A. K. ROY, ETC. versus UNION OF INDIA AND ANR.

Citation: [1982] 2 S.C.R. 272 · Decided: 28-12-1981 · Supreme Court of India · Bench: Y.V. CHANDRACHUD · Disposal: Disposed off

Cited by 30 judgment(s) · cites 11 · see the full citation network in Lexace

Judgment (excerpt)

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272 
A. K. ROY, ETC. 
v. 
UNION OF INDIA AND ANR. 
December 28, 1981 
[Y.V. CHANDRACHUD, C.J., P.N. BHAGWATJ A.C. GUPTA, 
V.D. TULZAPURKAR AND D.A. DESAI, JJ. ) 
Constitution of India, 1950-Constitution (Fortyforth Amendment) Act, 
1978-Power conferred on exeoetive to appoint different dates for different provi-
sions of the Act-If amou/l/s to transfer of legislative power to executive. 
Ordinance-Whether law-Whether President has power to issue Ordinances-
' National Security Ordinance-Validity of-Constitution of Advisory Boards under 
section 9 of the Act-Validity of. 
Natural Justice-Detenu under National Security Act-If entitled to be repre-
sented by a legal practitioner before Advisory Board-Detenu, if has a right to 
consult a lawyer, or be 
assisted by a friend before the Advisory .(Joard-
lf could cross-examine witnesses-If could present evidence before the Advisory 
Board in.rebuttal of o/legations against him-Duties and functions of Ad1•isory 
Boards-Proceedings of Advisory Board, if open to public. 
Section 1(2) of the Constitution (Fortyfourth Amendment) Act 1978 provides 
that "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." Section 3 of the Act substituted a new 
clause (4) for the existing sub-clause (4) of Article 22. By a notificat:on the 
Central Government had brought into force all the sections of the Fortyfourth 
Amendment Act except section 3. 
Jn the meantime the Governmint of India issued the National Security 
Ordinance 2 of 1980 which later became the National Securi1y Act 1980. 
The petitioner wa s detained under the provisions of the Ordinance on the 
ground that he was in dulging in activities prejudicial to public order. In his 
petition under Article 32 of the Constilution the petitioner contended that the 
power to issue an Ordinance is an executive power, not legislative power, and 
the'refore the Ordinance is not law. 
HELO : [per Chandrachud, C.J., Bhagwati & Desai, JJ] 
[Gupta and Tulzarurkar, JJ dissented on the question of bringing into force 
section 3 read with section 1(2) of the Fortyfourth Amendment Act .. Gupta J, 
?issented on the question whether or<li/1ance is~law]. 
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A.K. ROY v. UNION OF INDIA 
273 
The power of the President to issue an Ordinance under Article 123 of the 
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Constitution is a legislative and not an executive power. 
From a conspectus of the provisions of the Constitution it is clear that the 
Constituent Assembly was of the view that the President's power to legislate by 
issuing an Ordinance is as necessary for the peace and good government of the 
country as the Parliament's power to legislate by passing laws. The mechanics 
of the Presidents legislative power was devised evidently in order to take care of 
urgent situations which cannot brook delay. The Parliamentary process of 
legislation is comparatively tardy and can conceivably be time-consuming. It is 
true that it is not easy to accept with equanimity the proposition that the execu-
tive can indulge in legislative activity but the Constitution is what it says and 
not what one would like it to be. The Constituent Assembly indubitably thought, 
despite the strong a11d adverse impact which the Governor-General's Ordinance-
making power had produced on the Indian community in the pre-independence 
era, that it was necessary to equip the President with legislative powers in urgent 
situations. [290 E-G) 
R.C. Cooper v. Union of India, [1970] 3 SCR 530, 559, referred to. 
The contention that the word 'law· in Article 21 must be construed to mean 
a law made by the legislature only and cannot include an Ordinance, contradicts 
directly the express provisions of Articles 123 (2) and 367 (2) of the Constitution. 
Besides, if an Ordinance is not law within the meaning of Article 21, it will stand 
released from the wholesome and salutary restraint imposed upon the legislative 
power by Article 13(2) of the Constitution. [292 G-H) 
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The contention that the procedure prescribed by an Ordinance cannot be 
equated with the procedure established by law is equally unsound. The word 
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'established' is used in Article 21 in order to denote and ensure that the procedure 
prescribed by law must be defined with certainty in order that those who are 
deprived of their fundamental right to life or liberty must 

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