“A CRITQUE OF A.

K ROY VS UION OF INDIA”

RESEARCH PAPER SUBMITTED IN THE PARTIAL FULFILMENT OF THE COURSE TITLED –

CONSTITUTIONAL LAW-II

SUBMITTED TO:
PROF. DR. ANIRUDH PRASAD
PROFESSOR OF LAW

SUBMITTED BY:

NAME: ADARSH KUMAR

COURSE: B.A. LL.B (Hons.)
ROLL NO: 1704
SEMESTER: 6th

CHANAKYA NATIONAL LAW UNIVERSITY, NYAYA NAGAR,

MITHAPUR, PATNA - 800001
 Table of Contents

Acknowledgement ...................................................................................................................................................... 3
INTRODUCTION .......................................................................................................................................................... 4
AIMS AND OBJECTIVES ............................................................................................................................................ 4
RESEARCH METHODOLOGY ..................................................................................................................................... 4
HYPOTHESIS ............................................................................................................................................................ 4
SOURCES OF DATA .................................................................................................................................................. 4
LIMITATION............................................................................................................................................................. 4
BACKGROUND ............................................................................................................................................................ 5
ISSUES: ....................................................................................................................................................................... 6
LAWS INVOLVED: ........................................................................................................................................................ 8
JUDGEMENT ............................................................................................................................................................. 10
MY VIEWS ON THE SUPREME COURT JUDGEMENT.................................................................................................... 13
CONCLUSION ............................................................................................................................................................ 13
BIBLIOGRAPHY .......................................................................................................................................................... 14

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 Acknowledgement

I am very thankful to everyone who all supported me, I have completed my project effectively and moreover
on time. I am equally grateful to PROF. DR. ANIRUDH PRASAD He gave me moral support and guided
me in different matters regarding the topic. He had been very kind and patient while suggesting me the
outlines of this project and correcting my doubts. I thank him for him overall supports.
Last but not the least, I would like to thank my parents who helped me a lot in gathering different
information, collecting data and guiding me from time to time in making this project .despite of their busy
schedules ,they gave me different ideas in making this project unique.
Thanking you

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 INTRODUCTION
A.K. Roy v/s Union of India1 was decided on December 28, 1981, by a 5 judge bench of the
honorable Supreme Court of India. The petitioner in the present case is Shri AK Roy who is a
Marxist member of the parliament, while the respondent is the Union of India. The Supreme Court
was approached through Article 32 of the Indian Constitution whereby the validity of the National
Security Ordinance, 1980, and certain provisions of the said ordinance are under-challenged.
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.

AIMS AND OBJECTIVES

To critically analyse the judgement of A.K ROY VS UOI

RESEARCH METHODOLOGY
Doctrinal method has been used to complete the project.

HYPOTHESIS
Ordinance is good substitute of parliamentary law in pressing situation.

SOURCES OF DATA
The researcher will be relying on both primary and secondary sources to complete the
project.

1. Primary Sources: Acts & Articles

2. Secondary Sources: Books, newspapers, journals, cases and websites.

LIMITATION
There is a time limitation for the researcher to finish the research.

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(1982) 1 SCC 271
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 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.

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 BRIEF FACT

The National Security Ordinance which came into force on September 23, 1980, was passed in order
“to provide for preventive detention in certain cases and for matters connected therewith”. The
Parliament was not in session when it was promulgated and its preamble recited that it was being
issued because the “President is satisfied that circumstances exist which render it necessary for him to
take immediate action”. AK Roy was detained under the ordinance by an order passed by the district
magistrate, Dhanbad, on the ground that he was indulged in activities which were prejudicial to
public order. Broadly the act was challenged on the below grounds:

1. Scope and limitations of the ordinance making power

2. Vagueness and unreasonableness on the provisions of the act and the punitive detention
3. Effect of 44th constitutional amendment act and the validity of its section 1(2)
4. Issues relating to the fullfilment of preconditions of the exercise of ordinance making power
5. The effect of non-implementation by the central government of the provisions of the 44 th amendment
regarding the composition of advisory boards
6. Undefined powers of detention conferred under the act
7. Need for the grant of minimum facilities for the deteneus, the nature of the right of deteneus to
make an effective representation against the order of detention and the evils of the exercise of the
power to issue an ordinance

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 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 newparadigm 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

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 LAWS INVOLVED:

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

Under this section it is provided that the said amended act shall come into force on such date as the
Central Government may, by notification in the Official Gazette, appoint and different dates may be
appointed for different provisions of this Act.

2. Section 3 of the forty fourth amendment act.

Section 3 provide for the amendment of article 22.- In article 22 of the Constitution,-

(a) for clause (4), the following clause shall be substituted, namely:-

`(4) No law providing for preventive detention shall authorise the detention of a person for a longer
period than two months unless an Advisory Board constituted in accordance with the
recommendations of the Chief Justice of the appropriate High Court has reported before the
expiration of the said period of two months that there is in its opinion sufficient cause for such
detention:

Provided that an Advisory Board shall consist of a Chairman and not less than two other members,
and the Chairman shall be a serving Judge of the appropriate High Court and the other members
shall be serving or retired Judges of any High Court:

Provided further that nothing in this clause shall authorise the detention of any person beyond the
maximum period prescribed by any law made by Parliament under sub-clause (a) of clause (7).

Explanation.-In this clause, "appropriate High Court" means,-

(i) in the case of the detention of a person in pursuance of an order of detention made by the
Government of India or an officer or authority subordinate to that Government, the High Court for
the Union territory of Delhi;

(ii) in the case of the detention of a person in pursuance 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 of 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

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 (iii) sub-clause (c) shall be re-lettered as sub-clause (b) and in the sub-clause as so re-lettered, for
the words, brackets, letter and figure "sub-clause (a) of clause (4)", the word,brackets and figure
"clause (4)" shall be substituted.

3. Sub clause 4 of Article 22 of Indian constitution.

This article provides that 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 High Court has
reported before the expiration of the said period of three months that there is in its opinion
sufficient cause for such detention

4. Article 123 of constitution of India.

Article 123 provides for the Power of President to promulgate Ordinances during recess of
Parliament

(1) If at any time, except when both Houses of Parliament are in session, the President is
satisfied that circumstances exist which render it necessary for him to take immediate
action, he may promulgate such Ordinance as the circumstances appear to him to require

(2) An Ordinance promulgated under this article shall have the same force and effect as
an Act of Parliament, but every such Ordinance

(a) shall be laid before both House of Parliament and shall cease to operate at the
expiration of six weeks from the reassemble of Parliament, or, if before the expiration of
that period resolutions disapproving it are passed by both Houses, upon the passing of the
second of those resolutions; and

(b) may be withdrawn at any time by the President Explanation Where the Houses of
Parliament are summoned to reassemble on different dates, the period of six weeks shall
be reckoned from the later of those dates for the purposes of this clause

(3) If and so far as an Ordinance under this article makes any provision which Parliament
would not under this Constitution be competent to enact, it shall be void CHAPTER IV
THE UNION JUDICIARY

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 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 S“…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,

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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’.

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 At the end of the decision, the Court cites the case of Sunil Batra2 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

Decision held by the Supreme Court

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

2
AIR 1980 SC 1579
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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.

CONCLUSION

In most of the cases of Ordinance making Power is a controversial topic and a topic of discussion. It
tries to disturb the balance between the executive as well as legislative powers by bringing into the

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element of arbitrariness into the Constitutional System and disturbing the rule of law. Whenever such
an ordinance making power is exercised by an Executive body it shows disregard to the legislature.
Till now only a few grounds are established to challenge the validity of the Ordinances:

(a.) directly violates a constitutional provision,

(b.) president has exceeded his constitutional power,

(c.) President had made a colorable use of his power .

BIBLIOGRAPHY

The researcher has consulted following sources to complete the rough proposal:

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PRIMARY SOURCES:

Indian Constitutional Law by M P Jain

Constitution Of India , V.N.Shukla

SECONDARY SOURCES:

a) https://lawbriefs.in/constitutional-law-a-k-roy-etc-vs-union-of-india-and-anr-air-1982-sc-710/
b) https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india-f
orty-fourth-amendment-act-1978
c) http://thelawbrigade.com/wp-content/uploads/2019/05/pathik.pdf
d) https://www.toppr.com/guides/legal-aptitude/indian-constitution/emergency-provision-and-sp
ecial-provisions-of-the-indian-constitution/

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