titions Nos 5724 5874  5433 of 1980
Under Article 32 of the Constitution of India R K Garg VJ Francis and Sunil R Jain for the Petitioners in WP
5724  5874 and for interveners 3 12
NM Ghatate SV Deshpande and Shiva Pujan Singh for the petitioner in WP
LN Sinha Attorney General K Parasaran Solicitor General MK Banerjee Additional Solicitor General KS
Gurumurthi Miss A Subhashini and Girish Chandra for Respondent No 1 in all the WPs
Subbash C Maheshwari Additional Advocate General OP Rana Hansraj Bhardwaj and RK Bhatt for Respondents 2  3 in WP
5874180
LN Sinha Attorney General Ram Balak Mahto Additional Advocate General KG Bhagat and D Goburdhan for Respondents 2  3 in WP
572480
For Interveners VM Tarkunde PH Parekh Miss Manik Tarkunde and RN Karanjawala for Intervener No 1
Bhim Singh intervener No 2 in person Dr LM Singhvi Anand Prakash SN Kaekar G Mukhoty BB Sinha AK Srivastava Randhir Jain ML Lahoty Kapil Sibal L K Pandey and SS Khanduja for Intervener No 13
Mrs Subhadra Joshi for Intervener No 14
Ram Jethmalani and Miss Rani Jethmalani for Intervener No 15
281 LN Sinha Attorney General and Altaf Ahmed for Inter vener No 16
The following Judgments were delivered CHANDRACHUD CJ This is a group of Writ Petitions under Article 32 of the Constitution challenging the validity of the National Security ordinance 2 of 1980 and certain provisions of the  65 of 1980 which replaced the ordinance
Writ Petition No 5724 of 1980 is by Shri A K Roy a Marxist member of the Parliament who was detained under the ordinance by an order passed by the District Magistrate Dhanbad on the ground that he was indulging in activities which were prejudicial to public order
Ten members of the Parliament one an Independent and the others belonging to various political parties in opposition applied for permission to intervene in the Writ Petition on the ground that since the ordinance making power of the President is destructive of the system of Parliamentary democracy it is necessary to define the scope of that power
We allowed the intervention
So did we allow the applications for intervention by the People s Union of Civil Liberties the Supreme Court Bar Association and the State of Jammu and Kashmir which is interested in the upholding of the Jammu  Kashmir Public Safety Act 1978
Shri RK Garg argued the Writ Petition respondents being represented by the Attorney General and the Solicitor General
After the ordinance became an Act more writ petitions were filed to challenge the validity of the Act as well
Those petitions were argued on behalf of the petitioners by Dr N M Ghatate Shri Ram Jethmalani Shri Shiv Pujan Singh and Shri Kapil Sibal
Shri VM Tarkunde appeared in person for the People s Union of Civil Liberties and Dr LM Singhvi for the Supreme Court Bar Association
Broadly Shri Garg concentrated on the scope and limitations of the ordinance making power Shri Ram Jethmalani on the vagueness and unreasonableness of the provisions of the Act and the punitive conditions of detention and Dr Ghatate on the effect of the 44th Constitution Amendment Act and the validity of its section 12
Shri Tarkunde dwelt mainly on the questions relating to the fulfillment of pre conditions of the exercise of the ordinance making power the effect of non implementation by the Central Government of the provisions of the 44th Amendment regarding the composition of the Advisory Boards and 282 the broad undefined powers of detention conferred by the Act
Dr LM Singhvi laid stress on the need for the grant of minimal facilities to detenus the nature of the right of detenus to make an effective representation against the order of detention and the evils of the exercise of the power to issue ordinances
The National Security ordinance 1980 was passed in order to provide for preventive detention in certain cases end for matters connected therewith
 It was made applicable to the whole of India except the State of Jammu  Kashmir and it came into force on September 23 1980
The Parliament was not in session when it was promulgated and its preamble recites that it was being issued because the President is satisfied that circumstances exist which render it necessary for him to take immediate action
Shri RK Garg appearing for the petitioners challenges the power of the President to issue an ordinance depriving any person of his life or liberty
He contends a The power to issue an ordinance is an executive power not a legislative power b Ordinance is not law  because it is not made by an agency created by the Constitution for making laws and no law can be made without the intervention of the legislature c There is a marked shift towards distrust of power in order to preserve the people s rights and therefore liberty democracy and the independence of Judiciary are amongst the principal matters which are outside the ordinance making power d By Article 21 of the Constitution a person can be deprived of his life or liberty according only to the procedure established by law
Ordinance is not law  within the meaning of Article 21 and therefore no person can be deprived of his life or liberty by an ordinance e The underlying object of Article 21 is to wholly deny to the executive the power to deprive a person of his life or liberty
Ordinance making power which is 283 executive power cannot therefore be used for that purpose
The executive cannot resort to the power to make ordinances so as or in order to remove the restraints imposed upon it by Article 21 f The procedure prescribed under an ordinance is not procedure established by law because ordinances have a limited duration in point of time
The procedure prescribed by an ordinance is neither firm nor certain by reason of which the procedure cannot be said to be established 
From this it follows that no person can be deprived of his life or liberty by procedure prescribed by an ordinance g The power to issue an ordinance is ordaining power of the executive which cannot be used to liberate it from the discipline of laws made by a democratic legislature
Therefore the power to issue ordinances can be used if at all on a virgin land only
No ordinance can operate on a subject which is covered by a law made by the legislature h Equating an ordinance made by the executive with a law made by the legislature will violate the principle of separation of powers between the executive and the legislature which is a part of the basic structure of the Constitution and i Articles 14 19 and 21 of the Constitution will be reduced to a dead letter if the executive is permitted to take away the life and liberty of the people by an ordinance lacking the support of a law made by the legislature
The ordinance making power must therefore be construed harmoniously with those and other provisions of the Constitution
This many pronged attack on the ordinance making power has one central theme ordinance is not law  We must therefore consider the basic question as to whether the power to make an ordinance is a legislative power as contended by the learned Attorney General or whether it is an executive power masquerading as a legislative power as contended on behalf of the petitioners
284 In support of these submissions Shri Garg relies on many texts and decisions which we need not discuss at length since primarily we have to consider the scheme of our Constitution and to interpret its provisions in order to determine the nature and scope of the ordinance making power
Counsel drew our attention with great emphasis to the statements in Montesquieu s Esprit des lois 1748 and Blackstone s Commentaries on the laws of England  1756 which are reproduced in Modern Political Constitution s by CF Strong 8th edition at page 291
According to Montesquieu when the legislative and executive powers are united in the same person or body of persons there can be no liberty because of the danger that the same monarch or senate should enact tyrannical laws and execute them in a tyrannical manner
 Blackstone expresses the same thought by saying that wherever the right of making and enforcing the law is vested in the same man or one and the same body of men there can be no public liberty
Reliance was also placed on views and sentiments expressed to the same effect in Walter Bagehot s The English Constitution 1867 Wade s Administrative Law  3rd edition pages 323 324 Constitutional Laws of the British Empire  by Jennings and Young Law and orders  by CK Allen 1945 and Harold Laski s Liberty in the Modern State  1961
According to Laski pages 42 43
 if in any state there is a body of men who possess unlimited political power those over whom they rule can never be free
For the one assured result of historical investigation is the lesson that uncontrolled power is invariably poisonous to those who possess it
They are always tempted to impose their canon of good upon others and in the end they assume that the good of the community depends upon the continuance of their power
Liberty always demands a limitation of political authority and it is never attained unless the rulers of a state can where necessary be called to account
That is why Pericles insisted that the secret of liberty is courage Finally counsel drew on Jawaharlal Nehru s Presidential Address to the Lucknow Congress April 19 1936 in which he referred to the rule by ordinances as the humiliation of ordinances Selected Works of Jawaharlal Nehru volume 7 page 183
We are not as we cannot be unmindful of the danger to people s liberties which comes in any community from what is 285 called the tryanny of the majority
Uncontrolled power in the executive is a great enemy of freedom and therefore eternal vigilance is necessary in the realm of liberty
But we cannot transplant in the Indian context and conditions principles which took birth in other soils without a careful examination of their relevance to the interpretation of our Constitution
No two Constitutions are alike for it is not mere words that make a Constitution
It is the history of a people which lends colour and meaning to its Constitution
We must therefore turn inevitably to the historical origin of the ordinance making power conferred by our Constitution and consider the scope of that power in the light of the restraints by which that power is hedged
Neither in England nor in the United States of America does the executive enjoy anything like the power to issue ordinances
In India that power has a historical origin and the executive at all times has resorted to it freely as and when it considered it necessary to do so
One of the larger States in India has manifested its addiction to that power by making an overgenerous use of it so generous indeed that ordinances which lapsed by efflux of time were renewed successively by a chain of kindred creatures one after another
And the ordinances embrace everything under the sun from Prince to pauper and crimes to contracts
The Union Government too so we are informed passed about 200 ordinances between 1960 and 1980 out of which 19 were passed in 1980
Our Constituent Assembly was composed of famous men who had a variegated experience of life
They were not elected by the people to frame the Constitution but that was their strength not their weakness
They were neither bound by a popular mandate nor bridled by a party whip
They brought to bear on their task their vast experience of life in fields social economic and political
Their deliberation which run into twelve volumes are a testimony to the time and attention which they gave with care and concern to evolving a generally acceptable instrument for the regulation of the fundamental affairs of the country and the life and liberty of its people
The Constituent Assembly had before it the Government of India Act 1935 and many of its members had experienced the traumas and travails resulting from the free exercise of the ordinance making power conferred by that Act
They were also aware that such a power was not claimed by the Governments of two lading democracies of the world the English and the American 286 And yet they took the Government of India Act of 1935 as their model Section 42 of that Act ran thus Power of 421 If at any time when the Federal Legis Governer lature is not in section the Governor General to General is satisfied that circumstances promulgate exist which render it necessary for him ordinances to take immediate action he may during recess promulgate such ordinances as the of Legisla circumstances appear to him to require ture
Provided that the Governor General a  b  2 An ordinance promulgated under this section shall have the same force and effect as an Act of the Federal Legislature assented to by the Governor General but every such ordinance a shall be laid before the Federal Legislature and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature or if before the expiration of that period resolutions disapproving it are passed by both Chambers upon the passing of the second of those resolutions b shall be subject to the provisions of this Act relating to the power of His Majesty to disallow Acts as is it were an Act of the Federal Legislature assented to by the Governor General and c may be withdrawn at any time by the Governor General
287 3 If and so far as an ordinance under this section makes any provision which the Federal Legislature would not under this Act be competent to enact it shall be void
Section 43 conferred upon the Governor General the power to issue ordinances for the purpose of enabling him satisfactorily to discharge his functions in so far as he was by or under the Act required to act in his discretion or to exercise his individual judgment
Article 123 which confers the power to promulgate ordinances occurs in Chapter III of Part V of the Constitution called Legislative Power of the President
It reads thus Power of 123 1 If at any time except when both Houses President of Parliament are in session the to promul President is satisfied that gate Ordi circumstances exist which render it nances necessary for him to take immediate during action he may promulgate such recess of ordinances as the circumstances appear parliament
recess of to him to require
2 An ordnance promulgated under this Article shall have the same force and effect as an Act of Parliament but every such ordinance a shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament or if before the expiration of that period resolutions disapproving it are passed by both Houses upon the passing of the second of those resolutions and b may be withdrawn at any time by the President
288 Explanation Where the Houses of Parliament are summoned to reassemble on different dates the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause
3 If and so far as an ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact it shall be void
 Article 213 which occurs in Part VI Chapter IV called Legislative Power of the Governor   confers similar power on the Governors of States to issue ordinances
As we have said earlier while setting out the petitioner s case the thrust of his argument is that the power to issue an ordinance is 7 Dan executive power not a legislative power and consequently is not law
In view of the clear and specific provisions of the Constitution bearing upon this question it is quite impossible to accept this argument
The heading of Chapter III of Part V is Legislative Powers of the President
Clause 2 of Article 123 provides that an ordinance promulgated under Article 123 shall have the same force and effect as an Act of Parliament
The only obligation on the Government is to lay the ordinance before both Houses of Parliament and the only distinction which the Constitution makes between a law made by the Parliament and an ordinance issued by the President is that whereas the life of a law made by the Parliament would depend upon the terms of that law an ordinance by reason of sub clause a of clause 2 ceases to operate at the expiration of six weeks from the reassembly of Parliament unless resolutions disapproving it are passed by both Houses before the expiration of that period
Article 13 2 provides that the State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of this provision shall to the extent of the contravention be void
Clause 3 of Article 13 provides that in Article 13 law includes inter alia an ordinance unless the context otherwise requires
In view of the fact that the context does not otherwise so require it must follow from the combined operation of clauses 2 and 3 of Article 13 that an ordinance 289 issued by the President under Article 123 which is equated by clause 2 of that article with an Act of Parliament is subject to the same constraints and limitations as the latter
Therefore whether the legislation is Parliamentary or Presidential that is to say whether it is a law made by the Parliament or an ordinance issued by the President the limitation on the power is that the fundamental rights conferred by part III cannot be taken away or abridged in the exercise of that power
An ordinance like a law made by the Parliament is void to the extent of contravention of that limitation  The exact equation for all practical purposes between a law made by the Parliament and an ordinance issued by the President is emphasised by yet another provision of the Constitution
Article 367 which supplies a clue to the Interpretation of the Constitution provides by clause 2 that Any reference in this Constitution to Acts or laws of or made by Parliament or to Acts or laws of or made by the Legislature of a State shall be construed as including a reference to an ordinance made by the President or to an ordinance made by a Governor as the case may be
 It is clear from this provision if indeed there was any doubt about the true position 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
It may sound strange at first blush that the executive should possess legislative powers but a careful look at our Constitution will show that the scheme adopted by it envisages the exercise of legislative powers by the executive in stated circumstances
An ordinance can be issued by the President provided that both Houses of the Parliament are not in session and the President is satisfied that circumstances exist which render It necessary for him to take immediate action An ordinance which satisfies these pre conditions has the same force and effect as an Act of Parliament
Article 356 empowers the President to issue a proclamation in case of failure of constitutional machinery in the States
By Article 357 I a if by a proclamation issued under Article 356 1 it has been declared that the powers of the Legislature of the State shall be 290 exercisable by or under the authority of Parliament it is competent for the Parliament to confer on the President the power of the Legislature of the State to make laws
Indeed by the aforesaid clause a the Parliament can not only confer on the President the power of the State Legislature to make laws but it can even authorise the President to delegate the power so conferred to any authority to be specified by him in that behalf
The marginal note to Article 357 speaks of the Exercise of Legislative powers under the proclamation issued under Article 356
There cannot be the slightest doubt that not only the power exercised by the President under Article 3571 a but even the power exercised by his delegate under that clause is legislative in character
It is therefore not true to say that under our Constitution the exercise of legislative power by the legislature properly so called is the only source of law
Ordinances issued by the President and the Governors and the laws made by the President or his delegate under Article 357 1 a partake fully of legislative character and are made in the exercise of legislative power within the contemplation of the Constitution
It is thus 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 President s 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 preposition that the executive 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 and adverse impact which the Governor General s ordinance making power had produced on the Indian Community in the pre indepence era that it was necessary to equip the president with legislative powers in urgent situations
After all the Constitution makers had to take into account life s realities
As observed by Shri Seervai in Constitutional Law of India  2nd Ed p 16 Grave public inconvenience would be caused if on an Act like the Bombay Sales Tax Act being declared void no machinery existed whereby a valid law could be promptly promulgated to take the place of the law declared void
Speaking for 291 the majority in RC Cooper vs Union of Indial Shah J said The President is under the Constitution not the repostory of the legislative power of the Union but with a view to meet extraordinary situations demanding immediate enactment of laws provision is made in the Constitution investing the President with power to legislate by promulgating ordinances The Constituent Assembly therefore conferred upon the executive the power to legislate not of course intending that the said power should be used recklessly or by imagining a state of affairs to exist when in fact it did not exist nor indeed intending that it should be used mala fide in order to prevent the people s elected representatives from passing or rejecting a Bill after a free and open discussion which is of the essence of democratic process
Having conferred upon the executive the power to legislate by ordinances if the circumstances were such as to make the exercise of that power necessary the Constituent Assembly subjected that power to the self same restraints to which a law passed by the legislature is subject
That is the compromise which they made between the powers of Government and the liberties of the people
Therefore in face of the provisions to which we have already referred it seems to us impossible to accept Shri Garg s contention that a ordinance made by the President is an executive and not a legislative act
An ordinance issued by the President or the Governor is as much law as an Act passed by the Parliament and is fortunately and unquestionably subject to the same inhibitions
In those inhibitions lies the safety of the people
The debates of the Constituent Assembly Vol 8 Part V Chapter III pp 201 to 217 would show that the power to issue ordinances was regarded as a necessary evil
That power was to be used to meet extra ordinary situations and not perverted to serve political ends
The Constituent Assembly held forth as it were an assurance to the people that an extraordinary power shall not be used in order to perpetuate a fraud on the Constitution which is conceived with so much faith and vision
That assurance must in all events be made good and the balance struck by the founding fathers between the powers of the Government and the liberties of the people not disturbed or destroyed
The next contention of Shri Garg is that even assuming that the power to issue ordinances is legislative and not executive in character ordinance is not law  within the meaning of Article 21 of 292 the Constitution
That article provides that No person shall be deprived of his life or personal liberty except according to procedure established by law
It is contended by the learned counsel that the decision of this Court in A K Gopalan1 establishes that the supremacy of the legislature is enshrined in Article 21 as a fundamental right in order to afford protection to the life and liberty of the people R against all executive powers and therefore the supremacy of the legislature cannot be replaced by making the executive supreme by allowing it to promulgate ordinances which have the effect of depriving the people of their life and liberty
The extent of protection afforded to the right conferred by Article 21 consists according to counsel in the obligation imposed upon a democratic legislature to devise a fair just and reasonable procedure for attenuating the liberties of the people
Since the very object of Article 21 is to impose restrains on the power of the executive in the matter of deprivation of the life and liberty of the people it is absurd so the argument goes to concede to the executive the power to deprive the people of the right conferred by Article 21 by issuing an ordinance
The argument in other words is that the executive cannot under any conditions or circumstances be permitted to liberate itself from the restraints of Article 21
Shri Garg says that if ordinances are not excluded from the precious area of life and liberty covered by Article 21 it is the executive which will acquire the right to trample upon the freedoms of the people rather than the people acquiring the fundamental right to life and liberty
It is also urged that by elevating ordinances into the status of laws the principle of separation of powers which is a part of the basic structure of the Constitution shall have been violated
An additional limb of the argument is that an ordinance can never be said to establish  a procedure because it has a limited duration and it transient in character
In one sense these contentions of Shri Garg stand answered by what we have already said about the true nature and character of the ordinance making power
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 3672 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 132 of the Constitution
293 The contention that the procedure prescribed by an ordinance cannot be equated with the procedure established by law is equally unsound
The word established  is used in Article 21 in order to denote and ensure that the procedure prescribed by the law must be defined with certainty in order that those who are deprived of their fundamental right to life or liberty must know the precise extent of such deprivation
The decision of this Court in State of Orissa vs Bhupendra Kumar Bose1 and Mohammadbhai Khudabux Chhipa  Anr
vs The State of Gujarat  Anr2 illustrate that enduring rights and obligations can be created by ordinances
The fact that any particular law has a temporary duration is immaterial for the purposes of Article 21 so long as the procedure prescribed by it is definite and reasonably ascertainable
In fact the Preventive Detention laws were in their inception of a temporary character since they had a limited duration
They were only extended from time to time
The argument of the petitioner that the fundamental right conferred by Article 21 cannot by taken away by an ordinance really seeks to add a proviso to Article 1231 to the following effect Provided that such ordinances shall not deprive any person of his right to life or personal liberty conferred by Article 21 of the Constitution An amendment substantially to that effect was moved in the Constituent Assembly by Shri B Pocker Sahib but was rejected by the Constituent Assembly see Constituent Assembly Debates Vol 8 p 203
Speaking on the amendment moved by Shri Pocker Dr Ambedkar said Clause 3 of Article 102 lays down that any law made by the President under the provisions of Article 102 shall be subject to the same limitations as a law made by the legislature by the ordinary process
Now any law made in the ordinary process by the legislature is made subject to the provisions contained in the Fundamental Rights articles of this Draft Constitution
That being so any law made under the provisions of Article 102 would also be automatically subject to the provisions relating to fundamental rights of citizens and any such law therefore will not be able to over ride those provisions and there is no need for any provision as was suggested by my friend Mr Pocker in his amendment No 1796 page 214
It may be mentioned that Draft Article 102 corresponds to the present Article 123 of the Constitution
294 Another answer to Shri Garg s contention is that what Article 21 emphasise is that the deprivation of the right to life or liberty must be brought about by a State made law and not by the rules of natural law See AK Gopalan supra at pages 111 169 199 229 236 and 308 309
Reference may usefully be made in this behalf to a few representative decisions which illustrate that Article 21 takes in laws other than those enacted by the legislature
In Re Sant Ram1 the Rules made by the Supreme Court in State of Nagaland vs Ratan Singh2 the Rules made for the governance of Nagaland Hills District in Govind vs State of Madhya Pradesh  Anr3 the Regulations made under the Police Act in Ratilal Bhanji Mithani vs Asitt
Collector of Customs Bombay  Anr
4 the Rules made by the High Court under Article 225 of the Constitution and in Pandit MSM Sharma vs Shri SriKrishna Sinha  Anr5 the Rules made by a House of Legislature under Article 208 were all regarded as lying down procedure established by law  for the purposes of Article 21
We must therefore reject the contention that ordinance is not law  within the meaning of Article 21 of the Constitution
There is no substance in the argument that the ordinance making power if extended to cover matters mentioned in Article 21 will destroy the basic structure of the separation of powers as envisaged by the Constitution
In the first place Article 1231 is a part of the Constitution as originally enacted and secondly our Constitution does not follow the American pattern of a strict separation of powers
We may here take up for consideration some of the submissions made by Shri Tarkunde on the validity of the National Security ordinance
He contends that the power to issue an ordinance under Article 123 is subject to the pre conditions that circumstances must exist which render it necessary for the president to take immediate action
The power to issue an ordinance is conferred upon the President in order to enable him to act in unusual and exceptional circumstances
Therefore according to Shri Tarkunde unusual and exceptional circumstances must be show to exist they must be relevant on the question of the necessity to issue an ordinance and 295 they must be such as to satisfy a reasonable person that by A reason thereof it was necessary to take immediate action and issue all ordinance
The legislative power to issue an ordinance being conditional the question as regards the existence of circumstances which compelled the issuance of ordinance is justiciable and it is open to this Court says Shri Tarkunde to determine whether the power was exercised on the basis of relevant circumstances which establish the necessity to take immediate action or whether it was exercised for a collateral purpose
In support of this contention Shri Tarkunde relies on the circumstance that the amendment introduced in Article 123 by the 38th Constitution Amendment Act 1975 was deleted by the 44th Constitution Amendment Act 1978
Section 2 of the 38th Amendment Act introduced clause 4 in Article 123 to the following effect Notwithstanding anything in this Constitution the satisfaction of the President mentioned in clause 1 shall be final and conclusive and shall not be questioned in any Court on any ground
 This amendment was expressly deleted by section 16 of the 44th Amendment Act
Shri Tarkunde says that the deletion of the particular clause is a positive indication that the Parliament did not consider it safe or proper to entrust untrammeled powers to the executive to issue ordinances
It therefore decided that the President s satisfaction should not be final and conclusive and that it should be open to judicial scrutiny
Shri Tarkunde added that the exercise of a conditional power is always subject to the proof of conditions and no distinction can be made in this regard between conditions imposed by a statute and conditions imposed by a constitutional provision
Relying on section 106 of the Evidence Act Shri Tarkunde says that circumstances which necessitated the passing of the ordinance being especially within the knowledge of the executive the burden lies upon it to prove the existence of those circumstances
It is strongly pressed upon us that we should not avoid the decision of these points on the plea that they involve political questions
Shri Tarkunde distinguishes the decision in the Rajasthan Assembly Dissolution Case2 on this aspect by saying that Article 356 which was under consideration in that case uses language which 296 is much wider than that of Article 123
He relies on Seervai s observation in the Constitutional Law of India  2nd Edition Volume III pages 1795 and 1797 to the effect that there is no place in our Constitution for the doctrine of The political question   since that doctrine is based on and is a consequence of a rigid separation of powers in the US Constitution and our Constitution is not based on a rigid separation of powers
Reliance is placed by Shri Tarkunde on the decision in the Privy Purse case1 in which Shah J Observed that Constitutional mechanism in a democratic polity does not contemplate existence of any function which may qua the citizens be designated as political and orders made in exercise whereof are not liable to be tested for their validity before the lawfully constituted courts
In the same case Hegde J said that There is nothing like a political power under our Constitution in the matter of relationship between the executive and the citizens  We see the force of the contention that the question whether the pre conditions of the exercise of the power conferred by Article 123 are satisfied cannot be regarded as a purely political question
The doctrine of the political question was evolved in the United States of America on the basis of its Constitution which has adopted the system of a rigid separation of powers unlike ours
In fact that is one of the principal reasons why the US Supreme Court had refused to give advisory opinions2 In Baker vs Carr3 Brennan J said that the doctrine of political question was essentially a function of the separation of powers
There is also a sharp difference in the position and powers of the American President on one hand and the President of India on the other
The President of the United States exercises executive power in his own right and is responsible not to the Congress but to the people who elect him
In India the executive power of the Union is vested in the President of India but he is obliged to exercise it on the aid and advice of his Council of Ministers
The President s satisfaction is therefore nothing but the satisfaction of his Council of Ministers in whom the real executive power resides
It must also be mentioned that in the United States itself the doctrine of the political question has come under a cloud and has been the subject matter of adverse criticism 297 It is said that all that the doctrine really means is that in the exercise of the power of judicial review the courts must adopt a prudential  attitude which requires that they should be wary of deciding upon the merit of any issue in which claims of principle as to the issue and claims of expediency as to the power and prestige of courts are in sharp conflict
The result more or less is that in America the phrase political question has become a little more than a play of words
The Rajasthan case is often cited as an authority for the proposition that the courts ought not to enter the polical thicket
It has to be borne in mind that at the time when that case was decided Article 356 contained clause 5 which was inserted by the 38th Amendment by which the satisfaction of the President mentioned in clause 1 was made final and conclusive and that satisfaction was not open to be questioned in any court on any ground
Clause 5 has been deleted by the 44th Amendment and therefore any observations made in the Rajasthan case on the basis of that clause cannot any longer hold good
It is arguable that the 44th Constitution Amendment Act leaves no doubt that judicial review is not totally excluded in regard to the question relating to the President s satisfaction
There are however two reasons why we do not propose to discuss at greater length the question as regards the justiciabilty of the President s satisfaction under Article 123 1 of the Constitution
In the first place the ordinance has been replaced by an Act
It is true as contended by Shri Tarkunde that if the question as regards the justiciability of the President s satisfaction is not to be considered for the reason that the ordinance has become an Act the occasion will hardly ever arise for considering that question because by the time the challenge made to an ordinance comes up for consideration before the Court the ordinance almost invariably shall have been replaced by an Act
All the same the position is firmly established in the field of constitutional adjudiction that the Court will decide no more than needs to be decided in any particular case
Abstract questions present interesting challenges but it is for scholars and text book writers to unravel their mystique
It is not for the courts to decide questions which are but of academic importance
The other reason why we are not inclined to go into the question as regards the justiciability of the President s satisfaction under 298 Article 123 1 is that on the material which is placed before us it is impossible for us to arrive at a conclusion one way or the other
We are not sure whether a question like the one before us would be governed by the rule of burden of proof contained in section 106 of the Evidence Act though we are prepared to proceed on the basis that the existence of circumstances which led to the passing of the ordinance is especially within the knowledge of the executive
But before casting the burden on the executive to establish those circumstances at least a prima facie case must be made out by the challenger to show that there could not have existed any circumstances necessitating the issuance of the ordinance
Every casual or passing challenge to the existence of circumstances which rendered it necessary for the President to take immediate action by issuing an ordinance will not be enough to shift the burden of proof to the executive to establish those circumstances
Since the petitioners have not laid any acceptable foundation for us to hold that no circumstances existed or could have existed which rendered it necessary for the President to take immediate action by promulgating the impugned ordinance we are unable to entertain the contention that the ordinance is unconstitutional for the reason that the pre conditions to the exercise of the power conferred by Article 123 are not fulfilled
That is why we do not feel called upon to examine the correctness of the submission made by the learned Attorney General that in the very nature of things the satisfaction of the President which is the basis on which he promulgates an ordinance is founded upon materials which may not be available to others and which may not be disclosed without detriment to public interest and that the circumstances justifying the issuance of the ordinance as well as the necessity to issue it lie solely within the President s judgment and are therefore not justiciable
The two surviving contentions of Shri Garg that the power to issue an ordinance can operate on a virgin land only and that Articles 14 19 and 21 will be reduced to a dead letter if the executive is permitted to take away the life or liberty of the people by an ordinance need not detain us long
The Constitution does not impose by its terms any inhibition on the ordinance making power that it shall not be used to deal with a subject matter which is already covered by a law made by the Legislature
There is no justification for imposing any such restriction on the ordinance making power especially when an ordinance like any law made by the Legislature has to comply with the mandate of Article 13 2 299 of the Constitution
Besides legislative activity properly so called has proliferated so enormously in recent times that it is difficult to discover a virgin land or a fresh field on which the ordinance making power can operate as if on a clean slate
To day there is possibly no subject under the sun which the Legislature has not touched
As regards Articles 14 19 and 21 being reduced to a dead letter we are unable to appreciate how an ordinance which is subject to the same constraints as a law made by the Legislature can in its practical operation result in the obliteration of these articles
The answer to this contention is again to be found in the provisions contained in Article 13 2
That disposes of the contentions advanced by the various parties on the validity of the ordinance
We must mention that in a recent judgment dated October 20 1981 delivered by a Constitution Bench of this Court in Writ Petition No 355 of 1981 the Bearer Bonds case1 the question as regards the nature and scope of the ordinance making power has been discussed elaborately
We adopt the reasoning of the majority judgment in that case
The argments advanced on behalf of the various petitioners can be broadly classified under six heads 1 The scope limits and justiciability of the ordinance making power 2 The validity of Preventive Detention in the light of the severe deprivation of personal liberty which it necessarily entails 3 The effect of the non implemention of the 44th Amendment in so far as it bears upon the Constitution of the Advisory Boards 4 The vagueness of the provisions of the  authorizing the detention of persons for the reasons mentioned in section 3 of the Act 5 The unfairness and unreasonableness of the procedure before the Advisory Boards and 6 The unreasonableness and harshness of the conditions of detention
We have dealt with the first question fully though the impugned ordinance has been replaced by an Act since the question was argued over several days and arises frequently as frequently as ordinances are issued
All that needs have been said was said on that question by the various counsel and the relevant data was fully placed before us
We will now turn to the 300 second question relating to the validity of Preventive Detention as a measure for regulating the liberties of the subject
There can be no doubt that personal liberty is a precious right
So did the founding fathers believe at any rate because while their first object was to give unto the people a Constitution whereby a Government was established their second object equally important was to protect the people against the Government
That is why while conferring extensive powers on the Governments like the power to declare an emergency the power to suspend the enforcement of fundamental rights and the power to issue ordinances they assured to the people a Bill of Rights by Part III of the Constitution protecting against executive and legislative despotism those human rights which they regarded as fundamental
The imperative necessity to protect those rights is a lesson taught by all history and all human experience
Our Constitution makers had lived through bitter years and seen an alien government trample upon human rights which the country had fought hard to preserve
They believed like Jefferson that an elective despotism was not the government we fought for   And therefore while arming the government with large powers to prevent anarchy from within and conquest from without they took care to ensure that those powers were not abused to mutilate the liberties of the people
But the liberty of the individual has to be subordinated within reasonable bounds to the good of the people
Therefore acting in public interest the Constituent Assembly made provisions in Entry 9 of List I and Entry 3 of List III authorising the Parliament and the State legislatures by Article 246 to pass laws of preventive detention
These entries read thus Entry 9 List I Preventive detention for reasons connected with Defence Foreign Affairs or the security of India  persons subjected to such detention   Entry 3 List III Preventive detention for reasons connected with the security of a State the maintenance of public order or the maintenance of supplies and services essential to the community persons subjected to such detention
 301 The practical need and reality of the laws of preventive detention find concrete recognition in the provisions of Article 22 of the Constitution
Laws providing for preventive detention are expressly dealt with by that article and their scope appropriately defined
The established Courts of Justice when a question arises whether the prescribed limits have been exceeded must of necessity determine that question and the only way in which they can properly do so is by looking to the terms of the instrument by which affirmatively the legislative powers were created and by which negatively they are restricted
If what has been done is legislation within the general scope of the affirmative words which give the power and if it violates no express condition or restriction by which that power is limited  it is not for any Court of Justice to inquire further or to enlarge constructively those conditions and restrictions see The Queen vs Burah
The legislative power in respect of preventive detention is expressly limited to the specific purpose mentioned in Entry 9 List I and Entry 3 List III
It is evident that the power of preventive detention was conferred by the Constitution in order to ensure that the security and safety of the country and the welfare of its people are not put in peril
So long as a law of preventive detention operates within the general scope of the affirmative words used in the respective entries of the union and concurrent lists which give that power and so long as it does not violate any condition or restriction placed upon that power by the Constitution the Court cannot invalidate that law on the specious ground that it is calculated to interfere with the liberties of the people
Khanna J in his judgment in the Habeas Corpus case has dwelt upon the need for preventive detention in public Interest
The fact that England and America do not resort to preventive detention in normal times was known to our Constituent Assembly and yet it chose to provide for it sanctioning its use for specified purposes
The attitude of two other well known democracies to preventive detention as a means of regulating the lives and liberties of the people was undoubtedly relevant to the framing of our Constitution
But the framers having decided to adopt and legitimise it we cannot declare it unconstitutional by importing our notions of what is right and wrong
The power to judge the fairness and 302 justness of procedure established by a law for the purposes of Article 21 is one thing that power can be spelt out from the language of that article
Procedural safeguards are the handmaids of equal justice and since the power of the government is colossal as compared with the power of an individual the freedom of the individual can be safe only if he has a guarantee that he will be treated fairly
The power to decide upon the justness of the law itself is quite another thing that power springs from a due process  pro vision such as is to be found in the 5th and 14th Amendments of the American Constitution by which no person can be deprived of life liberty or property without due process of law
In so far as our Constitution is concerned an amendment was moved by Pandit Thakur Dass Bhargava to draft Article 15 which corresponds to Article 21 of the Constitution for substituting the words without due process of law for the words except according to procedure established by law
Many members spoke on that amendment on December 6 1948 amongst whom were Shri KM Munshi who was in favour of the amendment and Sir Alladi Krishnaswamy Ayyar who while explaining the view of the Drafting Committee said that he was still open to conviction
The discussion of the amendment was resumed by the Assembly on December 13 1948 when Dr Ambedkar who too had an open mind on the vexed question of due process  said 
I must confess that I am somewhat in a difficult position with regard to article 15 and the amendment moved by my friend Pandit Bhargava for the deletion of the words procedure according to law and the substitution of the words due process
The question of due process raises in my judgment the question of the relationship between the legislature and the judiciary
in a federal constitution it is always open to the judiciary to decide whether any particular law passed by the legislature is ultra vires or intra vires in reference to the powers of legislation which are granted by the Constitution to the particular legislature
The due process  clause in my judgment would give the judi 303 ciary the power to question the law made by the legislature on another ground
That ground would be whether that law is in keeping with certain fundamental principles relating to the rights of the individual
In other words the judiciary would be endowed with the authority to question the law not merely on the ground whether it was in excess of the authority of the legislature but also on the ground whether the law was good law apart from the question of the powers of the legislature making the law
The question now raised by the introduction of the phrase due process  is whether the judiciary should be given the additional power to question the laws made by the State on the ground that they violate certain fundamental principles
There are dangers on both sides
For myself I cannot altogether omit the possibility of a Legislature packed by party men making laws which may abrogate or violate what we regard as certain fundamental principles affecting the life and liberty of an individual
At the same time I do not see how five or six gentlemen sitting in the Federal or Supreme Court examining laws made by the Legislature and by dint of their own individual conscience or their bias or their prejudices be trusted to determine which law is good and which law is bad
It is a rather a case where a man has to sail between Charybdis and Seylla and I therefore would not say anything
I would leave it to the House to decide in any way it likes See Constituent Assembly Debates Vol
VII pp
999 1001 The amendment was then put to vote and was negatived
In view of this background and in view of the fact that the Constitution as originally conceived and enacted recognizes preventive detention as a permissible means of abridging the liberties of the people though subject to the limitations imposed by Part III we must reject the contention that preventive detention is basically impermissible under the Indian Constitution
The third contention centres around the 44th Constitution Amendment Act 1978 with particular reference to section 12 and section 3 thereof
Section 1 reads thus 304 1
Short title and commencement 1 This Act may be called the Constitution Forty fourth Amendment Act 1978
2 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 reads thus 3
Amendment of article 22
In article 22 of the Constitution a for clause 4 the following clause shall be substituted namely 4 No law providing for preventive detention shall authorise the detention of a person for a longer period than two months unless an Advisory Board constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court has reported before the expiration of the said period of two months that there is in its opinion sufficient cause for such detention Provided that an Advisory Board shall consist of a Chairman and not less than two other members and the Chairman shall be a serving Judge of the appropriate High Court and the other members shall be serving or retired Judges of any High Court Provided further that nothing in this clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub clause a of clause 7
Explanation
In this clause appropriate High Court  means i in the case of the detention of a person in pursuance of an order of detention made by the Government of 305 India or an officer or authority subordinate to that Government the High Court for the Union territory of Delhi ii in the case of the detention of a person in pursuance of an order of detention made by the Government of any State other than a Union territory the High Court for that State and iii in the case of the detention of a person in pursuance of an order of detention made by the administrator or a Union territory or an officer or authority subordinate to such administrator such High Court as may be specified by or under any law made by Parliament in this behalf
b in clause 7 i sub clause a shall be omitted ii sub clause b shall be re lettered as sub clause a and iii sub clause c shall be re lettered as sub clause b and in the sub clause as so relettered for the words brackets letter and figure sub clause a of clause 4 the word brackets and figure clause 4 shall be substitued
 Clause 4 of Article 22 of the Constitution to which the above amendment was made by the 44th Amendments reads thus 22
4 No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless a an Advisory Board consisting of persons who are or have been or are qualified to be appointed as Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention 306 Provided that nothing in this sub clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub clause b of clause 7 or b such person is detained in accordance with the provisions of any law made by Parliament under sub clauses a and b of clause 7
 Clause 7 of Article 22 to which also amendment was made by the 44th Amendment reads thus 22
7 Parliament may by law prescribe a the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause a clause 4 b the maximum period for which any person may in any class or classes of case be detained under any law providing for preventive detention and c the procedure to be followed by an Advisory Board in an inquiry under sub clause a of clause 4
 The 44th Amendment Act received the assent of the President under Article 368 2 on April 30 1979
Most of the provisions of the 44th Amendment were brought into force with effect from June 20 1979 by a notification issued by the Central Government on June 19
The rest of the provisions of the Amendment were brought into force with effect from August 1 1979 except section 3 whereby Article 22 was amended which has not yet been brought into force
The position as it stands today from the Government s point of view is that advisory Boards can be constituted to consist of persons who are or have been or are qualified to the appointed as Judges of a High Court in accordance with the provisions of Article 22 4 a in its original form The amendment made to that article by section 3 of the 44th Amendment not 307 having been brought into force by the Central Government by issuing a notification under section 12 it is not necessary according to the Union Government to constitute Advisory Boards in accordance with the recommendation of the Chief Justice of the appropriate High Court and consisting of a Chairman and not less than two other Members the Chairman being a serving Judge of the appropriate High Court and the other Members being serving or retired Judges of any High Court
Before adverting to the arguments advanced before us on the question of the 44th Amendment it must be mentioned that the National Security ordinance which came into force on September 22 a 1980 provided by clause 9 for the constitution of Advisory Boards strictly in accordance with the provisions of section 3 of the 44th Amendment Act in spite of the fact that the aforesaid section was not brought into force
The was passed on December 27 1980 replacing the ordinance retrospectively
Section 9 of the Act makes a significant departure from clause 9 of the ordinance by providing for the constitution of Advisory Boards in accordance with Article 224 in its original form and not in accordance with the amendment made to that article by section 3 of the 44th Amendment Act
The arguments advanced before us by various counsel bearing on the 44th Amendment have different facets and shall have to be considered separately
The main thrust of Dr Ghatate s argument is that the Central Government was under an obligation to bring section 3 of the 44th Amendment into force within a reasonable time after the President gave his assent to the Amendment and since it has failed so far to do so this Court must by a mandamus ask the Central Government to issue a notification under section 12 of the Amendment bringing it into force without any further delay
Alternatively Dr Ghatate contends that clause 2 of section I of the 44th Amendment is ultra vires the amending power conferred upon the Parliament by Article 368 of the Constitution
He argues The power to amend the Constitution is vested in the Parliament by Article 368 which cannot be delegated to the executive
By such delegation the Parliament has created a parallel constituent body which is impermissible under the terms of Article 368
Sub section 2 of section I of the 44th Amendment Act vests an uncontrolled power in the executive to amend the Constitution at its sweet will which is violative of the basic structure of the Constitution
Section 308 12 is also bad because by conferring an unreasonable arbitrary and unguided power on the executive it violates Articles 14 and 19 which are in integral part of the basic structure of the Constitution
Shri Tarkunde does not ask for a mandamus compelling the Central Government to bring section 3 of the 44 the Amendment 13 Act into force
He challenges the Central Government s failure to bring section 3 into force as mala fide and argues By refusing to bring section 3 into force within a reasonable time without any valid reason the Central Government has flouted the constituent decision of the Parliament arbitrarily which is violative of Article 21
No law of preventive detention can be valid unless it complies with Article 22 of the Constitution particularly with clause 4 of that Article
Since the does not provide for the constitution of Advisory Boards in accordance with section 3 of the 44th Amendment Act the whole Act is bad
There was an obligation upon the Central Government to bring the whole of the 44th Amendment into force within a reasonable time since section 1 2 cannot be construed as conferring a right of veto on the executive to nullify or negate a constitutional amendment
The bringing into force of a constitutional amendment when such power is left to the executive may be conceivably deferred for reasons arising out of the inherent nature of the provisions which are to be brought into force
But the executive cannot defer or postpone giving effect to a constitutional amendments for policy reasons of its own which are opposed to the policy of the constituent body as reflected in the constitutional amendment
The fact that the National Security Ordinance provided by clause 9 for the constitution of Advisory Boards in accordance with the provisions of the 44th Amendment shows that no administrative difficulty was envisaged or felt in bringing the particular provision into force
The dissolves the Advisory Boards Constituted under the ordinance in accordance with the 44th Amendment and substitutes them by Advisory Boards whose composition is contrary to the letter and spirit of that Amendment
Shri Jethamalani like Shri Tarkunde relies upon the provisions of the 44th Amendment in regard to the constitution of Advisory Boards in support of the contention that the is bad for not compliance with section 3 of the Amendment despite the fact that the said section has not been brought into force
No Act passed by a legislature according to Shri Jethamalani can flout the constituent view or decision of the Parliament whether or not 309 the Constitutional Amendment has been brought into force
In any event contends the learned counsel even if section 3 of the 44th Amendment Act has not been brought into force the wisdom of that Amendment in so far as it bears on the composition of Advisory Boards is available to the Court
The view of the Constituent body on that question cannot but be regarded as reasonable and to the extent that the provisions of the impugned Act run counter to that view that Act must be held to be unreasonable and for that reason struckdown
Both Dr Ghatate and Shri Garg contend that despite the provisions of section 1 2 of the 44th Amendment Act Article 22 of the Constitution stood amended on April 30 1979 when the 44th Amendment Act received the assent of the President and that there was nothing more that remained to be done by the executive
Section 1 2 which according to them is misconceived and abortive must be ignored and served from the rest of the Amendment Act and the rest of it deemed to have come into force on April 30 1979
In so far as the arguments set out above bear on the reasonableness of the provisions of the  we will consider them later when we will take up for examination the contention that the Act is violative of Articles 19 and 21 on account of the unreasonableness or unfairness of its provisions and of the procedure prescribed by it
At this juncture we will limit ourselves to a consideration of those arguments in so far as they bear upon the interpretation of section 1 2 of the 44th Amendment Act the consequences of the failure of Central Government to issue a notification under that provision for bringing into force the provisions of section 3 within a reasonable time and the question as to whether despite the provisions contained in section 12 the 44th Amendment Act must be deemed to have come into force on the date on which the President gave his assent to it
The point last mentioned raises the question as to whether section 12 of the 44th Amendment Act is severable from the rest of its provisions if that section is bad for any reason
The argument arising out of the provisions of Article 368 2 may be considered first
It provides that when a Bill whereby the Constitution is amended is passed by the requisite majority it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill
 This provision shows that a constitutional amendment cannot have any effect unless the President gives his assent to it and secondly that nothing more than the President s assent to an amendment duly passed by the Parliament is required 310 in order that the Constitution should stand amended in accordance with the terms of the Bill
It must follow from this that the Constitution stood amended in accordance with the terms of the 44th Amendment Act when the President gave his assent to that Act on April 30 1979
We must then turn to that Act for seeing how and in what manner the Constitution stood thus amended
The 44th Amendment Act itself prescribes by section 12 a pre condition which must be satisfied before any of its provisions can come into force
That pre condition is the issuance by the Central Government of notification in the official gazette appointing the date from which the Act or any particular provision thereof will come into force with power to appoint different dates for different provisions
Thus according to the very terms of the 44th Amendment none of its provisions can come into force unless and until the Central Government issues a notification as contemplated by section 12
There is no internal contradiction between the provisions of Article 3682 and those
Of section 12 of the 44th Amendment Act
Article 3682 lays down a rule of general application as to the date from which the constitution would stand amended in accordance with the Bill assented to by the President
Section 12 of the Amendment Act specifies the manner in which that Act or any of its provisions may be brought into force
The distinction is between the Constitution standing amended in accordance with the terms of the Bill assented to by the President and the date of the coming into force of the Amendment thus introduced into the Constitution
For determining the date with effect from which the Constitution stands amended in accordance with the terms of The Bill one has to turn to the date on which the President gave or was obliged to give his assent to the Amendment
For determining the date with effect from which the Constitution as amended came or will come into force one has to turn to the notification if any issued by the Central Government under section 12 of The Amendment Act
The Amendment Act may provide that the amendment introduced by it shall come into force immediately upon the President giving his assent to the Bill or it may provide that the amendment shall come the force on a future date
Indeed no objection can be taken to the Constituent body itself appointing a specific future date with effect from which the Amendment Act will come into force and if that be so different dates can be appointed by it for bringing into force different provisions of the Amendment Act
The 311 point of the matter is that the Constitution standing amended in accordance with the terms of the Bill and the amendment thus introduced into the Constitution coming into force are two distinct things
Just as a law duly passed by the legislature can have no effect unless it comes or is brought into force similarly an amendment of the Constitution can have no effect unless it comes or is brought into force
The fact that the Constituent body may itself specify a future date or dates with effect from which the Amendment Act or any of its provisions will come into force shows that there is no antithesis between Article 3682 of the Constitution and section 12 of the 44th Amendment Act
The expression of legislative or constituent will as regards the date of enforcement of the law or Constitution is an integral part thereof
That is why it is difficult to accept the submission that contrary to the expression of the constituent will the amendments introduced by the 44th Amendment Act came into force on April 30 1979 when the President gave his assent to that Act
The true position is that the amendments introduced by the 44th Amendment Act did not become a part of the Constitution on April 30 1979
They will acquire that status only when the Central Government brings them into force by issuing a notification under section 12 of the Amendment Act
The next question for consideration is whether section 12 of the 44th Amendment Act is ultra vires the power conferred of the Parliament by Article 368 to amend the Constitution
The argument is that the constituent power must be exercised by the Constituent body itself and it cannot be delegated by it to the executive or any other agency
For determining this question it is necessary to bear in mind that by constituent power  is meant that power to frame or amend the Constitution
The power of amendment is conferred upon the Parliament by Article 368 1 which provides that the Parliament may in exercise of its constituent power amend by way of addition variation or repeal any provision of the Constitution in accordance with the procedure laid down in that article
The power thus conferred on the Parliament is plenary subject to the limitation that it cannot be exercised so as to alter the basic structure or framework of the Constitution
It is well settled that the power conferred upon the Parliament by Article 245 to make laws is plenary within the field of legislation upon which that power can operate
That power by the terms of Article 245 is subject only to the provisions of the Constitution
The constituent power subject to the limitation aforesaid cannot be any the less plenary that the legislative power especially 312 when the power to amend the Constitution and the power to legislate are conferred on one and the same organ of the State namely the Parliament
The Parliament may have to follow a different procedure while exercising its constituent power under Article 368 than the procedure which it has to follow while exercising its legislative power under Article 245
But the obligation to follow different procedures while exercising the two different kinds of power cannot make any difference to the width of the power
In either event it is plenary subject in one case to the constraints of the basic structure of the Constitution and in the other to the provisions of the Constitution
The contention raised by the petitioners that the power to appoint a date for bringing into force a constitutional amendment is a constituent power and therefore it cannot be delegated to an outside agency is without any force
It is true that the constituent power that is to say the power to amend any provision of the Constitution by way of an addition variation or repeal must be exercised by the Parliament itself and cannot be delegated to an outside agency
That is clear from Article 368 1 which defines at once the scope of the constituent power of the Parliament and limits that power to the Parliament
The power to issue a notification for bringing into force the provisions of a Constitutional amendment is not a constituent power because it does not carry with it the power to amend the Constitution in any manner
It is therefore permissible to the Parliament to vest in an outside agency the power to bring a Constitutional amendment into force
In the instant case that power is conferred by the Parliament on another organ of the State namely the executive which is responsible to the Parliament for all its actions
The Parliament does not irretrievably lose its power to bring the Amendment into force by reason of the empowerment in favour of the Central Government to bring it into force
If the Central Government fails to do what according to the Parliament it ought to have done it would be open to the Parliament to delete section 1 2 of the 44th Amendment Act by following the due procedure and to bring into force that Act or any of its provisions
We need not enter into the much debated question relating to the delegation of legislative powers
In The Queen vs Burah the Privy Council upheld the delegated power to bring a law into force in a district and to apply to it the whole or part of the present or 313 future laws which were in force in other districts
In Russell vs The Queen it upheld the provision that certain parts of an Act should come into force only on the petition of a majority of electors
In Hodge vs The Queen it upheld the power conferred upon a Board to create offences and annex penalties
The American authorities on the question of the validity of delegated powers need not detain us because the theory that a legislature is a delegate of the people and therefore it cannot delegate its power to another does not hold true under our Constitution
The executive under our Constitution is responsible to the legislature and is not independent of it as in the United States
The three Privy Council decisions to which we have referred above were considered by this Court in Re Delhi Laws Act case which is considered as a leading authority on the question of delegated legislation
The Reference made in that case by the President under Article 1431 of the Constitution to the Supreme Court in regard to the validity of certain laws was necessitated by the decision of the Federal Court in Jatindra Nath Gupta vs State of Bihar in which it was held by the majority that the power to extend the operation of an Act for a further period of one year with such modification as May be specified was a legislative power and that the provisions of section 13 of that Act which delegated that power to an outside agency was bad
One of the questions which was referred to this Court in Delhi Laws Act case was whether section 7 of the was ultra vires the Legislature which passed that Act
That section provided that the Provincial Government may by a notification extend with such restrictions and modifications as it thinks fit to the Province of Delhi or any part thereof any enactment which is in force in any part of British India at the date of such notification
The difficulty of discovering the ratio of the seven judgments delivered in the case is well known
There is however no difference amongst the learned Judges in their perception and understanding of what was actually decided in the three Privy Council cases to which we have referred and which were discussed by them
They read the Privy Council decisions as laying down that conditional legislation is permissible whereby the legislature entrusts to an outside agency the discretionary power to select the time or place to enforce the law
As stated by Shri HM Seervai in his 314 Constitutional Law of India 2nd ed
at p 1203 The making of laws is not an end in itself but is a means to an end which the legislature desires to secure
That end may be secured directly by the law itself
But there are many subjects of legislation in which the end is better secured by extensive delegation of legislative power
There are practical difficulties in the enforcement of laws contemporaneously with their enactment as also in their uniform extension to different areas
Those difficulties cannot be foreseen at the time when the laws are made
It therefore becomes necessary to leave to the judgment of an outside agency the question as to when the law should be brought into force and to which areas it should be extended from time to time
What is permissible to the Legislature by way of conditional legislation cannot be considered impermissible to the Parliament when in the exercise of its constituent power it takes the view that the question as regards the time of enforcement of a Constitutional amendment should be left to the judgement of the executive
We are therefore of the opinion that section 1 2 of the 44th Amendment Act is not ultra vires the power of amendment conferred upon the Parliament by Article 368 1 of the Constitution
We may now take up for consideration the question which was put in the forefront by Dr Ghatate namely that since the Central Government has failed to exercise its power within a reasonable time we should issue a mandamus calling upon it to discharge its duty without any further delay
Our decision on this question should not be construed as putting a seal of approval on the delay caused by the Central Government in bringing the provisions of section 3 of the 44th Amendment Act into force
That Amendment received the assent of the President on April 30 1979 and more than two and half years have already gone by without the Central Government issuing a notification for bringing section 3 of the Act into force
But we find ourselves unable to intervene in a matter of this nature by issuing a mandamus to the Central Government obligating it to bring the provisions of section 3 into force
The Parliament having left to the unfettered judgment of the Central Government the question as regards the time for bringing the provisions of the 44th Amendment into force it is not for the Court to compel the Government to do that which according to the mandate of the Parliament lies in its discretion to do when it considers it opportune to do it
The executive is responsible to the Parliament and if the Parliament considers that the executive has 315 betrayed its trust by not bringing any provision of the Amendment into force it can censure the executive
It would be quite anomalous that the inaction of the executive should have the approval of the Parliament and yet we should show our disapproval of it by issuing a mandamus
The Court s power of judicial review in such cases has to be capable of being exercised both positively and negatively if indeed it has that power positively by issuing a mandamus calling upon the Government to act and negatively by inhibiting it from acting
If it were permissible to the Court to compel the Government by a mandamus to bring a Constitutional amendment into force on the ground that the Government has failed to do what it ought to have done it would be equally permissible to the Court to prevent the Government from acting on some such ground as that the time was not yet ripe for issuing the notification for bringing the Amendment into force
We quite see that it is difficult to appreciate what practical difficulty can possibly prevent the Government from bringing into force the provisions of section 3 of the 44th Amendment after the passage of two and half year
But the remedy according to us is not the writ of mandamus
If the Parliament had laid down an objective standard or test governing the decision of the Central Government in the matter of enforcement of the Amendment it may have been possible to assess the situation judicially by examining the causes of the inaction of the Government in order to see how far they bear upon the standard or test prescribed by the Parliament
But the Parliament has left the matter to the judgment of the Central Government without prescribing any objective norms
That makes it difficult for us to substitute our own judgement for that of the Government on the question whether section 3 of the Amendment Act should be brought into force
This is particularly so when the failure of the Central Government to bring that section into force so far can be no impediment in the way of the Parliament in enacting a provision in the on the lines of that section
In fact
the Ordinance rightly adopted that section as a model and it is the Act which has wrongly discarded it
It is for these reasons that we are unable to accept the submission that by issuing a mandamus the Central Government must be compelled to bring the provisions of section 3 of the 44th Amendment into force
The question as to the impact of that section which though a part of the 44th Amendment Act is not yet a part of the Constitution will be considered later when we will take up for examination the argument as regards the reasonableness of the procedure prescribed by the Act
316 We have said at the very outset of the discussion of this point that our decision on the question as to whether a mandamus should be issued as prayed for by the petitioners should not be construed as any approval on our part of the long and unexplained failure on the part of the Central Government to bring section 3 of the 44th Amendment Act into force
We have no doubt that in leaving it to the judgment of the Central Government to decide as to when the various provisions of the 44th Amendment should be brought into force the Parliament could not have intended that the Central Government may exercise a kind of veto over its constituent will by not ever bringing the Amendment or some of its provisions into force
The Parliament having seen the necessity of introducing into the Constitution a provision like section 3 of the 44th Amendment it is not open to the Central Government to sit in judgment over the wisdom of the policy of that section
If only the Parliament were to lay down an objective standard to guide and control the discretion of the Central Government in the matter of bringing the various provisions of the Act into force it would have been possible to compel the Central Government by an appropriate writ to discharge the function assigned to it by the Parliament
In the past many amendments have been made by the Parliament to the Constitution
some of which were given retrospective effect some were given immediate effect while in regard to some others the discretion was given to the Central Government to bring the Amendments into force
For example sections 3 1 a and 4 of the Constitution First Amendment Act 1951 gave retrospective effect to the amendments introduced in Articles 19 and 31 by those sections
The 7th Amendment
1956 fixed a specific date on which it was to come into force
The 13th Amendment 1962 provided by section 1 2 that it shall come into force on such date as the Central Government may by notification in the official Gazette appoint
That amendment was brought into force by the Central Government on December 1 1963
The 27th Amendment 1971 brought section 3 thereof into force at once while the remaining provisions were to come into force on a date appointed by the Central Government which was not to be earlier than a certain date mentioned in section 12 of the Amending Act
Those remaining provisions were brought into force by the Central Government on February 15 1972
The 32nd Amendment 1973 also provided by section 1 2 that it 11 shall come into force on a date appointed by the Central Government
That amendment was brought into force on July 1 1974
The 42nd Amendment 1976
by which the Constitution was recast 317 extensively gave power to the Central Government to bring it into force
By a notification dated January 1 1977 parts of that Amendment were brought into force in three stages see Basu s Commentary on the Indian Constitution Ed 1977 Volume C Part III page 134
Certain sections of that Amendment which were not brought into force were repealed by section 45 of the 44th Amendment
It is in this background that the Parliament conferred upon the Central Government the power to bring the provisions of the 44th Amendment Act into force
The Parliament could not have visualised that without any acceptable reason the Central Government may fail to implement its constituent will
We hope that the Central Government will without further delay bring section 3 of the 44th Amendment Act into force
That section be it remembered affords to the detenu an assurance that his case will be considered fairly and objectively by an impartial tribunal
As regards the argument that section 12 of the 44th Amendment Act is bad because it vests an uncontrolled power in the executive we may point out briefly how similar and even more extensive delegation of powers to the executive has been upheld by this Court over the years
In Sardar Inder Singh vs State of Rajasthan section 3 of the Rajasthan Protection of Tenants Ordinance provided that it shall remain in force for a period of two years unless that period is further extended by the Rajpramukh
It was held by this Court that section 3 in so far as it authorised the Rajpramukh to extend the life of the ordinance fell within the category of conditional legislation and was ultra vires
The Court dissented from the view expressed in Jetindra Nath Gupta vs The State of Bihar supra that the power to extend the life of an enactment cannot validly be conferred on an outside authority
In Sita Ram Bisaambhar Dayal and Ors
vs State of UP and others section 3D 1 of the UP Sales Tax Act 1948 which was challenged on the ground of excessive delegation provided for levying taxes at such rates as may be prescribed by the State Government not exceeding the maximum prescribed
While rejecting the challenge Hegde J speaking for the Court observed However much one might deplore the New Despotism of the executive the very complexity of the modern 318 society and the demand it makes on its Government have set in motion force which have made it absolutely necessary for the legislatures to entrust more and more powers to the executive
Text book doctrines evolved in the 19th Century have become out of date
In Gwalior Rayon Silk Manufacturing Wvg Co Ltd vs The Assistant Commissioner of Sales Tax the question which arose for determination was whether the provisions of section 8 2 b of the suffered from the vice of excessive delegation because the Parliament in not fixing the rate itself and in adopting the rate applicable to the sale or purchase of good inside the appropriate State had not laid down any legislative policy abdicating thereby its legislative function
Rejecting this contention Khanna J who spoke for himself and two other learned Judges observed that the growth of the legislative power of the executive is a significant development of the twentieth century and that provision was therefore made for delegated legislation to obtain flexibility elasticity expedition and opportunity for experimentation
Mathew J speaking on behalf of himself and Ray CJ agreed with the conclusion that section 8 2 b did not suffer from the vice of excessive delegation of legislative power
The decisions bearing on the subject of excessive delegation have been surveyed both by Khanna J and Mathew J in their respective judgments
In MK Pasiah and Sons v The Excise Commissioner it was contended for the appellants that the power to fix the rate of Excise Duty conferred by section 22 of the Mysore Excise Act of 1965 on the Government was bad for the reason that it was an abdication by the State legislature of its essential legislative function
The Court speaking through Mathew J upheld the validity of section 22
We are unable to appreciate that the constituent body can be restrained from doing what a legislature is free to do
We are therefore unable to accept the argument that section 1 2 confers an uncontrolled power on the executive and is by its unreasonableness violative of Articles 14 and 19 of the Constitution
We are also unable to accept Shri Tarkunde s argument that the Central Government s failure to bring section 3 of the 44th 319 Amendment into force is mala fide
The Parliament has chosen to leave to the discretion of the Central Government the determination of the question as to the time when the various provisions of the 44th Amendment should be brought into force
Delay in implementing the will of the Parliament can justifiably raise many an eye brow but it is not possible to say on the basis of such data as has been laid before us that the Central Government is actuated by any ulterior motive in not bringing section 3 into force
The other limb of Shri Tarkunde s argument that there is an obligation upon the Central Government to bring the provisions of the 44th Amendment into force within a reasonable time has already been dealt with by us while considering the argument that since the Government has not brought section 3 into force within a reasonable time it should be compelled by a writ of mandamus to perform its obligation
That disposes of all the contentions bearing on the 44th Amendment Act except one which we will consider later as indicated already
The next question arises out of the provisions of section 31 and 3 2 of the which according to the petitioners are so vague in their content and wide in their extent that by their application it is easy for the Central Government or the State Government to deprive a person of his liberty for any fanciful reason which may commend itself to them
Sub section 1 and 2 of section 3 of the Act read thus 3 1 The Central Government or the State Government may F a if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India the relations of India with foreign powers or the security of India or b if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India it is necessary so to do make an order directing that such person be detained
320 2 The Central Government or the State Government may if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do make an order directing that such person be detained
Explanation For the purposes of this sub section acting in any manner prejudicial to the maintenance of supplies and services essential to the community does not include acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community as defined in the Explanation to sub section 1 of section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act 1980 and accordingly no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act
 It is contended by Shri Jethmalani that the expressions defence of India  relations of India with foreign powers  security of India  and security of the State  which occur in sub sections 1 a and 2 of section 3 are so vague general and elastic that even conduct which is otherwise lawful can easily be comprehended within those expressions depending upon the whim and caprice of the detaining authority
The learned counsel argues These expressions are transposed from the legislative entries into the aforesaid two sub sections without any attempt at precision or definition
In so for as Defence of India  is concerned the legislature could have easily indicated the broad content of that expression by including within it acts like inciting armed forces to rebellion damaging or destroying defence installations or disclosing defence secrets
In the absence of such definition a statement that corrupt officials are responsible for the purchase of defence equipment from a foreign power may be considered as falling within the mischief of that expression
The expression acting in any manner prejudicial to the relations of India with foreign powers  is particularly 321 open to grave objection because it can take in any and every piece of conduct
In the absence of a precise definition it is impossible for any person to know with reasonable certainty as to what in this behalf are the limits of lawful conduct which he must not transgress
Even if a person were to say in the exercise of the right of his free speech and expression that a foreign power which is not friendly with India is adopting ruthless measures to suppress human liberties it would be open to the detaining authority to detain a person for making that statement
The vice therefore of section 3 consists in the fact that the governing factor for the application of that section is the passing and personal opinion of the detaining authority in regard to the security and defence of the country and its external affairs
A cardinal requirement of the rule of law is that citizens must know with certainty where lawful conduct ends and unlawful conduct begins but more than that the bureaucrats must know the limits of their power
The vagueness of the expressions used in section 3 confers uncontrolled discretion on the detaining authority to expand the horizon of their power to the detriment of the liberty of the subject
Even the right to peaceful demonstration which has been upheld by this Court may be treated by the detaining authority as falling within the mischief of section 3
The circumstance that if a habeas corpus petition is filed the Court may release the detenu is hardly any answer to the vice of the section because the fundamental principle is that a person cannot be deprived of his liberty on the basis of a vague and uncertain law
The provisions of the Northern Ireland Emergency Provisions Act 1973 Halsbury s Statutes of England 3rd edition Volume 43 page 1235 is an instance of a statute which defines with precision the reasons for which a person can be detained
That Act was passed inter alia for the detention of terrorists in Northern Ireland
Section 10 1 provides that any constable may arrest without warrant any person whom the suspects of being a terrorist
Section 20 of that Act defines the terms terrorist  and terrorism  with great care and precision in order that the power of detention may not be abused
In support of these propositions Shri Jethmalani relies on the decisions of the American Supreme Court in United States of America vs L Cohen Grocery Company Champlin Refining Company vs Corporation Commission of the State of Okalahoma Ignatius 322 Lanzetta v State of New Jersey and David H Scull vs Commonwealth of Virginia Ex Rel Committee on Law Reform and Racial Activities The ratio of these cases may be Summed up by reproducing the third head note of the case last mentioned Fundamental fairness requires that a person cannot be sent to jail for a crime he could not with reasonable certainty know he was committing reasonable certainty in that respect is all the more essential when vagueness might induce individuals to forgo their rights of speech press and association for fear of violating an unclear law
 Counsel has also drawn our attention to the decision of this Court in the State of Madhya Pradesh  Anr
vs Baldeo Prasad where a law was struck down on the ground inter alia that the word goonda  is of uncertain import which rendered unconstitutional a law which permitted goondas to be externed
In this behalf Dr Singhvi intervening on behalf of the Supreme Court Bar Association has drawn our attention to section 83 of the Jammu  Kashmir Public Safety Act 6 of 1968 which defines the expressions acting in any manner prejudicial to the security of State and  acting in any manner prejudicial to the maintenance of public order  Where there is a will there is a way and counsel contends that the way shown with admirable precision by the Jammu  Kashmir Legislature is there for the Parliament to follow provided its intention is as it ought to be that before the people are deprived of their liberty they must have the opportunity to regulate their conduct in order to ensure that it may conform to the requirements of law
In making these submissions counsel seem to us to have overstated their case by adopting an unrealistic attitude
It is true that the vagueness and the consequent uncertainty of a law of preventive detention bears upon the unreasonableness of that law as much as the uncertainty of a punitive law like the Penal Code does
A person cannot be deprived of his liberty by a law which is nebulous and uncertain in its definition and application
But in considering the question whether the expressions aforesaid which are used in 323 section 3 of the Act are of that character we must have regard to the consideration whether concepts embodied in those expressions are at all capable of a precise definition
The fact that some definition or the other can be formulated of an expression does not mean that the definition can necessarily give certainty to that expression
The British Parliament has defined the term terrorism in section 28 of the Act of 1973 to mean the use of violence for political ends which by definition includes any use of violence for the purpose of putting the public or any section of the public in fear
 The phrases political ends itself of an uncertain character and comprehends within its scope a variety of nebulous situations
Similarly the definitions contained in section 8 3 of the Jammu and Kashmir Act of 1978 themselves depend upon the meaning of concepts like overawe the Government  The formulation of definitions cannot be a panacea to the evil of vagueness and uncertainty
We do not of course suggest that the legislature should not attempt to define or at least to indicate the contours of expressions by the use of which people are sought to be deprived of their liberty
The impossibility of framing a definition with mathematical precision cannot either justify the use of vague expressions or the total failure to frame any definition at all which can furnish by its inclusiveness at least a safe guideline for understanding the meaning of the expressions used by the legislature
But the point to note is that there are expressions which inherently comprehend such an infinite variety of situations that definitions instead of lending them a definite meaning can only succeed either in robbing them of their intended amplitude or in making it necessary to frame further definitions of the terms defined
Acts prejudicial to the defence of India  security of India  security of the State  and relations of India with foreign powers  are concepts of that nature which are difficult to encase within the strait jacket of a definition
If it is permissible to the legislature to enact laws of preventive detention a certain amount of minimal latitude has to be conceded to it in order to make those laws effective
That we consider to be a realistic approach to the situation
An administrator acting bona fide or a court faced with the question as to whether certain Acts fall within the mischief of the aforesaid expressions used in section 3 will be able to find an acceptable answer either way
In other words though an expression may appear in cold print to be vague and uncertain it may not be difficult to apply it to life s practical realities
This process undoubtedly involves the possibility of error but then there is hardly any area of adjudicative process which does not involve that possibility
324 The requirement that crimes must be defined with appropriate definiteness is regarded as a fundamental concept in criminal law and must now be regarded as a pervading theme of our Constitution since the decision in Maneka Gandhi
The underlying principle is that every person is entitled to be informed as to what the State commands or forbids and that the life and liberty of a person cannot be put in peril on an ambiguity
However even in the domain of criminal law the processes of which can result in the taking away of life itself no more than a reasonable degree of certainty has to be accepted as a fact
Neither the criminal law nor the Constitution requires the application of impossible standards and therefore what is expected is that the language of the law must contain an adequate warning of the conduct which may fall within the prescribed area when measured by common understanding
In criminal law the legislature frequently uses vague expressions like bring into hatred or contempt  maintenance of harmony between different religious groups  or likely to cause disharmony or hatred or ill will  or annoyance to the public 
see sections 124A 153A1 b 153B 1c and 268 of the Penal Code
These expressions though they are difficult to define do not elude a just application to practical situations
The use of language carries with it the inconvenience of the imperfections of language
We see that the concepts aforesaid namely defence of India  security of India  security of the State  and relations of India with foreign powers  which are mentioned in section 3 of the Act are not of any great certainty or definiteness
But in the very nature of things they are difficult to define
We cannot therefore strike down these provisions of section 3 of the Act on the ground of their vagueness and uncertainty
We must however utter a word of caution that since the concepts are not defined undoubtedly because they are not capable of a precise definition courts must strive to give to those concept a narrower construction than what the literal words suggest
While construing laws of preventive detention like the  care must be taken to restrict their application to as few situations as possible
Indeed that can well be the unstated premise for upholding the constitutionality of clauses like those in section 3 which are fraught with grave consequences to personal liberty if construed liberally
325 What we have said above in regard to the expressions defence of India  security of India  security of the State  and relations of India with foreign powers  cannot apply to the expression acting in any manner prejudicial to the maintenance of supplies and services essential to the community which occurs in section 32 of the Act
Which supplies and services are essential to the community can easily be defined by the Legislature and indeed legislations which regulate the prices and possession of essential commodities either enumerate those commodities or confer upon the appropriate Government the power to do so
In the absence of a definition of supplies and services essential to the community  the detaining authority will be free to extend the application of this clause of subsection 2 to any commodities or services the maintenance of supply of which according to him is essential to the community
But that is not all
The explanation to sub section 2 gives to the particular phrase in that sub section a meaning which is not only uncertain but which at any given point of time will be difficult to ascertain or fasten upon
According to the Explanation no order of detention can be made under the on any ground on which an order of detention may be made under the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act 1980
The reason for this which is stated in the Explanation itself is that for the purposes of sub section 2 acting in any manner prejudicial to the maintenance of supplies essential to the community does not include acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community as defined in the Explanation to subsection 1 of section 3 of the Act of 1980 Clauses a and b of the Explanation to section 3 of the Act of 1980 exhaust almost the entire range of essential commodities
Clause a relates to committing or instigating any person to commit any offence punishable under the Essential Commodities Act 10 of 1955 or under any other law for the time being in force relating to the control of the production supply or distribution of or trade and commerce in any commodity essential to the community
Clause b of the Explanation to section 3 of the Act of 1980 relates to dealing in any commodity which is an essential commodity as defined in the  or with respect to which provisions have been made in any such other law as is referred to in clause a
We find it quite difficult to understand as to which are the remaining commodities outside the scope of the Act of 1980 in respect of which it can be said that the maintenance of their supplies is essential to the community
The particular clause in sub section 2 of section 3 of the 326 is therefore capable of wanton abuse in that the detaining authority can place under detention any person for possession of any commodity on the basis that the authority is of the opinion that the maintenance of supply of that commodity is essential to the community
We consider the particular clause not only vague and uncertain but in the context or the Explanation capable of being extended cavalierly to supplies the maintenance of which is not essential to the community
To allow the personal liberty of the people to be taken away by the application of that clause would be flagrant violation of the fairness and justness of procedure which is implicit in the provisions of Article 21
In so far as services essential to the community are concerned they are not covered by the Explanation to section 3 2 of the Act
But in regards to them also in the absence of a proper definition or a fuller description of that or a prior enumeration of such services it will be difficult for any person to know with reasonable certitude as to which services are considered by the detaining authority as essential to the community
The essentiality of services varies from time to time depending upon the circumstances existing at any given time
There are undoubtedly some services like water electricity post and telegraph hospitals railways ports roads and air transport which are essential to the community at all times but people have to be forewarned if new categories are to be added to the list of services which are commonly accepted as being essential to the community
We do not however prose to strike down the power given to detain persons under section 3 2 on the ground that they are acting in any manner prejudicial to the maintenance of supplies and services essential to the community
The reason for this is that it is vitally necessary to ensure a steady flow of supplies and services which are essential to the community and it the State has the power to detain persons on the grounds mentioned in section 3 1 and the other grounds mentioned in section 3 2 it must also have the power to pass orders of detention on this particular ground
What we propose to do is to hold that no person can be detained with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community unless by a law order or notification made or published fairly in advance the supplies and services the maintenance of which is regarded as essential to the community and in 327 respect of which the order of detention is proposed to be passed are made known appropriately to the public
That disposes of the question as to the vagueness of the provisions of the 
We will now proceed to the consideration of a very important topic namely the reasonableness of the procedure prescribed by the Act
The arguments advanced on this question fall under three sub heads 1 the reasonableness of the procedure which is generally prescribed by the Act 2 the fairness and reasonableness of the substantive provisions in regard to the constitution of Advisory Boards and 3 the justness and reasonableness of the procedure in the proceedings before the Advisory Boards
The discussion of these questions will conclude this judgment
Shri Jethmalani attacked the constitutionality of the very itself on the ground that it is a draconian piece of legislation which deprives people of their personal liberty excessively and unreasonably confers vast and arbitrary powers of detention upon the executive and sanctions the use of those powers by following a procedure which is unfair and unjust
The Act according to the counsel thereby violates Articles 14 19 and 21 and is therefore wholly unconstitutional
This argument it must be stated is not to be confused with the fundamental premise of the petitioners that under our Constitution no law of preventive detention can at all be passed whatever be the safeguards it provides for the protection of personal liberty
We have already dealt with that argument
The argument of Shri Jethmalani against the validity of the can be disposed of briefly
We need not enter into the controversy which is reflected in the dissenting judgment of Kailasam J in Maneka Gandhi as to whether the major premise of Gopalan s case really was that Article 22 is a complete code in itself and whether because of that premise the decision in that case that Article 21 excluded the personal freedom conferred by Article 19 1 is incorrect
We have the authority of the decisions in the Bank Nationalization case Haradhan Saha Khudiram Sambhu Nath Sarkar and Maneka Gandhi for saying that the fundamental 328 rights conferred by the different Articles of of the Constitution are not mutually exclusive and that therefore a law of preventive detention which falls within Article 22 must also meet the requirements of Articles 14 19 and 21
Speaking for the Court in Khudiram one of us Bhagwati J said This question thus stands concluded and a final seal is put on this controversy and in view of these decisions it is not open to any one now to contend that a law of preventive detention which falls within article 22 does not have to meet the requirement of article 14 or article 19 page 847 But just as the question as to whether the rights conferred by the different articles of Part III are mutually exclusive is concluded by the aforesaid decisions the question whether a law of preventive detention is unconstitutional for the reason that it violates the freedoms conferred by Articles 14 19 21 and 22 of the Constitution is also concluded by the decision in Haradhan Saha
In that case the validity of the was challenged on the ground that it violates these articles since its pro visions were discriminatory they constituted an unreasonable infringement of the rights conferred by Article 19 they infringed the guarantee of fair procedure and they did not provide for an impartial machinery for the consideration of the representation made by the detenu to the Government
The Constitution Bench which heard the case considered these contentions and rejected them by holding that the MISA did not suffer from any constitutional infirmity
The MISA was once again challenged in Khudiram but the Court refused to entertain that challenge on the ground that the question was concluded by the decision in Haradhan Saha and that it was not open to the petitioner to challenge that Act on the ground that some argument directed against the constitutional validity of the Act under Article 19 was not advanced or considered in Haradhan Saha
The Court took the view that the decision in Haradhan Saha must be regarded as having finally decided all questions as to the constitutional validity of MISA on the ground of challenge under Article 19
We would like to add that in Haradhan Saha the challenge to MlSA on the ground of violation of Articles 14 21 and 22 was also considered and rejected
The question therefore as to whether MISA violated the provisions of these four articles namely Articles 14 19 21 and 22 must be considered as having been finally decided in Haradhan Saha
Accordingly 329 we find it impossible to accept the argument that the  which is in pari materia with the  is unconstitutional on the ground that by its very nature it is generally violative of Articles 14 19 21 and 22
Though the Act as a measure of preventive detention cannot be challenged on the broad and general ground that such Acts are calculated to interfere unduly with the liberty of the people we shall have to consider the challenge made by the petitioners  counsel particularly by Shri Jethmalani and Dr Ghatate to certain specific provisions of the Act on the ground that they cause excessive and unreasonable interference with the liberty of the detenus and that the procedure prescribed by those provisions is not fair just and reasonable
Dr Ghatate has with particular emphasis challenged on these grounds the provisions of sections 32 33 5 8 9 10 11 13 and 16 of the Act
Shri Tarkunde challenged the provisions of section 8 and 114 of the Act
We have already dealt with the argument arising out of the provisions of section 32 read with the Explanation by which power is conferred to detain persons in order to prevent them from acting in any manner prejudicial to the maintenance of supplies and services essential to the community
In so far as sub section 3 of section 3 is concerned the argument is that it is wholly unreasonable to confer upon the District Magistrate or the Commissioner of Police the power to issue orders of detention for the reasons mentioned in sub section 2 of section 3
The answer to this contention is that the said power is conferred upon these officers only if the State Government is satisfied that having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of these officers it is necessary to empower them to take action under sub section 2
The District Magistrate or the Commissioner of Police can take action under sub section 2 during the period specified in the order of the State Government only
Another safeguard provided is that the period so specified in the Order made by the State Government during which these officers can exercise the powers under sub section 2 cannot in the first instance exceed three months and can be extended only from time to time not exceeding three months at any one time
By sub section  4 of section 3 the District Magistrate or the Commissioner of Police has to report forthwith the fact of detention to the State Govern 330 ment and no such order of detention can remain in force for more than 12 days after the making thereof unless in the meantime it has been approved by the State Government
In view of these in built safeguards it cannot be said that excessive or unreasonable power is conferred upon the District Magistrate or the Commissioner of Police to pass orders under sub section 2
By section 5 every person in respect of whom a detention order has been made is liable a to be detained in such place and under such conditions including conditions as to maintenance discipline and punishment for breaches of discipline as the appropriate Government may by general or special order specify and b to be removed from one place of detention to another place of detention whether hl the same State or in another State by order of the appropriate Government
The objection of the petitioners to these provisions on the ground of their unreasonableness is not wholly without substance
Laws of preventive detention cannot by the back door introduce procedural measures of a punitive kind
Detention without trial is an evil to be suffered but to no greater extent and in no greater measure than is minimally necessary in the interest of the country and the community
It is neither fair nor just that a detenu should have to suffer detention in such place as the Government may specify
The normal rule has to be that the detenu will be kept in detention in a place which is within the environs of his or her ordinary place of residence
If a person ordinarily resides in Delhi to keep him in detention in a far of place like Madras or Calcutta is a punitive measure by itself which in matters of preventive detention at any rate is not to be encouraged
Besides keeping a person in detention in a place other than the one where he habitually resides makes it impossible for his friends and relatives to meet him or for the detenu to claim the advantage of facilities like having his own food
The requirements of administrative convenience safety and security may justify in a given case the transfer of a detenu to a place other than that where he ordinarily resides but that can only be by way of an exception and not as a matter of general rule
Even when a detenu is required to be kept in or transferred to a place which is other than his usual place of residence he ought not to be 331 sent to any far off place which by the very reason of its distance is likely to deprive him of the facilities to which he is entitled
Whatever smacks of punishment must be scruplously avoided in matters of preventive detention
Since section 5 of the Act provides for as shown by its marginal note the power to regulate the place and conditions of detention there is one more observation which we would like to make and which we consider as of great importance in matters of preventive detention
In order that the procedure attendant upon detentions should conform to the mandate of Article 21 in the matter of fairness justness and reasonableness we consider it imperative that immediately after a person is taken in custody in pursuance of an order of detention the members of his household preferably the parent the child or the spouse must be informed in writing of the passing of the order of detention and of the fact that the detenu has been taken in custody
Intimation must also be given as to the place of detention including the place where the detenu is transferred from time to time
This Court has stated time and again that the person who is taken in custody does not forfeit by reason of his arrest all and every one of his fundamental rights
It is therefore necessary to treat the detenu consistently with human dignity and civilized norms of behavior
The objection of the petitioners against the provision contained in section 81 is that it unreasonably allows the detaining authority to furnish the grounds of detention to the detenu as late as five days and in exceptional cases 10 days after the date of detention
This argument overlooks that the primary requirement of section 81 is that the authority making the order of detention shall communicate the grounds of detention to the detenu as soon as may be
The normal rule therefore is that the grounds of detention must be communicated to the detenu without avoidable delay
It is only in order to meet the practical exigencies of administrative affairs that detaining authority is permitted to communicate the grounds of detention not later than five days ordinarily and not later than 10 days if there are exceptional circumstances
If there are any such circumstances the detaining authority is required by section 81 to record its reasons in writing
We do not think that this provision is open to any objection
Sections 9 10 and 11 deal respectively with the constitution of Advisory Boards reference to Advisory Boards and procedure of 332 Advisory Boards
We will deal with these three sections a little later while considering the elaborate submissions made by Shri Jethmalani in regard thereto
Dr Ghatate s objection against section 13 is that it provides for a uniform period of detention of 12 months in all cases regard less of the nature and seriousness of the grounds on the basis of which the order of detention is passed
There is no substance in this grievance because any law of preventive detention has to provide for the maximum period of detention just as any punitive law like the Penal Code has to provide for the maximum sentence which can be imposed for any offence
We should have thought that it would have been wrong to fix a minimum period of detention regardless of the nature and seriousness of the grounds of detention
The fact that a person can be detained for the maximum period of 12 months does not place upon the detaining authority the obligation to direct that he shall be detained for the maximum period
The detaining authority can always exercise its discretion regarding the length of the period of detention
It must also be mentioned that under the proviso to section 13 the appropriate Government has the power to revoke or modify the order of detention at any earlier point of time
Section 16 is assailed on behalf of the petitioners on the ground that it confers a wholly unwarranted protection upon officers who may have passed orders of detention mala fide
That section provides that no suit or other legal proceeding shall lie against the Central Government or a State Government and no suit prosecution or other legal proceeding shall lie against a person for anything in good faith done or intended to he done in pursuance of the Act
The grievance of Dr Ghatate is that even if an officer has in fact passed an order of detention mala fide but intended to pass in good faith he will receive the protection of this provision
We see a contra diction in this argument because if an officer intends to pass an order in good faith and if he intends to pass the order mala fide he will pass it likewise Moreover an act which is not done in good faith will not receive the protection of section 16 merely because it was intended to be done in good faith
It is also necessary that the act complained of must have been in pursuance of the Act
333 Shri Jethmalani also challenged the provisions of section 16 on the ground of their unreasonableness
He contends that the expression good faith which occurs in section 16 has to be construed in the sense in which it is defined in section 322 of the General Clauses Act 10 of 1897 according to which a thing shall be deemed to be done in good faith where it is in fact done honestly whether it is done negligently or not
On the contrary section 52 of the Indian Penal Code provides that nothing is said to be done or believed in good faith which is done or believed without due care and attention
If the definition contained in section 52 of the Penal Code were made applicable a suit or other proceeding could have lain against the detaining authority on the ground that the order was passed carelessly or without a proper application of mind
Counsel contends that since the General Clauses Act would apply the detaining authority can defend the order and defeat the suit or other proceeding brought against it by showing merely that the order was passed honestly
We do not see any force in this grievance
If the policy of a law is to protect honest acts whether they are done with care or not it cannot be said that the law is unreasonable
In fact honest acts deserve the highest protection
T hen again the line which divides a dishonest act from a negligent act is often thin and speaking generally it is not easy for a defendant to justify his conduct as honest if it is accompanied by a degree of negligence
The fact therefore that the definition contained in section 322 of the General Clauses Act includes negligent acts in the category of the acts done in good faith will not always make material difference to the proof of matters arising in proceedings under section 16 of the Act
That takes us to the last of the many points urged in this case which relates to the constitution of Advisory Boards and the procedure before them
Three section of the are relevant in this context namely section 9 10 and 11
It may he recalled that section 3 of the 44th Constitution Amendment Act 1978 made an important amendment to Article 224 of the Constitution by providing that i No law of preventive detention shall authorise the detention of any person for more than two months unless an Advisory Board has reported before the expiry of that period that there is in its opinion sufficient cause for such detention 334 ii the Advisory Board must be constituted in accordance with the recommendation of the Chief Justice of the appropriate High Court and iii the Advisory Board must consist of a Chairman and not less than two other members the Chairman being a serving Judge of the appropriate High Court and the other members being serving or retired judges of any High Court
The main points of distinction between the amended provisions and the existing provisions of Article 224 are that whereas under the amended provisions i the constitution of the Advisory Boards has to be in accordance with the recommendation of the Chief Justice of the appropriate High Court ii the Chairman of the Advisory Board has to be a serving Judge of the appropriate High Court and iii the other members of the Advisory Board have to be serving or retired Judges of any High Court under the existing procedure i it is unnecessary to obtain the recommendation of the Chief Justice of any High Court for constituting the Advisory Board and ii the members of the Advisory Board need not be serving or retired Judges of a High Court it is sufficient if they are qualified to be appointed as Judges of a High Court  
By Article 2172 of the Constitution
a citizen of India is qualified for appointment as a Judge of a High Court if he has been advocate of a High Court for ten years
The distinction between the provisions of the amended and the unamended provisions of Article 224 in regard to the constitution of Advisory Boards is of great practical importance from the point of view of the detenu
The safeguards against unfounded accusation and the opportunity for establishing innocence which constitute the hallmark of an ordinary criminal trial are not available to the detenu
He is detained on the basis of ex parte reports in regard to his past conduct with a view to preventing him from persisting in that course of conduct in future
It is therefore of the utmost importance from the detenu s point of view that the Advisory Board should consist of persons who are independent unbiased and competent and who possess a trained judicial mind
But the question for our consideration is whether as urged by Shri Jethmalani section 9 of the is bad for the reason that its provisions do not accord with the requirements of section 3 of the 44th Amendment Act
335 We find considerable difficulty in accepting this submission
Earlier in this judgment we have upheld the validity of section 12 of the 44th Amendment Act by which the Parliament has given to the Central Government the power to bring into force all or any of the provisions of that Act with option to appoint different dates for the commencement of different provisions of the Act
The Central Government has brought all the provisions of the 44th Amendment Act into force except one namely section 3 which contains the provision for the constitution of Advisory Boards
We have taken the view that we cannot compel the Central Government by a writ of mandamus to bring the provisions of section 3 into force
We have further held that on a true interpretation of Article 3682 of the Constitution it is in accordance with the terms of the 44th Constitution Amendment Act that upon the President giving his assent to that Act the Constitution stood amended
Since section 3 has not been brought into force by the Central Government in the exercise of its powers under section 12 of the 44th Amendment Act that section is still not a part of the Constitution
The question as to whether section 9 of the is bad for the reason that it is inconsistent with the provisions of section 3 of the 44th Amendment Act has therefore to be decided on the basis that section 3 though a part of the 44th Amendment Act it is not a part of the Constitution
If section 3 is not a part of the Constitution it is difficult to appreciate how the validity of section 9 of the can be tested by applying the standard laid down in that section
lt cannot possibly be that both the unamended and the amended provisions of Article 224 of the Constitution are parts of the Constitution at one and the same time So long as section 3 of the 44th Amendment Act has not been brought into force Article 224 in its unamended form will continue to be a part of the Constitution and so long as that provision is part of the Constitution the amendment introduced by section 3 of the 44th Amendment Act cannot become a part of the Constitution
Section 3 of 44th Amendment substitute a new Article 224 for the old Article 224
The validity of the constitution of Advisory Boards has therefore to be tested in the light of the provisions contained in Article 224 as it stands now and not according to the amended Article 224
According to that Article as it stands now an Advisory Board may consist of persons inter alia who are qualified to be appointed as Judges of a High Court
Section 9 of the provides for the constitution of the Advisory Boards in conformity with that provision
We find it impossible to hold 336 that the provision of a statute which conforms strictly with the existing provisions of the Constitution can be declared bad either on the ground that it does not accord with the provisions of a constitutional amendment which has not yet come into force or on the ground that the provision of the section is harsh or unjust The standard which the Constitution as originally enacted has itself laid down for constituting Advisory Boards cannot be characterised as harsh or unjust
The argument therefore that section 9 of the is bad for either of these reasons must fail
We must hasten to add that the fact that section 3 of the 44th Amendment has not yet been brought into force does not mean that the Parliament cannot provide for the constitution of Advisory Boards in accordance with its requirements the Parliament is free to amend section 9 of the so as to bring it in line with section 3 of the 44th Amendment
Similarly the fact that section 9 provides for the constitution of Advisory Boards consisting of persons who are or have been or are qualified to be appointed as Judges of a High Court does not mean that the Central Government or the State Governments cannot constitute Advisory Boards consisting of serving or retired Judges of the High Court
The minimal standard laid down in Article 224a which is adopted by section 9 of the Act is binding on the Parliament while making a law of preventive detention and on the executive while constituting an Advisory Board That standard cannot be derogated from
But it can certainly be improved upon
We do hope that the Parliament will take the earliest opportunity to amend section 9 of the Act by bringing it in line with section 3 of the 44th Amendment as the ordinance did and that the Central Government and the State Governments will constitute Advisory Boards in their respective jurisdictions in accordance with section 3 whether or not section 9 of the Act is so amended
We are informed that some enlightened State Governments have already given that lead
We hope that the other Governments will follow suit
After all the executive must strive to reach the highest standards of justice and fairness in all its actions whether or not it is compellable by law to adopt those standards
Advisory Boards consisting of serving or retired Judges of High Courts preferably serving and drawn from a panel recommended by the Chief Justice of the concerned High Court will give credibility to their proceedings
There will then be a reasonable assurance that Advisory Boards will express their opinion on the sufficiency of the cause for 337 detention with objectivity fairness and competence
That way the implicit promise of the Constitution shall have been fulfilled
Now as to the procedure of Advisory Boards
Shri Jethmalani laid great stress on this aspect of the matter and in our opinion rightly
Consideration by the Advisory Board of the matters and material used against the detenu is the only opportunity available to him for a fair and objective appraisal of his case
Shri Jethmalani argues that the Advisory Boards must therefore adopt a procedure which is akin to the procedure which is generally adopted by judicial and quasi judicial tribunals for resolving the issues which arise before them
He assails the procedure prescribed by sections 10 and C 11 of the on the ground that it is not in consonance with the principles of natural justice that it does not provide the detenu with an effective means of establishing that what is alleged against him is not true and that it militates against the requirements of Article 2 l 
Learned counsel enumerated twelve requirements of natural justice which according to him must be observed by the Advisory Boards
Those requirements may be summed up we hope without injustice to the argument by saying that i the detenu must have the right to be represented by a lawyer of his choice ii he must have the right to cross examine persons on whose statements the order of detention is founded and iii he must have the right to present evidence in rebuttal of the allegations made against him
Counsel also submitted that the Advisory Board must give reasons in support of its opinion which must be furnished to the detenu that the entire material which is available to the Advisory Board must be disclosed to the detenu and that the proceedings of the Advisory Board must be open to the public
According to Shri Jethmalani the Advisory Board must not only consider whether the order of detention was justified but it must also consider whether it would have itself passed that order on the basis of the material placed before it Counsel says that the Advisory Board must further examine whether all the procedural steps which are obligatory under the Constitution were taken until the time of its report the impact of loss of time and altered circumstances on the necessity to continue the detention and last but not the least whether there is factual justification for continuing the order of detention beyond the period of three months
Counsel made an impassioned plea that 25 years of the Gopalan jurisprudence have desensitised the community to the perils of preventive detention and that it is imperative to provide for the maximum safeguards to the detenu in order to preserve and protect his liberty which can be achieved by 338 making at least the rudiments of due process available to him
How much process is due must depend according to Shri Jethmalani on the extent of grievous loss involved in the case
The loss in preventive detention is of the precious right of persona  liberty and therefore it is urged all such procedural facilities must be afforded to the detenu as will enable him to meet the accusations made against him and to disprove them
First and foremost we must consider whether and to what extent the detenu is entitled to exercise the trinity of rights before the Advisory Board i the right of legal representation ii the right of cross examination and iii the right to present his evidence in rebuttal
These rights undoubtedly constitute the core of just process because without them it would be difficult for any person to disprove the allegations made against him and to establish the truth
But there are two considerations of primary importance which must be borne in mind in this regard
There is no prescribed standard of reasonableness and therefore what kind of processual rights should be made available to a person in any proceeding depends upon the nature of the proceeding in relation to which the rights are claimed
The kind of issues involved in the proceeding determine the kind of rights available to the persons who are parties to that proceeding
Secondly the question as to the availability of rights has to be decided not generally but on the basis of the statutory provisions which govern the proceeding provided of course that those provisions are valid
In the instant case 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 provisions of the Constitution and on the basis of the provisions of the to the extent to which they do not of lend against the Constitution
Turning first to the right of legal representation which is claimed by the petitioners the relevant article of the Constitution to consider is Article 22 which bears the marginal note protection against arrest and detention in certain cases
 That article provides by clause l that no person who is arrested shall be detained in custody without being informed as soon as may be of the grounds for such arrest nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice
Clause 2 requires that every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours 339 Of such arrest and that no person shall be detained in custody A beyond the said period without the authority of a magistrate
Clause 3 provides that nothing in clauses 1 and 2 shall apply a to any person who for the time being is an enemy alien or b to any person who is arrested or detained under any law providing for preventive detention
It may be recalled that clause 4a of Article 22 provides that no law of preventive detention shall authorise the detention of a person for a period longer than three months unless the Advisory Board has reported before the expiry of the said period of three months that there is in its opinion sufficient cause for such detention
By clause 7c of Article 22 the Parliament is given the power to prescribe by law the procedure to be followed by the Advisory Board in an inquiry under clause 4a
On a combined reading of clauses 1 and 3 b of Article 22 it is clear that the right to consult and to be defended by a legal practitioner of one s choice which is conferred by clause 1 is denied by clause 3b to a person who is detained under any law providing for preventive detention
Thus according to the express intendment of the Constitution itself no person who is detained under any law which provides for preventive detention can claim the right to consult a legal practitioner of his choice or to be defended by him
In view of this it seems to us difficult to hold by the application of abstract general principles or on a priori considerations that the detenu has the right of being represented by a legal practitioner in the proceedings before the Advisory Board Since the Constitution as originally enacted itself contemplates that such a right should not be made available to a detenu it cannot be said that the denial of the said right is unfair unjust or unreasonable
It is indeed true to say after the decision in the Bank Nationalisation case that though the subject of preventive detention is specifically dealt with in Article 22 the requirements of Article 21 have nevertheless to be satisfied
It is therefore necessary that the procedure prescribed by law for the proceedings before the Advisory Boards must be fair just and reasonable
But then the Constitution itself has provided a yardstick for the application of that standard through the medium of the provisions contained in Article 223b
Howsoever much we would have liked to hold otherwise we experience serious difficulty in taking the view that the procedure of the Advisory Boards in which the detenu is denied the right of legal representation is unfair unjust or unreasonable
If Article 22 were 340 silent on the question of the right of legal representation it would have been possible indeed right and proper to hold that the detenu cannot be denied the right of legal representation in the proceedings before the Advisory Boards
It is unfortunate that courts have been deprived of that choice by the express language of Article 223b read with Article 221
It is contended by Shri Jethmalani that the provision contained hl clause 3b of Article 22 is limited to the right which is specifically conferred by clause 1 of that article and therefore if the right to legal representation is available to the detenu apart from the provisions of Article 221 that right cannot of denied to him by reason of the exclusionary provision contained in Article 223b
Counsel says that the right of legal representation arises out of the provisions of Articles 19 and 21 and 225 and therefore nothing said in Article 223b can affect that right
In a sense we have already answered this contention because what that contention implies is that the denial of the right of legal representation to the detenu in the proceedings before the Advisory Board is an unreasonable restriction within the meaning of Article 191 on the rights conferred by that article
If the yardstick of reasonableness is provided by Article 223 which is as much a part of the Constitution as originally enacted as Articles 19 21 and 22S it would be difficult to hold that the denial of the particular right introduces an element of unfairness unjustness or unreasonableness in the procedure of the Advisory Boards
It would be stretching the language of Articles 19 and 21 a little too far to hold that what is regarded as reasonable by Article 223b must be regarded as unreasonable within the meaning of those articles
For illustrating this point we may take the example of law which provides that an enemy alien need not be produced before a magistrate within twenty four hours of his arrest or detention in custody
If the right of production before the magistrate within 24 hours of the arrest is expressly denied to the enemy alien by Article 223a it would be impossible to hold that the said right is nevertheless available to him by reason of the provisions contained in Article 21
The reason is that the answer to the question whether the procedure established by law for depriving an enemy alien of his personal liberty is fair or just is provided by the Constitution itself through the provisions of Article 223a
What that provision considers fair just and reasonable cannot for the purposes of Article 21 be regarded as unfair unjust or unreasonable
341 To read the right of legal representation in Article 225 is straining the language of that article
Clause 5 confers upon the detenu the right to be informed of the grounds of detention and the right to be afforded the earliest opportunity of making a representation against the order of detention
That right has undoubtedly to be effective but it does not carry with it the right to be represented by a legal practitioner before the Advisory Board merely because by section 10 of the  the representation made by the detenu is required to be forwarded to the Advisory Board for its consideration
If anything the effect of section 114 of the Act which conforms to Article 223b is that the detenu cannot appear before the Advisory Board through a legal practitioner
The written representation of the detenu does not have to be expatiated upon by a legal practitioner
Great reliance was placed by Shri Jethmalani on the decision of the American Supreme Court in ozie Powell vs State of Alabama1 in which it was held that the right of hearing includes the right to the aid of counsel because the right Lo be heard will in many cases be of little help if it did not comprehend the right to be heard by a counsel
Delivering the opinion of the court Sutherland
J said Even the intelligent and educated layman has small and sometimes no skill in the science of law
If charged with crime he is incapable generally of determining for himself whether the indictment is good or bad
He is unfamiliar with the rules of evidence
Left without the aid of counsel he may be put on trial without a proper charge and convicted upon incompetent evidence or evidence irrelevant to the issue or otherwise inadmissible
He lacks both the skill and knowledge adequately to prepare his defence even though he have a perfect one
He requires the guiding hand of counsel at every step in the proceedings against him
Without it though he be not guilty he faces the danger of conviction because he does not know how to establish his innocence
If that be true of men of intelligence how much more true is it of the ignorant and illiterate or those of feeble intellect
If in any case civil or criminal a state or federal court were arbitrarily to refuse to hear a party by counsel employed by and appearing for 342 him it reasonably may not be doubted that such a refusal would be a denial of a hearing and therefore of due process in the constitutional sense page 170 The aforesaid decision in Powell is unique in more than one way and has to be distinguished
The petitioners therein were charged with the crime of rape committed upon two white girls
At the trial no counsel was employed on behalf If petitioners but the trial Judge had stated that he had appointed all the members of the Bar for the purpose of arranging the defendants and then of course anticipated that the members of the bar would continue to help the defendants if no counsel appeared
The trial of the petitioners was completed within a single day at the conclusion of which the petitioners were sentenced to death
That verdict was assailed on the ground inter alia that the petitioners were denied the right of counsel
It must be stated that the Constitution of Alaboma provided that in all criminal prosecutions the accused shall enjoy the right to have the assistance of counsel and a state statute required that the court must appoint a counsel for the accused in all capital cases where the accused was unable to employ one
It is in the light of these provisions and as a requirement of the due process clause of the American Constitution that it was held that the right to hearing which is a basic element of due process includes the right to the aid of counsel
The patent distinction between that case and the matter before us is that our Constitution at its very inception regarded it reasonable to deny to the detenu the right to consult and be defended by a legal practitioner of his choice
Secondly a criminal trial involves issues of a different kind from those which the Advisory Board has to consider
The rights available to an accused can therefore be of a different character than those available to the detenu consistently with reason and fairplay
Shri Jethmalani also relied upon another decision of the Supreme Court which is reported in John J Morrissey vs Lou B Brewerl In that case two convicts whose paroles were revoked by the Iowa Board of Parole alleged that they were denied due process because their paroles were revoked without a hearing
Burger CJ expressing the view of six members of the court expressly left upon the question whether a prolee is entitled in a parole revocation proceeding to the assistance of counsel
The 343 three other learned Judges held that due process requires that the parolee be allowed the assistance of counsel in the parole revocation proceeding
It must be appreciated that the American decisions on the right to counsel turn largely on the due process clause in the American Constitution
We cannot invoke that clause for spelling out a right as part of a reasonable procedure in matters wherein our Constitution expressly denies that right
In support of his submission that for detenu is entitled to appear through a legal practitioner before the Advisory Board Shri Jethmalani relies on the decisions of this Court in Madhav Haywadanroo Hoskot vs State of Maharashtrara1 Hussainara Khatoon vs Home Secretary State of Bihar2 and Francis Coralie Mullin vs The Administrator Union Territory of Delhi3
Speaking for the Court Krishna Iyer J said in Hoskot The other ingredient of fair procedure to a prisoner who has to seek his liberation through the court process is lawyer s services
Judicial justice with procedural intricacies legal submissions and critical examination of evidence leans upon professional expertise and a failure of equal justice under the law is on the carde where such supportive skill is absent for one side
Our judicature moulded by Anglo American models and our judicial process engineered by kindred legal technology compel the collaboration of lawyer power for steering the wheels of equal justice under the law Page 204 In Hussainara Khatoon one of us Bhagwati J voiced the concern by saying It is an essential ingredient reasonable fair and just procedure to a prisoner who is to seek his liberation through the court s process that he should have legal services avail to him Page 103
344 These observations were made in the context of rights available to an accused in a criminal trial and cannot be extended to the proceedings of Advisory Boards in order to determine the rights of detenus in relation to those proceedings The question as regards the kind and nature of rights available in those proceedings has to be decided on the basis of the provisions contained in Article 22 of the constitution and sections 10 and 11 of the 
In Francis Caralie Mullin the petitioner while in detention wanted to have an interview with her lawyer which was rendered almost impossible by reason of the stringent provisions of clause 3bi of the Conditions of Detention  formulated by the Delhi Administration
In a petition filed in this Court to challenge the aforesaid clause inter alia it was held by this Court that the clause was void since it violated Articles 14 and 21 by its discriminatory nature and unreasonableness
The Court directed that the detenu should be permitted to have an interview with her legal adviser at any reasonable hour during the day after taking an appointment from the Superintendent of the jail and that the interview need not necessarily take place in the presence of an officer of the Customs or Central excise Department
The Court also directed that the officer concerned may watch the interview but not so as to be within the hearing distance of the detenu and the legal adviser
This decision has no bearing on the point which arises before us since the limited question which was involved in that case was whether the procedure prescribed by clause 3 governing the interviews which a detenu may have with his legal adviser was reasonable
The Court was not called upon to consider the question as regards the right of a detenu to be represented by a legal practitioner before the Advisory Board
We must therefore held regretfully though that the detenu has no right to appear through a legal practitioner in the proceedings before the Advisory Board
It is however necessary to add an important caveat
The reason behind the provisions contained in Article 224 b of the Constitution slate is that a legal practitioner should not be permitted So appear before the Advisory 345 Board for any party
The Constitution does not contemplate that the detaining authority or the Government should have the facility of appearing before the Advisory Board with the aid of a legal practitioner but that the said facility should be denied to the detenu
In any case that is not what the Constitution says and it would be wholly inappropriate to read any such meaning into the provisions of Article 22
Permitting the detaining authority or the Government to appear before the Advisory Board with the aid of a legal practitioner or a legal adviser would be in breach of Article 14 if a similar facility is denied to the detenu
We must therefore make it clear that if the detaining authority or the Government takes the aid of a legal practitioner or a legal adviser before the Advisory Board the detenu must be allowed the facility of appearing before the Board through a legal practitioner
We are informed that officers of the Government in the concerned departments often appear before the Board and assist it with a view to justifying the detention orders
If that be so we must clarify that the Boards should not permit the authorities to do indirectly what they cannot do directly and no one should be enabled to take shelter behind the excuse that such officers are not legal practitioner or legal advisers Regard must be had to the substance and not the form since especially in matters like the proceedings of Advisory Boards whosoever assist or advises on facts or law must be deemed to be in the position of a legal adviser
We do hope that Advisory Boards will take care to ensure that the provisions of Article 14 are not violated in any manner in the proceedings before them
Serving or retired Judges of the High Court will have no difficulty in under standing this position
Those who are merely qualified to be appointed as High Court Judges may have to do a little homework in order to appreciate
Another aspect of this matter which needs to be mentioned is that the embargo on the appearance of legal practitioner should not be extended so as to prevent the detenu from being aided or assisted by a friend who in truth and substance is not a legal practitioner
Every person whose interests are adversely affected as a result of the proceedings which have a serious import is entitled to be heard in those proceedings and be assisted by a friend
A detenu taken straight from his cell to the Board s room may lack the ease and composure to present his point of view
He may be tongue tied nervous confused or wanting in intelligence see Pett vs 346 Greyhound Racing Association Ltd1 and if justice to be done he must at least have the help of a friend who can assist him to give coherence to his stray and wandering ideas
Incarceration makes a man and his thoughts dishevelled
Just as a person who is domb is entitled as he must to be represented by a person who has speech even so a person who finds himself unable to present his own case is entitled to take the aid and advice of a person who is better situated to appreciate the facts of the case and the language of the law
It may be that denial of legal representation is not denial of natural justice per se and therefore if a statute excludes that facility expressly it would not be open to the tribunal to allow it
Fairness as said by Lord Denning MR in Maynard vs Osmond2 can be obtained without legal representation
But it is not fair and the statute does not exclude that right that the detenu should not even be allowed to take the aid of a friend
Whenever demanded the Advisory Boards must grant that facility
Shri Jethmalani laid equally great stress on the need to give the detenu the right of cross examination and in support of his sub mission in that behalf he relied on the decisions of the American Supreme Court in Jack R Goldberg vs John Belly3 Morrissey Norvai Goss vs Eileen Lopez4 and Powell
In Goldberg Brennan J expressing the view of five members of the court said that in almost every setting where important decisions turn on questions of fact due process requires opportunity to confront and cross examine adverse witnesses
The learned Judge reiterated the court s observations in Greeny vs McElore5 to the following effect Certain principles have remained relatively immutable in our jurisprudence
One of these is that where govern mental action seriously injures an individual and toe reasonableness of the action depends on fact findings
the evidence used to prove the Government s case must be disclosed to the individual so that he has an opportunity to show that it is untrue
While this is important in the case of documentary evidence it is even more important where the evidence consists of the testimony of individuals whose 347 memory might be faulty or who in fact might be perjurers or persons motivated by malice vindictiveness intolerance prejudice or jealousy
We have formalized these protections in the requirements of confrontation and cross examination
They have ancient roots
They find expression in the Sixth Amendment
This Court has been zealous to protect these right from erosion
It has spoken out not only in criminal cases  but also in all types of cases where administrative  actions were under scrutiny
Welfare recipients whose aid was terminated or was about to be terminated were held entitled to be given an opportunity to confront and cross examine the witnesses relied on by the department
The right to confront and cross examine adverse witnesses was upheld in the other American cases also which counsel has cited
For reasons which we have stated more than once during the course of this judgment the decisions of the US Supreme Court which turn peculiarly on the due process clause in the American Constitution cannot be applied wholesale for resolving questions which arise under our Constitution especially when after a full discussion of that clause in the Constituent Assembly the proposal to incorporate it in Article 21 was rejected
In US A itself Judges have expressed views on the scope of the clause which are not only divergent but diametrically opposite
For example in Goldberg on which Shri Jethmalani has placed considerable reliance Black J said in his dissenting opinion that the majority was using the judicial power for legislative purposes and that they wander out of their filed of vested powers and transgress into the area constitutionally assigned to the Congress and the people
The dissenting opinion of Chief Justice Burger in that case is reported in Mue Wheeler vs John Montgomeryl in the some volume
Describing the majority opinion as unwise and precipitous the learned Chief Justice said The Court s action today seems another manifestation of the now familiar conventionalizing syndrome once some presumed flaw is observed the Court then eagerly accepts the inviation to find a constitutionally rooted 348 remedy
If no provision is explicit on the point it is then seen as implicit or commanded by the vague and nebulous concept of fairness
It is only proper that we must evolve our own solution to problems arising under our Constitution without of course spurning the learning and wisdom of our counterparts in comparable jurisdictions
The principal question which arises is whether the right of cross examination is an integral and inseparable part of the principles of natural justice
Two fundamental principles of natural justice are commonly recognised namely that an adjudicator should be disinterested and unbiased nemo judex in cause sua and that the parties must be given adequate notice and opportunity to be heard audi alterm partem
There is no fixed or certain standard of natural justice substantive or procedural and in two English cases the expression natural justice  was described as one sadly lacking in precision l and as vacuous 2
The principles of natural justice are in fact mostly evolved from case to case according to the broad requirements of Justice in the given case
We do not suggest that the principles of natural justice vague and variable as they may be are not worthy of preservation
As observed by Lord Reid in Ridge vs Baldwin3 the view that natural justice is so vague as to be practically meaningless is tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist
But the importance of the realisation that the rules of natural justice are not rigid norms of unchanging content consists in the fact that the ambit of those rules must vary according to the context and they have to be tailored to suit the nature of the proceeding in relation to which the particular right is claimed as a component of natural justice
Judged by this test it seems to us difficult to hold that a detenu can claim the right of cross examination in the proceeding before the Advisory Board
First and foremost cross examination of whom  The principle that witnesses must be con fronted and offered for cross examination applies generally to proceedings in which witnesses are examined or documents are adduced 349 in evidence in order to prove a point
Cross examination then becomes a powerful weapon for showing the untruthfulness of that evidence
In proceedings before the Advisory Board
the question for consideration of the Board is not whether the detenu is guilty of any charge but whether there is sufficient cause for the detention of the person concerned
The detention it must be remembered is based not on fact proved either by applying the test of preponderance of probabilities or of reasonable doubt
The detention is based on the subjective satisfaction of the detaining authority that it is necessary to detain a particular person in order to prevent him from acting in a manner prejudicial to certain stated objects
The proceeding of the Advisory Board has therefore to be structured differently from the proceeding of judicial or quasi judicial tribunals before which there is a lis to adjudicate upon Apart from this consideration it is a matter of common experience that in cases 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
Indeed the disclosure of the identity of the informant may abort the very process of preventive detention because no one will be willing to come forward to give information of any prejudicial activity if his identity is going to be disclosed which may have to be done under the stress of cross examination
It is therefore difficult in the very nature of things to give to the detenu the full panoply of rights which an accused is entitled to have in order to disprove the charges against him That is the importance of the statement that the concept of what is just and reasonable is flexible in its scope and calls for such procedural protections as the particular situation demands
Just as there can be an effective hearing without legal E representation even so there can be an effective hearing without the right of cross examination
The nature of the inquiry involved in the proceeding in relation to which these rights are claimed determines whether these rights must be given as components of natural justice
In this connection we would like to draw attention to certain decisions of our Court
In New Prakash Transport Co Ltd vs New Suwarna Transport Co Ltd1 it was observed that the question whether the rules of natural justice have been observed in a particular case must itself be judged in the light of the constitution of 350 the statutory body which has to function in accordance with the rules laid down by the legislature and in that sense the rules themselves must vary
In Nagendra Nath Bora vs Commissioner of Hills Division and Appeals Assam1 the aforesaid statement was cited with approval by another Constitution Bench
In State of Jammu Kashmir vs Bakshi Ghulam Mohammed2 it was argued that the right to hearing included the right to cross examine witnesses
That argument was rejected by the Court by observing that the right of cross examination depends upon the circumstances of each case and on the terms of the statute under which the matter is being enquired into
Citing with approval the passage in Nagendra Nath Bora the Court held that the question as to whether the right to cross examine was available had to be decided in the light of the fact that it was dealing with a statute under which a Commission of Inquiry was set up for fact finding purposes and that the report of the Commission had no force proprio vigore
In support of his submission that the right of cross examination is a necessary part of natural justice Shri Jethmalani relies upon the decisions of this Court which are reported in Union of India vs T R Varma3 and Khem Chand vs Chand Union of India4
It was observed in the first of these two cases that the rules of natural justice require that the party concerned should have the opportunity of adducing the relevant evidence on which he relies that the evidence of the opponent should be taken in his presence that he should be given the opportunity of cross examining the witnesses examined by the other side and that no materials should be relied on against him without his being given an opportunity of explaining them
In Khem Chand it was held that if the purpose of Article 3112 was to give the Government servant an opportunity to exonerate himself from the charge and if this opportunity is to be a reasonable one he should be allowed to show that the evidence against him is not worthy of credence or consideration and that he can only do if he is given a chance to cross examine the witnesses called against him and to examine himself or any other witnesses in support of his defence
These observations must be understood in the context of the proceedings in which they are made and cannot be taken as laying down a general rule that the right of cross examination is 351 available as a part of natural justice in each and every proceeding
In both of these cases the question which arose for consideration of the Court was whether a Government servant who was dismissed from service was given a reasonable opportunity of showing cause against the action proposed to be taken against him within the meaning of Article 3112 of the Constitution
It shall have been noticed that the emphasis in these cases is on the right to cross examine the witnesses who are examined by the opposite party
In T R Varma the right of cross examination is described as the right in regard to the witnesses examined by the other party while in Khem Chand the right is described as an opportunity to defend oneself by cross examining the witnesses produced by the other side
No witnesses are examined in the proceedings before the Advisory Board on behalf of the detaining authority and therefore the rule laid down in the two decisions on which Shri Jethmalani relies can have no application to those proceedings
If the debates of the Constituent Assembly are any indication it would appear that Dr R Ambedkar at any rate was of the opinion that the detenu should be given the right to cross examine witnesses before the Advisory Board
In his reply to the debate on the procedure of the Advisory Board he said on September 16 1949 that a pointed question has been asked whether the accused person would be entitled to appear before the Board cross examine the witnesses and make his own statement 
Dr Ambedkar s answer was that the Parliament should be given the power to prescribe the procedure to be followed by the Advisory Board
That is how clause 7c came to be incorporated in Article 22 of the Constitution giving that power to the Parliament
Pandit Thakur Dass Bhargava thereafter asked as to what was the position regarding the safeguard of cross examination
The reply of Dr Ambedkar significantly was The right of cross examination is already there in the Criminal Procedure Code and in the Evidence Act
Unless a provincial Government goes absolutely stark mad and takes away these provisions it is unnecessary to make any provision of that sort
Defending includes cross examination
 x x x x x x If you can give a single instance in India where the right of cross examination has been taken away I can 352 understand it
I have not seen any such case see Constituent Assembly Debates Vol 9 pages 1561 1562 1563
Dr Ambedkar unfortunately was not prophetic and the authors of the various Preventive Detention Acts did not evidently share his view
In fact the right of cross examination under the Criminal Procedure Code and the Evidence Act by which Dr Ambedkar laid great store has nothing to do with the detenu s right of cross examination before the Advisory Board
With great respect Dry Ambedkar seems to have nodded slightly in referring to the pro vision for cross examination under those Acts
Whatever it is Parliament has not made any provision in the  under which the detenu could claim the right of cross examination and the matter must rest there
We are therefore of the opinion that in the proceedings before the Advisory Board the detenu has no right to cross examine either the persons on the basis of whose statement the order of detention is made or the detaining authority
The last of the three rights for which Shri Jethmalani contends is the right of the detenu to lead evidence in rebuttal before the Advisory Board
We do not see any objection to this right being granted to the detenu
Neither the Constitution nor the contains any provision denying to the detenu the right to present his own evidence in rebuttal of the allegations made against him
The detenu may therefore offer oral and documentary evidence before the Advisory Board in order to rebut the allegations which are made against him
We would only like to add that if the detenu desires to examine any witnesses he shall have to keep them present at the appointed time and no obligation can be cast on the Advisory Board to summon them
The Advisory Board like any other tribunal is free to regulate its own procedure within the constraints of the Constitution and the statute
It would be open to it in the exercise of that power to limit the time within which the detenu must complete his evidence
We consider it necessary to make this observation particulary in view of the fact that the Advisory Board is under an obligation under section 111 of the Act to submit its report to the appropriate Government within seven weeks from the date of detention of the person concerned
The proceedings before the Advisory Board have therefore to be completed with the utmost expedition
353 It is urged by Shri Jethmalani that the Advisory Board must decide two questions which are of primary importance to the detenu one whether there was sufficient cause for the detention of the person concerned and two whether it is necessary to keep the person in detention any longer after the date of its report
We are unable to accept this contention
Section 112 of the Act provides specifically that the report of the Advisory Board shall specify its opinion as to whether or not there is sufficient cause for the detention of the person concerned
This implies that the question to which the Advisory Board has to apply its mind is whether on the date of its report there is sufficient cause for the detention of the person
That inquiry necessarily involves the consideration of the question as to whether there was sufficient cause for the detention of the person when the order of detention was passed but we see no justification for extending the jurisdiction of the Advisory Board to the consideration of the question as to whether it is necessary to continue the detention of the person beyond the date on which it submits its report or beyond the period of three months after the date of detention
The question as to whether there are any circumstances on the basis of which the detenu should be kept in detention after the Advisory Board submits its report and how long is for the detaining authority to decide and not for the Board
The question as regards the power of the Advisory Board in this behalf had come up for consideration before this Court in Puranlal Lakhanpal vs Union of India
While rejecting the argument that the words such detention which occur in Article 224a of the Constitution mean detention for a period longer than three months the majority held that the Advisory Board is not called upon to consider whether the detention should continue beyond the period of three months
In coming to that conclusion the majority relied upon the decision in Dattatraya Moreshwar Pangarkar vs State of Bombay in which Mukherjea J while dealing with a similar question observed The Advisory Board again has got to express its opinion only on the point as to whether there is sufficient cause for detention of the person concerned
It is neither called upon nor is it competent to say anything regarding the period for which such person should be detained
Once the Advisory Board expresses its view that there is sufficient cause for detention at the date when it makes its report 354 what action is to be taken subsequently is left entirely to the appropriate Government and it can under section 111 of the Act confirm the detention order and continue detention of the person concerned for such period as it thinks fit The contention that the Board must determine the question as to whether the detention should continue after the date of its report must therefore fail
The duty and function of the Advisory Board is to determine whether there was sufficient cause for detention of the person concerned on the date on which the order of detention was passed and whether or not there is sufficient cause for the detention of that person on the date of its report
We are not inclined to accept the plea made by the learned counsel that the proceedings of the Advisory Board should be thrown open to the public
The right to a public trial is not one of the guaranteed rights under our Constitution as it is under the 6th Amendment of the American Constitution which secures to persons charged with crimes a public as well as a speedy trial
Even under the American Constitution the right guaranteed by the 6th Amendment is held to be personal to the accused which the public in general cannot share
Considering the nature of the inquiry which the Advisory Board has to undertake we do not think that the interests of justice will be served better by giving access to the public to the proceedings of the Advisory Board
This leaves for consideration the argument advanced by Shri Jethmalani relating to the post detention conditions applicable to detenus in the matter of their detention
The learned counsel made a grievance that the letters of detenus are censored that they are not provided with reading or writing material according to their requirements and that the ordinary amenities of life are denied to them
It is difficult for us to frame a code for the treatment of detenus while they are held in detention
That will involve an exercise which 
calls for examination of minute details which we cannot undertake
We shall have to examine each case as it comes before us in order to determine whether the restraints imposed upon the detenu in any particular case are excessive and unrelated to the object of detention
If so they shall have to be struck down
We would however like to say that the basic commitment of our Constitution is to foster human dignity and the well being of our people
In recent times we have had many an occasion to alert the authorities to the need to 355 treat even the convicts in a manner consistent with human dignity
The judgment of Krishna Iyer J in Sunil Batra vs Delhi Administration is an instance in point
It highlights that places of incarceration are part of the Indian earth and that the Indian Constitution cannot be held at bay by jail officials dressed in a little brief authority
We must impress upon the Government that the detenus must be afforded all reasonable facilities for an existence consistent with human dignity
We see no reason why they should not be permitted to wear their own clothes eat their own food have interview with the members of their families at least once a week and last but not the least have reading and writing material according to their reasonable requirement
Books are the best friends of man whether inside or outside the jail
There is one direction which we feel called upon to give specifically and that is that persons who are detained under the must be segregated from the convicts and kept in a separate part of the place of detention
It is hardly fair that those who are suspected of being engaged in prejudicial conduct should be lodged in the same ward or cell were the convicts whose crimes are established are lodged
The evils of custodial perversity are well known and have even found a place in our law reports
As observed by Krishna Iyer J in Sunil Batra the most important right of the person who is imprisoned is to the integrity of his physical person and mental personality
Even within the prison no person can be deprived of his guaranteed rights save by methods which are fair just and reasonable
In a democracy a wrong to some one is a wrong to every one and care has to be taken to ensure that the detenu is not subjected to any indignity
While closing this judgment we would like to draw attention to what Shah J said for the Court in Sampat Prakash vs State of Jammu  Kashmir2 The petitioner who was present in the Court at the time of hearing of his petition complained that he is subjected to solitary confinement while in detention
It must be emphasised that a detenu is not a convict
Our Constitution notwithstanding the broad principles of the rule of law equality and liberty of the individual enshrined therein tolerates on account of peculiar conditions pre 356 vailing legislation which is a negation of the rule of law equality and liberty
But it is implicit in the Constitutional scheme that the power to detain is not a power to punish for offences which an executive authority in his subjective satisfaction believes a citizen to have committed
Power to detain is primarily intended to be exercised in those rare cases when the large interest of the State demand that restrictions shall be placed upon the liberty of a citizen curbing his future activities
The restrictions so placed must consistently with the effectiveness of detention be minimal
 If any of the persons detained under the are at present housed in the same ward or cell where the convicts are housed immediate steps must be taken to segregate them appropriately
The Indian human   whenever necessary has of course a constant companion the Court armed with the Constitution and informed by it
In the result the Writ Petitions shall stand disposed of in accordance with the view expressed herein and the orders and directions given above
GUPTA J I find myself unable to agree with the views expressed in the judgment of the learned Chief Justice on two of the points that arise for decision in this batch of writ petitions one of them relates to the failure of the Central Government to bring into operation the provisions of section 3 of the Constitution Forty Fourth Amendment Act 1978 and the other concerns the question whether an ordinance is law  within the meaning of article 21 of the Constitution
The Constitution Forty Fourth Amendment Act 1978 received assent of the President on April 30 1979
Article 3682 says inter alia that after a Bill for the amendment of the Constitution is passed in each House of Parliament by the prescribed majority it shall be presented to the President who shall give his assent to the Bill and there upon the Constitution shall stand amended in accordance with the terms of the Bill
Section 12 of the Constitution Forty Fourth Amendment Act states that the Act shall come into force on such date as the Central Government may by notification in the official Gazette appoint and that different dates may be appointed for different provisions of this 357 Act
Section 3 of the Amendment Act substitutes a new clause A for the existing clause 4 of article 22 of the Constitution which provides inter alia for the constitution of Advisory Boards
The relevant part of section 3 reads as follows Amendment of article 22
In article 22 of the Constitution a for clause 4 the following clause shall be substituted namely 4 No law providing for preventive detention shall authorise the detention of a person for a longer period than two months unless an Advisory Board constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court has reported before the expiration of the said period of two months that there is in its opinion sufficient cause for such detention Provided that an Advisory Board shall consist of a Chairman and not less than two other members and the Chairman shall be a serving Judge of the appropriate High Court and the other members shall be a serving or retired Judges of any High Court
 The provision requiring the Advisory Board to be constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court and that the Chairman of the Advisory Board shall be a serving Judge of the High Court and the other members of the Board shall be serving or retired Judges of any High Court is absent in the existing clause 4 under which persons who are only qualified to be appointed as Judges of a High Court are eligible to be members of the Advisory Board
Many of the provisions of the Act were brought into force on different dates in the year 1979 but the provisions of section 3 were not given effect to for more than one year and seven months when the hearing of these writ petitions commenced on December 9 1980
Now though more than two and a half years have passed the provisions of section 3 have not yet been brought into force
The question is whether under section 12 the Central Government had the freedom to bring into force any of the provisions of the Amendment Act at any time it liked
I do not think that section 12 can be construed to mean 358 that Parliament left is to the unfettered discretion or judgment of the Central Government when to bring into force any provision of the Amendment Act
After the Amendment Act received the President s assent the Central Government was under an obligation to bring into operation the provisions of the Act within a reasonable time the power to appoint dates for bringing into force the provisions of the Act was given to the Central Government obviously because it was not considered feasible to give effect to all the provisions immediately
After the Amendment Act had received the President s assent the Central Government could not in it discretion keep it in a state of suspended animation for any length of time it pleased
That Parliament wanted the provisions of the Constitution Forty Fourth Amendment Act 1978 to be made effective as early as possible would appear from its objects and Reasons
The following extract from the objects and Reasons clearly discloses a sense of urgency Recent experience has shown that the fundamental rights including those of life and liberty granted to citizens by the Constitution are capable of being taken away by a transient majority
It is therefore necessary to provide adequate safeguards against the recurrence of such a contingency in the future and to ensure to the people themselves an effective voice in determining the form of government under which they are to live
This is one of the primary objects of this Bill
x x x x x x As a further check against the misuse of the Emergency provisions and to put the right to life and liberty on a secure footing it would be provided that the power to suspend the right to move the court for the enforcement of a fundamental right cannot be exercised in respect of the fundamental right to life and liberty
The right to liberty is further strengthened by the provision that a law for preventive detention cannot authorise in any case detention for a longer period than two months unless an Advisory Board has reported that there is sufficient cause for such detention
An additional safeguard would be provided by the requirement that the Chairman of an Advisory Board shall be a serving Judge of the appropriate High 359 Court and that the Board shall be constituted in accordance with the recommendations of the Chief Justice of that High Court
 I have already said that Parliament must have taken into consideration the practical difficulties in the way of the executive in bringing into operation all the provisions of the Act immediately and by enacting section 12 it relied on the Central Government to give effect to them
Now when more than two and a half years have passed since the Constitution Forty Forth Amendment Act 1978 received the assent of the President it seems impossible that any such difficulty should still persist preventing the Government from giving effect to section 3 of the Amendment Act
It is interesting to note that clause 9 of the National Security ordinance 1980 provided for the constitution of Advisory Boards in conformity with article 22 of the Constitution as amended by section 3 of the Constitution Forty Fourth Amendment Act 1978
This makes it clear that non implementation of the provisions of section 3 was not due to any practical or administrative difficulty
However the which replaced the ordinance does not retain the provision of clause 9 of the ordinance and prescribes the constitution of the Advisory Boards in section 9 in accordance with unamended article 224
I do not think it can the seriously suggested that a provision like section 12 of the Constitution Forty Fourth Amendment Act empowered the executive to scotch an amendment of the Constitution passed by Parliament and assented to by the President
The Parliament is competent to take appropriate steps if it considered that the executive had betrayed its trust does not make the default lawful or relieve this Court of its duty
I would therefore issue a writ of mandamus directing the Central Government to issue a notification under section 12 of the Constitution Forty Fourth Amendment Act 1978 bringing into force the provisions of section 3 of the Act within two months from this date
On the other point I find it difficult to agree that an ordinance is law  within the meaning of article 21 of the Constitution
Article 21 reads No person shall be deprived of his life or personal liberty except according to procedure established by law The National Security ordinance 1980 has been challenged on a number of grounds one of which is that the life and liberty of 360 person cannot be taken away by an ordinance because it is not law  within the meaning of article 21
Normally it is the legislature that has the power to make laws
Article 123 of the Constitution deals with the President s power to promulgate ordinances and the nature and effect of an ordinance promulgated under this article Article 123 is as follows 1 It at any time except when both Houses of Parliament are in session the President is satisfied that circumstances exist which render it necessary for him to take immediate action he may promulgate such ordinances as the circumstances appear to him to require
2 An ordinance promulgated under this article shall have the same force and effect as an Act of Parliament but every such Ordinance a shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament or if before the expiration of that period resolutions disapproving it are passed by both Houses upon the passing of the second of those resolutions and b may be withdrawn at any time by the President
Explanation Where the Houses of Parliament are summoned to reassemble on different dates the period of six weeks shall be reckoned from the later of those dates for the purpose of this clause
3 If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact it shall be void To show that there is no difference between a law passed by Parliament and an ordinance promulgated by the President under article 123 reliance was placed on behalf of the Union of India on clause 2 of the article which says that an ordinance shall have the same force and effect as an Act of Parliament
It was further pointed out that chapter III of part V of the Constitution which includes article 123 is headed Legislative Powers of the President
 Reference was made to article 213 which concerns the power of the Governor 361 to promulgate ordinances article 213 is in chapter IV of part VI of the Constitution which hears a similar description Legislative Power of the Governor
From these provisions it was contended that the President in promulgating an ordinance under article 123 exercises his legislative power and therefore an ordinance must be regarded as law  within the meaning of article 21
But the nature of the power has to be gathered from the provisions of article 123 and not merely from the heading of the chapter
It is obvious that when something is said to have the force and effect of an Act of Parliament that is because it is not really an Act of Parliament
Article 123 2 does say that an Act of Parliament to make the two even fictionally identical
The significance of the distinction will be clear by a reference to articles 356 and 357 which are in part XVIII of the Constitution that contains the emergency provisions
The relevant part of article 356 reads 1 If the President on receipt of a report from the Governor of a State or otherwise is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution the President may by Proclamation a assume to himself all or any of the functions of the Government of the State and all or any or the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State b declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament Article 357 provides 1 Where by a Proclamation issued under clause 1 of article 356 it has been declared that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament it shall be competent a for Parliament to confer on the President the power of the Legislature of the State to make 362 laws and to authorise the President to delegate subject to such conditions as he may think fit to impose the power so conferred to any other authority to be specified by him in that behalf b for Parliament or for the President or other authority in whom such power to make laws is vested under sub clause a to make laws conferring powers and imposing duties or authorising the conferring of powers and the imposition of duties upon the Union or officers and authorities thereof c x x x x x 2 Any law made in exercise of the power of the Legislature of the State by Parliament or the President or other authority referred to in sub clause a of clause 1 which Parliament or the President or such other authority would not but for the issue of a proclamation under article 356 have been competent to make shall after the Proclamation has ceased to operate continue in force until altered or repealed or amended by a competent Legislature or other authority
 It will appear that whereas an ordinance issued under article 123 has the same force and effect as an Act of Parliament under article 3571 a Parliament can confer on the President the power of the legislature of the State to make laws
Thus where the President is required to make laws the Constitution has provided for it
The difference in the nature of the power exercised by the President under article 123 and under article 357 is clear and cannot be ignored
Under article 21 no person can be deprived of life and liberty except according to procedure established by law
Patanjali Sastri J in A K Gopalan vs State observed that the word established in article 21 implies some degree of firmness permanence and general acceptance
An ordinance which has to be laid before both Houses of Parliament and ceases to operate at the expiration of six weeks from the reassembly of Parliament or if before the expiration of that period resolutions disapproving it are passed by both Houses can hardly be said to have that firmness  and permanence  that the word established  implies
It is not the 363 temporary duration of an ordinance that is relevant in the present context an Act of Parliament may also be temporary what is relevant is its provisional and tentative character which is apparent from clause 2 a of article 123
On this aspect also the difference between a law made by the President under article 357 and an ordinance promulgated by him under article 123 should be noted
A law made under article 357 continues in force until altered repealed or amended by a competent legislature or authority an ordinance promulgated under article 123 ceases to operate at the expiration of six weeks from the reassembly of Parliament at the latest
On behalf of the Union of India learned Attorney General referred to article 367 2 to argue that the Constitution itself equates an ordinance with an Act of Parliament
Article 367 2 reads Any reference in this Constitution to Acts or laws of or made by Parliament or to Acts or laws of or made by the Legislature of a State shall be construed as including a reference to an ordinance made by the President or to an ordinance made by a Governor as the case may be Any reference in the Constitution to Acts of Parliament has to be construed as including a reference to an ordinance made by the President as article 367 2 provides because an ordinance has been given the force and effect of an Act But clearly an ordinance has this force and effect only over an area where it can validity operate
An invalid ordinance can have no force or effect and if it is not law  in the sense the word has been used in article 21 article 367 2 cannot make it so
There is also another aspect of the matter
Article 21 not only speaks of a situation in normal times which left no time for the to think of a situation in normal times which left no time for the President to summon Parliament and required him to promulgate ordinances to take away the life or liberty of persons unless one considered life and liberty as matters of no great importance
However in view of the opinion of the majority upholding the validity of the ordinance it is unnecessary to dilate on this aspect
On all the other points I agree with conclusions reached by the learned Chief Justice
364 TULZAPURKAR J
On the question of bringing into force section 3 read with section 12 of the Constitution Forty Fourth Amendment Act 1978 I am in agreement with the view expressed by my learned brother A C Gupta in his judgment
Barring this aspect I am in agreement with the rest of the judgment delivered by my Lord the Chief Justice


Summary:
Section 12 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 notification the Central Government had brought into force all the sections of the Fortyfourth Amendment Act except section 3
In the meantime the Government of India issued the National Security ordinance 2 of 1980 which later became the 
The petitioner was 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 Constitution the petitioner contended that the power to issue an ordinance is an executive power not legislative power and therefore the ordinance is not law  HELD per Chandrachud CJ Bhagwati  Desai JJ Gupta and Tulzapurkar JJ dissented on the question of bringing into force section 3 read with section 12 of the Fortyfourth Amendment Act
Gupta J dissented on the question whether ordinance is law
273 The power of the President to issue an ordinance under Article 123 of the 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 executive 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 and 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 RC Cooper vs Union of India I 9701 3 SCR 530 559 referred to
The contention that the word law  in Article 21 must 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 132 of the Constitution
292 G H The contention that the procedure prescribed by an ordinance cannot be equated with the procedure established by law is equally unsound
The word 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 t heir fundamental right to life or liberty must know the precise extent of such deprivation
1293 A B The argument of the petitioner that the fundamental right conferred by Article 21 can not be taken away by an ordinance really seeks to add a proviso to Article 1231 to the effect that such ordinances shall not deprive any person of his right to life or personal liberty conferred by Article 21 of the Constitution
 An amendment substantially to that effect moved in the Constituent Assembly was rejected by the Constituent Assembly
293 D E AK Gopalan   Sant Ram   506 State of Nagaland vs Ratan Singh   851 852 Govind vs State of Madhya Pradesh  Anr   955 56 Ratilal Bhanjl Mithani vs Asstt
Collector of Customs Bombay  Anr   928 931 and Pandit MSM Sharma vs Shri Sri Krisna Sinha  Anr
1959 Supp
I SCR 806 860 861 referred to
Since the petitioners have not laid any acceptable foundation for holding that no circumstances existed or could have existed which rendered it necessary 274 for the President to take immediate action by promulgating impugned ordinance the contention that the ordinance is unconstitutional for the reason that the pre conditions to the exercise of power conferred by Article 123 are not fulfilled has no force
298 D There can be no doubt that personal liberty is a precious right
So did the founding fathers believe at any rate because while their first object was to give unto the people a Constitution whereby a Government was established
their second object equally important was to protect the people against the Government
That is why while conferring extensive powers on the Government like the power to declare an emergency the power to suspend the enforcement of fundamental rights and the power to issue ordinances they assured to the people a Bill of Rights by Part III of the Constitution protecting against executive and legislative despotism those human rights which they regarded as fundamental
The imperative necessity to protect those rights is a lesson taught by all history and all human experience
And therefore while arming the government with large powers to prevent anarchy from within and conquest from without they took care to ensure that those powers were not abused to mutilate the liberties of the people
300 B D Section 12 of the Fortyfourth Amendment Act is valid
There is no internal contradiction between the provisions of Article 3682 and those of section 12 of the 44th Amendment Act
Article 3682 lays down a rule of general application as to the date from which the Constitution would stand amended in accordance with the Bill assented to by the President section 12 of the Amendment Act specifies the manner in which that Act or any of its provisions may be brought into force
The distinction is between the Constitution standing amended in accordance with the terms of the Bill assented to by the President and the date of the coming into force of the Amendment thus introduced into the Constitution
For determining the date with effect from which the Constitution stands amended in accordance with the terms of the Bill one has to turn to the date on which the President gave or was obliged to give his assent to the Amendment
For determining the date with effect from which the Constitution
as amended came or will come into force one has to turn to the notification if any issued by the Central Government under section 12 of the Amendment Act
310 D F The contention raised by the petitioners that the power to appoint a date for bringing into force a constitutional amendment is a constituent power and therefore it cannot be delegated to an outside agency is without force
It is true that the constituent power that is to say the power to amend any provision of the Constitution by way of an addition variation or repeal must be exercised by the Parliament itself and cannot be delegated to an outside agency
That is clear from Article 3681 which defines at once the scope of the Constituent power of the Parliament and limits that power to the Parliament
The power to issue a notification for bringing into force the provisions of a Constitutional amendment is not a constituent power because it does not carry with it the power to amend the Constitution in any manner
It is therefore permissible to the Parliament to vest in an outside agency the power to bring a Constitutional amendment into force 312 C E 275 Although the 44th Amendment Act received the assent of the President on April 30 1979 and more than two and a half years have already gone by without the Central Government issuing a notification for bringing section 3 of the Act into force this Court cannot intervene by issuing a mandamus to the Central Government obligating it to bring the provisions of section 3 into force
The Parliament having left this question to the unfettered judgment of the Central Government it is not for the Court to compel the Government to do that which according to the mandate of Parliament lies in its discretion to do when it considers it opportune to do it
The executive is responsible to the Parliament and if the Parliament considers that the executive has betrayed its trust by not bringing any provision of the Amendment into force it can censure the executive
It would be quite anomalous that the inaction of the executive should have the approval of the Parliament and yet the court should show its disapproval of it by against mandamus
314 G H In leaving it to the judgment of the Central Government to decide as to when the various provisions of the 44th Amendment should be brought into force the Parliament could not have intended that the Central Government may exercise a kind of veto over its constituent will by not ever bringing the Amendment or some of its provision into force
The Parliament having seen the necessity of introducing into the Constitution a provision like section 3 of the 44th Amendment it is not open to the Central Government to sit in judgment over the wisdom of the policy of that section
If only the Parliament were to lay down an objective standard to guide and control the discretion of the Central Government in the matter of bringing the various provisions of the Act into force it would have been possible to compel the Central Government by an appropriate writ to discharge the function assigned to it by the Parliament
316 B D Expressions like defence of India  security of India  security of the State  and relations of India with foreign powers  mentioned in section 3 of the Act are not of any great certainty or definiteness
But in the very nature of things they are difficult to define
Therefore provisions of section 3 of the Act cannot be struck down on the ground of their vagueness and certainty
However since the concepts are not defined undoubtedly because they are not capable of a precise definitions courts must strive to give to those concepts a narrower construction than what the literal words suggest
While construing laws of preventive detention like the  care must be taken to restrict their application to as few situations as possible
Indeed that can well be the unstated premise for upholding the constitutionally of clauses like those in section 3 which are fraught with grave consequences to personal liberty if construed liberally
324 E H What is said in regard to the expressions defence of India  security of India  security of the State  and relations of India with foreign powers  cannot apply to the expression acting in any manner prejudicial to the maintenance of supplies and services essential to the community  which occurs in section 32 of the Act
The particular clause in sub section 2 of section 3 of the is capable of wanton abuse in that the detaining authority can place under detention any person for possession of any commodity on the basis that the authority is of the opinion that the maintenance of supply of that commodity 276 is essential to the community
This particular clause is not only vague and uncertain but in the context of the Explanation capable of being extended cavalierly to supplies
the maintenance of which is not essential to the community
To allow the personal liberty of the people to be taken away by the application of that clause would be a flagrant violation of the fairness and justness of procedure which is implicit in the provisions of Article 21
The power given to detain persons under section 32 on the ground that they are acting in any manner prejudicial to the maintenance of supplies and Services essential to the community cannot however be struck down because it is vitally necessary to ensure a steady flow of supplies and services which are essential to the community and if the State has the power to detain persons on the grounds mentioned in section 31 and the other grounds mentioned in section 32 it must also have the power to pass order of detention on this particular ground
No person can be detained with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community unless by a law order or notification made or published fairly in advance the supplies and services the maintenance of which is regarded as essential to the community and in respect of which the order of detention is proposed to be passed are made known appropriately to the public
325 A C 326 BC FH R C Cooper vs Union of India   559 Haradhan Saha   Khudiram j   Sambhu Nath Sarkar 1974 1 SCR I and Maneka Gandhi 19782 SCR 621 explained
Laws of preventive detention cannot by the back door introduce procedural measures of a punitive kind
Detention without trial is an evil to be suffered but to no greater extent and in no greater measure than is minimally necessary in the interest of the country and the community
It is neither fair nor just that a detenu should have to suffer detention in such place as the Government may specify
The normal rule has to be that the detenu will be kept in detention in a place which is within the environs of his or her ordinary place of residence
330 E F In order that the procedure attendant upon detentions should conform to the mandate of Article 21 in the matter of fairness justness and reasonableness it is imperative that immediately after a person is taken in custody in pursuance of an order of detention the members of his household preferably the parent the child or the spouse must be informed in writing of the passing of the order of detention and of the fact that the detenu has been taken in custody
Intimation must also be given as to the place of detention including the place where the detenu is transferred from time to time
This Court has stated time and again that the person who is taken in custody does not forfeit by reason of his arrest all and every one of his fundamental rights
It is therefore necessary to treat the detenu consistently with human dignity and civilized norms of behaviour
331 C D Since section 3 has not been brought into force by the Central Government in the exercise of its powers under section 12 of the 44th Amendment Act that section is still not a part of the Constitution
The question as to whether section 9 of the is bad for the reason that it is inconsistent with the provisions of section 3 of the 44th Amendment Act has therefore to be decided on the basis that section 3 though a part of the 44th Amendment Act is not 277 a part of the Constitution
If section 3 is not a part of the Constitution it is difficult to appreciate how
the validity of section 9 of the can be tested by applying the standard laid down in that section
It cannot possibly be that both the unamended and the amended provisions of Article 224 of the Constitution are parts of the Constitution at one and the same time
So long as section 3 of the 44th Amendment Act has not been brought into force Article 224 in its unamended form will continue to be a part of the Constitution and so long as that provision is a part of the Constitution the amendment introduced by section 3 of the 44th Amendment Act cannot become a part of the Constitution Section 3 of the 44th Amendment substitutes a new article 224 for the old article 224
The validity of the constitution of Advisory Boards has therefore to be tested in the light of the provisions contained in Article 224 as it stands now and not according to the amended article 224
335 D H On a combined reading of clauses I and 3b of Article 22 it is clear that the right to consult and to be defended by a legal practioner of one s choice which is conferred by clause 1 is denied by clause 3b to a person who is detained under any law providing for preventive detention
Thus according to the express intendment of the Constitution itself no person who is detained under any law which provides for preventive detention can claim the right to consult a legal practioner of his choice or to be defended by him
It is therefore difficult to hold by the application of abstract general principles or on a priori consideration that the detenu has the right of being represented by a legal practioner in the proceedings before the Advisory Board
339 D E Yet the fact remains that the detenu has no right to appear through a legal practitioner in the proceedings before the Advisory Board
The reason behind the provisions contained in Article 223b of the Constitution clearly is that a legal practitioner should not be permitted to appear before the Advisory Board for any party
The Constitution does not contemplate that the detaining authority or the Government should have the facility of appearing before the Advisory Board with the aid of a legal practioner but that the said facility should be denied to the detenu
In any case that is not what the Constitution says and it would be wholly inappropriate to read any such meaning into the provisions of Article 22
Permitting the detaining authority or the Government to appear before the Advisory Board with the aid of a legal practitioner or a legal adviser would be in breach of Article 14 if a similar facility is denied to the detenu
Therefore if the detaining authority or the Government takes the aid of a legal practitioner or a legal adviser before the Advisory Board the detenu must be allowed the facility of appearing before the Board through a legal practitioner
344 H 345 A C The embargo on the appearance of legal practitioners should not be extended so as to prevent the detenu from being aided or assisted by a friend who in truth and substance is not a legal practitioner
Every person whose interests are adversely affected as a result of the proceedings which have a serious import is entitled to be heard in those proceedings and be assisted by a friend
A detenu taken straight from his cell to the Board s room may lack the ease and composure to present his point of view
He may be tongue tied nervous confused or wanting in intelligence see Pet vs Greyhound Racing Association Ltd and if justice is to be done he must at least have the help of a friend who can assist him to give coherence to his stray and wandering ideas
345 G H 278 In the proceedings before the Advisory Board the detenu has no right to cross examine either the persons on the basis of whose statement the order of detention is made or the detaining authority352D Now Prakash Transport Co Ltd vs New Suwarna Transport Co Ltd  106 Nagendra Nath Bora vs Commissioner of Hills Division and Appeals Assam   1261 State of Jammu  Kashmir vs Bakshi Ghulam Mohammad  415 Union of India vs TR Verma 1958 SCR 499 507 and Kherr
Chand vs Union of India  1096 held inapplicable There can be no objection for the detenu to lead evidence in rebuttal of the allegation made against him before the Advisory Board
Neither the Constitution nor the contains any provision denying such a right to the detenu
The detenue may therefore offer oral and documentary evidence before the Advisory Board in order to rebut the allegations which are made against him
352 E F It is not possible to accept the plea that the proceedings of the Advisory Board should be thrown open to the public
The right to a public trial is not one of the guaranteed rights under our Constitution
354 C D Puranlal Lakhanpal vs Union of India  475 and Dattatreya Moreshwar Pangarkar vs State of Bombay   626 referred to
Yet the Government must afford the detenus all reasonable facilities for an existence consistent with human dignity
They should be permitted to wear their own clothes eat their own food have interviews with the members of their families at least once a week and last but not the least have reading and writing material according to their reasonable requirements
355 B C Persons who are detained under the must be segregated from the convicts and kept in a separate part of the place of detention
It is hardly fair that those who are suspected of being engaged in prejudicial conduct should be lodged in the same ward or cell where the convicts whose crimes are established are lodged
355 D Sunil Batra vs Delhi Administration and Sampat Prakash vs State of Jammu  Kashmir  referred to
per Gupta and Tulzapurkar JJ dissenting Section 12 of the Constitution Fortyfourth Amendment Act 1978 cannot be construed to mean that Parliament has left it to the unfettered discretion or judgment of the Central Government when to bring into force any provision of the amendment Act
After the President s assent the Central Government was under an obligation to bring into operation the provisions of the Act within a reasonable time the power to appoint dates for bringing into force the provisions of the Act was given to the Central Government obviously because it was not considered feasible to give affect to all the provisions immediately
But the 279 Central Government could not in its discretion keep it in a state of suspended A animation for any length of time it pleased
358 A B From the Statement of objects and Reasons it was clear that the Parliament wanted the provisions of the Amendment Act to be made effective as early as possible
When more than two and half years have passed since the Amendment Act received the assent of the President it is impossible to say that any difficulty should still persist preventing the Government from giving effect to section 3 of the Amendment Act
A provision like section 12 cannot be said to have empowered the executive to scotch an amendment of the Constitution passed by Parliament and assented to by the President
That Parliament is competent to take appropriate steps if it considered that the executive had betrayed its trust does not make the default lawful or relieve this Court of its duty
359 B C per Gupta J dissenting Normally it is the legislature that has the power to make laws
The nature of the legislative power of the President has to be gathered from the provisions of Article 123 and not merely from the heading of the chapter Legislative Powers of the President
When something is said to have the force and effect of an Act of Parliament that is because it is not really an Act of Parliament
Article 1232 does not say that an ordinance promulgated under this article shall be deemed to be an Act of Parliament to make the two even fictionally identical
While an ordinance issued under Article 123 has the same force and effect as an Act of Parliament under Article 3571a Parliament can confer on the President the power of the legislature of a State to make laws
The difference in the nature of power exercised by the President under Article 123 and under Article 357 is clear and cannot be ignored
360 B 361 B C The word establish in Article 21 as interpreted by this Court implies some degree of firmness permanence and general acceptance
An ordinance which ceases to operate on the happening of one of the conditions mentioned in Article 1232 can hardly be said to have that firmness and permanence that the word establish implies
lt is not the temporary duration of an ordinance that is relevant what is relevant is its provisional and tentative character which is apparent from Article 1232
362 G F AK Gopalan vs State   relied on
A significant difference between the law made by the President under Article 357 and an ordinance promulgated by him under Article 123 is that while a law made under Article 357 continues to be in force until altered repealed or amended by a competent legislature or authority an ordinance promulgated under Article 123 ceases to operate at the expiration of six weeks of reassembly of the Parliament at the latest
363 B The argument that since Article 3672 provides that any reference in the Constitution to Acts of Parliament should be construed as including a reference to an ordnance made by the President an ordinance should be equated with an Act of Parliament is without substance because an ordinance has the force and effect only over an area where it can validly operate
An invalid ordinance can 280 have no force or effect and if it is not law  in the sense the word has been used Article 21 Article 3672 cannot make it so
363 E on all other points His Lordship agreed with the conclusions of Hon ble the Chief Justice
Hon ble Tulzapurkar J agreed with the majority on all other points