The author shall sincerely address as well as examine in this blog regarding the vocation conducted in the A.K Roy case by the Honorable Supreme Court of India by having access to many applicable rules and laws of court. The first section addresses the main problem present with the lawsuit, the second portion reflects on the other issues taken into account by the Court and, finally, the author’s review was presented.
What is Preventive Detention?
Under Section 151 of The Code of Criminal Procedure, 1973 (CrPC), preventive imprisonment is taking steps on the basis of fear that the individual involved may do any wrong acts. The law enforcement officer can apprehend a person without a Magistrate’s instructions and without a warrant if he receives enough evidence about a person if they will perform some crime. Preventive detention, as distinguished from arrest and detainment, is not punishable, but is meant to deter an individual from violating actions Social system insults.
Brief Facts of the Case:
In the case of A. K. Roy vs. Union of India (AIR 1982 SC 710), A.K. Roy was a member of the parliament who got arrested on the ground that he was engaging in practices that were counterproductive to national security. He was detained under the National Security Ordinance, 1980, which was afterwards substituted by National Security Act, 1980. Followed by which he questioned before the Supreme Court the legitimacy of the National Security Ordinance, 1980 and of other clauses of the National Security Act, 1980 primarily on the following basis:
- The authority to order ordinances is solely an executive capacity and not a legislative power.
- Ordinance is not “law” within the scope of article 21 and thus an Ordinance should not endanger any individual with his or her life and social freedom.
- The inability of the Central government to impose through action Provision 3 of the Constitution (44th Amendment) Act 6 that mandated an improved setting up of the advisory committee has been in bad faith.
- The National Security Act practice doesn’t quite conform to the standards of procedural fairness and therefore breaches Article 21.
Is Ordinance ‘Law’ Within The Scope of Article 21?
The constitutional rules are crystal clear. Chapter III of Section V defines “Legislative Presidential Authority.” Article 123(2) specifies that an order promulgated pursuant to Article 123 will include the similar effort and impact as a Parliament Act. Article 13(3) stipulates the “law” contains, inter alia, an act save for the interpretation dictates alternatively. Despite the reality the perspective should not be allowed differently, “law” may always contain ordinance.
Article 367(2) specifies that every reference in the Constitution to ‘acts’ or ‘laws’ shall be interpreted as being the link ‘ordinance.’ Such clauses proceed to one and only one inference that Article 21 contains the term rule and ordinance.
Ordinance and The President’s Satisfaction:
One of the important aspects to take into consideration when imposing a law is that the President should be satisfied; that there are conditions causing the President to take aggressive attention. The Supreme Court has not yet established the ‘President’s satisfaction’ and also if the President’s subjective satisfaction may be challenged at the legal proceeding.
To explain the confusion explicitly, the Indira Gandhi led government passed the 38th Constitutional (Amendment) Act, 1975 which specifically removed the President’s subjective satisfaction beyond the scope of the Judicial Examination. Furthermore, in the 44th (Amendment) Act, 1978, this provision was removed, stating that the authority of the President may be questioned in the legal proceeding if it was founded on poor conscience, fraudulent intentions or had the context of mala fide.
Verdict of the Case:
When reviewing the legality of the National Security Ordinance, 1980 which was provided to allow for preventive detention in some situations, the Supreme Court stated that the President’s authority to render decisions was not above the Court’s Judicial Examination.
Nevertheless, since the president’s legislation was substituted by a statute, the Court did not fully discuss the problems of the event. Therefore, the Supreme Court dismissed all such claims by plurality vote 4:1 and affirmed the legality of the Law. Justice Gupta in his dissenting judgment observed that the ordinance infringes personal liberty of an individual hence making it a bad law.
In the case of State of Orissa vs. Bhupendra Kumar Bose (1962 AIR 945), the tribunal concluded that the duties and responsibilities generated by the Ordinances come into force as soon as the Ordinance was enacted, and the same could not be revoked until such time when an appropriate legislature disperses certain duties and liabilities of the Ordinances. Nevertheless, if the propagated regulations are an infringement of authority and a kind of statutory scam, then the former government of such ratification must be restored instantly.
In the case of S.K.G. Sugar Ltd. vs. State of Bihar (1974 AIR 1553), it was established that the promulgation of an Ordinance by the Governor is solely a question of his Moral Pleasure and he is the only Judge to find the requirement of enforcing the Ordinance and “his satisfaction is not a matter of justice.”
In the case of S.R. Bommai vs. Union of India (1994 AIR 1918), the reach of the judicial oversight was extended as to where the court had claimed that if the President’s conduct was done without appropriate documents, the same would come into the definition of being “evidently unethical” and the behavior would be found to be in dishonest and fraudulent misrepresentation. The Supreme Court ruled that the President’s practice of authority to grant a decree pursuant to Article 356(1) was Justiciable and open to Legal Scrutiny on appeal on mala fide grounds.
Author’s Critical Analysis:
A.K. Roy case conforms to the perception that the Constitution provides forever stable minimal safeguards to preserve life and independence. The Supreme Court finally recognizes that fundamental rights in the document are pointless, and therefore must be adapted to the peculiar dangers faced by different generations.
The damage arising through preventive detention nowadays is very distinct from what it was in 1950. It is hardly an esoteric method of dealing with crowd control attacks, and instead is being used to detain people on skepticism of copyright infringements, multimedia hijacking, and cow butchering.
Most specifically, after the tribunal reinserted fair trials into the Constitution, where it has grown after, the whole reason for the initial basic fundamental protections enshrined in Article 22 has vanished.
So, because the political world has shifted too radically, is it enough to convince us that citizens who may be detained and incarcerated without understanding why, and held in custody for days, have no access to representation merely because the Law has stated so from the beginning? I profoundly deny.
Power of Ordinance rendering in most cases is indeed a heated issue and a discussion forum. It seeks to disrupt the equilibrium between administrative and judicial forces via introducing into the legal framework the dimension of arbitrary nature and undermining the judicial process. Whenever an Administrative branch uses such a law creating authority, it displays disrespect for the legislation. To date, only a few reasons have been identified to question the legality of the Ordinances:
- Is in clear breach of a statutory clause.
- The president has abused his legislative authority.
- The president has exercised his control in a humorous manner.
Saurav Kumar, Analysis of A.K. Roy Case: Preventive Detention vs. President’s Satisfaction, Ex Gratia Law Journal, (September 23, 2020), https://exgratialawjournal.in/blawg/human-rights/analysis-of-a-k-roy-case-preventive-detention-vs-presidents-satisfaction-saurav-kumar/.