Preventive detention law and ordinance power: Article 123 ordinances count as law, with fair procedure safeguards upheld.

An ordinance issued under Article 123 was treated as legislative in character and as "law" for Article 21, so it remains subject to constitutional rights limits. The Court also upheld the validity of section 1(2) of the Forty-Fourth Amendment Act, which permitted the Central Government to fix the commencement date, but declined to compel immediate commencement of section 3. On preventive detention, section 3 of the National Security Act was not struck down for vagueness, though the grounds relating to supplies and services essential to the community required prior public specification. The Advisory Board framework was upheld; no legal representation or cross-examination was required, but rebuttal evidence was allowed, together with humane detention safeguards.

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Issues: (i) Whether an ordinance promulgated by the President under Article 123 of the Constitution is legislative in character and "law" for purposes of Article 21, and whether the Court should compel the Central Government to bring section 3 of the Constitution (Forty-Fourth Amendment) Act, 1978 into force; (ii) whether section 3 of the National Security Act, 1980 is invalid for vagueness, and whether the Act's provisions and the constitution and procedure of Advisory Boards, including the denial of legal representation and cross-examination but allowance of rebuttal evidence, satisfy the requirement of fair procedure; (iii) whether the detention conditions and ancillary provisions, including place of detention and segregation, are reasonable.

Issue (i): Whether an ordinance promulgated by the President under Article 123 of the Constitution is legislative in character and "law" for purposes of Article 21, and whether the Court should compel the Central Government to bring section 3 of the Constitution (Forty-Fourth Amendment) Act, 1978 into force.

Analysis: Article 123 is placed in the Chapter dealing with legislative power, and an ordinance promulgated thereunder is expressly given the same force and effect as an Act of Parliament, subject to constitutional limitations. By reason of Article 13(2) and Article 13(3), an ordinance is within the constitutional conception of "law" and is subject to the same fundamental-rights constraints as legislation enacted by Parliament. The Court also treated section 1(2) of the Forty-Fourth Amendment Act as a valid provision enabling the Central Government to appoint the date of commencement of the amendment, and held that the power to fix the date of commencement was not an impermissible delegation of constituent power. However, on the material before it, the Court declined to issue a mandamus compelling commencement of section 3, leaving the matter to the executive judgment vested by Parliament.

Conclusion: An ordinance under Article 123 is legislative in character and is "law" for the purposes of Article 21. Section 1(2) of the Forty-Fourth Amendment Act is valid, and no writ compelling immediate commencement of section 3 was issued.

Issue (ii): Whether section 3 of the National Security Act, 1980 is invalid for vagueness, and whether the Act's provisions and the constitution and procedure of Advisory Boards, including the denial of legal representation and cross-examination but allowance of rebuttal evidence, satisfy the requirement of fair procedure.

Analysis: The expressions relating to defence of India, security of India, security of the State, and relations with foreign powers were held not to be capable of precise definition in the abstract, but not so indefinite as to invalidate the provision; the Court, however, cautioned that they must receive a narrow construction. The phrase relating to "supplies and services essential to the community" was treated as requiring prior public identification of the relevant supplies or services by law, order, or notification before detention could be based on that ground. As to Advisory Boards, the Court held that, while the Constitution permits preventive detention, Article 22(3)(b) denies the detenu legal representation before the Board, and the statutory scheme did not confer a right of cross-examination. The detenu was nonetheless held entitled to present oral and documentary evidence in rebuttal. The constitution of Advisory Boards under section 9, being consistent with the existing unamended Article 22(4), was upheld. The Court also approved the general framework of the Act under Articles 14, 19, 21, and 22, while reading fairness safeguards into the detention process.

Conclusion: Section 3 was not struck down for vagueness, but the ground relating to supplies and services essential to the community was required to be applied only after prior public specification. The constitution of Advisory Boards under section 9 was upheld. The detenu had no right to legal representation or cross-examination before the Board, but had a right to adduce rebuttal evidence.

Issue (iii): Whether the detention conditions and ancillary provisions, including place of detention and segregation, are reasonable.

Analysis: The Court held that preventive detention cannot be allowed to assume a punitive character. It found that the place and conditions of detention must be consistent with human dignity, that the detenu should ordinarily be kept near the place of residence unless security or administrative necessity requires otherwise, and that family intimation, reasonable facilities, and adequate reading and writing material should be afforded. It further directed that detenus under the National Security Act should be segregated from convicts and housed separately.

Conclusion: The detention regime was upheld in substance, but the Court issued protective directions regarding humane treatment, communication with family, facilities, and segregation from convicts.

Final Conclusion: The challenges to the ordinance-making power, the constitutional validity of the National Security Act, the validity of the unamended Advisory Board framework, and the non-commencement of section 3 of the Forty-Fourth Amendment Act were substantially rejected, while certain safeguards and limiting constructions were read into the detention law and detention conditions.

Ratio Decidendi: An ordinance promulgated under Article 123 has the force of law and is subject to the same constitutional limitations as parliamentary legislation, and preventive detention laws are valid if they operate within constitutional bounds and satisfy the requirement of fair, just, and reasonable procedure.

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