AK Roy v.Union of India

ISSUE

The issue pertaining to the current case is whether the “law” in Article 21 includes an Ordinance and whether an Ordinance could lay down a procedure to deprive a person of his personal liberty.

JUDGEMENT AND ANALYSIS

• Ordinance as 'Law' under Article 21:

  • Arguments were made that an Ordinance is not "law" under Article 21 as it is made by the Executive and not the Legislature, and thus the Executive cannot use this power to remove restraints imposed upon it by Article 21.

  • This Hon'ble court rejected these arguments, concluding 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.”

  • Thus, the word 'law' in Article 21 would include an 'Ordinance', and an Ordinance is subject to the same restraints (like Articles 14, 19, and 21) as an Act passed by a legislature.

• Procedure for Preventive Detention:

  • The Court reiterated that the procedure prescribed by law to deprive a person of personal liberty (under Article 21) must be reasonable, fair, and just (the Maneka Gandhi principle). The law of preventive detention must also pass this test.

  • The Court examined whether the procedure laid down in Sections 10 and 11 of the National Security Act (NSA) violated natural justice on three key grounds:

    • The right to cross-examine the detaining authority/witnesses.

    • The right to present oral and documentary evidence in rebuttal.

    • The right to legal representation before the Advisory Board.

  • Right to Cross-Examination and Lawyers: The Court upheld the Act on these counts (denying the detenu these rights). It reasoned that the Advisory Board's role is not to determine guilt, but whether there is sufficient cause for detention based on the detaining authority's subjective satisfaction. Since the detention is not based on facts proved like in a regular trial, and to protect confidential sources, the right to cross-examination could not be granted.

  • Right to Rebuttal Evidence: The Court saw no objection in granting the detenu the right to lead evidence in rebuttal before the Advisory Board. There is no Constitutional or statutory provision denying this right. The Board can regulate its own procedure and limit the time for completion of evidence.

{pg 180, 1172, 1273 Indian Constitution law by MP Jain}