.

The confusion that arises here is that the President under Article 368(2) gave assent to this
Constitutional Act on April 30, 1979. Few provisions were brought into effect by the government
from June 30, 1979 and rest of the Amendment except Section 3 from August 1, 1979 through
Section 1(2) of the Act. Section 3 of the 44 th Constitutional Amendment Act, 1978 which brings
changes to Article 22 which deals with Preventive Detention hasn’t been brought into force till
date.But yet, the National Security Ordinance which came into force on September 22, 1980 is
strictly in accordance with Section 3 of the 44th Amendment Act, 1978. Later, the National
Security Act was passed retrospectively replacing the ordinance on December 27, 1980. But this
act is strictly in consonance with Article 22(4) in its original form but not with the Amendment.
 SUB-ISSUE 1: INTERNAL CONTRADICTION BETWEEN ARTICLE 368(2) OF THE
CONSTITUTION AND SECTION 1(2) OF THE 44TH AMENDMENT ACT.

Article 368(2) provides that when an Amendment Bill to the constitution is passed in the
parliament, it must be placed before the President who shall give assent to bill and henceforth,
the Constitution shall stand amended in accordance with the terms of the bill. This implies that
the 44th Amendment Act, 1978 amended the constitution when the President gave assent. But
Section 1(2) of the amendment requires the executive to pass a notification in order for the
amendment to take place. Therefore, the counsel points out that this precondition is a major
contradiction from Article 368 and also, Section 1(2) is a deviation from the Constitution.

The judge denied this contradiction

● Article 368(2) lays down the general rule of law as to the date on which the President
gave his approval, while Article 1(2) of the Amendment Act defines the manner in which
that Act or any of its provisions can be put into force.
● No complaint may be presented to the Constituent Body itself setting a particular future
date with effect from which the Amendment act may come into force.
● The Constitution that has been amended in compliance with the provisions of the Bill and
the amendment incorporated into the Constitution are two distinct things.

The legislature can have no effect unless it is brought into force, similarly, an amendment of the
Constitution can have no effect unless it is brought into force. Therefore, there is no
contradiction and the provisions will come into force only under Section 1(2) of the Amendment
Act.

SUB ISSUE 2: SECTION 1(2) IS ULTRA VIRES THE POWER CONFERRED OF THE
PARLIAMENT BY ARTICLE 368 TO AMEND THE CONSTITUTION.

Article 368(1) describes the nature of the powers of the Parliament and restricts the powers to the
Parliament. The petitioner’s contention is that such power cannot be delegated to an outside
agency. In this case, it is the Government.

The judges denied this contention by stating

 ● The authority to issue a notice to put the terms of a constitutional amendment into effect
is not a legislative right, as it does not have the authority to pass a constitutional
amendment in any way whatsoever.
● In Queen v. Burah, the Privy Council retained the delegated power to put the law into
effect in a district and to extend all or part of the existing or possible laws in place in
other districts to it. [6]
● There are practical difficulties in both making and enforcement of laws by the same
authority.
Therefore, it was held that Legislature is permitted to make conditional legislations as regards to
the time of enforcement and 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

SUB ISSUE 3: WHY HAS THE GOVERNMENT FAILED TO BRING THIS SPECIFIC
PROVISION INTO FORCE?

The judges observed that the court cannot compel the Government to bring Section 3 into force.
According to Section 1(2), the discretion lies with the executive. 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. The petition of writ of Mandamus is unfit for being a remedy because
the parliament hasn’t laid down any objective standards or guidelines for enforcement. The
judiciary could be involved then when there is inaction on the part of the executive. The only
remedy of the court is to request the Central Government to bring Section 3 of the 44th
Amendment Act into force without further delay.

SUB ISSUE 4: GOVERNMENT'S FAILURE TO BRING SECTION 3 OF THE 44TH

AMENDMENT INTO FORCE IS MALA FIDE.

Judges deny this argument stating that the parliament has chosen to leave to discretion of the
government to determine the date of bringing the provisions into force. The government is
accountable to the parliament for the delay in implementation and the judiciary cannot interfere
into the issue merely because there is a delay. There is no proper evidence to show that the
Central Government has any ulterior motive in not bringing Section 3 into force. The only option
available is the government should be compelled by a writ of mandamus to bring Section 3 into
force within reasonable time.

ISSUE 4: VAGUENESS OF SECTION 3(1) AND 3(2) OF THE NATIONAL SECURITY

ACT.

Section 3(1) and 3(2) of the National Security Act briefly tells that a person can be detained if he
is considered as a threat to defense of India or security of India or maintenance of essential
supplies, etc. Shri Ram Jethmalani argues that the expressions “defense of India”, “security of
the state”, etc. and terms which occur in various subsections of Section 3 are very vague and
elastic such that the sections could be misused and ultimately lead to uncontrolled detaining
which is detrimental to the liberty of a person even though he are easily comprehensible in
nature.

The court denies this contention by stating that the counsel has adopted an unrealistic issue in
this aspect. The fact that any interpretation or construction of an expression doesn't mean that the
definition will automatically give certainty to the expression. For example, in criminal law, the
vague expressions such as “contempt”, “annoyance to the public”, etc. are used regularly.
Though such expressions are difficult to describe, they do not elude a simple application to
realistic circumstances. Language use carries with it the inconvenience of language
imperfections.

The concepts used in Section 2 are not of certainty but the nature of those is not difficult to
define. Therefore, the judges didn’t strike the provisions on the ground of vagueness but said that
the courts must strive to give a narrow definition to the terms for greater benefit.

ISSUE 5: REASONABLENESS OF THE PROCEDURE PRESCRIBED BY THE

NATIONAL SECURITY ACT

The arguments advanced on this issue by the counsel 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;

(3) The justness and reasonableness of the procedure in the proceedings before the Advisory
Boards.

The counsel contends that this act is a draconian legislation because the grounds of detention
need not be furnished for because of this act. Also, there is a uniform period of detention of 12
months in all cases irrespective of the nature of offence. The detenu has no access to lawyers or
even cross- examination or to present evidence.These are essentials to natural justice but they are
denied in cases of preventive detention.

The court denied all of them and observed that rights should be made available to a person
depending upon the nature of the proceeding and not on the basis of statutory provisions. Rights
available to an accused in a criminal trial cannot be extended to the proceedings of Advisory
Boards because the impacts of these actions are very different in nature. The court held that both
detenu and government should be denied legal help orlese there would be breach in Article 14.
The Advisory Board is free to regulate its own procedure within the constraints of the
Constitution and the statute.

JUDGEMENT OVERVIEW

1) Ordinance making power of the executive is legislative in nature.

2) Ordinance issued by the executive is as much law as an Act passed by the Parliament.
3) Preventive detention is permissible and is in accordance with the fundamental rights of
Indian Constitution.
4) Provisions of the National Security Act are not vague and are reasonable.
5) Section 1(2) of the 44th Amendment Act is not ultra vires.

CONCLUSION

AK Roy v Union of India has been a landmark case in constitutional law especially in the areas
of ordinances and preventive detention laws. The Constitution Bench assembled for this purpose
delivered its decision, and it almost entirely upheld the validity of the NSA. It explained the
relation of legislature and executive and justified the ordinance making power of the executive.
The judgment also considered the NSA. It was a commendable effort by Justice DYChandrachud
to address each and every issue raised by the petitioners. It sets a precedent to majority of the
cases dealing these areas.

CRITICAL OVERVIEW

AK Roy v UOI provided a clear understanding about why ordinance- making power of the
president/ governor is a legislative function rather than an executive one. But it is hard to accept
the equation between law and ordinance as mentioned in the majority judgment because both are
made by different organs of the state and cannot be equated to the same value. Also, it would
have been better had few basic rights such as legal aid should have been given to the detanu to
uphold natural justice. But in an overall, the judgment gave all answers to the issues raised by the
petitioners and justified them in an elegant manner leading its way to one of the leading
judgments in the country cited in several cases.

SUGGESTIONS

 The court could have set a specific set of situations where ordinance can be issued.
 Guidelines could have been issued for the procedure of advisory board.
 The courts present day should take measures to enforce section 3 of 44th amendment act.
 REFERENCES

[1] A.K. Roy and Ors. Vs Union of India and Ors. [1982] 1 SCC 271.
[2] Government of India Act, 1935.
[3] Constitution of India
[4] National Security Act, 1980.
[5] 44th Amendment Act, 1978.
[6] Queen v Burah [1878] 5 I.A. 178
[7] RC Cooper v Union of India [1970] AIR 564, [1970] 3 SCR 530.
[8] AK Gopalan v State of Madras [1950] SCR 88.

ABOUT THE AUTHOR

Nithya Reddy is pursuing B.A.LLB from National Law University, Odisha currently in her 2 nd
semester. She is interested in Constitutional laws and law of Torts.