Bench: Chandrachud, Y.V. ((Cj), Bhagwati, P.N., Gupta, A.C., Tulzapurkar, V.D., Desai, D.A.
Facts:
Numerous writ petitions were filed which challenged the constitutional validity of the National Security Ordinance, 2 of 1980 and certain provisions of the National Security Act, 65 of 1980 which replaced the Ordinance.
A.K. Roy who was The Petitioner was a Marxist member of the Parliament. He was detained under the Ordinance by an order passed by the District Magistrate of Dhanbad claiming that he was indulging in activities which were prejudicial to the public order.
Some Members of the parliament applied to intervene in the Writ Petition claiming that since the Ordinance making power of the President is destructive of the system of democracy, it is necessary to define the scope of that power which is held in the hands of the president.
The National Security Ordinance wasapplicable to the whole of India except the State of Jammu & Kashmir and was passed in order "to provide for preventive detention in certain cases end for matters connected therewith." It
The Parliament was not in session when the Ordinance was enacted, and it was being issued by the President because the President was satisfied that circumstances existed which rendered it necessary for him to take immediate action.
Issue:
- Whether the National Security Ordinance is Constitutional or not?
- Whether preventive detention is a valid measure for regulating the liberties of the subject?
- Whether the provisions of S.3(1) and S.3(2) of the National Security Act are so vague in their content and their extent, that just by their application, the Central Govt or State govt. can easily deprive a person of his liberty for any reason which may appeal to them?
- Whether the right of cross- examination is an integral and indispensable part of the Principles of Natural Justice?
- 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.
- Whether there was a sufficient cause for detention of the person concerned and whether there was a need to keep the person in detention any longer after the date of its report?
Judgement:
Issue 1 - Article 123 and 213 of the Constitution confer on the President and Governor respectively an ordinance making power and nothing in the Constitution poses a restriction on this power to be confined to areas which have not been covered by any other Law passed by the Legislature. The Court said there is no reason to impose a restriction like this because an ordinance like any other law which has been made by the legislature, must comply with what is mentioned in Article 13(2).
The Petitioner’s contended that due to the ordinance, Articles 14, 19 and 21 would become ineffectual. To this contention, the Court said that they were unable to see how the ordinance would render these Articles ineffectual because it was subject to the same constraints that a law made by the legislature would be and if in practical operation a law wouldn’t be violative of these articles, then the ordinance should not be too.
The National Security Ordinance was passed by the President by exercising the ordinance making power conferred on him under Article 123 and as per the reasoning above, it is Constitutional.
Issue 2 -The Court said that it could not invalidate a law of Preventive Detention on the general ground that it will interfere with the liberties of the people and as long as the law did not violate the conditions or restrictions mentioned in the entries in the Union and the Concurrent List which gave it power.
The Court looked at the history by looking at the Constituent Assembly Debates and the way the Constitution was originally created and enacted and concluded that it recognised Preventive Detention as a valid means of curtailing the people’s liberties, but it would also be subject to the limitations imposed by Part III of the Constitution.
Hence, the Court rejected the contention of the petitioner that Preventive Detention was impermissible by the Indian Constitution.
Issue 3 - The Court held that such expressions are difficult to define and hence they cannot be struck down on the ground of being vague or uncertain. Courts must in practice, strive to give these expressions a narrower construction than take the literal meaning and while construing laws of Preventive Detention like the National Security Act, care must be taken that its application is restricted to as few situations as possible.
This does not apply to S.3(2) as the expressions “acting in any prejudicial to the maintenance of supplies and services essential to the community” can be easily defined by the legislature.
This section gives freedom to the detaining authority to extend the application of S.3(2) to any commodities/ services the maintenance of which is essential according to him and which has not been defined.
Thus, this provision is violative of Article 21 on the grounds of vagueness and uncertainty, but the Court does not strike it down as it gives power to detain persons on grounds that they are acting in prejudicial manner.
Issue 4 - In this case, the detente cannot claim the right of cross-examination before the Advisory Board as the question in consideration before them is that of whether there is sufficient cause for the detenu to be detained, not whether he is guilty or not. Hence, the procedure before the Advisory board is different from that of a judicial or quasi-judicial body.
Issue 5 - But, the Court said 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. Since, denying the detenu such a right, in such a case would be a breach of Article 14
Since the Constitution allowed it in the original form, it cannot be said to be unfair or unjust or unreasonable since the standards for fairness are provided under Articles 19 and 21 under the Constitution itself.
Under Article 22 (5), a detenu has a right to be informed of the grounds on which he is detained and get the earliest opportunity to be represented by a legal practitioner before the Advisory Board, but the written representation of the detenu does not have to be expatiated.
Issue 6 -Section 11 (2) of the Act says that report will be an opinion of the Board as to whether there was a sufficient cause to detain the concerned person. The duty of the Board is to determine whether there was a sufficient cause for detention of the person on the date on which the order of detention was passed and whether or not there is a sufficient cause for the detention of that person on the date of its report.
Board cannot determine the question as to whether the detention should continue after the date of its report, that is to be answered by the detaining authority.
People held under preventive detention laws are to be kept separately from the regular convicts considering the evils of custodial perversity. It must be ensured that the detainee is not subjected to any sort of indignity.
