Judgement Briefs

Constitutional Law

A.K. Roy v. Union of India

AIR 1982 SC 710; (1982) 1 SCC 271

Citation
AIR 1982 SC 710; (1982) 1 SCC 271
Court
Supreme Court of India
Date
28 December 1981
Bench
Y.V. Chandrachud C.J.; P.N. Bhagwati; A.C. Gupta; N.L. Untwalia; V.D. Tulzapurkar

Facts

  • The President promulgated the National Security Ordinance, 1980 when both Houses of Parliament were not in session.
  • The Ordinance authorised preventive detention in specified circumstances.
  • It was later replaced by the National Security Act, 1980.
  • A.K. Roy and other petitioners challenged both the Ordinance and the Act.
  • They argued that:
  • ordinance-making was essentially an executive act;
  • an Ordinance was not “law” under Article 21;
  • personal liberty could not be taken away through a temporary executive measure;
  • the President’s satisfaction that immediate action was necessary could be judicially reviewed; and
  • an Ordinance could not be used where Parliament had already legislated on the subject.
  • The Court was therefore required to clarify the constitutional nature and limits of the President’s power under Article 123.

Issue

  • Whether promulgating an Ordinance is a legislative or executive function.
  • Whether an Ordinance is “law” for Articles 13 and 21.
  • Whether an Ordinance may restrict fundamental rights and personal liberty.
  • Whether the President’s satisfaction regarding the need for immediate action is judicially reviewable.
  • Whether an Ordinance can operate in a field already covered by parliamentary legislation.

Rule

  • Article 123 confers a legislative power upon the President.
  • An Ordinance has the same force and effect as an Act of Parliament while it remains in operation.
  • Under Article 13(3), “law” expressly includes an Ordinance.
  • An Ordinance is therefore:
  • subject to fundamental rights;
  • subject to legislative competence;
  • open to constitutional challenge; and
  • capable of prescribing a procedure under Article 21.
  • The ordinance-making power is conditional:
  • Parliament must not be in session; and
  • circumstances must exist requiring immediate action.
  • The President’s satisfaction is the satisfaction of the Council of Ministers, since the President acts on ministerial advice.
  • The constitutional preconditions are not automatically immune merely because the decision has political features.

Application

  • The Court rejected the petitioners’ claim that an Ordinance was merely an executive order disguised as legislation.
  • Article 123 appears under the constitutional heading “Legislative Powers of the President.”
  • More importantly, Article 123(2) expressly gives an Ordinance the force and effect of an Act of Parliament.
  • Article 13 also subjects Ordinances to the same fundamental-rights limitations as ordinary statutes.
  • The temporary duration of an Ordinance did not prevent it from being “law” under Article 21.
  • Parliament itself may enact temporary legislation; permanence is not an essential characteristic of law.
  • Therefore, an Ordinance could authorise preventive detention, provided its substantive and procedural provisions complied with the Constitution.
  • The Court also rejected the argument that an Ordinance could be used only in an entirely unregulated or “virgin” legislative field.
  • Article 123 contains no such restriction.
  • An Ordinance may:
  • amend;
  • supplement;
  • repeal; or
  • operate alongside existing legislation, subject to constitutional competence.
  • On judicial review of the President’s satisfaction, the Court recognised force in the argument that the existence of circumstances requiring immediate action could not be treated as a wholly political question.
  • However, it did not finally determine the full scope of review because:
  • the Ordinance had already been replaced by an Act; and
  • the petitioners had produced no adequate material showing that no urgent circumstances could have existed.
  • A mere allegation that urgency was absent was insufficient to require the executive to disclose its entire material

Conclusion

  • The Supreme Court held that an Ordinance under Article 123 is an exercise of legislative power.
  • It is “law” within Articles 13 and 21 and may affect personal liberty.
  • It is subject to the same constitutional restrictions as an Act of Parliament.
  • Ordinance-making is not limited to subjects untouched by existing legislation.