Supreme Court Upholds Legislative Nature of Presidential Ordinances and Validity of National Security Act, 1980

Landmark ruling affirms ordinance as "law" under Article 21, clarifies preventive detention provisions, and addresses constitutional amendments delay

In a significant judgment delivered on December 28, 1981, the Supreme Court of India, in a bench led by Chief Justice Y.V. Chandrachud, upheld the constitutionality of the National Security Ordinance, 1980, and the National Security Act, 1980, while clarifying the scope and nature of the ordinance-making power vested in the President under Article 123 of the Constitution. The judgment arose from multiple writ petitions challenging the validity of the ordinance and the Act, including petitions filed by A.K. Roy and other political figures.

The Court decisively rejected the contention that ordinances issued by the President are executive acts and not laws. It held that such ordinances possess full legislative character, as explicitly stipulated in Articles 123(2) and 367(2) of the Constitution, and therefore are "law" within the meaning of Article 21, which protects the right to life and personal liberty. The transient duration of ordinances does not diminish their status as laws. This ensures that fundamental rights guaranteed under the Constitution, such as Articles 14, 19, and 21, remain applicable and cannot be circumvented by the executive through ordinances.

The judgment also examined the preventive detention framework under the National Security Act, 1980. The Court recognized preventive detention as a constitutionally permissible restriction on individual liberty for safeguarding national security, public order, and essential community services, as contemplated by Entries 9 of List I and 3 of List III of the Seventh Schedule and Article 22 of the Constitution. However, it cautioned that the law must be applied narrowly and the broad, somewhat vague terms such as "defence of India," "security of India," and "relations of India with foreign powers" should be construed restrictively to avoid misuse and unjust deprivation of liberty.

Further, the Court addressed the delayed implementation of Section 3 of the 44th Constitutional Amendment Act, 1978, which prescribes the composition of Advisory Boards that review preventive detention orders. While Justice Gupta expressed the view that the Central Government ought to have brought this provision into force within a reasonable time and issued a writ of mandamus to that effect, the majority held that the power to notify the commencement date rests with the executive. The Court urged the government to act without further delay but declined to interfere judicially in the absence of objective standards governing the delay.

The Court examined procedural safeguards under the National Security Act, including the rights of detenus during Advisory Board proceedings. It held that under Article 22(3)(b), detenus do not have the right to legal representation or cross-examination in such proceedings, distinguishing preventive detention hearings from criminal trials. However, the Court emphasized that detenus should be allowed to present oral and documentary evidence in rebuttal and may be assisted by a friend, ensuring a fair and reasonable hearing consistent with constitutional mandates.

On conditions of detention, the Court underscored the necessity of humane treatment consistent with human dignity. It directed that detenus be informed promptly of their detention and place of custody, allowed to wear their own clothes, receive visits from family members, and have reading and writing materials. The Court further mandated that detenus under the National Security Act be segregated from convicted prisoners to prevent custodial abuse.

The judgment reaffirmed the constitutional balance between granting the executive necessary powers to maintain security and the protection of fundamental rights of citizens. It clarified that while the ordinance-making power is a legislative power and ordinances are laws, these powers are subject to constitutional limitations, including judicial review.

The Court disposed of the writ petitions with directions aligned with the principles enunciated in the judgment, marking a landmark decision on the constitutional validity and procedural contours of preventive detention laws and ordinance-making powers in India.

Statutory provisions

Article 13, Article 14, Article 19, Article 21, Article 22, Article 32, Article 44th Constitutional Amendment Act, 1978 (Sections 1(2), 3), Article 44th Amendment, Article 44th Amendment Act, Article 44th Amendment Act Section 3, Article 123, Article 356, Article 357, Article 368, National Security Act, 1980 (Sections 3(1), 3(2), 3(3), 5, 8, 9, 10, 11, 13, 16)

A.K. Roy v. Union of India, (SC) : Law Finder Doc Id # 103485