A. K. Roy Vs. Union of India & ANR
[1981] INSC 209 (28 December 1981)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) BHAGWATI, P.N.
GUPTA, A.C.
TULZAPURKAR, V.D.
DESAI, D.A.
CITATION: 1982 AIR 710 1982 SCR (2) 272 1982
SCC (1) 271 1981 SCALE (4)1905
CITATOR INFO :
R 1982 SC1029 (11,16) F 1982 SC1143 (5,8,9) D
1982 SC1178 (4) R 1982 SC1500 (5) F 1982 SC1543 (16) F 1983 SC 109 (13) R 1983
SC 505 (1,2) RF 1985 SC 551 (32) R 1985 SC 724 (14) R 1985 SC1082 (18) R 1986
SC 207 (4) RF 1986 SC 283 (6,13) E&R 1987 SC 217 (5,6,7,12,13) D 1987 SC
725 (4) E 1988 SC 109 (5,6) D 1988 SC1768 (5) R 1988 SC1883 (176) APL 1989 SC
389 (6,7,9) RF 1989 SC 653 (12) F 1989 SC 764 (19,20) R 1991 SC 979 (7)
ACT:
Constitution of India, 1950-Constitution (Forty
forth Amendment) Act, 1978-Power conferred on executive to appoint different
dates for different provisions of the Act-If amounts to transfer of legislative
power to executive.
Ordinance-Whether law-Whether President has
power to issue ordinances-National Security ordinance-Validity of- Constitution
of Advisory Boards under section 9 of the Act- Validity of.
Natural Justice-Detenu under National
Security Act-If entitled to be represented by a legal practitioner before
Advisory Board-Detenu, if has a right to consult a lawyer, or be assisted by a
friend before the Advisory Board-If could cross-examine witness-If could
present evidence before the Advisory Board in rebuttal of allegations against
him- Duties and functions of Advisory Boards-Proceedings of Advisory Board, if open
to public.
HEADNOTE:
Section 1(2) of the Constitution (Fortyfourth
Amendment) Act 1978 provides that "It shall come into force on such date
as the Central Government may, by notification in the official Gazette appoint
and different dates may be appointed for different provisions of this
Act." Section 3 of the Act substituted a new clause (4) for the existing
sub-clause (4) of Article 22. By a notification the Central Government had
brought into force all the sections of the Fortyfourth Amendment Act except
section 3.
In the meantime the Government of India
issued the National Security ordinance 2 of 1980 which later became the National
Security Act 1980.
The petitioner was detained under the
provisions of the ordinance on the ground that he was in dulging in activities
prejudicial to public order. In his petition under Article 32 of the
Constitution the petitioner contended that the power to issue an ordinance is
an executive power, not legislative power, and therefore the ordinance is not
law.
HELD: [per Chandrachud, C.J., Bhagwati &
Desai, JJ.] [Gupta and Tulzapurkar, JJ dissented on the question of bringing
into force section 3 read with section 1(2) of the Fortyfourth Amendment Act.
Gupta J. dissented on the question whether ordinance is law].
273 The power of the President to issue an
ordinance under Article 123 of the Constitution is a legislative and not an
executive power.
From a conspectus of the provisions of the
Constitution it is clear that the Constituent Assembly was of the view that the
President's power to legislate by issuing an ordinance is as necessary for the
peace and good government of the country as the Parliament's power to legislate
by passing laws. The mechanics of the Presidents legislative power was devised
evidently in order to take care of urgent situations which cannot brook delay.
The Parliamentary process of legislation is comparatively tardy and can
conceivably be time consuming. It is true that it is not easy to accept with
equanimity the proposition that the executive can indulge in legislative
activity but the Constitution is what it says and not what one would like it to
be. The Constituent Assembly indubitably thought, despite the strong and
adverse impact which the Governor-General's ordinance making power had produced
on the Indian community in the pre-independence era, that it was necessary to
equip the President with legislative powers in urgent situations.
[290 E-G] R.C. Cooper v. Union of India, [I
9701 3 SCR 530, 559, referred to.
The contention that the word 'law' in Article
21 must construed to mean a law made by the legislature only and cannot include
an ordinance, contradicts directly the express provisions of Articles 123 (2)
and 367 (2) of the Constitution. Besides, if an ordinance is not law within the
meaning of Article 21, it will stand released from the wholesome and salutary
restraint imposed upon the legislative power by Article 13(2) of the
Constitution. [292 G-H] The contention that the procedure prescribed by an
ordinance cannot be equated with the procedure established by law is equally
unsound. The word 'established' is used in Article 21 in order to denote and
ensure that the procedure prescribed by law must be defined with certainty in
order that those who are deprived of t heir fundamental right to life or
liberty must know the precise extent of such deprivation. 1293 A-B] The
argument of the petitioner that the fundamental right conferred by Article 21 cannot
be taken away by an ordinance really seeks to add a proviso to Article 123(1)
to the effect: "that such ordinances shall not deprive any person of his
right to life or personal liberty conferred by Article 21 of the
Constitution." An amendment substantially to that effect moved in the
Constituent Assembly was rejected by the Constituent Assembly. [293 D-E] A.K.
Gopalan [1950] SCR 88, Sant Ram, [1960] 3 SCR 499, 506, State of Nagaland v.
Ratan Singh [1966] 3 SCR 830, 851, 852, Govind v. State of Madhya Pradesh &
Anr. [1975] 3 SCR 946, 955-56, Ratilal Bhanjl Mithani v. Asstt. Collector of
Customs, Bombay & Anr. [1967] 3 SCR 926, 928-931 and Pandit M.S.M. Sharma
v. Shri Sri Krisna Sinha & Anr. [1959] Supp. I SCR 806, 860-861, referred
to.
Since the petitioners have not laid any
acceptable foundation for holding that no circumstances existed or could have
existed which rendered it necessary 274 for the President to take immediate
action by promulgating impugned ordinance, the contention that the ordinance is
unconstitutional for the reason that the pre-conditions to the exercise of
power conferred by Article 123 are not fulfilled, has no force. [298 D] There
can be no doubt that personal liberty is a precious right. So did the founding
fathers believe at any rate because, while their first object was to give unto
the people a Constitution whereby a Government was established.
their second object, equally important, was
to protect the people against the Government. That is why, while conferring
extensive powers on the Government like the power to declare an emergency, the
power to suspend the enforcement of fundamental rights and the power to issue
ordinances, they assured to the people a Bill of Rights by Part III of the
Constitution, protecting against executive and legislative despotism those
human rights which they regarded as fundamental. The imperative necessity to
protect those rights is a lesson taught by all history and all human
experience. And therefore, while arming the government with large powers to
prevent anarchy from within and conquest from without, they took care to ensure
that those powers were not abused to mutilate the liberties of the people.
[300 B-D] Section 1(2) of the Fortyfourth
Amendment Act is valid.
There is no internal contradiction between
the provisions of Article 368(2) and those of section 1(2) of the 44th
Amendment Act. Article 368(2) lays down a rule of general application as to the
date from which the Constitution would stand amended in accordance with the
Bill assented to by the President, section 1(2) of the Amendment Act specifies
the manner in which that Act or any of its provisions may be brought into
force. The distinction is between the Constitution standing amended in
accordance with the terms of the Bill assented to by the President and the date
of the coming into force of the Amendment thus introduced into the
Constitution. For determining the date with effect from which the Constitution
stands amended in accordance with the terms of the Bill, one has to turn to the
date on which the President gave, or was obliged to give, his assent to the
Amendment. For determining the date with effect from which the Constitution. as
amended, came or will come into force, one has to turn to the notification, if
any, issued by the Central Government under section 1(2) of the Amendment Act.
[310 D-F] The contention raised by the
petitioners, that the power to appoint a date for bringing into force a
constitutional amendment is a constituent power and therefore it cannot be
delegated to an outside agency is without force. It is true that the
constituent power, that is to say, the power to amend any provision of the
Constitution by way of an addition, variation or repeal must be exercised by
the Parliament itself and cannot be delegated to an outside agency. That is
clear from Article 368(1) which defines at once the scope of the Constituent
power of the Parliament and limits that power to the Parliament. The power to
issue a notification for bringing into force the provisions of a Constitutional
amendment is not a constituent power because, it does not carry with it the
power to amend the Constitution in any manner. It is, therefore, permissible to
the Parliament to vest in an outside agency the power to bring a Constitutional
amendment into force, [312 C-E] 275 Although the 44th Amendment Act received
the assent of the President on April 30, 1979 and more than two and a half
years have already gone by without the Central Government issuing a
notification for bringing section 3 of the Act into force, this Court cannot
intervene by issuing a mandamus to the Central Government obligating it to
bring the provisions of section 3 into force. The Parliament having left this
question to the unfettered judgment of the Central Government it is not for the
Court to compel the Government to do that which according to the mandate of
Parliament, lies in its discretion to do when it considers it opportune to do
it. The executive is responsible to the Parliament and if the Parliament
considers that the executive has betrayed its trust by not bringing any
provision of the Amendment into force, it can censure the executive. It would
be quite anomalous that the inaction of the executive should have the approval
of the Parliament and yet the court should show its disapproval of it by
against mandamus. [314 G-H] In leaving it to the judgment of the Central
Government to decide as to when the various provisions of the 44th Amendment
should be brought into force, the Parliament could not have intended that the
Central Government may exercise a kind of veto over its constituent will by not
ever bringing the Amendment or some of its provision into force. The Parliament
having seen the necessity of introducing into the Constitution a provision like
section 3 of the 44th Amendment, it is not open to the Central Government to
sit in judgment over the wisdom of the policy of that section.
If only the Parliament were to lay down an
objective standard to guide and control the discretion of the Central
Government in the matter of bringing the various provisions of the Act into
force, it would have been possible to compel the Central Government by an
appropriate writ to discharge the function assigned to it by the Parliament.
[316 B-D] Expressions like 'defence of India', 'security of India' security of
the State' and 'relations of India with foreign powers', mentioned in section 3
of the Act, are not of any great certainty or definiteness. But in the very
nature of things they are difficult to define. Therefore provisions of section 3
of the Act cannot be struck down on the ground of their vagueness and
certainty. However, since the concepts are not defined, undoubtedly because
they are not capable of a precise definitions, courts must strive to give to
those concepts a narrower construction than what the literal words suggest.
While construing laws of preventive detention like the National Security Act,
care must be taken to restrict their application to as few situations as
possible. Indeed, that can well be the unstated premise for upholding the
constitutionally of clauses like those in section 3, which are fraught with
grave consequences to personal liberty, if construed liberally. [324 E-H] What
is said in regard to the expressions 'defence of India', `security of India',
'security of the State' and 'relations of India with foreign powers' cannot
apply to the expression "acting in any manner prejudicial to the
maintenance of supplies and services essential to the community' which occurs
in section 3(2) of the Act. The particular clause in sub-section (2) of section
3 of the National Security Act is capable of wanton abuse in that, the
detaining authority can place under detention any person for possession of any
commodity on the basis that the authority is of the opinion that the
maintenance of supply of that commodity 276 is essential to the community. This
particular clause is not only vague and uncertain but, in the context of the
Explanation, capable of being extended cavalierly to supplies. the maintenance
of which is not essential to the community. To allow the personal liberty of
the people to be taken away by the application of that clause would be a
flagrant violation of the fairness and justness of procedure which is implicit
in the provisions of Article 21. The power given to detain persons under
section 3(2) on the ground that they are acting in any manner prejudicial to
the maintenance of supplies and Services essential to the community cannot
however be struck down because it is vitally necessary to ensure a steady flow
of supplies and services which are essential to the community, and if the State
has the power to detain persons on the grounds mentioned in section 3(1) and
the other grounds mentioned in section 3(2), it must also have the power to
pass order of detention on this particular ground. No person can be detained
with a view to preventing him from acting in any manner prejudicial to the
maintenance of supplies and services essential to the community unless, by a
law order or notification made or published fairly in advance, the supplies and
services, the maintenance of which is regarded as essential to the community
and in respect of which the order of detention is proposed to be passed, are
made known appropriately, to the public. [325 A-C; 326 BC, FH] R. C. Cooper v.
Union of India, [1970] 3 SCR 530, 559, Haradhan Saha, [1975] 1 SCR 778,
Khudiram, j 1975] 2 SCR 832, Sambhu Nath Sarkar, [1974] 1 SCR I and Maneka
Gandhi, [1978]2 SCR 621, explained.
Laws of preventive detention cannot, by the
back-door, introduce procedural measures of a punitive kind. Detention without
trial is an evil to be suffered, but to no greater extent and in no greater
measure than is minimally necessary in the interest of the country and the
community. It is neither fair nor just that a detenu should have to suffer
detention in "such place" as the Government may specify. The normal
rule has to be that the detenu will be kept in detention in a place which is
within the environs of his or her ordinary place of residence. [330 E-F] In
order that the procedure attendant upon detentions should conform to the
mandate of Article 21 in the matter of fairness, justness and reasonableness,
it is imperative that immediately after a person is taken in custody in
pursuance of an order of detention, the members of his household, preferably
the parent, the child or the spouse, must be informed in writing of the passing
of the order of detention and of the fact that the detenu has been taken in
custody.
Intimation must also be given as to the place
of detention, including the place where the detenu is transferred from time to
time. This Court has stated time and again that the person who is taken in
custody does not forfeit, by reason of his arrest, all and every one of his
fundamental rights.
It is, therefore, necessary to treat the
detenu consistently with human dignity and civilized norms of behaviour. [331
C- D] Since section 3 has not been brought into force by the Central Government
in the exercise of its powers under section 1(2) of the 44th Amendment Act,
that section is still not a part of the Constitution. The question as to
whether section 9 of the National Security Act is bad for the reason that it is
inconsistent with the provisions of section 3 of the 44th Amendment Act, has
therefore to be decided on the basis that section 3, though a part of the 44th
Amendment Act, is not 277 a part of the Constitution. If section 3 is not a
part of the Constitution, it is difficult to appreciate how. the validity of
section 9 of the National Security Act can be tested by applying the standard
laid down in that section.
It cannot possibly be that both the unamended
and the amended provisions of Article 22(4) of the Constitution are parts of
the Constitution at one and the same time. So long as section 3 of the 44th
Amendment Act has not been brought into force, Article 22(4) in its unamended
form will continue to be a part of the Constitution and so long as that
provision is a part of the Constitution, the amendment introduced by section 3
of the 44th Amendment Act cannot become a part of the Constitution Section 3 of
the 44th Amendment substitutes a new article 22(4) for the old article 22(4).
The validity of the constitution of Advisory Boards has therefore to be tested
in the light of the provisions contained in Article 22(4) as it stands now and
not according to the amended article 22(4). [335 D-H] On a combined reading of
clauses (I) and (3)(b) of Article 22, it is clear that the right to consult and
to be defended by a legal practioner of one's choice, which is conferred by
clause (1), is denied by clause (3)(b) to a person who is detained under any
law providing for preventive detention. Thus, according to the express
intendment of the Constitution itself, no person who is detained under any law,
which provides for preventive detention, can claim the right to consult a legal
practioner of his choice or to be defended by him. It is therefore difficult to
hold, by the application of abstract, general principles or on a priori
consideration that the detenu has the right of being represented by a legal
practioner in the proceedings before the Advisory Board. [339 D-E] Yet the fact
remains that the detenu has no right to appear through a legal practitioner in
the proceedings before the Advisory Board. The reason behind the provisions
contained in Article 22(3)(b) of the Constitution clearly is that a legal
practitioner should not be permitted to appear before the Advisory Board for
any party. The Constitution does not contemplate that the detaining authority
or the Government should have the facility of appearing before the Advisory
Board with the aid of a legal practioner but that the said facility should be
denied to the detenu. In any case, that is not what the Constitution says and
it would be wholly inappropriate to read any such meaning into the provisions
of Article 22. Permitting the detaining authority or the Government to appear
before the Advisory Board with the aid of a legal practitioner or a legal
adviser would be in breach of Article 14, if a similar facility is denied to
the detenu. Therefore if the detaining authority or the Government takes the
aid of a legal practitioner or a legal adviser before the Advisory Board, the
detenu must be allowed the facility of appearing before the Board through a
legal practitioner. [344 H; 345 A-C] The embargo on the appearance of legal
practitioners should not be extended so as to prevent the detenu from being
aided or assisted by a friend who, in truth and substance, is not a legal
practitioner. Every person whose interests are adversely affected as a result
of the proceedings which have a serious import, is entitled to be heard in
those proceedings and be assisted by a friend. A detenu, taken straight from
his cell to the Board's room, may lack the ease and composure to present his
point of view. He may be "tongue tied, nervous, confused or wanting in
intelligence" (see Pet v. Greyhound Racing Association Ltd.), and if
justice is to be done he must at least have the help of a friend who can assist
him to give coherence to his stray and wandering ideas. [345 G-H] 278 In the
proceedings before the Advisory Board, the detenu has no right to cross-examine
either the persons on the basis of whose statement the order of detention is
made or the detaining authority.[352D] Now Prakash Transport Co. Ltd. v. New
Suwarna Transport Co. Ltd., [1957] SCR 98, 106, Nagendra Nath Bora v. Commissioner
of Hills Division and Appeals, Assam, [1958] SCR 1240, 1261, State of Jammu
& Kashmir v. Bakshi Ghulam Mohammad, [1966] Suppl. SCR 401, 415, Union of
India v. T.R. Verma, [1958] SCR 499, 507 and Kherr. Chand v. Union of India
[1959] SCR 1080, 1096, held inapplicable There can be no objection for the
detenu to lead evidence in rebuttal of the allegation made against him before
the Advisory Board. Neither the Constitution nor the National Security Act
contains any provision denying such a right to the detenu. The detenue may
therefore offer oral and documentary evidence before the Advisory Board in
order to rebut the allegations which are made against him. [352 E- F] It is not
possible to accept the plea that the proceedings of the Advisory Board should
be thrown open to the public. The right to a public trial is not one of the
guaranteed rights under our Constitution. [354 C-D] Puranlal Lakhanpal v. Union
of India, [1958] SCR 460, 475 and Dattatreya Moreshwar Pangarkar v. State of
Bombay, [1952] SCR 612, 626, referred to.
Yet the Government must afford the detenus
all reasonable facilities for an existence consistent with human dignity. They
should be permitted to wear their own clothes, eat their own food, have
interviews with the members of their families at least once a week and, last
but not the least, have reading and writing material according to their
reasonable requirements. [355 B-C] Persons who are detained under the National
Security Act must be segregated from the convicts and kept in a separate part
of the place of detention. It is hardly fair that those who are suspected of
being engaged in prejudicial conduct should be lodged in the same ward or cell
where the convicts whose crimes are established are lodged. [355 D] Sunil Batra
v. Delhi Administration [1980] 3 S CR 557 and Sampat Prakash v. State of Jammu
& Kashmir [1969] 3 SCR 754, referred to.
[per Gupta and Tulzapurkar, JJ dissenting]
Section 1(2) of the Constitution (Fortyfourth Amendment) Act 1978 cannot be
construed to mean that Parliament has left it to the unfettered discretion or
judgment of the Central Government when to bring into force any provision of
the amendment Act. After the President's assent, the Central Government was
under an obligation to bring into operation the provisions of the Act within a
reasonable time; the power to appoint dates for bringing into force the
provisions of the Act was given to the Central Government obviously because it
was not considered feasible to give effect to all the provisions immediately.
But the 279 Central Government could not in
its discretion keep it in a state of suspended A animation for any length of
time it pleased. [358 A-B] From the Statement of objects and Reasons it was
clear that the Parliament wanted the provisions of the Amendment Act to be made
effective as early as possible. When more than two and half years have passed
since the Amendment Act received the assent of the President, it is impossible
to say that any difficulty should still persist preventing the Government from
giving effect to section 3 of the Amendment Act. A provision like section 1(2)
cannot be said to have empowered the executive to scotch an amendment of the
Constitution passed by Parliament and assented to by the President. That
Parliament is competent to take appropriate steps if it considered that the
executive had betrayed its trust does not make the default lawful or relieve
this Court of its duty. [359 B-C] [per Gupta J. dissenting.] Normally it is the
legislature that has the power to make laws. The nature of the legislative
power of the President has to be gathered from the provisions of Article 123
and not merely from the heading of the chapter, "Legislative Powers of the
President". When something is said to have the force and effect of an Act
of Parliament that is because it is not really an Act of Parliament.
Article 123(2) does not say that an ordinance
promulgated under this article shall be deemed to be an Act of Parliament to
make the two even fictionally identical. While an ordinance issued under
Article 123 has the same force and effect as an Act of Parliament, under
Article 357(1)(a) Parliament can confer on the President the power of the
legislature of a State to make laws. The difference in the nature of power
exercised by the President under Article 123 and under Article 357 is clear and
cannot be ignored. [360 B, 361 B-C] The word "establish" in Article
21 as interpreted by this Court "implies some degree of firmness,
permanence and general acceptance". An ordinance which ceases to operate
on the happening of one of the conditions mentioned in Article 123(2) can
hardly be said to have that "firmness" and "permanence"
that the word "establish" implies. lt is not the temporary duration
of an ordinance that is relevant;
what is relevant is its provisional and
tentative character which is apparent from Article 123(2). [362 G] F A.K.
Gopalan v. State [1950] SCR, 88, relied on.
A significant difference between the law made
by the President under Article 357 and an ordinance promulgated by him under
Article 123 is that while a law made under Article 357 continues to be in force
until altered, repealed or amended by a competent legislature or authority, an ordinance
promulgated under Article 123 ceases to operate at the expiration of six weeks
of reassembly of the Parliament at the latest. [363 B] The argument that since
Article 367(2) provides that any reference in the Constitution to Acts of
Parliament should be construed as including a reference to an ordnance made by
the President, an ordinance should be equated with an Act of Parliament is
without substance because an ordinance has the force and effect only over an
area where it can validly operate. An invalid ordinance can 280 have no force
or effect and if it is not 'law' in the sense the word has been used Article
21, Article 367(2) cannot make it so. [363 E] [on all other points His Lordship
agreed with the conclusions of Hon'ble the Chief Justice].
[Hon'ble Tulzapurkar J. agreed with the
majority on all other points]
ORIGINAL JURISDICTION: Writ Petitions Nos
5724, 5874 & 5433 of 1980.
(Under Article 32 of the Constitution of
India) R K Garg, V.J. Francis and Sunil R. Jain for the Petitioners in WP. 5724
& 5874 and for interveners 3-12.
N.M. Ghatate, S.V. Deshpande and Shiva Pujan
Singh for the petitioner in WP. 5433.
L.N. Sinha, Attorney General, K Parasaran,
Solicitor General, M.K Banerjee, Additional Solicitor General, KS.
Gurumurthi Miss A. Subhashini and Girish
Chandra for Respondent No. 1 in all the WPs.
Subbash C. Maheshwari, Additional, Advocate
General, O.P. Rana, Hansraj Bhardwaj and R.K. Bhatt for Respondents 2 & 3
in WP. 5874180.
L.N. Sinha, Attorney General, Ram Balak
Mahto, Additional Advocate General, K.G. Bhagat and D. Goburdhan for
Respondents 2 & 3 in WP. 5724/80.
For Interveners:
V.M. Tarkunde, P.H. Parekh, Miss Manik
Tarkunde and R.N, Karanjawala for Intervener No 1.
Bhim Singh intervener No. 2 (in person) Dr.
L.M. Singhvi, Anand Prakash, S.N. Kaekar, G.
Mukhoty, B.B. Sinha, A.K Srivastava, Randhir
Jain, M.L.
Lahoty, Kapil Sibal, L K Pandey and S.S.
Khanduja for Intervener No. 13.
Mrs. Subhadra Joshi for Intervener No 14.
Ram Jethmalani and Miss Rani Jethmalani for
Intervener No, 15.
281 L.N. Sinha, Attorney General and Altaf
Ahmed for Inter- vener No. 16.
The following Judgments were delivered
CHANDRACHUD, C.J. This is a group of Writ Petitions under Article 32 of the
Constitution challenging the validity of the National Security ordinance, 2 of
1980, and certain provisions of the National Security Act, 65 of 1980, which
replaced the ordinance. Writ Petition No. 5724 of 1980 is by Shri A. K. Roy, a
Marxist member of the Parliament, who was detained under the ordinance by an
order passed by the District Magistrate, Dhanbad, on the ground that he was
indulging in activities which were prejudicial to public order. Ten members of
the Parliament, one an Independent and the others belonging to various
political parties in opposition applied for permission to intervene in the Writ
Petition on the ground that since the ordinance-making power of the President
is destructive of the system of Parliamentary democracy, it is necessary to
define the scope of that power. We allowed the intervention. So did we allow
the applications for intervention by the People's Union of Civil Liberties, the
Supreme Court Bar Association and the State of Jammu and Kashmir which is interested
in the upholding of the Jammu & Kashmir Public Safety Act, 1978.
Shri R.K. Garg argued the Writ Petition,
respondents being represented by the Attorney General and the Solicitor
General.
After the ordinance became an Act, more writ
petitions were filed to challenge the validity of the Act as well.
Those petitions were argued on behalf of the
petitioners by Dr N. M. Ghatate, Shri Ram Jethmalani, Shri Shiv Pujan Singh and
Shri Kapil Sibal. Shri V.M. Tarkunde appeared in person for the People's Union of
Civil Liberties and Dr. L.M. Singhvi for the Supreme Court Bar Association.
Broadly, Shri Garg concentrated on the scope
and limitations of the ordinance-making power, Shri Ram Jethmalani on the
vagueness and unreasonableness of the provisions of the Act and the punitive
conditions of detention and Dr. Ghatate on the effect of the 44th Constitution
Amendment Act and the validity of its section 1(2). Shri Tarkunde dwelt mainly
on the questions relating to the fulfillment of pre-conditions of the exercise
of the ordinance making power, the effect of non-implementation by the Central
Government of the provisions of the 44th Amendment regarding the composition of
the Advisory Boards and 282 the broad, undefined powers of detention conferred
by the Act. Dr. L.M. Singhvi laid stress on the need for the grant of minimal
facilities to detenus, the nature of the right of detenus to make an effective
representation against the order of detention and the evils of the exercise of
the power to issue ordinances.
The National Security ordinance, 1980, was
passed in order "to provide for preventive detention in certain cases end
for matters connected therewith." It was made applicable to the whole of
India except the State of Jammu & Kashmir and it came into force on September
23, 1980. The Parliament was not in session when it was promulgated and its
preamble recites that it was being issued because the "President is
satisfied that circumstances exist which render it necessary for him to take
immediate action".
Shri R.K. Garg, appearing for the
petitioners, challenges the power of the President to issue an ordinance
depriving any person of his life or liberty. He contends:
(a) The power to issue an ordinance is an
executive power, not a legislative power;
(b) Ordinance is not 'law' because it is not
made by an agency created by the Constitution for making laws and no law can be
made without the intervention of the legislature;
(c) There is a marked shift towards distrust
of power in order to preserve the people's rights and therefore, liberty,
democracy and the independence of Judiciary are amongst the principal matters
which are outside the ordinance-making power;
(d) By Article 21 of the Constitution, a
person can be deprived of his life or liberty according only to the procedure
established by law. Ordinance is not 'law' within the meaning of Article 21 and
therefore no person can be deprived of his life or liberty by an ordinance;
(e) The underlying object of Article 21 is to
wholly deny to the executive the power to deprive a person of his life or
liberty. Ordinance-making power, which is 283 executive power, cannot therefore
be used for that purpose. The executive cannot resort to the power to make
ordinances so as or in order to remove the restraints imposed upon it by
Article 21;
(f) The procedure prescribed under an
ordinance is not procedure established by law because, ordinances have a
limited duration in point of time. The procedure prescribed by an ordinance is
neither firm nor certain by reason of which the procedure cannot be said to be
'established'. From this it follows that no person can be deprived of his life
or liberty by procedure prescribed by an ordinance;
(g) The power to issue an ordinance is
ordaining power of the executive which cannot be used to liberate it from the
discipline of laws made by a democratic legislature. Therefore, the power to
issue ordinances can be used, if at all, on a virgin land only. No ordinance
can operate on a subject which is covered by a law made by the legislature;
(h) Equating an ordinance made by the
executive with a law made by the legislature will violate the principle of
separation of powers between the executive and the legislature, which is a part
of the basic structure of the Constitution; and (i) Articles 14, 19 and 21 of
the Constitution will be reduced to a dead letter if the executive is permitted
to take away the life and liberty of the people by an ordinance, lacking the
support of a law made by the legislature. The ordinance-making power must,
therefore, be construed harmoniously with those and other provisions of the
Constitution.
This many-pronged attack on the
ordinance-making power has one central theme: 'ordinance is not law.' We must
therefore consider the basic question as to whether the power to make an
ordinance is a legislative power as contended by the learned Attorney General
or whether it is an executive power masquerading as a legislative power, as
contended on behalf of the petitioners.
284 In support of these submissions Shri Garg
relies on many texts and decisions which we need not discuss at length since,
primarily, we have to consider the scheme of our Constitution and to interpret
its provisions in order to determine the nature and scope of the
ordinance-making power. Counsel drew our attention, with great emphasis, to the
statements in Montesquieu's Esprit des lois (1748) and Blackstone's
Commentaries on the laws of England' (1756) which are reproduced in 'Modern
Political Constitution's by C.F. Strong (8th edition) at page 291. According to
Montesquieu, "when the legislative and executive powers are united in the
same person or body of persons there can be no liberty, because of the danger
that the same monarch or senate should enact tyrannical laws and execute them
in a tyrannical manner." Blackstone expresses the same thought by saying
that "wherever the right of making and enforcing the law is vested in the
same man or one and the same body of men, there can be no public liberty".
Reliance was also placed on views and sentiments expressed to the same effect
in Walter Bagehot's 'The English Constitution (1867), Wade's Administrative
Law' (3rd edition) pages 323-324, 'Constitutional Laws of the British Empire'
by Jennings and Young, 'Law and orders' by C.K. Allen (1945) and Harold 'Laski's
Liberty in the Modern State' (1961). According to Laski (pages 42-43).
".. if in any state there is a body of
men who possess unlimited political power, those over whom they rule can never
be free. For the one assured result of historical investigation is the lesson
that uncontrolled power is invariably poisonous to those who possess it. They
are always tempted to impose their canon of good upon others, and, in the end,
they assume that the good of the community depends upon the continuance of their
power. Liberty always demands a limitation of political authority, and it is
never attained unless the rulers of a state can, where necessary, be called to
account. That is why Pericles insisted that the secret of liberty is
courage." Finally, counsel drew on Jawaharlal Nehru's Presidential Address
to the Lucknow Congress (April 19, 1936) in which he referred to the rule by
ordinances as "the humiliation of ordinances" (Selected Works of
Jawaharlal Nehru, volume 7, page 183).
We are not, as we cannot be, unmindful of the
danger to people's liberties which comes in any community from what is 285
called the try any of the majority. Uncontrolled power in the executive is a
great enemy of freedom and therefore, eternal vigilance is necessary in the
realm of liberty. But we cannot transplant, in the Indian context and
conditions, principles which took birth in other soils, without a careful
examination of their relevance to the interpretation of our Constitution. No
two Constitutions are alike, for it is not mere words that make a Constitution.
It is the history of a people which lends colour and meaning to its
Constitution. We must therefore turn inevitably to the historical origin of the
ordinance-making power conferred by our Constitution and consider the scope of
that power in the light of the restraints by which that power is hedged.
Neither in England nor in the United States
of America does the executive enjoy anything like the power to issue
ordinances. In India, that power has a historical origin and the executive, at
all times, has resorted to it freely as and when it considered it necessary to
do so. One of the larger States in India has manifested its addiction to that
power by making an overgenerous use of it-so generous indeed, that ordinances
which lapsed by efflux of time were renewed successively by a chain of kindred
creatures, one after another. And, the ordinances embrace everything under the
sun, from Prince to pauper and crimes to contracts. The Union Government too,
so we are informed, passed about 200 ordinances between 1960 and 1980, out of
which 19 were passed in 1980.
Our Constituent Assembly was composed of
famous men who had a variegated experience of life. They were not elected by
the people to frame the Constitution but that was their strength, not their
weakness. They were neither bound by a popular mandate nor bridled by a party
whip. They brought to bear on their task their vast experience of life-in
fields social, economic and political. Their deliberation, which run into
twelve volumes, are a testimony to the time and attention which they gave with
care and concern to evolving a generally acceptable instrument for the
regulation of the fundamental affairs of the country and the life and liberty
of its people.
The Constituent Assembly had before it the
Government of India Act, 1935 and many of its members had experienced the
traumas and travails resulting from the free exercise of the ordinance-making
power conferred by that Act. They were also aware that such a power was not
claimed by the Governments of two lading democracies of the world, the English
and the American, 286 And yet, they took the Government of India Act of 1935 as
their model, Section 42 of that Act ran thus:
Power of "42(1) If at any time when the
Federal Legis- Governer lature is not in section the Governor- General to
General is satisfied that circumstances promulgate exist which render it
necessary for him ordinances to take immediate action, he may during recess
promulgate such ordinances as the of Legisla- circumstances appear to him to
require: ture.
Provided that the Governor-General- (a) ...
...
(b) ... ...
(2) An ordinance promulgated under this
section shall have the same force and effect as an Act of the Federal
Legislature assented to by the Governor- General, but every such ordinance- (a)
shall be laid before the Federal Legislature and shall cease to operate at the
expiration of six weeks from the reassembly of the Legislature, or, if before
the expiration of that period resolutions disapproving it are passed by both
Chambers, upon the passing of the second of those resolutions;
(b) shall be subject to the provisions of
this Act relating to the power of His Majesty to disallow Acts as is it were an
Act of the Federal Legislature assented to by the Governor General; and (c) may
be withdrawn at any time by the Governor-General.
287 (3) If and so far as an ordinance under
this section makes any provision which the Federal Legislature would not under
this Act be competent to enact, it shall be void".
Section 43 conferred upon the
Governor-General the power to issue ordinances for the purpose of enabling him
satisfactorily to discharge his functions in so far as he was by or under the
Act required to act in his discretion or to exercise his individual judgment.
Article 123, which confers the power to
promulgate ordinances, occurs in Chapter III of Part V of the Constitution,
called "Legislative Power of the President".
It reads thus:
Power of "123 (1) If at any time, except
when both Houses President of Parliament are in session, the to promul- President
is satisfied that gate Ordi-circumstances exist which render it nances
necessary for him to take immediate during action, he may promulgate such
recess of ordinances as the circumstances appear parliament. recess of to him
to require.
(2) An ordnance promulgated under this
Article shall have the same force and effect as an Act of Parliament, but every
such ordinance- (a) shall be laid before both Houses of Parliament and shall
cease to operate at the expiration of six weeks from the reassembly of
Parliament, or, if before the expiration of that period resolutions
disapproving it are passed by both Houses, upon the passing of the second of
those resolutions; and (b) may be withdrawn at any time by the President.
288 Explanation-Where the Houses of
Parliament are summoned to reassemble on different dates, the period of six
weeks shall be reckoned from the later of those dates for the purposes of this
clause.
(3) If and so far as an ordinance under this
article makes any provision which Parliament would not under this Constitution
be competent to enact, it shall be void." Article 213, which occurs in
Part VI, Chapter IV, called "Legislative Power of the Governor'' confers
similar power on the Governors of States to issue ordinances.
As we have said earlier while setting out the
petitioner s case, the thrust of his argument is that the power to issue an
ordinance is 7 Dan executive power, not a legislative power, and consequently,
is not law. In view of the clear and specific provisions of the Constitution
bearing upon this question, it is quite impossible to accept this argument. The
heading of Chapter III of Part V is 'Legislative Powers of the President".
Clause (2) of Article 123 provides that an ordinance promulgated under Article
123 "shall have the same force and effect as an Act of Parliament".
The only obligation on the Government is to lay the ordinance before both
Houses of Parliament and the only distinction which the Constitution makes
between a law made by the Parliament and an ordinance issued by the President
is that whereas the life of a law made by the Parliament would depend upon the
terms of that law, an ordinance, by reason of sub clause (a) of clause (2),
ceases to operate at the expiration of six weeks from the reassembly of
Parliament, unless resolutions disapproving it are passed by both Houses before
the expiration of that period. Article 13 (2) provides that the State shall not
make any law which takes away or abridges the rights conferred by Part III and
any law made in contravention of this provision shall, to the extent of the
contravention, be void. Clause (3) of Article 13 provides that in Article 13,
"law" includes, inter alia, an ordinance, unless the context otherwise
requires. In view of the fact that the context does not otherwise so require,
it must follow from the combined operation of clauses (2) 'and (3) of Article
13 that an ordinance 289 issued by the President under Article 123, which is
equated by clause (2) of that article with an Act of Parliament, is subject to
the same constraints and limitations as the latter. Therefore, whether the
legislation is Parliamentary or Presidential, that is to say, whether it is a
law made by the Parliament or an ordinance issued by the President, the
limitation on the power is that the fundamental rights conferred by part III
cannot be taken away or abridged in the exercise of that power. An ordinance,
like a law made by the Parliament, is void to the extent of contravention of
that limitation' The exact equation, for all practical purposes, between a law
made by the Parliament and an ordinance issued by the President is emphasised
by yet another provision of the Constitution. Article 367 which supplies a clue
to the "Interpretation" of the Constitution provides by clause (2)
that- "Any reference in this Constitution to Acts or laws of, or made by,
Parliament, or to Acts or laws of, or made by, the Legislature of a State,
shall be construed as including a reference to an ordinance made by the
President or, to an ordinance made by a Governor, as the case may be." It
is clear from this provision, if indeed there was any doubt about the true
position, that the Constitution makes no distinction in principle between a law
made by the legislature and an ordinance issued by the President. Both,
equally, are products of the exercise of legislative power and, therefore, both
are equally subject to the limitations which the Constitution has placed upon
that power.
It may sound strange at first blush that the
executive should possess legislative powers, but a careful look at our
Constitution will show that the scheme adopted by it envisages the exercise of
legislative powers by the executive in stated circumstances. An ordinance can
be issued by the President provided that both Houses of the Parliament are not
in session and the President is satisfied that circumstances exist which render
It necessary for him to take immediate action An ordinance which satisfies
these pre-conditions has the same force and effect as an Act of Parliament.
Article 356 empowers the President to issue a proclamation in case of failure
of constitutional machinery in the States. By Article 357 (I) (a), if by a
proclamation issued under Article 356 (1) it has been declared that the powers
of the Legislature of the State shall be 290 exercisable by or under the
authority of Parliament, it is competent for the Parliament to confer on the
President the power of the Legislature of the State to make laws. Indeed, by
the aforesaid clause (a), the Parliament can not only confer on the President
the power of the State Legislature to make laws but it can even authorise the
President to delegate the power so conferred to any authority to be specified
by him in that behalf. The marginal note to Article 357 speaks of the
"Exercise of Legislative powers" under the proclamation issued under
Article 356. There cannot be the slightest doubt that not only the power
exercised by the President under Article 357(1 )(a) but even the power exercised
by his delegate under that clause is legislative in character. It is therefore
not true to say that, under our Constitution, the exercise of legislative power
by the legislature properly so called is the only source of law. Ordinances
issued by the President and the Governors and the laws made by the President or
his delegate under Article 357 (1) (a) partake fully of legislative character
and are made in the exercise of legislative power, within the contemplation of
the Constitution.
It is thus clear that the Constituent
Assembly was of the view that the President's power to legislate by issuing an
ordinance is as necessary for the peace and good government of the country as
the Parliament's power to legislate by passing laws. The mechanics of the
President's legislative power was devised evidently in order to take care of
urgent situations which cannot brook delay. The Parliamentary process of
legislation is comparatively tardy and can conceivably be time-consuming. It is
true that it is not easy to accept with equanimity the preposition that the
executive can indulge in legislative activity but the Constitution is what it
says and not what one would like it to be. The Constituent Assembly indubitably
thought, despite the strong and adverse impact which the Governor-General's
ordinance-making power had produced on the Indian Community in the
pre-indepence era, that it was necessary to equip the president with
legislative powers in urgent situations.
After all, the Constitution makers had to
take into account life's realities. As observed by Shri Seervai in
'Constitutional Law of India' (2nd Ed., p. 16), "Grave public
inconvenience would be caused if on an Act, like the Bombay Sales Tax Act,
being declared void no machinery, existed whereby a valid law could be promptly
promulgated to take the place of the law declared void". Speaking for 291
the majority in R.C. Cooper v. Union of India(l), Shah J.
said: "The President is under the
Constitution not the repostory of the legislative power of the Union, but with a
view to meet extraordinary situations demanding immediate enactment of laws,
provision is made in the Constitution investing, the President with power to
legislate by promulgating ordinances." The Constituent Assembly therefore
conferred upon the executive the power to legislate, not of course intending
that the said power should be used recklessly or by imagining a state of
affairs to exist when, in fact, it did not exist; nor, indeed, intending that
it should be used mala fide in order to prevent the people's elected
representatives from passing or rejecting a Bill after a free and open
discussion, which is of the essence of democratic process. Having conferred
upon the executive the power to legislate by ordinances, if the circumstances
were such as to make the exercise of that power necessary, the Constituent
Assembly subjected that power to the self-same restraints to which a law passed
by the legislature is subject. That is the compromise which they made between
the powers of Government and the liberties of the people.
Therefore, in face of the provisions to which
we have already referred, it seems to us impossible to accept Shri Garg's
contention that a ordinance made by the President is an executive and not a
legislative act. An ordinance issued by the President or the Governor is as
much law as an Act passed by the Parliament and is, fortunately and
unquestionably, subject to the same inhibitions. In those inhibitions, lies the
safety of the people. The debates of the Constituent Assembly (Vol. 8, Part V,
Chapter III, pp 201 to 217) would show that the power to issue ordinances was
regarded as a necessary evil. That power was to be used to meet extra-ordinary
situations and not perverted to serve political ends. The Constituent Assembly
held forth, as it were, an assurance to the people that an extraordinary power
shall not be used in order to perpetuate a fraud on the Constitution which is
conceived with so much faith and vision. That assurance must in all events be
made good and the balance struck by the founding fathers between the powers of
the Government and the liberties of the people not disturbed or destroyed.
The next contention of Shri Garg is that even
assuming that the power to issue ordinances is legislative and not executive in
character, ordinance is not 'law' within the meaning of Article 21 of 292 the
Constitution. That article provides that "No person shall be deprived of
his life or personal liberty except according to procedure established by
law". It is contended by the learned counsel that the decision of this
Court in A. K. Gopalan(1) establishes that the supremacy of the legislature is
enshrined in Article 21 as a fundamental right in order to afford protection to
the life and liberty of the people R against all executive powers and,
therefore, the supremacy of the legislature cannot be replaced by making the
executive supreme by allowing it to promulgate ordinances which have the effect
of depriving the people of their life and liberty. The extent of protection
afforded to the right conferred by Article 21 consists, according to counsel,
in the obligation imposed upon a democratic legislature to devise a fair, just
and reasonable procedure for attenuating the liberties of the people. Since the
very object of Article 21 is to impose restrains on the power of the executive
in the matter of deprivation of the life and liberty of the people, it is
absurd, so the argument goes, to concede to the executive the power to deprive
the people of the right conferred by Article 21 by issuing an ordinance. The
argument, in other words is that the executive cannot under any conditions or
circumstances be permitted to liberate itself from the restraints of Article
21. Shri Garg says that if ordinances are not
excluded from the precious area of life and liberty covered by Article 21, it
is the executive which will acquire the right to trample upon the freedoms of
the people rather than the people acquiring the fundamental right to life and
liberty. It is also urged that by elevating ordinances into the status of laws,
the principle of separation of powers, which is a part of the basic structure
of the Constitution, shall have been violated. An additional limb of the
argument is that an ordinance can never be said to 'establish' a procedure,
because it has a limited duration and it transient in character.
In one sense, these contentions of Shri Garg
stand answered by what we have already said about the true nature and character
of the ordinance-making power. The contention that the word 'law' in Article 21
must be construed to mean a law made by the legislature only and cannot include
an ordinance, contradicts directly the express provisions of Articles 123 (2)
and 367(2) of the Constitution. Besides, if an ordinance is not law within the
meaning of Article 21, it will stand released from the wholesome and salutary
restraint imposed upon the legislative power by Article 13(2) of the
Constitution.
293 The contention that the procedure
prescribed by an ordinance cannot be equated with the procedure established by
law is equally unsound. The word 'established' is used in Article 21 in order
to denote and ensure that the procedure prescribed by the law must be defined
with certainty in order that those who are deprived of their fundamental right
to life or liberty must know the precise extent of such deprivation. The
decision of this Court in State of Orissa v. Bhupendra Kumar Bose(1), and
Mohammadbhai Khudabux Chhipa & Anr. v. The State of Gujarat & Anr(2),
illustrate that enduring rights and obligations can be created by ordinances.
The fact that any particular law has a temporary duration is immaterial for the
purposes of Article 21 so long as the procedure prescribed by it is definite
and reasonably ascertainable. In fact, the Preventive Detention laws were in
their inception of a temporary character since they had a limited duration.
They were only extended from time to time.
The argument of the petitioner that the
fundamental right conferred by Article 21 cannot by taken away by an ordinance
really seeks to add a proviso to Article 123(1) to the following effect:
"Provided that such ordinances shall not deprive any person of his right
to life or personal liberty conferred by Article 21 of the Constitution.";
An amendment substantially to that effect was moved in the Constituent Assembly
by Shri B. Pocker Sahib, but was rejected by the Constituent Assembly, (see
Constituent Assembly Debates, Vol. 8, p. 203). Speaking on the amendment moved
by Shri Pocker Dr. Ambedkar said: "Clause (3) of Article 102 lays down
that any law made by the President under the provisions of Article 102 shall be
subject to the same limitations as a law made by the legislature by the
ordinary process. Now, any law made in the ordinary process by the legislature
is made subject to the provisions contained in the Fundamental Rights articles
of this Draft Constitution. That being so, any law made under the provisions of
Article 102 would also be automatically subject to the provisions relating to
fundamental rights of citizens, and any such law therefore will not be able to
over-ride those provisions and there is no need for any provision as was
suggested by my friend, Mr. Pocker in his amendment No. 1796" (page 214).
It may be mentioned that Draft Article 102 corresponds to the present Article
123 of the Constitution.
294 Another answer to Shri Garg's contention
is that what Article 21 emphasise is that the deprivation of the right to life
or liberty must be brought about by a State-made law and not by the rules of
natural law (See A.K Gopalan (supra) at pages 111, 169, 199, 229, 236 and 308,
309). Reference may usefully be made in this behalf to a few representative
decisions which illustrate that Article 21 takes in laws other than those
enacted by the legislature. In Re: Sant Ram(1), the Rules made by the Supreme
Court; in State of Nagaland v. Ratan Singh,(2) the Rules made for the
governance of Nagaland Hills District; in Govind v. State of Madhya Pradesh
& Anr.(3) the Regulations made under the Police Act; in Ratilal Bhanji Mithani
v. Asitt. Collector of Customs, Bombay & Anr.,(4) the Rules made by the
High Court under Article 225 of the Constitution; and in Pandit M.S.M. Sharma
v. Shri SriKrishna Sinha & Anr.(5), the Rules made by a House of
Legislature under Article 208, were all regarded as lying down procedure
established by 'law' for the purposes of Article 21.
We must therefore reject the contention that
ordinance is not 'law' within the meaning of Article 21 of the Constitution.
There is no substance in the argument that
the ordinance-making power, if extended to cover matters mentioned in Article
21, will destroy the basic structure of the separation of powers as envisaged
by the Constitution.
In the first place, Article 123(1) is a part
of the Constitution as originally enacted; and secondly, our Constitution does
not follow the American pattern of a strict separation of powers.
We may here take up for consideration some of
the submissions made by Shri Tarkunde on the validity of the National Security
ordinance. He contends that the power to issue an ordinance under Article 123
is subject to the pre- conditions that circumstances must exist which render it
necessary for the president to take immediate action. The power to issue an
ordinance is conferred upon the President in order to enable him to act in
unusual and exceptional circumstances. Therefore, according to Shri Tarkunde,
unusual and exceptional circumstances must be show to exist, they must be
relevant on the question of the necessity to issue an ordinance and 295 they
must be such as to satisfy a reasonable person that, by A reason thereof it was
necessary to take immediate action and issue all ordinance. The legislative
power to issue an ordinance being conditional, the question as regards the
existence of circumstances which compelled the issuance of ordinance is
justiciable and it is open to this Court, says Shri Tarkunde, to determine
whether the power was exercised on the basis of relevant circumstances which
establish the necessity to take immediate action or whether it was exercised
for a collateral purpose. In support of this contention, Shri Tarkunde relies
on the circumstance that the amendment introduced in Article 123 by the 38th
Constitution Amendment Act, 1975, was deleted by the 44th Constitution Amendment
Act, 1978. Section 2 of the 38th Amendment Act introduced clause (4) in Article
123 to the following effect:
"Notwithstanding anything in this
Constitution, the satisfaction of the President mentioned in clause (1) shall
be final and conclusive and shall not be questioned in any Court on any
ground." This amendment was expressly deleted by section 16 of the 44th
Amendment Act. Shri Tarkunde says that the deletion of the particular clause is
a positive indication that the Parliament did not consider it safe or proper to
entrust untrammeled powers to the executive to issue ordinances. It therefore
decided that the President's satisfaction should not be "final and
conclusive" and that it should be open to judicial scrutiny. Shri Tarkunde
added that the exercise of a conditional power is always subject to the proof
of conditions and no distinction can be made in this regard between conditions
imposed by a statute and conditions imposed by a constitutional provision.
Relying on section 106 of the Evidence Act, Shri Tarkunde says that
circumstances which necessitated the passing of the ordinance being especially
within the knowledge of the executive, the burden lies upon it to prove the
existence of those circumstances.
It is strongly pressed upon us that we should
not avoid the decision of these points on the plea that they involve political
questions. Shri Tarkunde distinguishes the decision in the Rajasthan Assembly
Dissolution Case(2) on this aspect by saying that Article 356 which was under
consideration in that case uses language which 296 is much wider than that of
Article 123. He relies on Seervai's observation in the Constitutional Law of
India' (2nd Edition, Volume III pages 1795 and 1797) to the effect that
"there is no place in our Constitution for the doctrine of The political
question'', since that doctrine is based on, and is a consequence of, a rigid
separation of powers in the U.S Constitution and our Constitution is not based
on a rigid separation of powers. Reliance is placed by Shri Tarkunde on the
decision in the Privy Purse case(1) in which Shah, J. Observed that
"Constitutional mechanism in a democratic polity does not contemplate
existence of any function which may qua the citizens be designated as political
and orders made in exercise whereof are not liable to be tested for their
validity before the lawfully constituted courts". In the same case Hegde
J., said that "There is nothing like a political power under our
Constitution in the matter of relationship between the executive and the citizens'
We see the force of the contention that the question whether the pre-conditions
of the exercise of the power conferred by Article 123 are satisfied cannot be
regarded as a purely political question. The doctrine of the political question
was evolved in the United States of America on the basis of its Constitution
which has adopted the system of a rigid separation of powers, unlike ours. In
fact, that is one of the 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 298 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) 299 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 judiciary 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 312 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 313 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 314 "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.
316 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.
320 (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 323 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.
324 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 then 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 339 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.
341 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 342 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).
344 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 understanding 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.
346 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.
353 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, 354 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 355 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 someone is a wrong to everyone"
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
357 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 358 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 359 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 360 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 anybody 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) Whereby 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 362 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.
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