CASE ANALYSIS ON

A.K. ROY v. UNION OF INDIA

SUBMITTED BY:

PRIYANSH KOHLI

500055204

R154216081

B.A.LLB(CRIMINAL LAW).
INTRODUCTION

The case is all about delegated legislation . and this case is all about power to issue an
ordinance is an executive power, not legislative power.

BACKGROUND

Section 1(2) of the Constitution (Forty fourth Amendment) Act 1978 gives that "It
should come into compel on such date as the Central Government may, by warning in the official
Gazette choose and distinctive dates might be selected for various arrangements of this Act."
Section 3 of the Act substituted a new clause (4) for the current sub-proviso (4) of
Article 22. By a notice the Central Government had brought into constrain all the sections of the
Forty fourth Amendment Act aside from section 3. Meanwhile the Government of India
issued the National Security mandate 2 of 1980 which later turned into the National Security
Act 1980. The candidate was confined under the arrangements of the mandate on the ground that
he was indulging in exercises biased to public arrange. In his appeal to under Article 32 of the
Constitution the petitioner battled that the energy to issue a law is an executive power, not
administrative power, and in this way the mandate isn't law.

ISSUES:

The Court considered six main issues:

1.The extent of the Executive’s Ordinance making power under Article 123, and whether by
exercise of such power, a valid ‘procedure established by law’ existed so as to deprive people of
their life and personal liberty.

2. The validity of Preventive Detention laws in general, and whether in the new paradigm of
Constitutional Law such laws would be constitutional.
3. Whether the Court could compel by writ of mandamus the notification of a Constitutional
Amendment, in particular the 44th Amendment that modified Article 22.

4. The vagueness of the National Security Act, 1980 in so far as it allowed for detention on
grounds such as ‘national security’ and ‘security of the state’.
5. The unfairness/unreasonableness of the procedure before an Advisory Board, in particular, the
denial of the rights of legal representation, cross-examination and leading of evidence.

6. The unreasonable conditions of detention.

LAWS INVOLVED:

1. Section 1(2) of the constitution (forty fourth) amendment act.

2. Section 3 of the forty fourth amendment act.
3. Sub clause 4 of Article 22.
4. Article 123 of constitution of India.

JUDGEMENT

On the first issue, the Court clearly held that an Ordinance under Article 123 did constitute ‘law’
under Article 13 and given that it was required to pass the test of Part III by virtue of such
designation, the ordinance making power could not be circumscribed with any additional
limitations, especially in light of the express provision of Article 123(2) and Article 367(2). The
Court observed that the ordinance making power could extend to matters touching life and
liberty and did not necessarily have to operate on a ‘virgin land’. Further, the Court held that
such power was legislative in nature and that India not having a strict separation of powers (See
this piece on the Doctrine of Political Question), this did not violate the basic structure of the
Constitution. The Court did not go into the circumstances in which ordinance making power
could be exercised however, since the ordinance had by then been replaced by an Act, rendering
the point ‘academic’ in nature and hence irrelevant (This is absurd, given that the Court spent the
previous 15 paragraphs discussing the nature of ordinance making power).
On the second issue, the Court placed primary reliance on the Constituent Assembly Debates to
hold that the concept of Preventive Detention was an integral part of the original Constitution.
Taking this further, they rejected the argument that Preventive Detention laws could ipso facto
be bad in law, as the concept itself had been considered and granted express approval by the
founding fathers of the Constitution, this being expressed in the CAD, Article 22, Entry 9 List I
and Entry 3 List III of the Seventh Schedule of the Constitution. The Court held:
“…the Constitution, as originally conceived and enacted, recognizes preventive detention as a
permissible means of abridging the liberties of the people, though subject to the limitations
imposed by Part III, we must reject the contention that preventive detention is basically
impermissible under the Indian Constitution.”
Most importantly, it was here that the Court seems to go against the dictum of Maneka Gandhi
where it was held that: “…’procedure’ in Art. 21 means fair, not formal procedure. ‘Law’ is
reasonable law, not any enacted piece.” Contra to that is the distinction that the Court draws in
AK Roy, where it washes it hands of a significant responsibility.

The third issue concerned an interesting area of law, and it was here that Justices Gupta and
Tulzapurkar differed with the majority. Section 1(2) of the 44th Amendment Act allowed the
Central Government to notify it as and when it deemed fit. Despite the passage of over two and a
half years, the Central Government had not notified Section 3 of the Amendment Act, which
modified Article 22(4) and (7), operating so as to provide a maximum period of detention
without and Advisory Board not greater than two months and restricting the boundless right of
Parliament under Article 22(7). It may be noted that Section 3 of the Act and the relevant
modifications to Article 22 have not been notified till date. It was argued that the Executive was
acting mala fide, since the National Security Ordinance had provisions compatible with the
amended Article 22, logistical considerations did not operate to justify the non-notification of the
relevant provision.

On the fourth issue, the Court simply states that vagueness of a statute that deals with a matter
inherently so indeterminate as national security, cannot possibly be a ground for striking it
down.However, it promises to evaluate detention orders made for matters irrelevant or not
passing the test of ‘security of state’, given the wide amplitude of the language in the
Explanation to Section 3 of the Act, dealing with detention in cases of manipulation of (essential)
supplies and services.

It is on the fifth and sixth issues that the Court has acted peculiarly, granting some rights to
detenues and denying several others. The Court, addressing the rights of legal representation,
cross-examination and leading of evidence before the Advisory Boards, had the unique
opportunity to apply Maneka Gandhi’s reading together of rights to read Article 21 at least into
those interstices of Article 22 where there was no express denial of these rights. It was most
benevolent in doling out rights to detainees however, which in substance was hardly any
consolation given the rejection of the relevant arguments against the nature and scope of
preventive detention itself.

However, it did so in a most curious way, first holding that there existed no right to cross-
examine witnesses, given the secrecy of witnesses in such cases, the ‘different’ nature of
proceedings before Advisory Boards as opposed to regular trial courts and the ‘flexible’ nature
of the principles of natural justice. Secondly, it proceeded to disallow legal representation on a
bare reading of Article 22, but allowed consultation with a ‘friend’ and access to a lawyer in
cases where the detaining authority was accessing legal counsel. Lastly, it allowed detenues to
lead evidence, but with the caveat that the Advisory Board would not summon any witnesses and
the detainee was to ‘keep them present at the appropriate time’.
At the end of the decision, the Court cites the case of Sunil Batra (AIR 1980 SC 1579) and
orders that detainees under Preventive Detention could not be kept with convicted prisoners, had
to be granted access to books and letters (Para 108: ‘Books are the best friends of man whether
inside or outside of jail’), wear their own clothes and meet their family once a week. Aristotle
himself would be proud of the craft seen in the adjudicatory process of this decision, where the
Court rejects all the important and emphatic claims of the petitioners and grants the lesser,
ancillary claims with great fanfare, being quick to caveat them with unnecessary limitations

.
MY VIEWS ON THE SUPREME COURT JUDGEMENT

I personally take exception to decision and find the minority finding far more sensible. The
evidence of mala fides were clear, and the Court was aware that the Parliament had reverted to
the control of the previous political party, hence the reluctance to notify the amendment that
deprived, to some extent, the State of its police power.