AK ROY V.UNION OF INDIA
(1982) 1 SCC 271
ISSUE
The issue pertaining to the current case is whether the “law” includes an ordinance and could the ordinance lay down a procedure to deprive a person of his personal liberty.
JUDGEMENT AND ANALYSIS
(1)This hon'ble court observed that arguments were made that Article 21 does not cover an "ordinance" because it is not "law" as it is made by the executive and not by the legislature. It was further argued that the underlying objective of article 21 was to wholly deny the executive the power to deprive a person of his life and liberty. Hence ordinance making power cannot be used to deprive a person of its liberty. The executive cannot use such a power to remove restraints imposed upon it by article 21.
(2)It was also observed that this court had no difficulty in demolishing these arguments whose central theme was:"ordinance is not law". After referring to various Constitutional provisions concerning the ordinance-making power, it was concluded 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.”
(3)An ordinance is as much law as an Act passed by a legislature and is subject to the same inhibitions. Thus, the word 'law' in Article 21 would include an 'ordinance' The Court also said that since an ordinance is subject to the same restraints as a law made by a legislature, there can be no danger that Articles 14, 19 and 21 could be obliterated as an ordinance is subject to the Fundamental Rights like an Act of a Legislature. It was finally held here that an ordinance was law and was a product of legislative power.
(4)Further, it was examined that Article 21 signifies the procedure prescribed by law to deprive a person his personal liberty must be reasonable, fair and just. The law of preventive detention must also pass this test. It is therefore that the preventive detention procedure must be fair.
(5)This hon'ble court observed that the procedure laid down in sections 10 and 11 of the National Security Act was challenged as being not in consonance with natural justice on at least three grounds:
(6)This court upheld the Act on all these counts. The Court recognised the importance of these three rights. They constituted the core of just-process because, without them, it was difficult for any person to disprove the allegations made against him and to establish the truth. But two important considerations were imperative to be borne in mind in this regard: (i) There is no prescribed standard of reasonableness and, therefore, what kind of processual rights should be made available to a person depends upon the nature of the proceeding in relation to which the rights are claimed. (ii) 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 Constitutional provisions, and the statutory provisions to the extent they do not offend the Constitution.
(7)The Court ruled that a detenu could not claim the right of cross-examination of witnesses in proceedings before the advisory boards. Cross-examination may be necessary in proceedings in which witnesses are examined or documents are adduced in evidence in order to prove a point. But the question for consideration of the advisory board is not whether the detenu is guilty of any charge but whether there is sufficient cause for his detention.
(8)It was also examined that the detention wasn’t based on facts proved either by applying the test of preponderance of probabilities or of reasonable doubt, but on the subjective satisfaction of the detaining authority. In case 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. Therefore, it is not possible to give to the detenu the right of cross-examination of witnesses.
(9)The Court saw no objection in granting to the detenu the right to lead evidence in rebuttal before the Advisory Board. There is no provision in the Constitution or the National Security Act denying to the detenu the right to present his own evidence to rebut the allegations made against him. As the Board is to complete its proceedings within a limited period, it can regulate its own procedure within the constraints of the Constitution and the statute and limit the time within which the evidence must be completed.