Case Brief: AK Roy v. Union of India

 

CASE NAME	AK ROY v. Union of India
CITATION	(1982) 2 SCR 272
COURT	SUPREME COURT OF INDIA
BENCH	Chandrachud, Y.V. (Cj), Bhagwati, P.N., Gupta, A.C., Tulzapurkar, V.D., Desai, D.A.
DATE OF DECISION	28 December 1981

FACTS

This case concerns a petition under Article 32 of the Constitution that contested the National Security Act of 1980’s legality. It concerns the arrest of A.K. Roy, a parliamentarian at the time. He was detained in accordance with the National. On accusations of taking part in activities harmful to public order and national security, the Security Ordinance of 1980 was later repealed and replaced by the National Security Act of 1980.

The Dhanbad District Magistrate issued an order for the detention of Marxist Member of Parliament Shri A.K. Roy in 1980 under the National Security Act, citing his involvement in activities that constituted a threat to public order.

 Following these incidents, numerous opposition members of parliament petitioned the court, claiming that the president’s ordinance-making authority violated India’s parliamentary democracy. They ask to define the president’s authority to issue ordinances and contest the legitimacy of that authority. Alongside this, a number of petitions challenging the legality of the National Security Act of 1980 and the National Security ordinance were filed, criticizing its extreme draconianness and arbitrariness.

The court granted each of these petitions. Additionally, they grant applications for intervention from the State of Jammu and Kashmir, the People’s Union of Civil Liberties, and the Supreme Court Bar Association, all of which have an interest in maintaining the integrity of the 1978 Jammu & Kashmir Public Safety Act. The petitioners were represented by Dr. Ghatate, Shri Ram Jethmalani, and Shri R.K. Garg. Respected Shiv Singh Shri Kapil Sibal. Dr. L.M. Singhvi and Shri V.M. Tarkunde. The respondent (Government) was represented by India’s Attorney General and Solicitor General.

ISSUES

The extent, bounds, and enforceability of the authority to enact ordinances;

 The validity of preventive detention given the severe loss of personal freedom that it invariably involves;

How the non-application of the 44th Amendment affected the constitutions of the Advisory Boards.

The vagueness of the National Security Act’s provisions allowing the detention of people for the purposes listed in section 3 of the Act.

The diminishing of protections in cases where the detainee is denied the right to counsel and cross-examination.

ARGUMENTS

“When the legislative and executive powers are united in the same body, there can be no liberty, because of the danger that the same monarch will enact and execute tyrannical laws,” Montesquieu said, as quoted by the petitioner. He also cited Blackstone, who stated that “public liberty cannot exist wherever the power to make and enforce laws is vested in the same entity.”

 Next, Shri Garg discussed the pre-independence ordinance law. He also discussed the current state of the ordinance making authority in the United States and the United Kingdom and contrasted it with Indian law.

The petitioner argues that the executive branch’s unchecked power can be detrimental to both democracy and citizens’ right to life and liberty. The executive branch in America and England lacks the authority to enact ordinances. This authority was granted to the executive branch in India during the colonial era, and it can now be used whenever needed. Prior to independence, power was freely exercised, which caused great suffering for many. The Government of India Act, 1935 had caused trauma and suffering to many members of the constituent assembly by the time it was presented to them. The United States and the United Kingdom, two strong nations, do not guarantee such power.

However, they draw inspiration from The Government of India Act, 1935, which gave the Governor General the authority to enact ordinances, but only under specific circumstances and during recesses of the legislature.

The President may issue an ordinance for national security when both houses are not in session and if circumstances warrant it, according to Article 123 of Chapter III of Part V of the Constitution, which adopted the Government of India Act, 1935. The ordinance will expire if, within six weeks of the start of the parliamentary session, it is not passed into an act.

According to the petitioner, “No person shall be deprived of his life or personal liberty except according to procedure established by law” is stated in Article 21 of the Constitution. “Supremacy of the legislature is a fundamental right under Article 21 and it cannot be replaced by the executive supremacy to promulgate ordinances which deprive people of their life and liberty,” the court ruled in the A.K. Gopalan v. State of Madras 2 case. If the ordinance is referred to as a legislative act, it will violate the separation of powers doctrine and cannot be said to “establish” the procedure because it is only in effect for a limited amount of time.

On behalf of the petitioner, Shri Tarkunde argued that an emergency must exist for an ordinance to be issued, compelling the president to act immediately and requiring the ordinance’s passage. He focuses on the removed paragraph of Article 123(4), which guarantees that the president’s subjective satisfaction should be just and conclusive, preventing Parliament from feeling the need to give the Executive unrestricted authority to issue ordinances. The president has the burden of proving that an emergency has occurred. “An ordinance should be made only on virgin land, i.e., an ordinance should be made only on those aspects where a law has never been made,” argued Shri Garg on behalf of the petitioner. He further contended that Articles 14, 19, and 21 of the Constitution will become meaningless if the executive is permitted to take an individual’s life or liberty by detaining them.

JUDGEMENT

The president’s ordinance and a law passed by the parliament have equal legal force, according to Article 123 clause (2). The sole distinction is that the duration of a law drafted by the parliament is determined by its terms, and an ordinance will expire six weeks after parliament reconvenes unless a resolution disapproving it is passed by both houses.

The state is not allowed to enact laws that restrict the rights outlined in Part III of the constitution, according to Article 13 clause (2). Furthermore, Article 13 states that ordinances are included in the law.

 Article 367 deals with the “Interpretation” of the Constitution. It states in clause (2) that the Constitution does not apply to laws made by the President or the Parliament. Since they are both products of the legislative branch, ordinances are subject to the same restrictions as laws passed by the legislature. Under certain circumstances, the executive branch may exercise its legislative power. For example, Article 356 permits the President to issue a decree if the States’ constitutional machinery malfunctions, and Article 357(1)(a) states that all powers exercised by the President through its representatives are of a legislative nature.

The petitioner argues that the term “law” in Article 21 refers only to laws passed by legislatures and excludes ordinances. However, Sections 123(2) and 367(2) of the Constitution provide a counterargument to that claim.

In Article 21, “establish” refers to the legal process that, in the end, guarantees that people deprived of their life and liberty—a fundamental right—should be informed of the extent of their rights’ deprivation. Also, Article 21 states that if the legal process is just and determinable, the statute’s duration is irrelevant. Since the Indian Constitution does not strictly adhere to the principle of separation of powers, the argument that it has been violated does not stand.

The president’s approval is not the only factor that can cause an ordinance to become law; these conversations are held for scholarly purposes, not in court. The ordinance may expire or become an act. In the current instance, no convincing arguments were presented to the courts to demonstrate that the ordinance’s passage was not contingent upon any prior circumstances.

Judges thus rejected the claim that an ordinance is unconstitutional if the requirements for its promulgation are not met. The president’s subjective level of satisfaction is influenced by the resources available to him when making decisions. The petitioner’s attorney claims that the act is harsh because it establishes the grounds for detention and the uniform 12-month detention period regardless of the offense. The accused is also denied access to legal representation, the ability to present evidence, and the opportunity to face cross-examination during this time. As a result, natural justice is denied to the person in custody.

 All the petitioner’s arguments that a person’s rights are granted based on legal procedures and statutory provisions were rejected by the courts. Due to the differing effects of the two processes, the criminal’s rights granted during the trial cannot be applied during the advisory board proceedings. The court said that to avoid violating Article 14, neither the government nor the detained party should be allowed to receive legal representation. In accordance with the statute and the Constitution, the Advisory Board can govern its own operations.

ANALYSIS

We can conclude from the court’s reasoning and overall arguments that this ruling has answered all our questions about the executive branch’s authority to enact ordinances and the reasons why this is a legislative function. But because both powers are created by different state organs and have different values, it is hard to accept the majority’s ruling that “Ordinance is law.”

 Also, the president’s decision may be subject to judicial review; however, the court did not emphasize this possibility or explain the grounds that should be considered. Additionally, this is only done to the president’s satisfaction. Because of this, the executive can easily abuse their power. Also, the person in custody should be granted more fundamental rights to protect his natural justice. To facilitate the swift resolution of cases and protect the rights of the innocent, the length of incarceration should be shortened.