Notes and Comments

PREVENTIVE DETENTION AND THE LAW

Preventive Detention means detention of a person without
trial in such circumstances that the evidence in the possession of
the ,authority is not sufficient to make a legal charge or to secure
the conviction of the detenu by legal proof.' Preventive detention
as :distinct from punitive detention is not by way of punishment,
but is intended to preVent a person from indulging in conduct
injurious to society.2
Preventive detention is, by its nature, repugnant to 'demo-
cratic notions. No such laws exist in U.S. A. or in England in
times of peace. 3 Unfortunately in India, the largest democracy
of the world, the Constitution recognises preventive detention as
a normal topic of legislation. 4 In India, preventive detention is
a powerful weapon in the hands of the government. Such laws
have been in force since independence in some form or other.
The latest law on preventive detention in India is the
National Security Act, 1980. This Act has been given judicial
clearance by the recent decision of the Supreme Court in A. K.
Roy v. Union of India. 5 A Member of Parliament was detained
under the National Security Ordinance, 1980 which was later
replaced by the National Security Act, 1980. He challenged
before the Supreme Court the valdity of the National Security

Sasti Chowdhary v. State of West Bengal, A.I.R. 1973 S.C. 1668.

Fransis Coralie Mullin v. Union of India, A.I.R. 1951 S. C. 746.
3 D. D. Basu, Constitution of India (1965) Vol. 4, p. 109.
See Constitution of toga Article, 22(4) to (7), Entry 9 of List-4 and
Entry 3 of List-III.
A.I.R. 1982 S.C. 710.
466 COCHIN UNIVERSITY LAW REVIEW v9 S2.

Ordinance, 1980 and of certain provisions of the National Se-

curity Act, 1980 mainly on the following grounds:
The power to issue ordinance is purely an executive
power and not a legislative power.
Ordinance is not "law" within the meaning of Article
21 and therefore no person can be deprived of his
life or personal liberty by an Ordinance.
The Central Government's failure to bring into force
Section 3 of the Constitution (44th Amendment) Act 6
which provided for a better constitution of Advisory
Board was malafide.
The procedure prescribed by the National Security
Act does not comply with the principles of natural
justice and thus violates Article 21.
The Supreme Court, by majority, rejected all these con-
tentions and upheld the validity of the Act. Gupta J. dissented.
In the dissenting judgment he observed: 7
(a) The Ordinance is not law and deprivation of personal
liberty by Ordinance is bad.

Section 3: Amendment of Article 22. In Article 22 of the Consti-

tution -
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 2 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 Chair-
man and not les than two other members, and the Chairman
shall be serving judge of the appropriate Hihg Court and other
members shall be serving or retired judges of any High Court.
Provided further than nothing in this clause shall authorise
the detention of any person beyond the maximum period pres-
cribed by any law made by . Panliament under Sub-Clause (al
of Clause (7).
A.I.R. 1982 S.C. 710 at 753.
 NOTES AND COMMENTS 467

(b) A writ of mandamus can be issued to compel the

Central Government to issue a notification under
Section 1 (2) of the 44th Amendment Act, 1978 8
for bringing into force the provisions of Section 3 of
the Act.
Tulzapurakar J. held that ordinance is "law", but agreed
with Gupta J. on the second point regarding the notification.
I S ORDINANCE 'LAW' WITHIN THE MEANING OF ARTICLE 21?
According to the majority of the court, it is. 8 a In the view
of Gupta J. it is not. 8 b The provisions of the Constitution are
crystal clear. The heading of Chapter III of Part V is "Legis
lative Powers of the President." Article 123 (2) provides that
an Ordinance promulgated under Article 123 shall have the same
Wee and effect as an Act of Parliament. Article 13(3) pro-
vides that "law" includes, inter alia, an ordinance unless the
context otherwise requires. In view of the fact that the context
does not otherwise so require, "law" must include ordinance also.
Again, Article 367(2) (Interpretation) provides that any refer-
ence in the Constitution to 'Acts' or 'laws' shall be construed as
reference to an 'ordinance'. These provisions lead to one and
Only one conclusion that the word law" in Article 21 includes
an ordinance. The majority view is therefore commendable.
ORDINANCE AND SATISFACTION OF THE P RESIDENT:
Under the Government of India Act 1935 the Governor
General was endowed with the ordinance making power. 9 The
Governor General used this power very sparingly and only in
emergencies (urgent situations) because the British Parliament
had always kept a watchful eye on the Indian Administration.'0

8. Section 1(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.
8a. A. K. Roy v. Union of India, A.I.R. 1982 S.C. 710 at p. 723.
&b. Id, at p. 754.
- Section 42 of Government of India Act, 1935.
10. Joseph Miriattur, "Government by Ordinance", (1977) I Aca. L.R.
55 at p. 56.
468 COCHIN UNIVERSITY LAW REVIEW

The provisions in the Constitution relating to Ordi-

nance making were made on the lines of the provisions in the
Government of India Act 1935. The President of India and
Governors of States are given the ordinance making power. 11
The President and the Governors exercise the power on the
advice of the respective Council of Ministers." Heads of State
in India "wiped off from the ordinance-making power any veneer
of emeregency which may have been left by their predecessors",13
In spite of the clear wording' in Article 123 it was con-
veniently assumed that exercising of ordinance making power
had no relation to any sort of urgency." The general feeling in
the constituent assembly was that the power would be exercised
and "should be exercisable only in a situation of great urgency".16
But the sentiments of the founding fathers were ignored.

Under Article 123, the President must be 'satisfied' that

circumstances exsit which render it necessary for him to take
immediate action. What does the term "satisfaction" mean?
In a series of decisions," it was held that it meant 'subjective
satisfaction' of the President and the court is therefore not en-
titled to enquire into the reasons for that satisfaction. In R. C.
Cooper v. Union of India" the Supreme Court, however, obser-
ved that the determination by the Presiderit of the existence of
circumstances and the necessity to take immediate action on
which the satisfaction depends is not final, but expressed no
opinion as to the extent of the jurisdiction of the court in
interfering with such determination.

Constitution of India, Article 123 and 213 respectively.

Id., .NrticIes 74 and 463.
Jcseph Minattur, op. cit., p. 56.
".... that circumstances exist which render it necessary for Mm
to take immediate action" (Article 123).
Supra, n. 10.
B. Shiva Rao; The Framing of the Constitution : A Study (1968),
p. 476.
Laskshtni Narain Das v. Stale of U.P., A.I.R. 1950 P.C. 59;
Vishwanath Aggarwal v. State of U. P., A.I.R. 1956 All. 557 and
Prem Narain v. State of U. P., A. I. R. 1960 AR. 225.
A.I.R. 1970 S.C. 564.
 ' NOTES AND COMMENTS 469

The Constitution (38th Amendment) Act 19 added clause

(4) to Article 123 which made the satisfaction of the President
non-justiciable. The ordinance making power was greatly abused
after this amendment and it was felt that Presidential satisfaction
should be made justiciable. Clause (4) was omitted by the
44th Amendment Act. 20 The omisson of clause (4) has again
Opened the doors of judicial review and so now the satisfaction
of the President can be challenged on the ground of malafides. 21
In A. K. Roy's case22 the question of presidential satisfac-
tion was squarely raised. But, the court did not decide the
question on merits for the following reasons:
The challenge was based on the Ordinance. The
Ordinance has been replaced by an Act.
The court will decide no more than needs to be
decided in any particular case.
(c) The materials placed before the court were inade-
quate.
These .reaSOns are not valid. An ordinance will have only
a short life since it will be replaced by an Act. The occasion
will hardly :arise, for considering the valdity of an ordinance
according to this reasoning, for by the time the challenge made
to an ordinance comes up for consideration, the ordinance shall
have been replaced by an Act.
The primary function of a court of law is to adjudicate the
dispute that has been brought before it. But, the Supreme
Court of India, the highest court of the land, has one more
bounden responsibility. As the final interpreter of the Con-
sitution, it is the duty of this court to resolve conflicts in consti-
tutional interpretation. After R. C. Cooper 23 and 44th Amend-
ment24 this is the first case in which the question of justiciability

Constitution (38th Amendment) Act, 1975.

Constitution (44th Amendment) Act, 1978.
D. D. Bew, Shorter Constitution of India (1981) (8th Ed.) p. 274.
Supra, n. 5.
Supra, n. 18.
Supra, n. 20.
470 COCHIN UNIVERSITY • LAW REVIEW

of presidential satisfaction was raised. Moreover, ten members

of Parliament intervened in this writ petition to get a verdict of
the court on the scope of the ordinance-making power of the
President.
Instances are not rare 25 when the Supreme Court had ana-
lysed certain important constitutional problems, though they
were not strictly required for deciding the particular case before
it. But unfortunately, the Supreme Court adopted an attitude
of judicial abstinence in the present case and averted a golden
opportunity to resolve a crucial constitutional problem.

C ONDITIONAL, L EGISLATION AND C ONSTITUENT POWER

Another question raised in A. K. Roy's case 26 was whether
the delegation of power to the Central Government to issue a
notification for bringing into force the provisions of the consti-
tutional amendment was an abuse of the constituent power of
Parliament. The majority correctly pointed out that the dele-
gation did not amount to an abuse, because it does not carry
with it the power to amend the constitution, 27 It is therefore
permissible for Parliament to vest in an outside agency the power
to bring a constitutional amendment into force.

CONSTITUTION OF ADVISORY B OARDS

Under the existing law it is not necessary to obtain the
recommendations of the Chief Justice of the High Court for
constituting the Advisory Board. The members of the Advisory
Board need not be serving or retired judges of the High Court;
it is sufficient if they are "qualified to be a judge of a High
Court".
These provisions enable the government to constitute Advi-
sory Boards which will be puppets in their hands. A person

K. A. Abbas v. Union of India, A.I.R. 1971 S.C. 771 is one such

instance. The Court gave its opinion on some intriguing constitu-
tional questions on film censorship, even though the petitioner's
grievance was redressed before the case was taken up by the court.
Supra, n. 5.
A.LR. 1982 S.C. 710 at p. 731.
 NOTES AND COMMENTS 471

qualified. to ;be. 1 judge of the High Court" :couldmean

any advocate of • 10 . .. years' standing in the Bar. The members
of the Board being :the nominees of the government, the Advi.
sory Boards become completely pOltical bodies which invariably
toe the. lines of the .party in power.
• .
Section 3 of Constitution (44th Amendment) Act 1979 23
provided for a change in the constitution of Advisory Board, but
this has not been brought into force since the required notific-
ation has not been issued. The amendment introduces the fol-
lowing changes:
(1) The Constitution of the Advisory Boards has to be
in accordance with the recommendations of the Chief
Justice
.. . of the ' appropriate High Court.
(2): The other members of the Advisory Boards have to
be serving or retired judges of any High Court.

T.he...National..Security Ordinance,198Q incorporated Sec-

tion 3.-dthe 44th Airiefidinent Act 29 though the section had
not-_ beenbrought„ into But the National Security Act
WO:ch... replaced the -ordinance conveniently omitted this pro-
vision. As- the court did not look into the validity of the ordi-
nance, this point was left unnoticed by the court.

When Advisory Boards were constituted under the Ordi.-

nance, the new proViSiOn 'might have proved to be very item.-
Vettietit- fOr, the • goVernmeht. AdvisOry Boards consisting of
,- •
Judges, recommended by the Chief Justice of the High Courts do
not,. obviously, work in accordance with the wishes of the govern-
ment and the Boards could not be influenced by the government.
That may. be the reason why the old provision was retained in
theNational Security Act which replaced the Ordinance.

The majority of the court -avoided the issue of failure to

bring..Section 3 of the 44th Amendment Act and concluded with

Supra n. 6.
Supra, n. 6.
30. Constitution of _India, Article 22(4).
472 COCHIN UNIVERSITY LAW REVIEW 1992

an 'optimistic note that the Central Government will without

further delay bring Section 3 of the 44th Amendment Act into
force. 31 On this point the majority judgment seems to be not
sound. Gupta J. (supported by Tulzapurkar J) held 32 that the
failure of the Central Government to issue a notification for
bringing Section 3 of the 44th Amendment Act into force is not
justified because:
That Parliament wanted the provisions of the Con-
stitution (44th Amendment) Act to be made effec-
tive as early as possible would appear from the state-
ment of objects and reasons. 33 This discloses a sense
of urgency.
The National Security Ordinance provided for the
constitution of Advisory Boards in conformity with
Article 22 as amended by Section 3 of the 44th
Amendment Act. This makes it clear that non-ill',
plementation of the provisions of Section 3 was not
due to any practical or administrative difficulty.

Under a democratic form of government citizens enjoy

maximum liberty. Government has the duty to implement the

A.I.R. 1982 S.C. 710 at p. 743.

Id., at p. 753, 756.
The Statement of Objects and Reasons reads:
"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 them-
selves an effective voice in determining the form of government
under which they are to live. This is one of the objects of this Bill.
.... 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 the 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 the Advisory Board shall be a serving judge of the
appropriate High Court and the Board shall be constituted in ac-
cordance with the recommendations of the Chief Justice of that
High Court."
 NOTES AND COMMENT'S 473

laws handed down by Parliament. The court should have taken

the view that it is the duty of a good government to give effect
to the parliamentary will rather than merely expressing the hope
that government will give effect to it without delay.
G. AJITH KUMAR*

B.Sc. (Kerala); LL.B (Kerala), Advocate, High Court of Kerala.