AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
1981 (12) TMI 166
X X X X Extracts X X X X
X X X X Extracts X X X X
....s 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 limitat....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 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 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 called the tryanny 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 c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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 w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ible 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 otherwi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he 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 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. Ordina....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntatives 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he 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. 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 certai....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nde 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 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.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ncy 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 A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ons 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....before us. We will now turn to the 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g 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 justness of procedure established by a law for the purposes of Article....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....suance 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dge 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 constitu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ented 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, 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. Thu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 future laws which were in force in other districts. In Russell v. The Queen it upheld the pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ervai in his "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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 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. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) 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. (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 com....
X X X X Extracts X X X X
X X X X Extracts X X X X
....xternal 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. Sectio....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 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 thems....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ds 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&#....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lack-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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 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 p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tive 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.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l 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- 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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 afte....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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. 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, acc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....irman 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 ye....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 quali....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....acilities 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 provisio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ve 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 diffic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t 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. 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 de....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tioners 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 under standing 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.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....asured 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 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y 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 rel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ot 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ule of law, equality and liberty of the individual enshrined therein, tolerates, on account of peculiar conditions pre- 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce 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 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,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ied 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 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 Par....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t 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 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 p....