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PETITIONER: A. K. ROY, ETC.

       Vs.

RESPONDENT: UNION OF INDIA AND ANR.

DATE OF JUDGMENT28/12/1981

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) BHAGWATI, P.N. GUPTA, A.C. TULZAPURKAR, V.D. DESAI, D.A.

CITATION:  1982 AIR  710            1982 SCR  (2) 272  1982 SCC  (1) 271        1981 SCALE  (4)1905  CITATOR INFO :  R          1982 SC1029  (11,16)  F          1982 SC1143  (5,8,9)  D          1982 SC1178  (4)  R          1982 SC1500  (5)  F          1982 SC1543  (16)  F          1983 SC 109  (13)  R          1983 SC 505  (1,2)  RF         1985 SC 551  (32)  R          1985 SC 724  (14)  R          1985 SC1082  (18)  R          1986 SC 207  (4)  RF         1986 SC 283  (6,13)  E&R        1987 SC 217  (5,6,7,12,13)  D          1987 SC 725  (4)  E          1988 SC 109  (5,6)  D          1988 SC1768  (5)  R          1988 SC1883  (176)  APL        1989 SC 389  (6,7,9)  RF         1989 SC 653  (12)  F          1989 SC 764  (19,20)  R          1991 SC 979  (7)

ACT:      Constitution of  India,  1950-Constitution  (Fortyforth Amendment) Act, 1978-Power conferred on executive to appoint different dates  for  different  provisions  of  the  Act-If amounts to transfer of legislative power to executive.      Ordinance-Whether law-Whether  President has  power  to issue ordinances-National  Security  ordinance-Validity  of- Constitution of  Advisory Boards under section 9 of the Act- Validity of.      Natural Justice-Detenu  under National  Security Act-If entitled to  be represented  by a  legal practitioner before Advisory Board-Detenu,  if has  a right to consult a lawyer, or be  assisted by  a friend  before the  Advisory  Board-If could cross-examine witness-If could present evidence before the Advisory  Board in  rebuttal of allegations against him- Duties  and  functions  of  Advisory  Boards-Proceedings  of Advisory Board, if open to public.

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HEADNOTE:      Section   1(2)   of   the   Constitution   (Fortyfourth Amendment) Act  1978 provides that "It 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." Section 3 of the  Act substituted  a new  clause (4)  for the existing sub-clause (4)  of Article 22. By a notification the Central Government had  brought into  force all  the sections of the Fortyfourth Amendment Act except section 3.      In the  meantime the  Government of  India  issued  the National Security ordinance 2 of 1980 which later became the National Security Act 1980.      The petitioner was detained under the provisions of the ordinance on the ground that he was in dulging in activities prejudicial to  public order.  In his petition under Article 32 of  the Constitution  the petitioner  contended that  the power to  issue an  ordinance is  an  executive  power,  not legislative power, and therefore the ordinance is not law. ^      HELD: [per Chandrachud, C.J., Bhagwati & Desai, JJ.]      [Gupta and Tulzapurkar, JJ dissented on the question of bringing into  force section 3 read with section 1(2) of the Fortyfourth  Amendment   Act.  Gupta  J.  dissented  on  the question whether ordinance is law]. 273      The power  of the President to issue an ordinance under Article 123  of the Constitution is a legislative and not an executive power.      From a conspectus of the provisions of the Constitution it is  clear that  the Constituent  Assembly was of the view that the  President’s  power  to  legislate  by  issuing  an ordinance is  as necessary for the peace and good government of the  country as  the Parliament’s  power to  legislate by passing laws.  The mechanics  of the  Presidents legislative power was  devised evidently in order to take care of urgent situations  which  cannot  brook  delay.  The  Parliamentary process  of  legislation  is  comparatively  tardy  and  can conceivably be  time consuming.  It is  true that  it is not easy to  accept with  equanimity the  proposition  that  the executive  can  indulge  in  legislative  activity  but  the Constitution is  what it says and not what one would like it to be. The Constituent Assembly indubitably thought, despite the strong  and adverse  impact which the Governor-General’s ordinance making  power had produced on the Indian community in the  pre-independence era, that it was necessary to equip the President  with legislative powers in urgent situations. [290 E-G]      R.C. Cooper  v. Union of India, [I 9701 3 SCR 530, 559, referred to.      The contention  that the  word ’law’ in Article 21 must 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. [292 G-H]      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  law must  be defined  with certainty in order

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that those  who are  deprived of t heir fundamental right to life or  liberty  must  know  the  precise  extent  of  such deprivation. 1293 A-B]      The argument  of the  petitioner that  the  fundamental right conferred  by Article  21 can  not be taken away by an ordinance really seeks to add a proviso to Article 123(1) to the effect:  "that such  ordinances shall  not  deprive  any person of his right to life or personal liberty conferred by Article 21  of the Constitution." An amendment substantially to  that  effect  moved  in  the  Constituent  Assembly  was rejected by the Constituent Assembly. [293 D-E]      A.K. Gopalan [1950] SCR 88, Sant Ram, [1960] 3 SCR 499, 506, State of Nagaland v. Ratan Singh [1966] 3 SCR 830, 851, 852, Govind  v. State  of Madhya Pradesh & Anr. [1975] 3 SCR 946, 955-56,  Ratilal Bhanjl  Mithani v. Asstt. Collector of Customs, Bombay  & Anr. [1967] 3 SCR 926, 928-931 and Pandit M.S.M. Sharma v. Shri Sri Krisna Sinha & Anr. [1959] Supp. I SCR 806, 860-861, referred to.      Since the  petitioners have  not  laid  any  acceptable foundation for  holding that  no  circumstances  existed  or could have existed which rendered it necessary 274 for the  President to  take immediate action by promulgating impugned ordinance,  the contention  that the  ordinance  is unconstitutional for  the reason  that the pre-conditions to the exercise  of power  conferred by  Article  123  are  not fulfilled, has no force. [298 D]      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 Government 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. And  therefore, while arming the government with large powers  to prevent  anarchy from  within and  conquest from without,  they took  care to  ensure that  those powers were not  abused to  mutilate the  liberties of  the people. [300 B-D]      Section 1(2) of the Fortyfourth Amendment Act is valid. There is  no   internal contradiction between the provisions of Article  368(2) and  those of  section 1(2)  of the  44th Amendment Act.  Article 368(2)  lays down  a rule of general application as to the date from which the Constitution would stand amended in accordance with the Bill assented to by the President, section  1(2) of  the Amendment Act specifies the manner in  which that  Act or  any of  its provisions may be brought  into   force.  The   distinction  is   between  the Constitution standing  amended in  accordance with the terms of the Bill assented to by the President and the date of the coming into  force of the Amendment thus introduced into the Constitution. For  determining the  date  with  effect  from which the Constitution stands amended in accordance with the terms of  the Bill, one has to turn to the date on which the President gave,  or was  obliged to  give, his assent to the Amendment. For  determining the  date with effect from which the Constitution.  as amended, came or will come into force, one has  to turn  to the notification, if any, issued by the

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Central Government  under section 1(2) of the Amendment Act. [310 D-F]      The contention  raised by  the  petitioners,  that  the power  to   appoint  a   date  for  bringing  into  force  a constitutional  amendment   is  a   constituent  power   and therefore it  cannot be  delegated to  an outside  agency is without force.  It is  true that the constituent power, that is  to  say,  the  power  to  amend  any  provision  of  the Constitution by way of an addition, variation or repeal must be  exercised   by  the  Parliament  itself  and  cannot  be delegated to  an outside  agency. That is clear from Article 368(1) which  defines at  once the  scope of the Constituent power of  the  Parliament  and  limits  that  power  to  the Parliament. The  power to  issue a notification for bringing into force  the provisions  of a Constitutional amendment is not a  constituent power  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, [312 C-E] 275      Although the  44th Amendment Act received the assent of the President on April 30, 1979 and more than two and a half years have  already gone  by without  the Central Government issuing a  notification for  bringing section  3 of  the Act into  force,  this  Court  cannot  intervene  by  issuing  a mandamus to  the Central  Government obligating  it to bring the provisions  of section  3  into  force.  The  Parliament having left  this question to the unfettered judgment of the Central Government  it is  not for  the Court  to compel the Government to  do that  which according  to the  mandate  of Parliament, lies  in its  discretion to do when it considers it opportune  to do  it. The executive is responsible to the Parliament  and   if  the   Parliament  considers  that  the executive  has  betrayed  its  trust  by  not  bringing  any provision of  the Amendment  into force,  it can censure the executive. It  would be quite anomalous that the inaction of the executive should have the approval of the Parliament and yet the  court should  show its disapproval of it by against mandamus. [314 G-H]      In leaving it to the judgment of the Central Government to decide  as to  when the  various provisions  of the  44th Amendment should be brought into force, the Parliament could not have intended that the Central Government may exercise a kind of  veto over its constituent will by not ever bringing the Amendment  or some  of its  provision  into  force.  The Parliament having seen the necessity of introducing into the Constitution  a   provision  like  section  3  of  the  44th Amendment, it  is not  open to the Central Government to sit in judgment  over the  wisdom of the policy of that section. If only  the  Parliament  were  to  lay  down  an  objective standard to  guide and control the discretion of the Central Government in  the matter of bringing the various provisions of the Act into force, it would have been possible to compel the Central  Government by  an appropriate writ to discharge the function assigned to it by the Parliament. [316 B-D]      Expressions  like  ’defence  of  India’,  ’security  of India’ security  of the  State’ and ’relations of India with foreign powers’,  mentioned in section 3 of the Act, are not of any  great certainty  or definiteness.  But in  the  very nature of  things they  are difficult  to define.  Therefore provisions of  section 3 of the Act cannot be struck down on the ground  of their vagueness and certainty. However, since the concepts  are not  defined, undoubtedly because they are not capable  of a precise definitions, courts must strive to

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give to those concepts a narrower construction than what the literal words  suggest. While  construing laws of preventive detention like the National Security Act, care must be taken to restrict  their  application  to  as  few  situations  as possible. Indeed,  that can well be the unstated premise for upholding the  constitutionally of  clauses  like  those  in section 3,  which are  fraught with  grave  consequences  to personal liberty, if construed liberally. [324 E-H]      What is  said in  regard to the expressions ’defence of India’, ‘security  of India’,  ’security of  the State’  and ’relations of India with foreign powers’ cannot apply to the expression  "acting   in  any   manner  prejudicial  to  the maintenance  of  supplies  and  services  essential  to  the community’ which  occurs in  section 3(2)  of the  Act.  The particular clause  in sub-section  (2) of  section 3  of the National Security  Act is  capable of  wanton abuse in that, the detaining authority can place under detention any person for possession  of any  commodity  on  the  basis  that  the authority is  of the  opinion that the maintenance of supply of that commodity 276 is essential to the community. This particular clause is not only  vague  and  uncertain  but,  in  the  context  of  the Explanation,  capable   of  being   extended  cavalierly  to supplies. the  maintenance of  which is not essential to the community. To allow the personal liberty of the people to be taken away  by the  application of  that clause  would be  a flagrant violation of the fairness and justness of procedure which is implicit in the provisions of Article 21. The power given to  detain persons  under section  3(2) on  the ground that they  are acting  in  any  manner  prejudicial  to  the maintenance  of  supplies  and  Services  essential  to  the community cannot  however  be  struck  down  because  it  is vitally necessary  to ensure  a steady  flow of supplies and services which  are essential  to the  community, and if the State has  the  power  to  detain  persons  on  the  grounds mentioned in section 3(1) and the other grounds mentioned in section 3(2),  it must  also have the power to pass order of detention on  this  particular  ground.  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. [325 A-C; 326 BC, FH]      R. C.  Cooper v. Union of India, [1970] 3 SCR 530, 559, Haradhan Saha,  [1975] 1  SCR 778,  Khudiram, j  1975] 2 SCR 832, Sambhu  Nath Sarkar,  [1974] 1 SCR I and Maneka Gandhi, [1978]2 SCR 621, explained.      Laws of  preventive detention cannot, by the back-door, introduce procedural  measures of a punitive kind. Detention without trial  is an  evil to be suffered, but to no greater extent and in no greater measure than is minimally necessary in the  interest of  the country  and the  community. It  is neither fair  nor just  that a  detenu should have to suffer detention in "such place" as the Government may specify. The normal rule  has to  be that  the detenu  will  be  kept  in detention in  a place which is within the environs of his or her ordinary place of residence. [330 E-F]      In order  that the  procedure attendant upon detentions should conform to the mandate of Article 21 in the matter of fairness, justness and reasonableness, it is imperative that immediately after  a person is taken in custody in pursuance

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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 behaviour. [331 C- D]      Since section  3 has not been brought into force by the Central Government  in the  exercise  of  its  powers  under section 1(2)  of the  44th Amendment  Act, that  section  is still not  a part  of the  Constitution. The  question as to whether section  9 of  the National  Security Act is bad for the reason  that it  is inconsistent  with the provisions of section 3  of the  44th Amendment  Act, has  therefore to be decided on  the basis  that section  3, though a part of the 44th Amendment Act, is not 277 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. It 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 a 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 the  44th Amendment substitutes  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). [335 D-H]      On a  combined reading  of clauses  (I) and  (3)(b)  of Article 22,  it is clear that the right to consult and to be defended by  a legal  practioner of  one’s choice,  which is conferred by  clause (1),  is denied  by clause  (3)(b) to a person  who   is  detained   under  any  law  providing  for preventive  detention.   Thus,  according   to  the  express intendment of  the Constitution  itself, no  person  who  is detained  under  any  law,  which  provides  for  preventive detention, can claim the right to consult a legal practioner of his  choice or  to be  defended by  him. It  is therefore difficult to  hold, by  the application of abstract, general principles or  on a priori consideration that the detenu has the right  of being represented by a legal practioner in the proceedings before the Advisory Board. [339 D-E]      Yet the  fact remains  that the  detenu has no right to appear through  a  legal  practitioner  in  the  proceedings before the  Advisory Board. The reason behind the provisions contained in Article 22(3)(b) of the Constitution clearly is that a  legal practitioner should not be permitted to appear before the  Advisory Board  for any  party. The Constitution does not  contemplate that  the detaining  authority or  the Government should  have the facility of appearing before the Advisory Board  with the  aid of a legal practioner but that the said  facility should  be denied  to the  detenu. In any case, that is not what the Constitution says and it would be

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wholly inappropriate  to read  any  such  meaning  into  the provisions of Article 22. Permitting the detaining authority or the  Government to  appear before the Advisory Board with the aid  of a legal practitioner or a legal adviser would be in breach  of Article 14, if a similar facility is denied to the detenu.  Therefore if  the detaining  authority  or  the Government takes  the aid of a legal practitioner or a legal adviser before  the  Advisory  Board,  the  detenu  must  be allowed the facility of appearing before the Board through a legal practitioner. [344 H; 345 A-C]      The embargo  on the  appearance of  legal practitioners 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 Pet  v. Greyhound  Racing Association Ltd.), and  if justice  is to  be done he must at least have the help of a friend who can assist him to give coherence to his stray and wandering ideas. [345 G-H] 278      In the  proceedings  before  the  Advisory  Board,  the detenu has  no right  to cross-examine either the persons on the basis  of whose statement the order of detention is made or the detaining authority.[352D]      Now Prakash Transport Co. Ltd. v. New Suwarna Transport Co.  Ltd.,  [1957]  SCR  98,  106,  Nagendra  Nath  Bora  v. Commissioner of  Hills Division  and Appeals,  Assam, [1958] SCR 1240,  1261, State  of Jammu  & Kashmir v. Bakshi Ghulam Mohammad, [1966] Suppl. SCR 401, 415, Union of India v. T.R. Verma, [1958]  SCR 499,  507 and  Kherr. Chand  v. Union  of India [1959] SCR 1080, 1096, held inapplicable      There can  be no  objection  for  the  detenu  to  lead evidence in  rebuttal of  the allegation  made  against  him before the  Advisory Board. Neither the Constitution nor the National Security  Act contains any provision denying such a right to  the detenu.  The detenue  may therefore offer oral and documentary  evidence before the Advisory Board in order to rebut the allegations which are made against him. [352 E- F]      It  is  not  possible  to  accept  the  plea  that  the proceedings of  the Advisory  Board should be thrown open to the public.  The right  to a  public trial is not one of the guaranteed rights under our Constitution. [354 C-D]      Puranlal Lakhanpal  v. Union  of India, [1958] SCR 460, 475 and  Dattatreya Moreshwar  Pangarkar v. State of Bombay, [1952] SCR 612, 626, referred to.      Yet  the   Government  must   afford  the  detenus  all reasonable facilities for an existence consistent with human dignity. They should be permitted to wear their own clothes, eat their  own food,  have interviews  with the  members  of their families  at least  once a  week and, last but not the least, have  reading and writing material according to their reasonable requirements. [355 B-C]      Persons who  are detained  under the  National Security Act must  be segregated  from the  convicts and  kept  in  a separate part  of the  place of detention. It is hardly fair that those who are suspected of being engaged in prejudicial conduct should  be lodged in the same ward or cell where the convicts whose crimes are established are lodged. [355 D]      Sunil Batra  v. Delhi  Administration [1980] 3 S CR 557

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and Sampat  Prakash v. State of Jammu & Kashmir [1969] 3 SCR 754, referred to.      [per Gupta and Tulzapurkar, JJ dissenting]      Section   1(2)   of   the   Constitution   (Fortyfourth Amendment)  Act  1978  cannot  be  construed  to  mean  that Parliament has  left it  to  the  unfettered  discretion  or judgment of  the Central Government when to bring into force any provision  of the  amendment Act.  After the President’s assent, the  Central Government  was under  an obligation to bring into  operation the  provisions of  the Act  within  a reasonable time;  the power  to appoint  dates for  bringing into force  the provisions  of the  Act  was  given  to  the Central Government  obviously because  it was not considered feasible to  give affect  to all the provisions immediately. But the 279 Central Government  could not in its discretion keep it in a state of  suspended A  animation for  any length  of time it pleased. [358 A-B]      From the  Statement of objects and Reasons it was clear that the  Parliament wanted  the provisions of the Amendment Act to  be made  effective as  early as  possible. When more than two  and half years have passed since the Amendment Act received the  assent of  the President,  it is impossible to say that  any difficulty should still persist preventing the Government from  giving effect to section 3 of the Amendment Act. A  provision like  section 1(2)  cannot be said to have empowered the  executive  to  scotch  an  amendment  of  the Constitution passed  by Parliament  and assented  to by  the President. That  Parliament is competent to take appropriate steps if  it considered  that the executive had betrayed its trust does not make the default lawful or relieve this Court of its duty. [359 B-C]      [per Gupta J. dissenting.]      Normally it  is the  legislature that  has the power to make laws.  The nature  of  the  legislative  power  of  the President has  to be gathered from the provisions of Article 123  and  not  merely  from  the  heading  of  the  chapter, "Legislative Powers  of the  President". 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  Parliament. Article 123(2)  does not  say that  an ordinance promulgated under  this  article  shall  be  deemed  to  be  an  Act  of Parliament to make the two even fictionally identical. While an ordinance issued under Article 123 has the same force and effect as  an Act  of Parliament,  under  Article  357(1)(a) Parliament can  confer on  the President  the power  of  the legislature of  a State  to make laws. The difference in the nature of power exercised by the President under Article 123 and under  Article 357  is clear and cannot be ignored. [360 B, 361 B-C]      The word  "establish" in  Article 21  as interpreted by this Court  "implies some degree of firmness, permanence and general acceptance". An ordinance which ceases to operate on the happening  of one of the conditions mentioned in Article 123(2) can  hardly be  said  to  have  that  "firmness"  and "permanence" that  the word  "establish" implies.  lt is not the temporary  duration of  an ordinance  that is  relevant; what is  relevant is its provisional and tentative character which is apparent from Article 123(2). [362 G] F      A.K. Gopalan v. State [1950] SCR, 88, relied on.      A significant  difference between  the law  made by the President under  Article 357 and an ordinance promulgated by him under Article 123 is that while a law made under Article 357 continues  to be  in force  until altered,  repealed  or

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amended  by   a  competent   legislature  or  authority,  an ordinance promulgated under Article 123 ceases to operate at the expiration  of six weeks of reassembly of the Parliament at the latest. [363 B]      The argument  that since  Article 367(2)  provides that any reference  in the  Constitution to  Acts  of  Parliament should be  construed as including a reference to an ordnance made by  the President,  an ordinance should be equated with an  Act  of  Parliament  is  without  substance  because  an ordinance has  the force  and effect only over an area where it can validly operate. An invalid ordinance can 280 have no  force or effect and if it is not ’law’ in the sense the word  has been  used Article  21, Article  367(2) cannot make it so. [363 E]      [on all  other points  His  Lordship  agreed  with  the conclusions of Hon’ble the Chief Justice].      [Hon’ble Tulzapurkar J. agreed with the majority on all other points]

JUDGMENT:      ORIGINAL JURISDICTION:  Writ Petitions Nos 5724, 5874 & 5433 of 1980.      (Under Article 32 of the Constitution of India)      R K  Garg, V.J.  Francis and  Sunil  R.  Jain  for  the Petitioners in WP. 5724 & 5874 and for interveners 3-12.      N.M. Ghatate,  S.V. Deshpande and Shiva Pujan Singh for the petitioner in WP. 5433.      L.N. Sinha,  Attorney General,  K Parasaran,  Solicitor General, M.K  Banerjee, Additional  Solicitor  General,  KS. Gurumurthi  Miss   A.  Subhashini  and  Girish  Chandra  for Respondent No. 1 in all the WPs.      Subbash C.  Maheshwari, Additional,  Advocate  General, O.P. Rana, Hansraj Bhardwaj and R.K. Bhatt for Respondents 2 & 3 in WP. 5874180.      L.N.  Sinha,   Attorney  General,   Ram  Balak   Mahto, Additional Advocate  General, K.G.  Bhagat and  D. Goburdhan for Respondents 2 & 3 in WP. 5724/80. For Interveners:      V.M. Tarkunde,  P.H. Parekh,  Miss Manik  Tarkunde  and R.N, Karanjawala for Intervener No 1.      Bhim Singh intervener No. 2 (in person)      Dr.  L.M.  Singhvi,  Anand  Prakash,  S.N.  Kaekar,  G. Mukhoty, B.B.  Sinha, A.K  Srivastava,  Randhir  Jain,  M.L. Lahoty, Kapil  Sibal, L  K  Pandey  and  S.S.  Khanduja  for Intervener No. 13.      Mrs. Subhadra Joshi for Intervener No 14.      Ram Jethmalani  and Miss Rani Jethmalani for Intervener No, 15. 281      L.N. Sinha, Attorney General and Altaf Ahmed for Inter- vener No. 16.      The following Judgments were delivered      CHANDRACHUD, C.J.  This is  a group  of Writ  Petitions under  Article   32  of  the  Constitution  challenging  the validity of  the National Security ordinance, 2 of 1980, and certain provisions of the National Security Act, 65 of 1980, which replaced the ordinance. Writ Petition No. 5724 of 1980 is by  Shri A.  K. Roy,  a Marxist member of the Parliament, who was  detained under  the ordinance by an order passed by the District  Magistrate, Dhanbad, on the ground that he was indulging in  activities which  were prejudicial  to  public order. Ten members of the Parliament, one an Independent and

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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 limitations  of   the  ordinance-making   power,  Shri   Ram Jethmalani on  the vagueness  and  unreasonableness  of  the provisions  of  the  Act  and  the  punitive  conditions  of detention  and  Dr.  Ghatate  on  the  effect  of  the  44th Constitution Amendment  Act and  the validity of its section 1(2). Shri  Tarkunde dwelt  mainly on the questions relating to the  fulfillment of pre-conditions of the exercise of the ordinance making  power, the effect of non-implementation by the  Central  Government  of  the  provisions  of  the  44th Amendment regarding  the composition  of the Advisory Boards and 282 the broad,  undefined powers  of detention  conferred by the Act. Dr.  L.M. Singhvi laid stress on the need for the grant of minimal facilities to detenus, the nature of the right of detenus to  make an  effective  representation  against  the order of  detention and  the evils  of the  exercise of  the power to issue ordinances.      The National  Security ordinance,  1980, was  passed in order "to  provide for preventive detention in certain cases end for matters connected therewith." It was made applicable to the  whole of  India except  the State of Jammu & Kashmir and it came into force on September 23, 1980. The Parliament was not  in session when it was promulgated and its preamble recites that  it was  being issued because the "President is satisfied that circumstances exist which render it necessary for him to take immediate action".      Shri  R.K.   Garg,  appearing   for  the   petitioners, challenges the  power of the President to issue an ordinance depriving any person of his life or liberty. He contends:      (a)   The power  to issue  an ordinance is an executive           power, not a legislative power;      (b)   Ordinance is  not ’law’ because it is not made by           an agency  created by  the Constitution for making           laws  and   no  law   can  be   made  without  the           intervention of the legislature;      (c)   There is a marked shift towards distrust of power           in order  to  preserve  the  people’s  rights  and           therefore, liberty, democracy and the independence           of Judiciary  are amongst  the  principal  matters           which are outside the ordinance-making power;      (d)  By Article 21 of the Constitution, a person can be           deprived of  his life or liberty according only to           the procedure established by law. Ordinance is not

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         ’law’  within   the  meaning  of  Article  21  and           therefore no person can be deprived of his life or           liberty by an ordinance;      (e)   The underlying  object 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 283           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 of  separation  of  powers  between  the           executive and  the legislature, which is a part of           the basic structure of the Constitution; and      (i)  Articles 14, 19 and 21 of the Constitution will be           reduced to  a dead  letter  if  the  executive  is           permitted to take away the life and liberty of the           people by  an ordinance,  lacking the support of a           law made  by the legislature. The ordinance-making           power must,  therefore, be  construed harmoniously           with   those   and   other   provisions   of   the           Constitution.      This many-pronged  attack on the ordinance-making power has one  central theme:  ’ordinance is  not  law.’  We  must therefore consider  the basic  question as  to  whether  the power to  make  an  ordinance  is  a  legislative  power  as contended by  the learned  Attorney General or whether it is an executive  power masquerading  as a legislative power, as contended on behalf of the petitioners. 284      In support  of these  submissions Shri  Garg relies  on many texts and decisions which we need not discuss at length since, primarily,  we have  to consider  the scheme  of  our Constitution and  to interpret  its provisions  in order  to determine the  nature  and  scope  of  the  ordinance-making power. Counsel  drew our  attention, with great emphasis, to the statements  in Montesquieu’s  Esprit des lois (1748) and Blackstone’s Commentaries  on the  laws of  England’  (1756) which are  reproduced in ’Modern Political Constitution’s by C.F.  Strong   (8th  edition)  at  page  291.  According  to Montesquieu, "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

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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". Reliance  was  also placed on  views and sentiments expressed to the same effect in Walter Bagehot’s ’The English Constitution (1867), Wade’s Administrative   Law’    (3rd   edition)    pages   323-324, ’Constitutional Laws  of the British Empire’ by Jennings and Young, ’Law  and orders’  by C.K.  Allen (1945)  and  Harold ’Laski’s Liberty  in the  Modern State’ (1961). According to Laski (pages 42-43).           ".. if  in any  state there  is a  body 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 285 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 cannot  transplant, in the Indian context and conditions, principles which  took  birth  in  other  soils,  without  a careful examination of their relevance to the interpretation of our  Constitution. No two Constitutions are alike, for it is not  mere words  that make  a  Constitution.  It  is  the history of  a people  which lends  colour and meaning to its Constitution. We  must  therefore  turn  inevitably  to  the historical origin of the ordinance-making power conferred by our Constitution and consider the scope of that power in the light of  the restraints  by which  that  power  is  hedged. Neither in  England nor in the United States of America does the  executive  enjoy  anything  like  the  power  to  issue ordinances. In India, that power has a historical origin and the executive,  at all  times, has  resorted to it freely as and when  it considered  it necessary  to do  so. One of the larger States  in India has manifested its addiction to that power by  making  an  overgenerous  use  of  it-so  generous indeed, that  ordinances which lapsed by efflux of time were renewed successively  by a  chain of  kindred creatures, one after another.  And, the ordinances embrace everything under the sun,  from Prince to pauper and crimes to contracts. The Union Government  too, so  we are informed, passed about 200 ordinances between  1960 and  1980, out  of  which  19  were passed in 1980.      Our Constituent Assembly was composed of famous men who had a  variegated experience  of life. They were not elected by the  people to  frame the Constitution but that was their strength, not  their weakness.  They were neither bound by a popular mandate nor bridled by a party whip. They brought to bear on  their task  their vast experience of life-in fields social, economic  and political.  Their deliberation,  which

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run into  twelve volumes,  are a  testimony to  the time and attention which  they gave with care and concern to evolving a generally  acceptable instrument for the regulation of the fundamental affairs  of the country and the life and liberty of its people.      The Constituent  Assembly had  before it the Government of India  Act, 1935  and many of its members had experienced the traumas and travails resulting from the free exercise of the ordinance-making  power conferred by that Act. They were also aware  that  such  a  power  was  not  claimed  by  the Governments of  two lading  democracies of  the  world,  the English and the American, 286 And yet,  they took  the 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 withdrawn at any time by the                          Governor-General. 287               (3)   If and so far as an ordinance under this                     section makes  any provision  which  the                     Federal Legislature would not under this                     Act be  competent to  enact, it shall be                     void". Section 43  conferred upon the Governor-General the power to issue  ordinances   for  the   purpose   of   enabling   him satisfactorily to  discharge his  functions in  so far as he was by or under the Act required to act in his discretion or to exercise his individual judgment.      Article 123,  which confers  the  power  to  promulgate ordinances,  occurs   in  Chapter  III  of  Part  V  of  the Constitution, called  "Legislative Power  of the President". It reads thus: Power of  "123 (1)   If at any time, except when both Houses

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President           of  Parliament   are  in   session,  the to promul-          President     is      satisfied     that gate Ordi-          circumstances  exist   which  render  it nances              necessary  for  him  to  take  immediate during              action,   he    may   promulgate    such recess of           ordinances as  the circumstances  appear parliament.         recess of to him to require.                     (2)   An ordnance 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 Houses of                          Parliament  and   shall  cease   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,  upon  the                          passing  of  the  second  of  those                          resolutions; and                     (b)  may be withdrawn at any time by the                          President. 288                          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." 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.      As  we   have  said   earlier  while  setting  out  the petitioner s  case, the  thrust of  his argument is that the power to  issue an ordinance is 7 Dan executive power, not a legislative power,  and consequently, is not law. In view of the  clear  and  specific  provisions  of  the  Constitution bearing upon this question, it is quite impossible 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  otherwise requires. In  view of  the fact  that the  context does  not

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otherwise so  require, it  must  follow  from  the  combined operation of  clauses (2)  ’and (3)  of Article  13 that  an ordinance 289 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. Therefore,  whether the legislation is Parliamentary or Presidential, that is to say, whether it is a law made by the Parliament  or an ordinance issued by the President, the limitation on  the power  is  that  the  fundamental  rights conferred by  part III  cannot be  taken away or abridged in the exercise of that power. An ordinance, like a law made by the Parliament,  is void  to the  extent of contravention of that limitation’      The exact equation, for all practical purposes, between a law  made by the Parliament and an ordinance issued by the President is  emphasised by  yet another  provision  of  the Constitution. Article  367 which  supplies  a  clue  to  the "Interpretation" of  the Constitution provides by clause (2) that-           "Any reference  in this  Constitution to  Acts  or      laws of, or made by, Parliament, or to Acts or laws of,      or made  by, the  Legislature  of  a  State,  shall  be      construed as including a reference to an ordinance made      by  the  President  or,  to  an  ordinance  made  by  a      Governor, as the case may be." It is  clear from  this provision,  if indeed  there was any doubt about  the true  position, that the Constitution makes no distinction  in principle  between  a  law  made  by  the legislature and  an ordinance issued by the President. Both, equally, are  products of  the exercise of legislative power and, therefore,  both are equally subject to the limitations which the Constitution has placed upon that power.      It may  sound strange at first blush that the executive should possess legislative powers, but a careful look at our Constitution  will  show  that  the  scheme  adopted  by  it envisages  the   exercise  of   legislative  powers  by  the executive in  stated  circumstances.  An  ordinance  can  be issued by  the President  provided that  both Houses  of the Parliament are not in session and the President is satisfied that circumstances  exist which  render It necessary for him to take  immediate action An ordinance which satisfies these pre-conditions has  the same  force and  effect as an Act of Parliament. Article  356 empowers  the 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 290 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

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power by  the legislature  properly so  called is  the  only source of  law. Ordinances  issued by  the President and the Governors and the laws made by the President or his delegate under Article  357 (1)  (a)  partake  fully  of  legislative character and are made in the exercise of legislative power, within the contemplation of the Constitution.      It is  thus clear  that the Constituent Assembly was of the view  that the President’s power to legislate by issuing an  ordinance  is  as  necessary  for  the  peace  and  good government of  the country  as  the  Parliament’s  power  to legislate by  passing laws. The mechanics of the President’s legislative power  was devised  evidently in  order to  take care of  urgent situations  which cannot  brook  delay.  The Parliamentary process  of legislation is comparatively tardy and can conceivably be time-consuming. It is true that it is not easy  to accept with equanimity the preposition that the executive  can  indulge  in  legislative  activity  but  the Constitution is  what it says and not what one would like it to be. The Constituent Assembly indubitably thought, despite the strong  and adverse  impact which the Governor-General’s ordinance-making power  had produced on the Indian Community in the pre-indepence era, that it was necessary to equip the president with  legislative  powers  in  urgent  situations. After all,  the Constitution makers had to take into account life’s  realities.   As  observed   by   Shri   Seervai   in ’Constitutional Law  of India’  (2nd  Ed.,  p.  16),  "Grave public inconvenience  would be caused if on an Act, like the Bombay Sales  Tax Act,  being declared  void  no  machinery, existed whereby a valid law could be promptly promulgated to take the place of the law declared void". Speaking for 291 the majority  in R.C.  Cooper v.  Union of India(l), Shah J. said: "The  President is  under  the  Constitution  not  the repostory of  the legislative power of the Union, but with a view to  meet extraordinary  situations demanding  immediate enactment of  laws, provision  is made  in the  Constitution investing,  the   President  with   power  to  legislate  by promulgating ordinances." The Constituent Assembly therefore conferred upon  the executive the power to legislate, not of course  intending   that  the  said  power  should  be  used recklessly or by imagining a state of affairs to exist when, in fact,  it did  not exist;  nor, indeed, intending that it should be  used mala  fide in  order to prevent the people’s elected representatives  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 serve political ends.  The Constituent  Assembly held forth, as it

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were, an assurance to the people that an extraordinary power shall not  be used  in order  to perpetuate  a fraud  on the Constitution which  is conceived  with  so  much  faith  and vision. That  assurance must  in all events be made good and the balance  struck by  the  founding  fathers  between  the powers of the Government and the liberties of the people not disturbed or destroyed.      The next  contention of Shri Garg is that even assuming that the  power to  issue ordinances  is legislative and not executive in  character, ordinance  is not  ’law’ within the meaning of Article 21 of 292 the Constitution.  That article  provides  that  "No  person shall be  deprived of  his life  or personal  liberty except according to  procedure established by law". It is contended by the learned counsel that the decision of this Court in A. K.  Gopalan(1)   establishes  that   the  supremacy  of  the legislature is  enshrined in  Article 21  as  a  fundamental right in  order to afford protection to the life and liberty of the people R against all executive powers and, therefore, the supremacy  of the  legislature  cannot  be  replaced  by making the  executive supreme  by allowing  it to promulgate ordinances which  have the effect of depriving the people of their life and liberty. The extent of protection afforded to the right  conferred by  Article 21  consists, according  to counsel,  in   the  obligation  imposed  upon  a  democratic legislature to  devise a fair, just and reasonable procedure for attenuating  the liberties of the people. Since the very object of  Article 21 is to impose restrains on the power of the executive  in the  matter of deprivation of the life and liberty of  the people,  it is absurd, so the argument goes, to concede  to the executive the power to deprive the people of  the   right  conferred  by  Article  21  by  issuing  an ordinance.  The   argument,  in  other  words  is  that  the executive cannot  under any  conditions or  circumstances be permitted to  liberate itself from the restraints of Article 21. Shri  Garg says that if ordinances are not excluded from the precious area of life and liberty covered by Article 21, it is  the executive which will acquire the right to trample upon the  freedoms of  the people  rather  than  the  people acquiring the  fundamental right  to life and liberty. It is also urged  that by  elevating ordinances into the status of laws, the 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. 293      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  certainty  in

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order that those who are deprived of their fundamental right to life  or liberty  must know  the precise  extent of  such deprivation. The  decision of  this Court in State of Orissa v. Bhupendra Kumar Bose(1), and Mohammadbhai Khudabux Chhipa & Anr.  v. The  State of  Gujarat &  Anr(2), illustrate that enduring  rights   and  obligations   can  be   created   by ordinances. The fact that any particular law has a temporary duration is  immaterial for  the purposes  of Article  21 so long as  the procedure  prescribed by  it  is  definite  and reasonably ascertainable.  In fact, the Preventive Detention laws were  in their inception of a temporary character since they had  a limited  duration. They  were only extended from time to time.      The argument  of the  petitioner that  the  fundamental right conferred  by Article  21 cannot  by taken  away by an ordinance really seeks to add a proviso to Article 123(1) to the following  effect: "Provided  that such ordinances shall not deprive  any person  of his  right to  life or  personal liberty conferred  by Article  21 of  the Constitution."; An amendment substantially  to that  effect was  moved  in  the Constituent Assembly  by  Shri  B.  Pocker  Sahib,  but  was rejected  by  the  Constituent  Assembly,  (see  Constituent Assembly Debates, Vol. 8, p. 203). Speaking on the amendment moved by  Shri Pocker  Dr. Ambedkar  said:  "Clause  (3)  of Article 102  lays down  that any  law made  by the President under the  provisions of Article 102 shall be subject to the same limitations  as a  law made  by the  legislature by the ordinary process.  Now, any law made in the ordinary process by  the  legislature  is  made  subject  to  the  provisions contained in  the Fundamental  Rights articles of this Draft Constitution.  That   being  so,  any  law  made  under  the provisions  of  Article  102  would  also  be  automatically subject to  the provisions relating to fundamental rights of citizens, and  any such  law therefore  will not  be able to over-ride those  provisions and  there is  no need  for  any provision as  was suggested  by my friend, Mr. Pocker in his amendment No.  1796" (page  214). It  may be  mentioned that Draft Article  102 corresponds to the present Article 123 of the Constitution. 294      Another answer  to Shri  Garg’s contention is that what Article 21 emphasise is that the deprivation of the right to life or  liberty must  be brought  about by a State-made law and not by the rules of natural law (See A.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

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the separation  of powers  as envisaged by the Constitution. In the  first  place,  Article  123(1)  is  a  part  of  the Constitution  as   originally  enacted;  and  secondly,  our Constitution does  not follow  the  American  pattern  of  a strict separation of powers.      We may  here take  up for  consideration  some  of  the submissions made  by Shri  Tarkunde on  the validity  of the National Security  ordinance. He  contends that the power to issue an  ordinance under Article 123 is subject to the pre- conditions that  circumstances must  exist which  render  it necessary for  the president  to take  immediate action. The power to  issue an ordinance is conferred upon the President in order  to enable  him to  act in  unusual and exceptional circumstances.  Therefore,   according  to   Shri  Tarkunde, unusual and exceptional circumstances must be show to exist, they must  be relevant  on the  question of the necessity to issue an ordinance and 295 they must be such as to satisfy a reasonable person that, by A reason  thereof it  was necessary to take immediate action and issue  all ordinance.  The legislative power to issue an ordinance being  conditional, the  question as  regards  the existence of  circumstances which  compelled the issuance of ordinance is  justiciable and it is open to this Court, says Shri Tarkunde,  to determine whether the power was exercised on the  basis of  relevant circumstances which establish the necessity  to  take  immediate  action  or  whether  it  was exercised for  a collateral  purpose.  In  support  of  this contention, Shri  Tarkunde relies  on the  circumstance that the  amendment   introduced  in  Article  123  by  the  38th Constitution Amendment  Act, 1975,  was deleted  by the 44th Constitution Amendment  Act, 1978.  Section 2  of  the  38th Amendment Act  introduced clause  (4) in  Article 123 to the following effect:           "Notwithstanding anything  in  this  Constitution,      the satisfaction  of the  President mentioned in clause      (1) shall  be final  and conclusive  and shall  not  be      questioned in any Court on any ground." This amendment  was expressly  deleted by  section 16 of the 44th Amendment  Act. Shri Tarkunde says that the deletion of the particular  clause is  a positive  indication  that  the Parliament did  not consider  it safe  or proper  to entrust untrammeled powers  to the executive to issue ordinances. It therefore decided  that the  President’s satisfaction should not be  "final and conclusive" and that it should be open to judicial scrutiny.  Shri Tarkunde 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 296 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

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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.S  Constitution and our Constitution is not based on a rigid separation  of powers.  Reliance  is  placed  by  Shri Tarkunde on the decision in the Privy Purse case(1) in which Shah,  J.  Observed  that  "Constitutional  mechanism  in  a democratic polity  does not  contemplate  existence  of  any function  which  may  qua  the  citizens  be  designated  as political and orders made in exercise whereof are not liable to  be   tested  for  their  validity  before  the  lawfully constituted courts".  In the  same case  Hegde J., said that "There  is   nothing  like   a  political  power  under  our Constitution in  the  matter  of  relationship  between  the executive and the citizens’      We see  the force  of the  contention that the question whether the  pre-conditions of  the exercise  of  the  power conferred by Article 123 are satisfied cannot be regarded as a purely  political question.  The doctrine of the political question was  evolved in the United States of America on the basis of  its Constitution which has adopted the system of a rigid separation  of powers,  unlike ours.  In fact, that is one of  the principal reasons why the U.S. Supreme Court had refused to  give advisory  opinions.(2) In  Baker v. Carr(3) Brennan J.  said that the doctrine of political question was "essentially a  function of the separation of powers". There is also a sharp difference in the position and powers of the American President on one hand and the President of India on the other.  The President  of the  United  States  exercises executive power  in his  own right and is responsible not to the Congress  but to the people who elect him. In India, the executive power  of the  Union is vested in the President of India, but  he is  obliged to  exercise it  on the  aid  and advice  of   his  Council   of  Ministers.  The  President’s "satisfaction" is  therefore nothing but the satisfaction of his Council  of Ministers  in whom  the real executive power resides. It must also be mentioned that in the United States itself, the  doctrine of  the political  question  has  come under a  cloud and  has been  the subject  matter of adverse criticism 297 It is  said that  all that the doctrine really means is that in the  exercise of the power of judicial review, the courts must adopt a ’prudential’ attitude, which requires that they should be  wary of  deciding upon  the merit of any issue in which claims  of principle  as to  the issue  and claims  of expediency 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

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to discuss  at greater  length the  question as  regards the justiciabilty of  the President’s satisfaction under Article 123 (1)  of  the  Constitution.  In  the  first  place,  the ordinance has  been replaced  by an  Act.  It  is  true,  as contended by  Shri Tarkunde, that if the question as regards the justiciability of the President’s satisfaction is not to be considered  for the  reason that the ordinance has become an Act  the occasion  will hardly ever arise for considering that question, because, by the time the challenge made to an ordinance comes  up for  consideration before the Court, the ordinance almost  invariably shall  have been replaced by an Act. All the same, the position is firmly established in the field of  constitutional adjudiction  that  the  Court  will decide no  more than  needs to  be decided in any particular case. Abstract questions present interesting challenges, but it is  for scholars  and text-book  writers to unravel their mystique. It is not for the courts to decide questions which are but of academic importance.      The other reason why we are not inclined to go into the question as  regards the  justiciability of  the President’s satisfaction under 298 Article 123  (1) is  that on  the material  which is  placed before us, it is impossible for us to arrive at a conclusion one way  or the  other. We  are not  sure whether a question like the  one before  us would  be governed  by the  rule of burden of  proof contained  in section  106 of  the Evidence Act, though we are prepared to proceed on the basis that the existence of  circumstances which  led to the passing of the ordinance  is   especially  within   the  knowledge  of  the executive. But before casting the burden on the executive to establish those  circumstances, at  least a prima facie case must be  made out by the challenger to show that there could not  have   existed  any   circumstances  necessitating  the issuance of the ordinance. Every casual or passing challenge to  the   existence  of  circumstances,  which  rendered  it necessary for  the President  to take  immediate  action  by issuing an ordinance, will not be enough to shift the burden of proof  to the executive to establish those circumstances. Since  the   petitioners  have   not  laid   any  acceptable foundation for  us to  hold that no circumstances existed or could have  existed which  rendered  it  necessary  for  the President to  take  immediate  action  by  promulgating  the impugned  ordinance,   we  are   unable  to   entertain  the contention that  the ordinance  is unconstitutional  for the reason that  the pre-conditions 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

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already covered  by a  law made by the Legislature. There is no justification  for imposing  any such  restriction on the ordinance making  power, especially  when an ordinance, like any law  made by  the Legislature,  has to  comply with  the mandate of Article 13 (2) 299 of the Constitution. Besides, legislative activity, properly so called,  has proliferated  so enormously  in recent times that it  is difficult  to discover  a virgin land or a fresh field on which the ordinance making power can operate, as if on a clean slate. To-day, there is possibly no subject under the sun which the Legislature has not touched.      As regards  Articles 14,  19 and  21 being reduced to a dead letter,  we are  unable to  appreciate how an ordinance which is  subject to  the same  constraints as a law made by the Legislature  can, in  its practical operation, result in the obliteration  of these  articles.  The  answer  to  this contention is  again to be found in the provisions contained in Article 13 (2).      That  disposes  of  the  contentions  advanced  by  the various parties  on the  validity of  the ordinance. We must mention that  in a  recent judgment  dated October  20, 1981 delivered by  a Constitution  Bench of  this Court  in  Writ Petition No.  355 of  1981 (the  Bearer Bonds  case(1),  the question as  regards the  nature and scope of the ordinance- making power  has been  discussed elaborately.  We adopt the reasoning of the majority judgment in that case.      The  argments   advanced  on   behalf  of  the  various petitioners can  be broadly  classified under six heads: (1) The scope, limits and justiciability of the ordinance-making power; (2) The validity of Preventive Detention in the light of the  severe deprivation  of  personal  liberty  which  it necessarily entails;  (3) The effect of the non-implemention of the  44th Amendment  in so  far  as  it  bears  upon  the Constitution of  the Advisory  Boards; (4)  The vagueness of the provisions of the National Security Act, authorizing the detention of  persons for the reasons mentioned in section 3 of the  Act; (5)  The unfairness and unreasonableness of the procedure  before   the  Advisory   Boards:  and   (6)   The unreasonableness  and   harshness  of   the  conditions   of detention. We  have dealt  with  the  first  question  fully though the  impugned ordinance  has been replaced by an Act, since the  question was  argued over several days and arises frequently as  frequently as ordinances are issued. All that needs have  been said  was said  on  that  question  by  the various counsel  and the  relevant  data  was  fully  placed before us. We will now turn to the 300 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

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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  the government we  fought for.’’ And therefore, while arming the government with  large powers to prevent anarchy from within and conquest  from without,  they took  care to  ensure that those powers  were not  abused to  mutilate the liberties of the people.      But,  the   liberty  of   the  individual   has  to  be subordinated, within  reasonable bounds,  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, authorising the Parliament and the State legislatures by Article 246 to pass laws of preventive detention. These entries read thus: Entry 9, List I:           "Preventive detention  for reasons  connected with      Defence, Foreign  Affairs, or  the security  of India ’      persons subjected to such detention.’’ Entry 3, List III:           "Preventive detention  for reasons  connected with      the security  of a  State, the  maintenance  of  public      order, or  the maintenance  of  supplies  and  services      essential to  the community;  persons subjected to such      detention." 301 The practical  need and  reality of  the laws  of preventive detention find  concrete recognition  in the  provisions  of Article  22   of  the   Constitution.  Laws   providing  for preventive  detention  are  expressly  dealt  with  by  that article  and   their  scope   appropriately  defined.   "The established  Courts  of  Justice,  when  a  question  arises whether the  prescribed limits  have been  exceeded, must of necessity determine that question; and the only way in which they can  properly do  so, is by looking to the terms of the instrument by  which, affirmatively,  the legislative powers were created, and by which, negatively, they are restricted. If what  has been  done is  legislation within  the  general scope of  the affirmative words which give the power, and if it violates  no express  condition or  restriction by  which that power  is limited..........,it  is not for any Court of Justice to  inquire further,  or to  enlarge  constructively those conditions  and restrictions" (see The Queen v. Burah. The legislative  power in respect of preventive detention is expressly limited to the specific purpose mentioned in Entry 9, List  I and  Entry 3,  List III.  It is  evident that the power  of   preventive  detention   was  conferred   by  the Constitution in order to ensure that the security and safety of the  country and the welfare of its people are not put in peril. So  long 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

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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 302 justness of  procedure established by a law for the purposes of Article 21 is one thing: that power can be spelt out from the language  of that article. Procedural safeguards are the handmaids of  equal justice  and since,  the  power  of  the government is  colossal as  compared with  the power  of  an individual, the  freedom of  the individual can be safe only if he  has a  guarantee that  he will be treated fairly. The power to decide upon the justness of the law itself is quite another thing:  that power  springs from a ’due process’ pro vision such as is to be found in the 5th and 14th Amendments of the  American Constitution  by which  no  person  can  be deprived of  life, liberty  or property "without due process of law".       In  so  far  as  our  Constitution  is  concerned,  an amendment was  moved by Pandit Thakur Dass Bhargava to draft Article  15,   which  corresponds   to  Article  21  of  the Constitution,  for   substituting  the  words  "without  due process of law" for the words "except according to procedure established by law". Many members spoke on that amendment on December 6,  1948, amongst  whom were  Shri K.M. Munshi, who was in  favour of the amendment, and Sir Alladi Krishnaswamy Ayyar  who,  while  explaining  the  view  of  the  Drafting Committee, said  that he was "still open to conviction". The discussion of  the amendment  was resumed by the Assembly on December 13,  1948 when,  Dr. Ambedkar,  who too had an open mind on the vexed question of ’due process’, said:           "...I  must  confess  that  I  am  somewhat  in  a      difficult position  with regard  to article  15 and the      amendment moved  by my  friend Pandit  Bhargava for the      deletion of  the words "procedure according to law" and      the substitution of the words "due process".           "The question  of  "due  process"  raises,  in  my      judgment, the  question of the relationship between the      legislature   and   the   judiciary.   in   a   federal      constitution, it  is always  open to  the judiciary  to      decide  whether   any  particular  law  passed  by  the      legislature is  ultra vires or intra vires in reference      to the  powers of  legislation which are granted by the      Constitution to the particular legislature.... The ’due      process’ clause, in my judgment, would give the judi- 303      ciary the  power to  question  the  law  made  by,  the      legislature on  another ground.  That ground  would  be      whether that law is in keeping with certain fundamental      principles relating to the rights of the individual. 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

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    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  anything. I would leave it to      the  House  to  decide  in  any  way  it  likes."  (See      Constituent Assembly Debates Vol. VII, pp. 999-1001)      The amendment  was then  put to vote and was negatived. In view  of this background and in view of the fact that 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.      The  third   contention   centres   around   the   44th Constitution Amendment  Act, 1978, with particular reference to section 1(2) and section 3 thereof. Section 1 reads thus 304       "1. Short title and commencement.-       (1)  This Act  may be  called the Constitution (Forty-           fourth Amendment) Act, 1978.       (2)  It 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." Section 3 reads thus:      "3.  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 305           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

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         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  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 306           Provided that  nothing in  this  sub-clause  shall      authorise  the  detention  of  any  person  beyond  the      maximum period prescribed by any law made by Parliament      under sub-clause (b) of clause (7): or       (b) such person  is detained  in accordance  with  the           provisions of  any law  made by  Parliament  under           sub-clauses (a) and (b) of clause (7)."       Clause  (7) of  Article 22 to which also amendment was made by the 44th Amendment reads thus-      "22. (7)  Parliament may by law prescribe-           (a)  the circumstances  under which, and the class                or classes of cases in which, a person may be                detained  for  a  period  longer  than  three                months under any law providing for preventive                detention without obtaining the opinion of an                Advisory  Board   in  accordance   with   the                provisions of sub clause (a) clause (4);           (b)  the maximum  period for  which any person may                in any  class or  classes of case be detained                under  any   law  providing   for  preventive                detention; and           (c)  the procedure  to be  followed by an Advisory                Board in  an inquiry  under sub-clause (a) of                clause (4)."      The 44th  Amendment Act  received  the  assent  of  the President under  Article 368  (2) on April 30, 1979. Most of the provisions of the 44th Amendment were brought into force with effect  from June  20, 1979 by a notification issued by the Central  Government on  June 19.  1979. The  rest of the provisions of  the Amendment  were brought  into force  with effect from  August 1, 1979 except section 3 whereby Article 22 was  amended, which  has not yet been brought into force. The position, as it stands today from the Government’s point

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of view,  is that  advisory Boards  can  be  constituted  to consist of  persons who  are, or have been, or are qualified to the  appointed as,  Judges of  a High Court in accordance with the  provisions of  Article 22  (4) (a) in its original form, The amendment made to that article by section 3 of the 44th Amendment not 307 having been  brought into force by the Central Government by issuing  a  notification  under  section  1(2),  it  is  not necessary, according  to the Union Government, to constitute Advisory Boards in accordance with the recommendation of the Chief Justice  of the  appropriate High Court and consisting of a  Chairman 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.      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 Amendment into force within a reasonable time after the President gave his assent  to the  Amendment and since it has failed so far to do  so, this  Court must,  by a mandamus, ask the Central Government to issue a notification under section 1(2) of the Amendment, bringing it into force without any further delay. Alternatively, Dr.  Ghatate  contends  that  clause  (2)  of section I  of the 44th Amendment is ultra vires the amending power conferred  upon the  Parliament by  Article 368 of the Constitution. He argues: The power to amend the Constitution is vested  in the Parliament by Article 368, which cannot be delegated  to   the  executive.   By  such  delegation,  the Parliament has  created a parallel constituent body which is impermissible under  the terms  of Article  368. Sub-section (2) of  section  I  of  the  44th  Amendment  Act  vests  an uncontrolled  power   in  the   executive   to   amend   the Constitution at  its sweet  will, which  is violative of the basic structure of the Constitution. Section 308 1(2) is  also bad  because by  conferring  an  unreasonable, arbitrary and  unguided power  on the executive, it violates Articles 14  and 19  which are in integral part of the basic structure of the Constitution.      Shri Tarkunde  does not  ask for a mandamus, compelling the Central  Government to  bring section  3 of  the 44  the Amendment 13  Act into  force.  He  challenges  the  Central Government’s failure  to bring  section 3 into force as mala fide and  argues: By  refusing to bring section 3 into force within a  reasonable time  without  any  valid  reason,  the Central Government  has flouted  the constituent decision of the Parliament  arbitrarily, which  is violative  of Article

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21. No  law of  preventive detention  can be valid unless it complies with  Article 22  of the Constitution, particularly with clause (4) of that Article. Since the National Security Act does not provide for the constitution of Advisory Boards in accordance  with section 3 of the 44th Amendment Act, the whole Act  is bad.  There was an obligation upon the Central Government to  bring the  whole of  the 44th  Amendment into force within  a reasonable  time, since section 1 (2) cannot be construed  as conferring a right of veto on the executive to  nullify   or  negate  a  constitutional  amendment.  The bringing into  force of a constitutional amendment when such power is  left to the executive, may be conceivably deferred for reasons  arising out  of  the  inherent  nature  of  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 constituent  view or decision of the Parliament, whether or not 309 the Constitutional Amendment has been brought into force. In any event,  contends the  learned counsel, even if section 3 of the  44th Amendment  Act has not been brought into force, the wisdom  of that  Amendment, in so far as it bears on the composition of  Advisory Boards,  is available to the Court. The view of the Constituent body on that question cannot but be regarded  as reasonable,  and  to  the  extent  that  the provisions of  the impugned  Act run  counter to  that view, that Act  must be  held to  be  unreasonable  and  for  that reason, struckdown.      Both Dr, Ghatate and Shri Garg contend that despite the provisions of  section 1  (2) of  the  44th  Amendment  Act, Article 22  of the  Constitution stood  amended on April 30, 1979 when  the 44th Amendment Act received the assent of the President and  that there  was nothing more that remained to be done  by the executive. Section 1 (2) which, according to them is misconceived and abortive must be ignored and served from the rest of the Amendment Act and the rest of it deemed to have come into force on April 30, 1979.      In so  far as  the arguments  set out above bear on the reasonableness of  the provisions  of the  National Security Act, we  will consider  them later  when we will take up for examination the  contention that  the Act  is  violative  of Articles 19  and 21  on account  of the  unreasonableness or unfairness of its provisions and of the procedure prescribed by it.  At this  juncture  we  will  limit  ourselves  to  a consideration of those arguments in so far as they bear upon the interpretation  of section  1 (2)  of the 44th Amendment

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Act, the  consequences of  the failure of Central Government to issue  a notification  under that  provision for bringing into force  the provisions  of section 3 within a reasonable time and  the question as to whether, despite the provisions contained in  section 1(2),  the 44th  Amendment Act must be deemed to  have come  into force  on the  date on  which the President gave  his assent  to it.  The point last mentioned raises the  question as  to whether section 1(2) of the 44th Amendment Act  is severable from the rest of its provisions, if that section is bad for any reason.      The argument  arising out  of the provisions of Article 368 (2)  may be  considered first.  It provides  that when a Bill whereby  the Constitution  is amended  is passed by the requisite majority,  it shall  be presented 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, 310 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.  Thus, according to  the very  terms of the 44th Amendment, none of its provisions  can come  into force  unless and  until  the Central Government  issues a notification as contemplated by section 1(2).      There  is   no  internal   contradiction  between   the provisions of  Article 368(2)  and those. Of section 1(2) of the 44th  Amendment Act.  Article 368(2) lays down a rule of general  application   as  to   the  date   from  which  the constitution would stand amended in accordance with the Bill assented to  by the President. Section 1(2) of the Amendment Act specifies  the manner  in which  that Act  or any of its provisions may  be brought  into force.  The distinction  is between the Constitution standing amended in accordance with the terms  of the  Bill assented to by the President and the date  of  the  coming  into  force  of  the  Amendment  thus introduced into  the Constitution.  For determining the date with effect  from which  the Constitution  stands amended in accordance with the terms of The Bill one has to turn to the date on  which the  President gave,  or was obliged to give, his assent  to the  Amendment. For determining the date with effect from which the Constitution, as amended, came or will come into  force, one  has to  turn to  the notification, if any, issued  by the Central Government under section 1(2) of The Amendment Act.      The  Amendment  Act  may  provide  that  the  amendment introduced by  it shall come into force immediately upon the President giving  his assent  to the  Bill or it may provide that the  amendment shall  come the  force on a future date. Indeed, no  objection can  be taken  to the Constituent body

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itself appointing  a specific  future date  with effect from which the Amendment Act will come into force, and if that be so, different dates can be appointed by it for bringing into force different provisions of the Amendment Act. The 311 point of  the  matter  is  that  the  Constitution  standing amended in  accordance with  the terms  of the  Bill and the amendment thus  introduced into the Constitution coming into force are  two distinct things. Just as a law duly passed by the legislature  can have  no effect  unless it  comes or is brought  into   force,  similarly,   an  amendment   of  the Constitution can  have no  effect  unless  it  comes  or  is brought into  force. The  fact that the Constituent body may itself specify a future date or dates with effect from which the Amendment  Act or  any of  its provisions will come into force 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 in mind that by ’constituent power’ is meant that power to frame  or amend  the Constitution. The power of amendment is conferred  upon the  Parliament by Article 368 (1), which provides  that   the  Parliament  may  in  exercise  of  its constituent power  amend by  way of  addition, variation  or repeal any  provision of the Constitution in accordance with the procedure  laid down  in that  article. The  power  thus conferred on  the  Parliament  is  plenary  subject  to  the limitation that  it cannot  be exercised  so as to alter the basic structure  or framework  of the  Constitution.  It  is well-settled that the power conferred upon the Parliament by Article 245  to make  laws is  plenary within  the field  of legislation upon  which that  power can operate. That power, by the  terms  of  Article  245,  is  subject  only  to  the provisions  of  the  Constitution.  The  constituent  power, subject to  the limitation aforesaid, cannot be any the less plenary that the legislative power, especially 312 when the  power to  amend the  Constitution and the power to legislate are  conferred on  one and  the same  organ of the State, namely,  the Parliament.  The Parliament  may have to follow  a   different   procedure   while   exercising   its constituent power under Article 368 than the procedure which it has  to follow  while exercising  its  legislative  power under Article  245. But  the obligation  to follow different procedures while exercising the two different kinds of power cannot make  any difference  to the  width of  the power. In either event,  it is  plenary, subject  in one  case to  the

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constraints of  the basic  structure of the Constitution and in the other, to the provisions of the Constitution.      The contention  raised by  the  petitioners,  that  the power  to   appoint  a   date  for  bringing  into  force  a constitutional  amendment   is  a   constituent  power   and therefore it  cannot be  delegated to  an outside  agency is without any  force. It  is true  that the constituent power, that is  to say,  the power  to amend  any provision  of the Constitution by way of an addition, variation or repeal must be  exercised   by  the  Parliament  itself  and  cannot  be delegated to  an outside  agency. That is clear from Article 368 (1)  which defines  at once the scope of the constituent power of  the  Parliament  and  limits  that  power  to  the Parliament. The  power to  issue a notification for bringing into force  the provisions  of a Constitutional amendment is not a  constituent power  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 313 future laws  which were  in force  in  other  districts.  In Russell v.  The Queen  it upheld  the provision that certain parts of  an Act should come into force only on the petition of a  majority of electors. In Hodge v. The Queen, it upheld the power  conferred upon  a Board  to create  offences  and annex penalties. The American authorities on the question of the validity of delegated powers need not detain us because, the theory  that a  legislature is  a delegate of the people and therefore,  it cannot delegate its power to another does not hold  true under  our Constitution. The executive, under our Constitution,  is responsible  to the legislature and is not independent  of it  as in  the United  States. The three Privy Council decisions to which we have referred above were considered by this Court in Re Delhi Laws Act case, which is considered  as  a  leading  authority  on  the  question  of delegated legislation.  The Reference  made in  that case by the President  under Article  143(1) of  the Constitution to the Supreme  Court, in  regard to  the validity  of  certain laws, was  necessitated by the decision of the Federal Court in Jatindra  Nath Gupta  v. State  of Bihar  in which it was held by  the majority that the power to extend the operation of an  Act for  a further  period  of  one  year  with  such modification as May be specified was a legislative power and that the  provisions of  section  1(3)  of  that  Act  which delegated that  power to  an outside  agency was bad. One of the questions which was referred to this Court in Delhi Laws Act case  was whether  section 7 of the Delhi Laws Act, 1912 was ultra  vires the Legislature which passed that Act. That section provided  that the  Provincial Government  may by  a

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notification extend with such restrictions and modifications as it  thinks fit  to the  Province of  Delhi  or  any  part thereof any  enactment which  is in  force in  any  part  of British  India   at  the  date  of  such  notification.  The difficulty of  discovering the  ratio of the seven judgments delivered in  the Delhi  Laws Act  case is well-known. There is, however,  no difference  amongst the  learned Judges  in their perception  and understanding  of  what  was  actually decided in  the three  Privy Council  cases to which we have referred and  which were  discussed by  them. They  read the Privy Council  decisions as  laying  down  that  conditional legislation is  permissible whereby the legislature entrusts to an  outside agency  the discretionary power to select the time or  place to  enforce the  law. As  stated by Shri H.M. Seervai in his 314 "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 Act is not ultra vires the power of amendment conferred upon  the Parliament  by Article  368 (1)  of  the Constitution.      We may now take up for consideration the question which was put  in the forefront by Dr. Ghatate, namely, that since the Central  Government has  failed to  exercise  its  power within a reasonable time, we should issue a mandamus calling upon it to discharge its duty without any further delay. Our decision on this question should not be construed as putting a seal  of approval  on the  delay  caused  by  the  Central Government in  bringing the  provisions of  section 3 of the 44th Amendment  Act into  force. That Amendment received the assent of  the President on April 30, 1979 and more than two and half  years have  already gone  by without  the  Central Government issuing  a notification for bringing section 3 of the  Act  into  force.  But  we  find  ourselves  unable  to intervene in  a matter  of this nature by issuing a mandamus to  the  Central  Government  obligating  it  to  bring  the provisions of  section 3  into force.  The Parliament having left to  the unfettered  judgment of  the Central Government the question as regards the time for bringing the provisions of the 44th Amendment into force, it is not for the Court to compel the  Government to  do that  which, according  to the mandate of the Parliament, lies in its discretion to do when it considers  it  opportune  to  do  it.  The  executive  is responsible  to   the  Parliament   and  if  the  Parliament considers that the executive has 315 betrayed its  trust by  not bringing  any provision  of  the

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Amendment into force, it can censure the executive. It would be quite anomalous that the inaction of the executive should have the  approval of  the Parliament and yet we should show our disapproval  of it  by issuing  a mandamus.  The Court’s power of  judicial review in such cases has to be capable of being exercised both positively and negatively, if indeed it has that  power; positively,  by issuing  a mandamus calling upon the  Government to  act and negatively by inhibiting it from acting.  If it  were permissible to the Court to compel the Government  by a  mandamus  to  bring  a  Constitutional amendment into  force on  the ground that the Government has failed to do what it ought to have done, it would be equally permissible to  the Court  to prevent  the  Government  from acting, on  some such  ground as  that, the time was not yet ripe for issuing the notification for 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 on the lines of that section. In fact. the Ordinance rightly adopted that section as a model and it is the Act which has wrongly discarded it. It is  for these  reasons that  we are  unable to accept the submission  that   by  issuing   a  mandamus,   the  Central Government must  be compelled  to bring  the  provisions  of section 3  of the 44th Amendment into force. The question as to the  impact of  that section  which, though a part of the 44th Amendment  Act, is  not yet a part of the Constitution, will  be   considered  later   when  we  will  take  up  for examination the  argument as  regards the  reasonableness of the procedure prescribed by the Act. 316      We have  said at  the very  outset of the discussion of this point that our decision on the question as to whether a mandamus should  be issued as prayed for by the petitioners, should not  be construed  as any approval on our part of the long and  unexplained failure  on the  part of  the  Central Government to bring section 3 of the 44th Amendment Act into force. We  have no  doubt that in leaving it to the judgment of the  Central Government  to decide as to when the various provisions of  the 44th  Amendment should  be  brought  into force, the  Parliament could  not  have  intended  that  the Central Government  may exercise  a kind  of veto  over  its constituent will  by not ever bringing the Amendment or some of its provisions into force. The Parliament having seen the necessity of  introducing into  the Constitution a provision like section  3 of the 44th Amendment, it is not open to the Central Government to sit in judgment over the wisdom of the policy of  that section.  If only the Parliament were to lay

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down  an   objective  standard  to  guide  and  control  the discretion of  the  Central  Government  in  the  matter  of bringing the  various provisions  of the  Act into force, it would have been possible to compel the Central Government by an appropriate writ to discharge the function assigned to it by the  Parliament. In  the past,  many amendments have been made by  the Parliament  to the  Constitution. some of which were given  retrospective effect,  some were given immediate effect, while  in regard  to some others, the discretion was given to the Central Government to bring the Amendments into force. For  example, sections  3 (1)  (a)  and  (4)  of  the Constitution (First  Amendment) Act, 1951 gave retrospective effect to the amendments introduced in Articles 19 and 31 by those sections.  The 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 317 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. 1977, Volume C,  Part III,  page 134).  Certain sections  of  that Amendment, which  were not brought into force, were repealed by section 45 of the 44th Amendment.      It is  in this background that the Parliament conferred upon  the   Central  Government   the  power  to  bring  the provisions  of  the  44th  Amendment  Act  into  force.  The Parliament could  not  have  visualised  that,  without  any acceptable  reason,  the  Central  Government  may  fail  to implement its  constituent will.  We hope  that the  Central Government will,  without further  delay, bring section 3 of the 44th  Amendment Act  into force.  That  section,  be  it remembered, affords to the detenu an assurance that his case will be  considered fairly  and objectively  by an impartial tribunal.      As regards  the argument  that section 1(2) of the 44th Amendment Act  is bad because it vests an uncontrolled power in the executive, we may point out, briefly, how similar and even more  extensive delegation  of powers  to the executive has been  upheld by  this Court  over the  years. In  Sardar Inder  Singh  v.  State  of  Rajasthan,  section  3  of  the Rajasthan (Protection of Tenants) Ordinance provided that it shall remain  in force for a period of two years unless that period is further extended by the Rajpramukh. It was held by this Court  that section  3, in  so far as it authorised the Rajpramukh to  extend the life of the ordinance, fell within the category of conditional legislation and was ultra vires. The Court dissented from the view expressed in Jetindra Nath Gupta v.  The State  of Bihar,  (supra) that  the  power  to extend the  life of an enactment cannot validly be conferred on an  outside authority.  In Sita  Ram Bisaambhar Dayal and

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Ors. v.  State of   U.P.  and others,  section 3D (1) of the U.P. Sales Tax Act, 1948, which was challenged on the ground of excessive  delegation, provided for levying taxes at such rates as  may be  prescribed by  the  State  Government  not exceeding  the   maximum  prescribed.  While  rejecting  the challenge, Hegde, J. speaking for the Court observed:           "However  much   one  might   deplore   the   "New      Despotism" of the executive, the very complexity of the      modern 318      society and  the demand it makes on its Government have      set in  motion force  which  have  made  it  absolutely      necessary for the legislatures to entrust more and more      powers to the executive. Text book doctrines evolved in      the 19th Century have become out of date". In Gwalior  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 Sons  v, The  Excise Commissioner,  it was contended for the appellants that the power to fix the rate of Excise Duty conferred by  section 22 of the Mysore Excise Act of 1965 on the Government  was bad  for  the  reason  that  it  was  an abdication  by   the  State  legislature  of  its  essential legislative function. The Court, speaking through Mathew, J. upheld  the  validity  of  section  22.  We  are  unable  to appreciate that  the constituent body can be restrained from doing what  a legislature  is free  to do.  We are therefore unable to  accept the argument that section 1 (2) confers an uncontrolled  power   on  the   executive  and  is,  by  its unreasonableness, violative  of Articles  14 and  19 of  the Constitution.      We are  also unable  to accept Shri Tarkunde’s argument that the  Central Government’s failure to bring section 3 of the 44th 319 Amendment into force is mala fide. The Parliament has chosen to leave  to the  discretion of  the Central  Government the determination of  the question  as  to  the  time  when  the various provisions  of the  44th Amendment should be brought into force. Delay in implementing the will of the Parliament can justifiably  raise many  an  eye-brow,  but  it  is  not possible to  say on the basis of such data, as has been laid before us,  that the  Central Government  is actuated by any ulterior motive  in not  bringing section  3 into force. The other limb  of Shri  Tarkunde’s argument  that there  is  an obligation  upon   the  Central   Government  to  bring  the provisions  of  the  44th  Amendment  into  force  within  a

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reasonable time  has already  been dealt  with by  us  while considering the  argument that, since the Government has not brought section  3 into  force within  a reasonable time, it should be  compelled by  a writ  of mandamus  to perform its obligation.      That disposes  of all  the contentions  bearing on  the 44th Amendment Act except one, which we will consider later, as indicated already.           The next  question arises out of the provisions of      section 3(1)  and 3  (2) of  the National  Security Act      which, according  to the  petitioners, are  so vague in      their content  and wide  in their extent that, by their      application, it  is easy  for the Central Government or      the State Government to deprive a person of his liberty      for any  fanciful reason  which may  commend itself  to      them. Sub-section  (1) and  (2) of section 3 of the Act      read thus:      "3   (1)  The   Central   Government   or   the   State                Government may:- F                (a)  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. 320           (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 commodities essential to the      community" as defined in the Explanation to sub-section      (1) of  section 3  of the  Prevention of Blackmarketing      and Maintenance  of Supplies  of Essential  Commodities      Act, 1980,  and accordingly no order of detention shall      be made  under this Act on any ground on which an order      of detention may be made under that Act."      It is contended by Shri Jethmalani that the expressions ’defence of India’ ’relations of India with foreign powers’, security of  India’ and  ’security of the State’ which occur in sub-sections  (1) (a)  and (2) of section 3 are so vague, general and  elastic that  even conduct  which is  otherwise lawful can  easily be comprehended within those expressions, depending  upon  the  whim  and  caprice  of  the  detaining authority. The learned counsel argues: These expressions are transposed from  the legislative  entries into the aforesaid two  sub-sections   without  any  attempt  at  precision  or

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definition. In  so for  as ’Defence  of India’ is concerned, the  legislature  could  have  easily  indicated  the  broad content of  that expression by including within it acts like inciting armed  forces to  rebellion, damaging or destroying defence installations  or disclosing defence secrets. In the absence  of   such  definition,  a  statement  that  corrupt officials  are  responsible  for  the  purchase  of  defence equipment from a foreign power, may be considered as falling within the  mischief  of  that  expression.  The  expression ’acting in  any manner prejudicial to the relations of India with foreign powers’, is particularly 321 open to  grave objection  because, it  can take  in any  and every  piece  of  conduct.  In  the  absence  of  a  precise definition it  is impossible  for any  person to  know  with reasonable certainty  as to  what in  this  behalf  are  the limits of  lawful conduct which he must not transgress. Even if a person were to say, in the exercise of the right of his free speech  and expression,  that a foreign power, which is not friendly  with India,  is adopting  ruthless measures to suppress human  liberties, it would be open to the detaining authority to  detain a person for making that statement. The vice, therefore,  of section 3 consists in the fact that the governing factor  for the application of that section is the passing and  personal opinion  of the detaining authority in regard to  the security  and defence  of the country and its external 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. Section 10 (1) provides that any  constable may  arrest without  warrant any  person whom the  suspects of  being a terrorist. Section 20 of that Act defines the terms ’terrorist’ and ’terrorism’ with great care and  precision in order that the power of detention may not be abused.      In support of these propositions Shri Jethmalani relies on the  decisions of  the American  Supreme Court  in United States of  America v.  L. Cohen  Grocery  Company,  Champlin Refining Company  v. Corporation  Commission of the State of Okalahoma, Ignatius 322 Lanzetta v,  State of  New Jersey   and  David H.  Scull  v. Commonwealth of  Virginia Ex  Rel., Committee  on Law Reform and Racial  Activities, The  ratio of  these  cases  may  be Summed up  by reproducing  the third  head note  of the case last mentioned:           "Fundamental  fairness   requires  that  a  person      cannot be  sent to  jail for  a crime he could not with

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    reasonable certainty know he was committing: reasonable      certainty in  that respect  is all  the more  essential      when vagueness  might induce individuals to forgo their      rights of  speech, press,  and association  for fear of      violating an unclear law." Counsel has also drawn our attention to the decision of this Court in the State of Madhya Pradesh & Anr. v. Baldeo Prasad where a  law was  struck down on the ground, inter alia that the word  ’goonda’ is  of uncertain  import, which  rendered unconstitutional  a   law  which  permitted  goondas  to  be externed.      In this  behalf Dr.  Singhvi, intervening  on behalf of the Supreme  Court Bar  Association, has drawn our attention to section  8(3) of the Jammu & Kashmir Public Safety Act, 6 of 1968, which defines the expressions "acting in any manner prejudicial to  the security  of State  ’and’ acting  in any manner prejudicial  to the  maintenance  of  public  order.’ Where there  is a  will there is a way, and counsel contends that the  way shown  with admirable precision by the Jammu & Kashmir Legislature  is there  for the Parliament to follow, provided its  intention is,  as it  ought to be, that before the people are deprived of their liberty, they must have the opportunity to  regulate their  conduct in  order to  ensure that it may conform to the requirements of law.       In making these submissions counsel seem to us to have overstated their  case by  adopting an unrealistic attitude. It is true that the vagueness and the consequent uncertainty of  a   law  of   preventive  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 323 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 themselves depend upon the  meaning of concepts like ’overawe the Government.’ The formulation  of definitions  cannot be  a panacea to the evil of  vagueness and  uncertainty. We  do not,  of  course suggest that the legislature should not attempt to define or at least  to indicate  the contours  of expressions,  by the use, of  which people  are sought  to be  deprived of  their liberty. The  impossibility of  framing  a  definition  with mathematical precision  cannot either  justify  the  use  of vague  expressions   or  the  total  failure  to  frame  any definition at all which can furnish, by its inclusiveness at least, a safe guideline for understanding the meaning of the expressions used  by the  legislature. But the point to note is that  there are  expressions which  inherently comprehend such an  infinite variety  of situations  that  definitions, instead of lending them a definite meaning, can only succeed

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either in  robbing them  of their  intended amplitude  or in making it  necessary to  frame further  definitions  of  the terms defined.  Acts prejudicial  to the ’defence of India’, ’security of India’, ’security of the State’, and ’relations of India  with foreign  powers’ are  concepts of that nature which are  difficult to encase within the strait-jacket of a definition. If it is permissible to the legislature to enact laws of  preventive detention,  a certain  amount of minimal latitude has  to be  conceded to  it in  order to make those laws effective.  That we consider to be a realistic approach to the  situation. An  administrator acting  bona fide, or a court faced  with the  question as  to whether  certain Acts fall within  the mischief  of the aforesaid expressions used in section  3, will  be able  to find  an acceptable  answer either way.  In other  words though an expression may appear in cold  print to  be vague  and uncertain,  it may  not  be difficult to  apply it  to life’s  practical realities. This process undoubtedly  involves the  possibility of  error but then, there is hardly any area of adjudicative process which does not involve that possibility. 324      The  requirement  that  crimes  must  be  defined  with appropriate  definiteness   is  regarded  as  a  fundamental concept in  criminal law  and must  now  be  regarded  as  a pervading theme  of our  Constitution since  the decision in Maneka Gandhi. The underlying principle is that every person is entitled  to be informed as to what the State commands 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’, ’security  of India’,  ’security of  the State’  and ’relations of India with foreign powers’ which are mentioned in section  3 of  the Act, are not of any great certainty or definiteness. But  in the  very nature  of things  they  are difficult to  define. We  cannot therefore strike down these provisions of  section 3  of the  Act on the ground of their vagueness and uncertainty. We must, however, utter a word of caution that since the concepts are not defined, undoubtedly because they are not capable of a precise definition, courts must strive to give to those concept a narrower construction than what  the literal  words suggest. While construing laws of preventive detention like the National Security Act, care must be  taken to  restrict  their  application  to  as  few situations  as  possible.  Indeed,  that  can  well  be  the unstated premise  for  upholding  the  constitutionality  of clauses like  those in  section 3,  which are  fraught  with grave  consequences   to  personal   liberty,  if  construed liberally.

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325      What we  have said  above in  regard to the expressions ’defence of  India’, ’security  of India’,  ’security of the State’ and  ’relations of  India with foreign powers’ cannot apply to the expression "acting in any manner prejudicial to the maintenance  of supplies  and services  essential to the community which  occurs in  section 3(2)  of the  Act. Which supplies and  services are  essential to  the community  can easily  be   defined  by   the   Legislature   and   indeed, legislations which  regulate the  prices and  possession  of essential commodities  either enumerate those commodities or confer upon  the appropriate  Government the power to do so. In the  absence of  a definition  of ’supplies  and services essential to the community’, the detaining authority will be free to  extend the application of this clause of subsection (2) to any commodities or services the maintenance of supply of which, according to him, is essential to the community.      But that is not all. The explanation to sub-section (2) gives to the particular phrase in that sub-section a meaning which is not only uncertain but which, at any given point of time,  will  be  difficult  to  ascertain  or  fasten  upon. According to  the Explanation,  no order of detention can be made under  the National Security Act on any ground on which an order  of detention  may be  made under the Prevention of Black-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  any such other law as is referred to in clause (a). We find it quite difficult to understand as to which are the remaining commodities  outside the scope of the Act of 1980, in respect  of which  it can be said that the maintenance of their supplies is essential to the community. The particular clause in sub-section (2) of section 3 of the 326 National Security Act is, therefore, capable of wanton abuse in that,  the detaining  authority can place under detention any person for possession of any commodity on the basis that the authority  is of  the opinion  that the  maintenance  of supply of  that commodity  is essential to the community. We consider the  particular clause not only vague and uncertain but, in  the context  or the  Explanation, capable  of being extended cavalierly to supplies, the maintenance of which is not essential  to  the  community.  To  allow  the  personal liberty of the people to be taken away by the application of that clause  would be flagrant violation of the fairness and justness of procedure which is implicit in the provisions of Article 21.      In so  far as "services essential to the community" are

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concerned, they  are  not  covered  by  the  Explanation  to section 3  (2) of  the Act.  But in regards to them also, in the absence  of a  proper definition or a fuller description of that  or a prior enumeration of such services, it will be difficult for  any person  to know with reasonable certitude as  to  which  services  are  considered  by  the  detaining authority as essential to the community. The essentiality of services  varies  from  time  to  time  depending  upon  the circumstances  existing   at  any  given  time.  There  are, undoubtedly, some services like water, electricity, post and telegraph,  hospitals,   railways,  ports,   roads  and  air transport which  are essential to the community at all times but, people  have to  be forewarned if new categories are to be added to the list of services which are commonly accepted as being essential to the community.      We do  not, however,  prose to  strike down  the  power given to  detain persons  under section  3 (2) on the ground that they  are acting  in  any  manner  prejudicial  to  the maintenance  of  supplies  and  services  essential  to  the community. The  reason  for  this  is  that  it  is  vitally necessary to  ensure a  steady flow of supplies and services which are  essential to  the community, and it the State has the power  to detain  persons on  the grounds  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 327 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  procedure  in  the  proceedings before  the   Advisory  Boards.   The  discussion  of  these questions will conclude this judgment.      Shri Jethmalani  attacked the  constitutionality of the very National Security Act itself on the ground that it is a draconian piece  of legislation  which  deprives  people  of their personal liberty excessively and unreasonably, confers vast and  arbitrary powers  of detention  upon the executive and sanctions  the  use  of  those  powers  by  following  a procedure which  is unfair and unjust. The Act, according to the counsel,  thereby violates Articles 14, 19 and 21 and is therefore wholly unconstitutional. This argument, it must be stated, is  not to  be confused with the fundamental premise of the  petitioners that,  under our Constitution, no law of preventive detention  can at  all be passed, whatever be the safeguards  it  provides  for  the  protection  of  personal liberty. We have already dealt with that argument.      The argument of Shri Jethmalani against the validity of the National  Security Act  can be  disposed of  briefly. We need not  enter into  the controversy  which is reflected in the dissenting  judgment of Kailasam, J. in Maneka Gandhi as

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to whether  the major  premise of  Gopalan’s case really was that Article  22 is  a complete  code in  itself and whether because of  that premise,  the decision  in that  case  that Article  21  excluded  the  personal  freedom  conferred  by Article 19  (1) is  incorrect. We  have the authority of the decisions in  the Bank  Nationalization case, Haradhan Saha, Khudiram, Sambhu  Nath Sarkar  and Maneka  Gandhi for saying that the fundamental 328 rights conferred  by the  different Articles  of Part III of the  Constitution   are  not  mutually  exclusive  and  that therefore a  law of  preventive detention which falls within Article 22  must also  meet the requirements of Articles 14, 19 and  21. Speaking  for the  Court in Khudiram, one of us, Bhagwati, J. said:           "This question, thus, stands concluded and a final      seal is  put on  this controversy  and in view of these      decisions, it  is not  open to  any one  now to contend      that a  law of preventive detention, which falls within      article 22,  does not  have to  meet the requirement of      article 14 or article 19." (page 847) But just  as the question as to whether the rights conferred by the different articles of Part III are mutually exclusive is  concluded  by  the  aforesaid  decisions,  the  question whether a  law of  preventive 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.  The Court took  the view that the decision in Haradhan Saha must be regarded  as having  finally decided  all questions as to the  constitutional  validity  of  MISA  on  the  ground  of challenge under  Article 19.  We would  like to  add that in Haradhan Saha  the  challenge  to  MlSA  on  the  ground  of violation of  Articles 14, 21 and 22 was also considered and rejected. The question therefore as to whether MISA violated the provisions  of these four articles, namely, Articles 14, 19, 21  and 22,  must be  considered as  having been finally decided in Haradhan Saha. Accordingly, 329 we find  it impossible  to  accept  the  argument  that  the National Security  Act, which  is in  pari materia  with the Maintenance   of    Internal   Security    Act,   1971,   is unconstitutional on  the ground that, by its very nature, it is generally violative of Articles 14, 19, 21 and 22.      Though the  Act, as  a measure of preventive detention, cannot be  challenged on  the broad  and general ground that such Acts  are  calculated  to  interfere  unduly  with  the liberty of  the  people,  we  shall  have  to  consider  the

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challenge made  by the petitioners’ counsel, particularly by Shri  Jethmalani   and  Dr.  Ghatate,  to  certain  specific provisions  of  the  Act  on  the  ground  that  they  cause excessive and  unreasonable interference with the liberty of the detenus  and that  the  procedure  prescribed  by  those provisions is  not fair,  just and  reasonable. Dr.  Ghatate has, with  particular emphasis,  challenged on these grounds the provisions  of sections  3(2), 3(3), 5, 8, 9, 10, 11, 13 and 16  of the  Act. Shri Tarkunde challenged the provisions of section 8 and 11(4) of the Act.      We have  already dealt with the argument arising out of the provisions of section 3(2) read with the Explanation, by which power  is conferred  to detain  persons  in  order  to prevent them  from acting  in any  manner prejudicial to the maintenance  of  supplies  and  services  essential  to  the community. In  so far  as sub-section  (3) of  section 3  is concerned, the argument is that it is wholly unreasonable to confer upon  the District  Magistrate or the Commissioner of Police the  power to  issue  orders  of  detention  for  the reasons mentioned  in sub-section  (2)  of  section  3.  The answer  to  this  contention  is  that  the  said  power  is conferred upon  these officers  only if the State Government is  satisfied   that  having  regard  to  the  circumstances prevailing or likely to prevail in any area within the local 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- 330 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 made is liable-      (a)  to be  detained  in  such  place  and  under  such           conditions,    including    conditions    as    to           maintenance,   discipline   and   punishment   for           breaches  of   discipline,  as   the   appropriate           Government  may,  by  general  or  special  order,           specify, and      (b)  to be  removed from  one  place  of  detention  to           another place  of detention,  whether hl  the same           State, or  in  another  State,  by  order  of  the           appropriate Government. The objection  of the petitioners to these provisions on the ground of  their  unreasonableness  is  not  wholly  without substance. Laws of preventive detention cannot, by the back- door, introduce  procedural measures  of  a  punitive  kind. Detention without trial is an evil to be suffered, but to no greater extent  and in  no greater measure than is minimally necessary in  the interest of the country and the community. It is  neither fair  nor just  that a  detenu should have to

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suffer detention  in "such  place"  as  the  Government  may specify. The  normal rule  has to be that the detenu will be kept in detention in a place which is within the environs of his  or  her  ordinary  place  of  residence.  If  a  person ordinarily resides  in Delhi  to keep  him in detention in a far of  place like  Madras or Calcutta is a punitive measure by itself  which, in  matters of preventive detention at any rate, is  not to be encouraged. Besides, keeping a person in detention in  a place other than the one where he habitually resides makes it impossible for his friends and relatives to meet him  or for  the  detenu  to  claim  the  advantage  of facilities like  having his  own food.  The requirements  of administrative convenience,  safety and security may justify in a  given case  the transfer  of a detenu to a place other than that  where he ordinarily resides, but that can only be by way  of an exception and not as a matter of general rule. Even when  a detenu is required to be kept in or transferred to a place which is other than his usual place of residence, he ought not to be 331 sent to  any far  off place which, by the very reason of its distance, is  likely to  deprive him  of the  facilities  to which he  is entitled. Whatever smacks of punishment must be scruplously avoided in matters of preventive detention.      Since section  5 of  the Act  provides for, as shown by its marginal  note, the  power to  regulate  the  place  and conditions of  detention there is one more observation which we would  like to  make and  which we  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 after  the date  of detention.  This argument overlooks that the  primary requirement  of section  8(1) is  that the authority making  the order  of detention  shall communicate the grounds  of detention to the detenu "as soon as may be". The normal  rule therefore  is that the grounds of detention must be  communicated to the detenu without avoidable delay. It is  only in  order to  meet the  practical exigencies  of administrative affairs that detaining authority is permitted to communicate  the grounds of detention not later than five days ordinarily,  and not  later than  10 days  if there are exceptional   circumstances.   If   there   are   any   such circumstances,  the   detaining  authority  is  required  by section 8(1)  to record  its reasons  in writing.  We do not think that this provision is open to any objection.      Sections 9,  10  and  11  deal  respectively  with  the constitution  of  Advisory  Boards?  reference  to  Advisory Boards and procedure of

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332 Advisory Boards.  We will  deal with  these three sections a little later  while considering  the  elaborate  submissions made by Shri Jethmalani in regard thereto.      Dr. Ghatate’s  objection against  section 13 is that it provides for  a uniform  period of detention of 12 months in all cases,  regard less of the nature and seriousness of the grounds on  the basis  of which  the order  of detention  is passed. There is no substance in this grievance because, any law of  preventive detention  has to provide for the maximum period of detention, just as any punitive law like the Penal Code has  to provide  for the  maximum sentence which can be imposed for  any offence.  We should  have thought  that  it would have  been wrong to fix a minimum period of detention, regardless of  the nature  and seriousness of the grounds of detention. The  fact that  a person  can be detained for the maximum  period  of  12  months  does  not  place  upon  the detaining authority  the obligation  to direct that he shall be detained  for the maximum period. The detaining authority can always  exercise its  discretion regarding the length of the period  of detention.  It must  also be  mentioned that, under the  proviso to section 13, the appropriate Government has the  power to revoke or modify the order of detention at any earlier point of time.      Section 16  is assailed on behalf of the petitioners on the ground  that it  confers a wholly unwarranted protection upon officers  who may  have passed orders of detention mala 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. 333      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, according to which, a thing shall be deemed to be done in "good  faith" where  it is in fact done honestly, whether it is  done negligently  or not. On the contrary, section 52 of the Indian Penal Code provides that nothing is said to be done or  believed in  "good faith" which is done or believed without due  care and attention. If the definition contained in section 52 of the Penal Code were made applicable, a suit or other  proceeding could  have lain  against the detaining authority on the ground that the order was passed carelessly or without  a proper  application of  mind. Counsel contends that  since   the  General  Clauses  Act  would  apply,  the detaining authority can defend the order and defeat the suit or other  proceeding brought  against it  by showing  merely that the  order was passed honestly. We do not see any force in this  grievance. If  the policy  of a  law is  to protect honest acts,  whether they  are done  with care  or not,  it

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cannot be said that the law is unreasonable. In fact, honest acts deserve  the highest  protection. T hen again, the line which divides  a dishonest act from a negligent act is often thin and, speaking generally, it is not easy for a defendant to justify  his conduct as honest, if it is accompanied by a degree  of   negligence.  The   fact,  therefore,  that  the definition contained in section 3(22) of the General Clauses Act includes negligent acts in the category of the acts done in good  faith will  not always  make material difference to the proof of matters arising in proceedings under section 16 of the Act.      That takes  us to  the last of the many points urged in this case,  which relates  to the  constitution of  Advisory Boards and  the procedure  before them. Three section of the National Security  Act are relevant in this context, namely, section 9,  10 and  11. It may he recalled that section 3 of the 44th  Constitution Amendment Act, 1978 made an important amendment to  Article 22(4) of the Constitution by providing that-      (i)  No law of preventive detention shall authorise the           detention of  any person  for more than two months           unless an  Advisory Board  has reported before the           expiry of that period that there is in its opinion           sufficient cause for such detention; 334      (ii)  the   Advisory  Board   must  be  constituted  in           accordance with  the recommendation  of the  Chief           Justice of the appropriate High Court; and      (iii) the Advisory Board must consist of a Chairman 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 years.      The distinction  between the  provisions of the amended and the  unamended provisions  of Article 22(4) in regard to the constitution  of Advisory  Boards is  of great practical importance from  the  point  of  view  of  the  detenu.  The safeguards against  unfounded accusation and the opportunity for establishing  innocence which constitute the hallmark of an ordinary  criminal trial are not available to the detenu. He is detained on the basis of ex parte reports in regard to his past  conduct,  with  a  view  to  preventing  him  from persisting in  that course  of  conduct  in  future.  It  is therefore of  the utmost  importance from the detenu’s point of view  that the  Advisory Board  should consist of persons who are  independent, unbiased and competent and who possess a  trained   judicial  mind.   But  the   question  for  our

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consideration is  whether,  as  urged  by  Shri  Jethmalani, section 9 of the National Security Act is bad for the reason that its  provisions do  not accord with the requirements of section 3 of the 44th Amendment Act. 335 We  find   considerable   difficulty   in   accepting   this submission. Earlier  in this  judgment, we  have upheld  the validity of section 1(2) of the 44th Amendment Act, by which the Parliament has given to the Central Government the power to bring  into force  all or  any of  the provisions of that Act,  with   option  to  appoint  different  dates  for  the commencement of different provisions of the Act. The Central Government has  brought  all  the  provisions  of  the  44th Amendment Act  into force  except one,  namely,  section  3, which  contains   the  provision  for  the  constitution  of Advisory Boards.  We have  taken the  view  that  we  cannot compel the Central Government by a writ of mandamus to bring the provisions of section 3 into force. We have further held that, on  a true  interpretation of  Article 368(2)  of  the Constitution, it is in accordance with the terms of the 44th Constitution Amendment  Act that,  upon the President giving his assent  to that  Act, the  Constitution  stood  amended. Since section  3 has  not been  brought into  force  by  the Central Government  in the  exercise  of  its  powers  under section 1(2)  of the  44th Amendment  Act, that  section  is still not  a part  of the  Constitution. The  question as to whether section  9 of  the National  Security Act is bad for the reason  that it  is inconsistent  with the provisions of section 3  of the  44th Amendment  Act, has  therefore to be decided on  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 qualified  to be appointed as Judges of  a High  Court. Section 9 of the National Security Act provides  for the constitution of the Advisory Boards in conformity with  that provision.  We find  it impossible  to hold, 336 that the  provision of  a statute,  which conforms  strictly with the  existing provisions  of the  Constitution, can  be declared bad  either on  the ground  that it does not accord with the  provisions of a constitutional amendment which has not yet come into force, or on the ground that the provision of the  section is  harsh or  unjust The  standard which the Constitution, as  originally enacted,  has itself  laid down for constituting Advisory Boards, cannot be characterised as harsh or  unjust. The argument, therefore, that section 9 of the National Security Act is bad for either of these reasons

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must fail.      We must  hasten to  add that the fact that section 3 of the 44th  Amendment has not yet been brought into force does not  mean   that  the  Parliament  cannot  provide  for  the constitution of  Advisory  Boards  in  accordance  with  its requirements the  Parliament is  free to  amend section 9 of the National  Security Act  so as  to bring  it in line with section 3  of the  44th Amendment.  Similarly, the fact that section 9  provides for  the constitution of Advisory Boards consisting of  persons  "who  are,  or  have  been,  or  are qualified to  be appointed  as Judges  of a High Court" does not  mean   that  the   Central  Government   or  the  State Governments cannot  constitute Advisory Boards consisting of serving or  retired Judges  of the  High Court.  The minimal standard laid  down in Article 22(4)(a), which is adopted by section 9  of the  Act, is  binding on  the Parliament while making a  law of  preventive detention  and on the executive while constituting an Advisory Board That standard cannot be derogated from.  But, it  can certainly be improved upon. We do  hope   that  the   Parliament  will  take  the  earliest opportunity to  amend section 9 of the Act by bringing it in line with  section 3  of the 44th Amendment as the ordinance did  and   that,  the   Central  Government  and  the  State Governments  will   constitute  Advisory   Boards  in  their respective  jurisdictions  in  accordance  with  section  3, whether or  not section  9 of  the Act is so amended. We are informed  that   some  enlightened  State  Governments  have already given  that lead. We hope that the other Governments will follow  suit. After  all, the  executive must strive 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 337 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 by  sections 10 and C 11 of the National Security Act on  the ground  that it  is not  in consonance  with the principles of  natural justice, that it does not provide the detenu with  an effective means of establishing that what is alleged against  him is  not  true  and  that  it  militates against the  requirements of  Article 2  l . Learned counsel enumerated twelve  requirements of  natural  justice  which, according to  him, must  be observed by the Advisory Boards. Those  requirements  may  be  summed  up,  we  hope  without injustice to  the argument,  by saying  that (i)  the detenu must have  the right  to be  represented by  a lawyer of his choice; (ii) he must have the right to cross-examine persons on whose  statements the  order of detention is founded; and

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(iii) he must have the right to present evidence in rebuttal of the  allegations made against him. Counsel also submitted that the  Advisory Board must give reasons in support of its opinion which  must be  furnished to  the detenu,  that  the entire material  which is  available to  the Advisory  Board must be  disclosed to the detenu and that the proceedings of the Advisory  Board must be open to the public. According to Shri Jethmalani,  the Advisory  Board must not only consider whether the  order of  detention was  justified but  it must also consider whether it would have itself passed that order on the  basis of the material placed before it, Counsel says that the Advisory Board must further examine whether all the procedural steps which are obligatory under the Constitution were taken  until the time of its report, the impact of loss of time  and  altered  circumstances  on  the  necessity  to continue the  detention and  last but not the least, whether there is  factual justification  for continuing the order of detention beyond the period of three months. Counsel made an impassioned plea  that 25 years of the Gopalan jurisprudence have desensitised  the community to the perils of preventive detention and  that, it  is imperative  to provide  for  the maximum safeguards  to the  detenu in  order to preserve and protect his liberty, which can be achieved by 338 making at  least the  rudiments of  due process available to him. How  much process is due must depend, according to Shri Jethmalani, on  the extent  of grievous loss involved in the case. The  loss in  preventive detention  is of the precious right of  persona’ liberty  and therefore,  it is urged, all such procedural facilities 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 provisions which govern the proceeding, provided of course that those provisions are valid. In  the instant case, the question as to what kind of rights are  available to the detenu in the proceeding before the Advisory  Board has  to be  decided in  the light of the provisions of  the Constitution,  and on  the basis  of  the provisions of  the National  Security Act  to the  extent to which they do not of lend against the Constitution.      Turning first  to the  right  of  legal  representation which is claimed by the petitioners, the relevant article of the Constitution  to consider  is Article 22 which bears the marginal note  "protection against  arrest and  detention in certain cases."  That article provides by clause (l) that no person who  is arrested shall be detained in custody without being informed,  as soon  as may be, of the grounds for such

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arrest nor  shall he  be denied the right to consult, and to be defended  by, a  legal practitioner of his choice. Clause (2) requires  that every person who is arrested and detained in custody  shall be  produced before the nearest magistrate within a period of 24 hours 339 Of such  arrest and  that no  person shall  be  detained  in custody A  beyond the said period without the authority of a magistrate. Clause  (3) provides that nothing in clauses (1) and (2) shall apply (a) to any person who for the time being is an  enemy alien;  or (b) to any person who is arrested or detained under  any law  providing for preventive detention. It may  be recalled  that clause 4(a) of Article 22 provides that no  law of  preventive detention  shall  authorise  the detention of  a person for a period longer than three months unless the  Advisory Board has reported before the expiry of the said period of three months that there is in its opinion sufficient cause  for such  detention.  By  clause  7(c)  of Article 22,  the Parliament  is given the power to prescribe by law the procedure to be followed by the Advisory Board in an inquiry under clause 4(a).      On a  combined reading  of clauses  (1) and  (3) (b) of Article 22,  it is clear that the right to consult and to be defended by  a legal  practitioner of one’s choice, which is conferred by  clause (1),  is denied  by clause  3(b)  to  a person  who   is  detained   under  any  law  providing  for preventive  detention.   Thus,  according   to  the  express intendment of  the Constitution  itself, no  person  who  is detained  under  any  law,  which  provides  for  preventive 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 difficulty in  taking the  view that  the procedure  of  the Advisory Boards  in which  the detenu is denied the right of legal representation  is unfair  unjust or  unreasonable. If Article 22 were 340 silent on the question of the right of legal representation, it would  have been  possible, indeed  right and  proper, to hold that  the detenu  cannot be  denied the  right of legal representation  in   the  proceedings  before  the  Advisory Boards. It  is unfortunate that courts have been deprived of that choice by the express language of Article 22(3)(b) read with Article 22(1).      It is  contended by  Shri Jethmalani that the provision contained hl  clause 3(b)  of Article  22 is  limited to the right which  is specifically conferred by clause (1) of that

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article and  therefore, if the right to legal representation is available  to the  detenu apart  from the  provisions  of Article 22(1),  that right cannot of denied to him by reason of the exclusionary provision contained in Article 22(3)(b). Counsel says  that the  right of legal representation arises out of  the provisions  of Articles  19 and 21 and 22(5) and therefore, nothing  said in Article 22(3)(b) can affect that right. In  a sense  we have already answered this contention because, what  that contention implies is that the denial of the right  of legal  representation to  the  detenu  in  the proceedings before  the Advisory  Board is  an  unreasonable restriction, within  the meaning  of Article  19(1), on  the rights conferred  by  that  article.  If  the  yardstick  of reasonableness is  provided by  Article 22(3),  which is  as much a  part of  the Constitution  as originally enacted, as Articles 19,  21 and  22(S), it  would be  difficult to hold that the  denial  of  the  particular  right  introduces  an element of unfairness, unjustness or unreasonableness in the procedure of the Advisory Boards. It would be stretching the language of Articles 19 and 21 a little too far to hold that what is  regarded as  reasonable by Article 22(3)(b) must be regarded  as   unreasonable  within  the  meaning  of  those articles. For  illustrating this  point,  we  may  take  the example of  law which  provides that an enemy alien need not be produced  before a magistrate within twenty-four hours of his  arrest  or  detention  in  custody.  If  the  right  of production before  the magistrate  within 24  hours  of  the arrest is  expressly denied  to the  enemy alien  by Article 22(3)(a), it would be impossible to hold that the said right 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. 341      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  detenu  cannot appear  before   the  Advisory   Board   through   a   legal practitioner. The  written representation of the detenu does not have to be expatiated upon by a legal practitioner.      Great reliance  was placed  by Shri  Jethmalani on  the decision of  the American  Supreme Court  in ozie  Powell v. State of  Alabama(1), in which it was held that the right of hearing includes  the right  to the  aid of counsel because, the right  Lo be  heard will in many cases be of little help if it did not comprehend the right to be heard by a counsel. Delivering the opinion of the court, Sutherland. J. said:           "Even the  intelligent  and  educated  layman  has      small and  sometimes no skill in the science of law. If      charged with  crime, he  is  incapable,  generally,  of      determining for  himself whether the indictment is good

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    or bad.  He is  unfamiliar with  the rules of evidence.      Left without  the aid of counsel he may be put on trial      without a proper charge, and convicted upon incompetent      evidence,  or  evidence  irrelevant  to  the  issue  or      otherwise inadmissible.  He lacks  both the  skill  and      knowledge  adequately  to  prepare  his  defence,  even      though he  have a  perfect one. He requires the guiding      hand of  counsel  at  every  step  in  the  proceedings      against him.  Without it,  though he  be not guilty, he      faces the danger of conviction because he does not know      how to  establish his innocence. If that be true of men      of intelligence,  how much  more  true  is  it  of  the      ignorant and  illiterate, or those of feeble intellect.      If in  any case,  civil or criminal, a state or federal      court were  arbitrarily to  refuse to  hear a  party by      counsel, employed by and appearing for 342      him, it  reasonably may  not be  doubted  that  such  a      refusal would be a denial of a hearing, and, therefore,      of due process in the constitutional sense." (page 170) The aforesaid  decision in Powell is unique in more than one way and  has to  be distinguished.  The petitioners  therein were charged with the crime of rape committed upon two white girls. At  the trial,  no counsel was employed on behalf (If petitioners but  the trial  Judge had  stated that  "he  had appointed all  the members  of the  Bar for  the purpose  of arranging the defendants and then of course anticipated that the members of the bar would continue to help the defendants if no  counsel appeared".  The trial  of the petitioners was completed within  a single  day, at  the conclusion of which the petitioners  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.      Shri Jethmalani  also relied  upon another  decision of the Supreme  Court which is reported in John J. Morrissey v. Lou B.  Brewer.(l) In  that case, two convicts whose paroles were revoked  by the Iowa Board of Parole, alleged that they were denied  due process  because their paroles were revoked without a  hearing. Burger  C.J., expressing the view of six members of  the court,  expressly  left  upon  the  question whether  a  prolee  is  entitled,  in  a  parole  revocation proceeding, to the assistance of counsel. The 343 three other  learned Judges  held that  due process requires that the parolee be allowed the assistance of counsel in the parole revocation  proceeding. It  must be  appreciated that the American  decisions on the right to counsel turn largely

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on the  due process  clause in the American Constitution. We cannot invoke  that clause  for spelling out a right as part of  a   reasonable  procedure,   in  matters   wherein   our Constitution expressly denies that right.      In  support  of  his  submission  that  for  detenu  is entitled to  appear through  a legal practitioner before the Advisory Board,  Shri Jethmalani  relies on the decisions of this  Court   in  Madhav  Haywadanroo  Hoskot  v.  State  of Maharashtrara(1) Hussainara Khatoon v. Home Secretary, State of Bihar(2) and Francis Coralie Mullin v. The Administrator, Union Territory of Delhi(3). Speaking for the Court, Krishna Iyer, J. said in Hoskot:           "The other  ingredient  of  fair  procedure  to  a      prisoner, who  has to  seek his  liberation through the      court process  is lawyer’s  services. Judicial justice,      with  procedural  intricacies,  legal  submissions  and      critical   examination    of   evidence,   leans   upon      professional expertise;  and a failure of equal justice      under the  law is  on the  carde where  such supportive      skill is  absent for  one side. Our judicature, moulded      by Anglo-American  models  and  our  judicial  process,      engineered by  kindred  legal  technology,  compel  the      collaboration of  lawyer-power for  steering the wheels      of equal justice under the law," Page (204)      In Hussainara  Khatoon, one  of us, Bhagwati, J. voiced the concern by saying:           "It is  an essential  ingredient reasonable,  fair      and just  procedure to  a prisoner  who is  to seek his      liberation through  the court’s  process that he should      have legal services avail to him." (Page 103). 344 These observations  were  made  in  the  context  of  rights available to  an accused  in a  criminal trial and 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  Court  also directed that  the officer concerned may watch the interview but not  so as  to be  within the  hearing distance  of  the detenu and  the legal  adviser. This decision has no bearing on the  point which  arises before  us,  since  the  limited question which  was involved  in that  case was  whether the procedure prescribed by clause (3), governing the interviews which  a   detenu  may  have  with  his  legal  adviser  was reasonable. The  Court was  not called  upon to consider the question as  regards the right of a detenu to be represented by a legal practitioner before the Advisory Board.

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    We must  therefore, held,  regretfully though, that the detenu has  no right  to appear through a legal practitioner in  the  proceedings  before  the  Advisory  Board.  It  is, however, necessary  to add  an important  caveat. The reason behind the  provisions contained in Article 22(4) (b) of the Constitution slate  is that  a legal practitioner should not be permitted So appear before the Advisory 345 Board for  any party.  The Constitution does not contemplate that the  detaining authority  or the Government should have the facility of appearing before the Advisory Board with the aid of  a legal  practitioner but  that  the  said  facility should be  denied to  the detenu.  In any  case, that is not what  the   Constitution  says   and  it   would  be  wholly inappropriate to  read any  such meaning into the provisions of Article  22. Permitting  the detaining  authority or  the Government to  appear before the Advisory Board with the aid of a  legal practitioner  or a  legal adviser  would  be  in breach of Article 14, if a similar facility is denied to the detenu.  We  must  therefore  make  it  clear  that  if  the detaining authority  or the  Government takes  the aid  of a legal practitioner  or a  legal adviser  before the Advisory Board, the  detenu must be allowed the facility of appearing before the  Board  through  a  legal  practitioner.  We  are informed that  officers of  the Government  in the concerned departments often appear before the Board and assist it with a view to justifying the detention orders. If that be so, we must  clarify   that  the   Boards  should  not  permit  the authorities to  do indirectly  what they cannot do directly; and no  one should  be enabled  to take  shelter behind  the excuse that  such officers  are not  "legal practitioner" or legal advisers,  Regard must be had to the substance and not the form  since, especially, in matters like the 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. 346 Greyhound Racing  Association Ltd.)(1), and if justice to be done, he  must at  least have  the help  of a friend who can assist him  to give   coherence  to his  stray and wandering ideas.  Incarceration   makes  a   man  and   his   thoughts dishevelled. Just as a person who is domb is entitled, as he must, to be represented by a person who has speech, even so, a person who finds himself unable to present his own case is entitled to  take the  aid and  advice of  a person  who  is better situated  to appreciate the facts of the case and the language of  the  law.  It  may  be  that  denial  of  legal

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representation is  not denial of natural justice per se, and therefore, if a statute excludes that facility expressly, it would not  be open to the tribunal to allow it. Fairness, as said by  Lord Denning  M.R., in  Maynard v. Osmond(2) can be obtained without  legal representation. But, it is not fair, and the statute does not exclude that right, that the detenu should not  even be  allowed to  take the  aid of  a friend. Whenever demanded,  the  Advisory  Boards  must  grant  that facility.      Shri Jethmalani  laid equally  great stress on the need to give  the detenu  the right  of cross-examination  and in support of  his sub mission in that behalf, he relied on the decisions of  the American Supreme Court in Jack R. Goldberg v. John  Belly(3), Morrissey, Norvai Goss v. Eileen Lopez(4) and Powell. In Goldberg, Brennan, J., expressing the view of five members  of the court said that in almost every setting where important  decisions turn  on questions  of fact,  due process requires  opportunity to  confront and cross-examine adverse witnesses.  The learned Judge reiterated the court’s observations  in  Greeny  v.  McElore(5)  to  the  following effect:           "Certain  principles   have  remained   relatively      immutable in  our jurisprudence.  One of  these is that      where  govern   mental  action   seriously  injures  an      individual,  and   toe  reasonableness  of  the  action      depends on  fact findings.  the evidence  used to prove      the  Government’s   case  must   be  disclosed  to  the      individual so  that he  has an opportunity to show that      it is  untrue. While  this is  important in the case of      documentary evidence,  it is  even more important where      the evidence  consists of  the testimony of individuals      whose 347      memory might  be faulty  or  who,  in  fact,  might  be      perjurers   or    persons    motivated    by    malice,      vindictiveness, intolerance, prejudice, or jealousy. We      have formalized  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 only divergent but diametrically opposite. For example, in  Goldberg on  which Shri  Jethmalani has  placed considerable reliance,  Black, J.,  said in  his  dissenting opinion that  the majority  was using the judicial power for legislative purposes  and that  "they wander  out  of  their filed  of   vested  powers  and  transgress  into  the  area

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constitutionally assigned  to the  Congress and the people". The dissenting  opinion of Chief Justice Burger in that case is reported  in Mue  Wheeler v.  John Montgomery(l),  in the some volume.  Describing the majority opinion as ’unwise and precipitous" the learned Chief Justice said:           "The   Court’s    action   today   seems   another      manifestation of  the  now  familiar  conventionalizing      syndrome: once  some presumed  flaw  is  observed,  the      Court then  eagerly accepts  the inviation  to  find  a      constitutionally "rooted" 348      remedy. If  no provision is explicit on the point it is      then seen  as implicit"  or commanded  by the vague and      nebulous concept of "fairness". It is  only proper  that we  must evolve our own solution to problems arising  under our Constitution without, of course, spurning the  learning and  wisdom of  our  counterparts  in comparable jurisdictions.      The principal  question which  arises  is  whether  the right of  cross-examination is  an integral  and inseparable part of  the principles  of natural justice. Two fundamental principles  of  natural  justice  are  commonly  recognised, namely, that  an adjudicator  should  be  disinterested  and unbiased (nemo  judex in  cause sua)  and that,  the parties must be  given adequate  notice and  opportunity to be heard (audi alterm  partem). There is no fixed or certain standard of natural  justice, substantive  or procedural,  and in two English cases the expression ’natural justice’ was described as one  ’sadly lacking in precision’(l) and as ’vacuous’(2). The principles  of natural  justice  are,  in  fact,  mostly evolved  from   case  to   case,  according   to  the  broad requirements of Justice in the given case.      We do  not  suggest  that  the  principles  of  natural justice, vague  and variable  as they may be, are not worthy of preservation.  As observed  by  Lord  Reid  in  Ridge  v. Baldwin(3), the  view that natural justice is so vague as to be practically  meaningless" is  tainted by  "the  perennial fallacy that  because something  cannot be  cut and dried or nicely weighed or measured 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 349 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  by applying  the test  of preponderance of  probabilities or  of reasonable doubt. The detention is  based on  the subjective  satisfaction of  the detaining  authority  that  it  is  necessary  to  detain  a particular person  in order  to prevent him from acting in a

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manner prejudicial to certain stated objects. The proceeding of  the  Advisory  Board  has  therefore  to  be  structured differently  from  the  proceeding  of  judicial  or  quasi- judicial  tribunals,   before  which   there  is  a  lis  to adjudicate upon,      Apart from this consideration, it is a matter of common experience that  in cases of preventive detention, witnesses are either  unwilling to  come forward  or  the  sources  of information of  the detaining  authority cannot be disclosed without detriment to public interest. Indeed, the disclosure of the  identity of the informant may abort the very process of preventive  detention because,  no one will be willing to come forward to give information of any prejudicial activity if his  identity is going to be disclosed, which may have to be  done  under  the  stress  of  cross-examination.  It  is therefore difficult,  in the  very nature of things, to give to the detenu the full panoply of rights which an accused is entitled to  have in  order to  disprove the charges against him That is the importance of the statement that the concept of what  is just and reasonable is flexible in its scope and calls for  such procedural  protections  as  the  particular situation demands. Just as there can be an effective hearing without legal  E; representation  even so,  there can  be an effective hearing  without the  right of  cross-examination. The nature  of the  inquiry involved  in the  proceeding  in relation  to  which  these  rights  are  claimed  determines whether these  rights must be given as components of natural justice.      In this  connection, we would like to draw attention to certain decisions of our Court. In New Prakash Transport Co. Ltd. v.  New Suwarna  Transport Co.  Ltd(1), it was observed that "the question whether the rules of natural justice have been observed  in a particular case must itself be judged in the light of the constitution of 350 the statutory  body which has to function in accordance with the rules laid down by the legislature and in that sense the rules themselves  must  vary".  In  Nagendra  Nath  Bora  v. Commissioner of  Hills Division  and Appeals,  Assam(1), the aforesaid statement  was  cited  with  approval  by  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 relies, that the evidence of  the opponent  should be  taken in his presence, that "he  should be given the opportunity of cross-examining the witnesses  examined by"  the  other  side  and  that  no materials should  be relied on against him without his being

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given an  opportunity of  explaining them.  In Khem Chand it was held  that if  the purpose of Article 311(2) was to give the Government  servant an  opportunity to exonerate himself from  the  charge  and  if  this  opportunity  is  to  be  a reasonable one,  he should  be  allowed  to  show  that  the evidence  against   him  is   not  worthy   of  credence  or consideration and,  "that he  can only  do if  he is given a chance to  cross-examine the  witnesses called  against  him "and to examine himself or any other witnesses in support of his defence.  These observations  must be  understood in the context of the proceedings in which they are made and cannot be taken  as laying  down a  general rule  that the right of cross-examination is 351 available as  a part  of natural  justice in  each and every proceeding. In both of these cases, the question which arose for consideration  of the  Court was  whether  a  Government servant, who  was  dismissed  from  service,  was  given  "a reasonable opportunity"  of showing cause against the action proposed to  be taken  against him,  within the  meaning  of Article 311(2)  of the  Constitution.  It  shall  have  been noticed that  the emphasis in these cases is on the right to cross-examine the witnesses who are examined by the opposite party. In  T. R.  Varma the  right of  cross-examination  is described as  the right  in regard to the witnesses examined by the  other party  while  in  Khem  Chand,  the  right  is described as  an opportunity  to defend  oneself  by  cross- examining the  witnesses produced  by  the  other  side.  No witnesses  are   examined  in  the  proceedings  before  the Advisory Board  on behalf  of the  detaining  authority  and therefore, the  rule laid down in the two decisions on which Shri Jethmalani  relies can  have no  application  to  those proceedings.      If the  debates of  the Constituent  Assembly  are  any indication, it  would appear  that Dr.  R. Ambedkar,  at any rate, was of the opinion that the detenu should be given the right to  cross-examine witnesses before the Advisory Board. In his  reply to the debate on the procedure of the Advisory Board, he  said  on  September  16,  1949  that  a  "pointed question has  been asked whether the 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 352      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 did  not

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evidently share  his view.  In fact,  the  right  of  cross- examination  under  the  Criminal  Procedure  Code  and  the Evidence Act,  by which  Dr. Ambedkar  laid great store, has nothing to  do with  the detenu’s right of cross-examination before the  Advisory Board. With great respect, Dry Ambedkar seems to have nodded slightly in referring to the pro vision for cross  examination under  those Acts.  Whatever  it  is, Parliament has  not  made  any  provision  in  the  National Security Act,  under which  the detenu could claim the right of cross-examination and the matter must rest there.      We  are   therefore  of   the  opinion   that,  in  the proceedings before  the Advisory  Board, the  detenu has  no right to  cross-examine either  the persons  on the basis of whose statement  the order  of  detention  is  made  or  the detaining authority.      The last  of the three rights for which Shri Jethmalani contends is  the right  of the  detenu to  lead evidence  in rebuttal before  the Advisory  Board.  We  do  not  see  any objection to this right being granted to the detenu. Neither the Constitution  nor the National Security Act contains any provision denying to the detenu the right to present his own evidence in  rebuttal of  the allegations  made against him. The detenu may therefore offer oral and documentary evidence before the  Advisory Board in order to rebut the allegations which are  made against  him. We would only like to add that if the  detenu desires  to examine  any witnesses,  he shall have to  keep them  present at  the appointed  time  and  no obligation can be cast on the Advisory Board to summon them. The Advisory  Board, like  any other  tribunal, is  free  to regulate its  own procedure  within the  constraints of  the Constitution and the statute. It would be open to it, in the exercise of  that power,  to limit the time within which the detenu must  complete his evidence. We consider it necessary to make  this observation  particulary in  view of  the fact that the Advisory Board is under an obligation under section 11(1) of  the Act  to submit  its report  to the appropriate Government within  seven weeks from the date of detention of the person  concerned. The  proceedings before  the Advisory Board  have  therefore  to  be  completed  with  the  utmost expedition. 353      It is  urged by Shri Jethmalani that the Advisory Board must decide two questions which are of primary importance to the detenu:  one, whether there was sufficient cause for 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  submits  its

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report, and  how long,  is for  the detaining  authority  to decide and  not for  the Board.  The question as regards the power of  the Advisory  Board in this behalf had come up for consideration before  this Court  in Puranlal  Lakhanpal  v. Union of  India. While rejecting the argument that the words "such detention"  which occur  in Article  22(4)(a)  of  the Constitution mean  detention for  a period longer than three months, the  majority held  that the  Advisory Board  is not called  upon   to  consider  whether  the  detention  should continue beyond  the period  of three  months. In  coming to that conclusion  the majority  relied upon  the decision  in Dattatraya Moreshwar  Pangarkar v.  State of Bombay in which Mukherjea,  J.,  while  dealing  with  a  similar  question, observed:           "The Advisory  Board again  has got to express its      opinion only  on the  point  as  to  whether  there  is      sufficient cause for detention of the person concerned.      It is  neither called  upon nor  is it competent to say      anything regarding  the period  for which  such  person      should be  detained. Once  the Advisory Board expresses      its view  that there  is sufficient cause for detention      at the date when it makes its report, 354      what  action  is  to  be  taken  subsequently  is  left      entirely to the appropriate Government and it can under      s. 11(1)  of the  Act confirm  the detention  order and      continue detention  of the  person concerned  for  such      period as it thinks fit." The contention that the Board must determine the question as to whether  the detention  should continue after the date of its report must therefore fail. The duty and function of the Advisory Board  is to determine whether there was sufficient cause for  detention of  the person concerned on the date on which the  order of  detention was passed and whether or not there is  sufficient cause  for the detention of that person on the date of its report.      We are  not inclined  to accept  the plea  made by  the learned counsel  that the  proceedings of the Advisory Board should be  thrown open  to the public. The right to a public trial  is  not  one  of  the  guaranteed  rights  under  our Constitution as  it  is  under  the  6th  Amendment  of  the American Constitution  which secures to persons charged with crimes a  public, as well as a speedy, trial. Even under the American Constitution,  the  right  guaranteed  by  the  6th Amendment is  held to  be personal to the accused, which the public in  general cannot  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,

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like to say that the basic commitment of our Constitution is to foster human dignity and the well-being of our people. In recent times,  we have  had many  an occasion  to alert  the authorities to the need to 355 treat even  the convicts  in a  manner consistent with human dignity. The  judgment of Krishna Iyer, J. in Sunil Batra v. Delhi Administration  is an instance in point. It highlights that places  of incarceration are "part of the Indian earth" and that,  "the Indian Constitution cannot be held at bay by jail officials  ’dressed in  a little,  brief authority". We must impress  upon the  Government that  the detenus must be afforded  all   reasonable  facilities   for  an   existence consistent with  human dignity.  We see  no reason  why they should not be permitted to wear their own clothes, eat their own food,  have interview with the members of their families at least  once a  week and,  last but  not the  least,  have reading and  writing material  according to their reasonable requirement. Books  are the  best  friends  of  man  whether inside or outside the jail.      There is  one direction  which we  feel called  upon to give specifically  and that is that persons who are detained under the  National Security Act must be segregated from the convicts and  kept in  a  separate  part  of  the  place  of detention. It is hardly fair that those who are suspected of being engaged in prejudicial conduct should be lodged in the same ward  or  cell  were  the  convicts  whose  crimes  are established are  lodged. The evils of "custodial perversity" are well-known  and have  even found  a  place  in  our  law reports. As observed by Krishna Iyer, J. in Sunil Batra, the most important  right of  the person who is imprisoned is to the integrity of his physical person and mental personality. Even within  the prison,  no person  can be  deprived of his guaranteed rights  save by  methods which are fair, just and reasonable. "In  a democracy, a wrong to some one is a wrong to every  one" and  care has  to be taken to ensure that the detenu is not subjected to any indignity. While closing this judgment, we  would like  to draw attention to what Shah, J. said for  the Court  in Sampat  Prakash v.  State of Jammu & Kashmir(2):           "The petitioner  who was  present in  the Court at      the time  of hearing of his petition complained that he      is  subjected   to  solitary   confinement   while   in      detention. It must be emphasised that a detenu is not a      convict. Our  Constitution, notwithstanding  the  broad      principles of  the rule of law, equality and liberty of      the individual enshrined therein, tolerates, on account      of peculiar conditions pre- 356      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

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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 orders and directions given above.      GUPTA, J.  I find myself unable to agree with the views expressed in  the judgment  of the  learned Chief Justice on two of  the points  that arise for decision in this batch of writ petitions,  one of  them relates  to the failure of the Central Government to bring into operation the provisions of section 3  of the Constitution (Forty Fourth Amendment) Act, 1978  and   the  other  concerns  the  question  whether  an ordinance is  ’law’ within  the meaning of article 21 of the Constitution.      The Constitution  (Forty-Fourth  Amendment)  Act,  1978 received assent  of the President on April 30, 1979. Article 368(2) says, inter alia, that after a Bill for the amendment of the Constitution is passed in each House of Parliament by the prescribed  majority  "it  shall  be  presented  to  the President who  shall give  his assent  to the Bill and there upon the Constitution shall stand amended in accordance with the terms  of the  Bill". Section  1(2) of  the Constitution (Forty-Fourth Amendment) Act states that the Act "shall come into force  on such  date as the Central Government, may, by notification in  the official  Gazette, appoint,"  and  that "different dates  may be  appointed for different provisions of this 357 Act". Section  3 of  the Amendment  Act  substitutes  a  new clause A  for the  existing clause  (4) of article 22 of the Constitution which  provides inter alia for the constitution of Advisory  Boards. The relevant part of section 3 reads as follows;           "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 a serving or      retired Judges of any High Court." The provision requiring the Advisory Board to be constituted in accordance  with the recommendations of the Chief Justice 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

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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 358 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, the Central Government was under an  obligation to  bring into operation the provisions of the  Act within  a reasonable  time; the power to appoint dates for  bringing into force the provisions of the Act was given to the Central Government obviously because it was not considered feasible  to give  effect to  all the  provisions immediately.  After  the  Amendment  Act  had  received  the President’s assent  the Central  Government could  not in it discretion keep it in a state of suspended animation for any length of  time  it  pleased.  That  Parliament  wanted  the provisions of the Constitution (Forty-Fourth Amendment) Act, 1978 to  be made effective as early as possible would appear from its objects and Reasons. The following extract from the objects and Reasons clearly discloses a sense of urgency:           "Recent experience  has shown that the fundamental      rights, including those of life and liberty, granted to      citizens by the Constitution are capable of being taken      away  by   a  transient  majority.  It  is,  therefore,      necessary to  provide adequate  safeguards against  the      recurrence of  such a  contingency in the future and to      ensure to  the people  themselves an effective voice in      determining the form of government under which they are      to live.  This is  one of  the primary  objects of this      Bill.      x         x         x         x         x         x           As a  further check  against  the  misuse  of  the      Emergency provisions  and to  put the right to life and      liberty on  a secure footing, it would be provided that      the power  to suspend  the right  to move the court for      the  enforcement  of  a  fundamental  right  cannot  be      exercised in  respect of  the fundamental right to life      and  liberty.   The  right   to  liberty   is   further      strengthened by the provision that a law for preventive      detention cannot  authorise, in any case, detention for      a longer  period than  two months,  unless an  Advisory      Board has  reported that  there is sufficient cause for      such  detention.   An  additional  safeguard  would  be      provided by  the requirement  that the  Chairman of  an      Advisory  Board   shall  be  a  serving  Judge  of  the      appropriate High 359      Court and  that  the  Board  shall  be  constituted  in      accordance  with   the  recommendations  of  the  Chief      Justice of that High Court."      I have  already said  that Parliament  must have  taken into consideration  the practical difficulties in the way of the executive  in bringing into operation all the provisions of the  Act immediately,  and by  enacting section  1(2)  it relied 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

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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  and assented to by the President. The Parliament is competent to take appropriate  steps if  it considered that the executive had betrayed  its trust  does not make the default lawful or relieve this  Court of  its duty.  I would therefore issue a writ of mandamus directing the Central Government to issue a notification under  section 1(2) of the Constitution (Forty- Fourth  Amendment)   Act,  1978   bringing  into  force  the provisions of  section 3  of the  Act within two months from this date.      On the  other point,  I find it difficult to agree that an ordinance  is ’law’  within the  meaning of article 21 of the Constitution. Article 21 reads:           "No person  shall  be  deprived  of  his  life  or      personal  liberty   except   according   to   procedure      established by law." The National Security ordinance, 1980 has been challenged on a number  of grounds,  one of  which is  that the  life  and liberty of 360 person cannot  be taken  away by  an ordinance because it is not ’law’  within the  meaning of article 21. Normally it is the legislature that has the power to make laws. Article 123 of the  Constitution deals  with the  President’s  power  to promulgate ordinances  and  the  nature  and  effect  of  an ordinance promulgated  under this article, Article 123 is as follows:      "(1) It  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  ordinances 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   Houses   of                Parliament and  shall cease 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, 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 purpose 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"

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    To show  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 361 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 Parliament. Article 123 (2) does  say that an Act of Parliament to make the two even fictionally identical.  The significance  of the distinction will be  clear by  a reference to articles 356 and 357 which are in  part XVIII  of the  Constitution that  contains  the emergency provisions.  The  relevant  part  of  article  356 reads:      "(1) If the  President, on receipt of a report from the           Governor of  a State  or otherwise,  is  satisfied           that  a   situation  has   arisen  in   which  the           government of  the State  cannot be  carried on in           accordance   with    the   provisions    of   this           Constitution, the President may by Proclamation-           (a)  assume to himself all or any of the functions                of the Government of the State and all or any                or the powers vested in or exercisable by the                Governor or  any body  or  authority  in  the                State  other  than  the  Legislature  of  the                State;           (b)  declare that the powers of the Legislature of                the State  shall be  exercisable by  or under                the authority of Parliament;" Article 357 provides:      (1)  Where by a Proclamation issued under clause (1) of           article 356,  it has been declared that the powers           of  the   Legislature  of   the  State   shall  be           exercisable  by   or  under   the   authority   of           Parliament, it shall be competent-           (a)  for Parliament to confer on the President the                power of the Legislature of the State to make 362                laws,  and  to  authorise  the  President  to                delegate, subject  to such  conditions as  he                may  think   fit  to  impose,  the  power  so                conferred  to   any  other  authority  to  be                specified by him in that behalf;           (b)  for Parliament, or for the President or other                authority in  whom such power to make laws is                vested under  sub-clause (a),  to  make  laws                conferring powers  and  imposing  duties,  or                authorising the  conferring of powers and the                imposition  of  duties,  upon  the  Union  or                officers and authorities thereof;

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         (c)  x         x         x         x         x      (2)  Any law  made in  exercise of  the  power  of  the           Legislature of  the State  by  Parliament  or  the           President or  other authority  referred to in sub-           clause (a)  of clause  (1) which Parliament or the           President or  such other  authority would not, but           for the issue of a proclamation under article 356,           have been  competent  to  make  shall,  after  the           Proclamation has  ceased to  operate, continue  in           force until  altered or  repealed or  amended by a           competent Legislature or other authority." It will  appear  that  whereas  an  ordinance  issued  under article 123  has the  same force  and effect  as an  Act  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 363 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 provisional and tentative character which is  apparent from clause 2 (a) of article 123. On this aspect also  the  difference  between  a  law  made  by  the President under  article 357 and an ordinance promulgated by him under  article 123  should be  noted. A  law made  under article 357  continues in  force until  altered, repealed or amended  by   a  competent   legislature  or  authority;  an ordinance promulgated under article 123 ceases to operate at the  expiration   of  six   weeks  from  the  reassembly  of Parliament at  the latest.  On behalf  of the Union of India learned Attorney  General referred  to article  367  (2)  to argue that the Constitution itself equates an ordinance with an Act of Parliament. Article 367 (2) reads:           "Any reference  in this  Constitution to  Acts  or      laws of, or made by, Parliament, or to Acts or laws of,      or made  by, the  Legislature  of  a  State,  shall  be      construed as including a reference to an ordinance made      by  the  President  or,  to  an  ordinance  made  by  a      Governor, as the case may be." Any reference  in the Constitution to Acts of Parliament has to be  construed as  including a  reference to  an ordinance made by the President as article 367 (2) provides because an ordinance has been given the force and effect of an Act, But clearly an  ordinance has this force and effect only over an area where it can validity operate. An invalid ordinance can have no  force or effect and if it is not ’law’ in the sense the word has been used in article 21, article 367 (2) cannot make it so.      There is  also another aspect of the matter. Article 21 not only speaks of a situation in normal times which left no time for  the to  think of a situation in normal times which

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left no  time for  the President  to summon  Parliament  and required him  to promulgate ordinances to take away the life or liberty  of  persons,  unless  one  considered  life  and liberty as  matters of no great importance. However, in view of the opinion of the majority upholding the validity of the ordinance, it is unnecessary to dilate on this aspect.      On all  the  other  points  I  agree  with  conclusions reached by the learned Chief Justice. 364      TULZAPURKAR, J. On the question of bringing into force, section 3 read with section 1(2) of the Constitution (Forty- Fourth Amendment)  Act, 1978 I am in agreement with the view expressed by my learned brother A. C. Gupta in his judgment. Barring this  aspect, I am in agreement with the rest of the judgment delivered by my Lord the Chief Justice. P.B.R. 365