Law made by the Parliament or the ordinance passed by the Legislature: Indian Constitution keeps them at par

On a reading of this case analysis, the readers will become aware of the Constitutional provisions for Preventive Detention in India and how the judiciary upheld ordinance making powers of the Executive.
TITLEA.K. Roy, Etc. Vs. Union of India & Anr
CITATION1982 AIR 710
COURTSupreme Court of India
JUDGES/CORAMChief Justice Y.V. Chandrachud, Justice P.N. Bhagwati, Justice A.C. Gupta, Justice V.D. Tulzapurkar, and, Justice D.A. Desai
DATE OF JUDGEMENT28.12.1981

Introduction

Preventive Detention means detention of a person without trial in such circumstances that the evidence in the possession of the, authority is not sufficient to make a legal charge or to secure the conviction of the detenue by legal proof. Preventive detention is, by its nature, repugnant to democratic notions. No such laws exist in the United States of America or in England in times of peace. Unfortunately, in India, the largest democracy of the world, the Constitution recognizes preventive detention as a normal topic of legislation. In India, preventive detention is a powerful weapon in the hands of the government. Such laws have been in force since independence in some form or the other.

A Member of Parliament was detained under the National Security Ordinance, 1980 that was later replaced by the National Security Act, 1980. He challenged before the Supreme Court the validity of the National Security Ordinance.

Facts

The facts of the case are as follows: The petitioner in the present case was Shri AK Roy who was a Marxist member of the Parliament, while the respondent was the Union of India. The Supreme Court was approached under Article 32 of the Indian Constitution whereby the validity of the National Security Ordinance, 1980, and certain provisions of the said ordinance were under-challenged.

It was held that an Ordinance which was subject to the same constraints as a law made by the legislature cannot in its practical operation, result in the obliteration of Articles 14, 19 and 21 of Constitution of India.

Issues

The main issue in the case was: Whether or not the power to make an ordinance was a legislative power or whether it was an executive power masquerading as a legislative power.

Summary of Court Decision and Judgement

Referring to Article 368(2) of the Constitution of India it was held by the Court that the Constitutional 44th Amendment Act was valid. According to the very terms of the 44th Amendment, none of its provision could come into force unless and until the Central Government issued a notification as contemplated by Section 1(2). Thus, the amendment introduced in the 44th Constitutional Amendment Act did not become a part of the Constitution on April 30, 1979 (President’s assent). Section 1(2) of the 44th constitutional amendment was not ultra vires the power of amendment conferred upon the Parliament by Article 368(1) of the Constitution. The 44th Constitutional Amendment received the assent of the President on April 30th. However, even after two and half years no notification had been issued by the Government according to the rules. According to the Supreme Court, the Court could not intervene in such matters and pass an order of mandamus to the Central Government. If the Parliament was of the opinion that the Executive has not fulfilled its trust then the Parliament could further censure the Executive and not otherwise.

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Justice A.C. Gupta dissented by saying that the Parliament left it to the unfettered discretion of the Central Government when to bring into force any provision of the Amendment Act. According to him when the Amendment Act got assent from the President the Central Government was under an obligation to bring into operation the provisions of the Act in reasonable time. He was of the opinion that the Writ of Mandamus should be issued directing the Central Government to issue appropriate notification under Section 1(2) of the Constitution (44th Amendment) Act, 1978.

Analysis

Chief Justice Y.V. Chandrachud quoted Montesquieu stating, “When the legislative and executive powers are united in the same person or body of persons there can be no liberty, because of the danger that the same monarch or senate should enact tyrannical laws and execute them in a tyrannical manner”. Blackstone expresses the same thought by saying that “wherever the right of making and enforcing the law is vested in the same man or one and the same body of men, there can be no public liberty”.

Article 123, which confers the power to promulgate ordinances, occurs in Chapter III of Part V of the Constitution, called “Legislative Powers of the President”. Article 213, which occurs in Part VI, Chapter IV, called “Legislative Power of the Governor” confers similar power on the Governors of States to issue ordinances.

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 otherwise requires. In view of the fact that the context does not otherwise so require, it must follow from the combined operation of clauses (2) and (3) of Article 13 that an ordinance issued by the President under Article 123, which is equated by clause (2) of that article with an Act of Parliament, is subject to the same constraints and limitations as the latter. 

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Article 367 of the Indian constitution talks about the interpretation of the Constitution that the Constitution makes no difference between a law made by the Parliament and the ordinance passed by the Legislature. Both of these are subject to the limitations, which the Parliament has placed upon them.  A careful reading of the Constitution suggests that Executive can possesses legislative powers under certain circumstances. Ordinances issued by the President and the Governors and the laws made by the President or his delegate under Article 367(1)(a) partake fully of legislative character and are made in the exercise of legislative power, within the contemplation of the Constitution. 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. It is undoubtedly clear that personal liberty is a precious right and thus the constitutional makers have ensured that while unlimited powers are given to the government the fundamental rights of the people are protected against the government. Nevertheless, the liberty of the individual has to be subordinated, within reasonable grounds, to the good of the people. Therefore, acting in public interest, the Constituent Assembly made provisions in Entry 9 of List I and Entry 3 of List III, authorizing the Parliament and the State legislatures by Article 246 to pass laws of preventive detention. Thus, preventive detention is a permissible means to abridge the liberty of the individual subject to the limitations imposed by Part III of the constitution. This makes it clear that Preventive Detention was permissible under the constitution.

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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.

The Hon’ble Supreme Court decided in this case that an ordinance issued by the President or the Governor is as much a law as an Act passed by the Parliament and I agree to the ratio put up by the Apex Court. I agree to this decision of the Hon’ble Supreme Court because this not only gives the authority of the President an additional approval but also gives the Parliament to pass any act or law quickly to ensure any sort of need they face.

The Court was correct in interpreting Article 21 when it said that if any act, order, notification, ordinance was passed which violated Article 21 then it would automatically would violate Article 13(2), which no act, order, notification or ordinance can do. The case was decided on merits and according to the facts and the circumstances of the present case and I firmly belief that ascertaining the power of the President and the Governor was correct.

Conclusion

The largest number of Ordinances was promulgated in 1993, and there has been a decline in the number of Ordinance promulgated since then. There has been significant debate surrounding the Ordinance making power of the President (and Governor).  Constitutionally, important issues that have been raised include judicial review of the Ordinance making powers of the executive; the necessity for ‘immediate action’ while promulgating an Ordinance; and the granting of Ordinance making powers to the executive, given the principle of separation of powers. In the year 2013, nine ordinances were promulgated out which three had been re-promulgated.