A look into the past: AK Roy v. Union of India

As a student of Constitutional and Administrative Law, we are required to undertake a reading of several cases as part of mandatory/not-so-mandatory course requirements. Given the dearth of simplified yet comprehensive literature that the average law student craves at the time of submissions, examinations, moot court competitions, etc., I intend to profile several of these landmark decisions on the blog over the next few weeks.

The case of A.K. Roy v. Union of India, AIR 1981 SC 710 was decided in 1981 by a Constitution Bench of five judges, presided over by Chief Justice Chandrachud. The decision is significant as it is often referred to as the post-Maneka (AIR 1978 SC 597) decision that refused to take the intersectionality of rights theory forward and water down laws made for Preventive Detention under Article 22, widely seen as draconian and opposed to ‘substantive due process’. Viewing the decision as a political statement of the Supreme Court, it could appear to some as a retreat from the activism the Court displayed immediately post-Emergency (Maneka, etc.), in light of Indira Gandhi’s seemingly miraculous return to power.

The Court considered six main issues:

1. The extent of the Executive’s Ordinance making power under Article 123, and whether by exercise of such power, a valid  ‘procedure established by law’ existed so as to deprive people of their life and personal liberty.

2. The validity of Preventive Detention laws in general, and whether in the new paradigm of Constitutional Law such laws would be constitutional.

3.Whether the Court could compel by writ of mandamus the notification of a Constitutional Amendment, in particular the 44th Amendment that modified Article 22.

4. The vagueness of the National Security Act, 1980 in so far as it allowed for detention on grounds such as ‘national security’ and ‘security of the state’.

5. The unfairness/unreasonableness of the procedure before an Advisory Board, in particular, the denial of the rights of legal representation, cross-examination and leading of evidence.

6. The unreasonable conditions of detention.

The bench returned a unanimous verdict on all issues save two. On the point of the issuance of the writ of mandamus, Justices Tulzapurkar and Gupta both dissented and felt that given the National Security Ordinance promulgated earlier followed the ‘better’ procedure mandated in Section 3 of the 44th Amendment Act, clearly there was no logistical exigency that prevented notification of Section 3 as such and that the Court could interfere if it was evident that the Central Government had betrayed the trust of Parliament. Justice Gupta took his dissent further, and held that an Ordinance was not a law capable of depriving a person of life and liberty, but after sketching out a comparision with the Presidential power to make law under Article 357, stopped short of making a coherent argument, saying that it was all irrelevant in light of the clear majority opining otherwise (His apparently pessimistic views on the power of dissent would no doubt be disapproved by his compatriots Khanna & Subba Rao).

On the first issue, the Court clearly held that an Ordinance under Article 123 did constitute ‘law’ under Article 13 and given that it was required to pass the test of Part III by virtue of such designation, the ordinance making power could not be circumscribed with any additional limitations, especially in light of the express provision of Article 123(2) and Article 367(2). The Court observed that the ordinance making power could extend to matters touching life and liberty and did not necessarily have to operate on a ‘virgin land’. Further, the Court held that such power was legislative in nature and that India not having a strict separation of powers (See this piece on the Doctrine of Political Question), this did not violate the basic structure of the Constitution. The Court did not go into the circumstances in which ordinance making power could be exercised however, since the ordinance had by then been replaced by an Act, rendering the point ‘academic’ in nature and hence irrelevant (This is absurd, given that the Court spent the previous 15 paragraphs discussing the nature of ordinance making power).

On the second issue, the Court placed primary reliance on the Constituent Assembly Debates to hold that the concept of Preventive Detention was an integral part of the original Constitution. Taking this further, they rejected the argument that Preventive Detention laws could ipso facto be bad in law, as the concept itself had been considered and granted express approval by the founding fathers of the Constitution, this being expressed in the CAD, Article 22, Entry 9 List I and Entry 3 List III of the Seventh Schedule of the Constitution. The Court held:

“…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.”

Most importantly, it was here that the Court seems to go against the dictum of Maneka Gandhi where it was held that:  “…’procedure’ in Art. 21 means fair, not formal procedure. ‘Law’ is reasonable law, not any enacted piece.” Contra to that is the distinction that the Court draws in AK Roy, where it washes it hands of a significant responsibility, stating at the outset that:

“The power to judge the fairness and 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’ provision.”

One can only guess what Justice Chandrachud means when he says that the fairness of procedure can be seen in the language of the Article given that the Article 21 is extremely bare in saying ‘procedure established by law’ and not referring to any sort of fairness or reasonableness requirement in words as such. Any limitation/largesse on procedural due process would operate substantively and vica-versa. The Court makes a most unnecessary distinction here, merely to support its apparently foregone conclusion.

The third issue concerned an interesting area of law, and it was here that Justices Gupta and Tulzapurkar differed with the majority. Section 1(2) of the 44th Amendment Act allowed the Central Government to notify it as and when it deemed fit. Despite the passage of over two and a half years, the Central Government had not notified Section 3 of the Amendment Act, which modified Article 22(4) and (7), operating so as to provide a maximum period of detention without and Advisory Board not greater than two months and restricting the boundless right of Parliament under Article 22(7). It may be noted that Section 3 of the Act and the relevant modifications to Article 22 have not been notified till date. It was argued that the Executive was acting mala fide, since the National Security Ordinance had provisions compatible with the amended Article 22, logistical considerations did not operate to justify the non-notification of the relevant provision.

The Court tackled the two-pronged argument and held firstly, that there was no abdication of the constituent power conferred on Parliament under Article 368 merely by virtue of the power of notification being delegated, given that constituent power is plenary within the basic structure limitation and secondly, that the Executive, especially in our form of Government was responsible to Parliament and if the Parliament felt betrayed, it could act appropriately to amend the Act or censure the Executive:

“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 we should show our disapproval of it by issuing a mandamus.”

CJ Chandrachud, the master of the balancing act then proceeded to assure us that the Court’s inaction should not be construed as any ‘approval’ of the Court ‘of the long and unexplained failure’ of the Central Government;  saying that it wished it could have acted but lamented that it could not due to the absence of an ‘objective standard’ for it to act on, holding:

“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.”

I personally take exception to this decision and find the minority finding far more sensible. The evidence of mala fides were clear, and the Court was aware that the Parliament had reverted to the control of the previous political party, hence the reluctance to notify the amendment that deprived, to some extent, the State of its police power. The Supreme Court of India, as Baxi will gleefully point out to anyone, is well-known for acting even where ‘objective standards’ do not appear to guide it. The Court’s cowardly modesty is an inadequate defence given that it has issued guidelines for the treatment of prisoners (DK Basu v. West Bengal), sexual harassment at the workplace (Vishakha v. Rajasthan), working conditions of sanitation workers (Delhi Jal Board) and even controls the appointment & transfer of the head of the CBI.

On the fourth issue, the Court simply states that vagueness of a statute that deals with a matter inherently so indeterminate as national security, cannot possibly be a ground for striking it down.However, it promises to evaluate detention orders made for matters irrelevant or not passing the test of ‘security of state’, given the wide amplitude of the language in the Explanation to Section 3 of the Act, dealing with detention in cases of manipulation of (essential) supplies and services.

It is on the fifth and sixth issues that the Court has acted peculiarly, granting some rights to detenues and denying several others. The Court, addressing the rights of legal representation, cross-examination and leading of evidence before the Advisory Boards, had the unique opportunity to apply Maneka Gandhi’s reading together of rights to read Article 21 at least into those interstices of Article 22 where there was no express denial of these rights. It was most benevolent in doling out rights to detainees however, which in substance was hardly any consolation given the rejection of the relevant arguments against the nature and scope of preventive detention itself.

However, it did so in a most curious way, first holding that there existed no right to cross-examine witnesses, given the secrecy of witnesses in such cases, the ‘different’ nature of proceedings before Advisory Boards as opposed to regular trial courts and the ‘flexible’ nature of  the principles of natural justice. Secondly, it proceeded to disallow legal representation on a bare reading of Article 22, but allowed consultation with a ‘friend’ and access to a lawyer in cases where the detaining authority was accessing legal counsel. Lastly, it allowed detenues to lead evidence, but with the caveat that the Advisory Board would not summon any witnesses and the detainee was to ‘keep them present at the appropriate time’.

At the end of the decision, the Court cites the case of Sunil Batra (AIR 1980 SC 1579) and orders that detainees under Preventive Detention could not be kept with convicted prisoners, had to be granted access to books and letters (Para 108: ‘Books are the best friends of man whether inside or outside of jail’), wear their own clothes and meet their family once a week. Aristotle himself would be proud of the craft seen in the adjudicatory process of this decision, where the Court rejects all the important and emphatic claims of the petitioners and grants the lesser, ancillary claims with great fanfare, being quick to caveat them with unnecessary limitations.

While Preventive Detention is an unfortunate reality of our Constitution and legislation, it is sad that the Court could only allow such limited relief, especially after its previous, progressive decisions. The drawing of a distinction between procedural and substantive due process too, is an unnecessary limitation self-imposed by the Court, even militating against larger bench decisions of the Court. However, the limited reliefs granted are commendable, but only so far as a consolation of sorts.

Repent, thy hour is nigh

The Supreme Court decision in ADM Jabalpur v. Shiv Kant Shukla, (AIR 1976 SC 1207) better known as the Habeas Corpus case, along with its decision in SP Gupta v. Union of India (AIR 1982 SC 149 – The Judges Transfer case) represent the high watermark of the abdication of judicial power or inactivism that charactreised most systems of adjudication during Indira Gandhi Governments. Concurring with the majority in both cases was Justice (as he then was) PN Bhagwati, who later went on to became Chief Justice of India.

In the first case, he agreed with the then Attorney General’s arguments that all fundamental rights stood suspended during an Emergency and that no individual had any right to approach the Courts for any sort of remedy for violation of even the fundamental right to life. In the second, he concurred with the majority in holding that the Union government enjoyed an almost absolute power in the transfer of Judges, representative of judicial abdication in the context of the Union Government looking for pliant judges and transferring judges according to their policy requirements.

The legal effect of the decision in the ADM Jabalpur has hence been reversed, after the 44th Amendment to the Constitution of India, whereby Article 359 now guarantees all the right to life even during an Emergency. Of the 5 judges on the Bench, Justice Khanna write the solitary dissent, while subsequently Justices Chandrachud and now, Bhagwati, have expressed regret and anguish over their decision in the case. It is interesting to note that every single Judge who ruled in favour of the Government went on to become Chief Justice of India later, a post then in control of the Union Government.

Justice Bhagwati expressed recently, his regret over the decision, saying:

‘I was wrong. The majority judgment was not the correct judgment. If it was open to me to come to a fresh decision in that case, I would agree with what Justice Khanna did. I am sorry. I don’t know why I yielded to my colleagues. Initially, I was not in favour of the majority view. But ultimately, I don’t know why, I was persuaded to agree with them. I was a novice at that time, a young judge…I was handling this type of litigation for the first time. But it was an act of weakness on my part.’

However, he denied that it was the lure of Chief Justiceship motivated his decision, simply saying that ‘I can’t say this. It would not be right for me to say this’. Most interestingly, and this was a piece of information I was not privy to before reading this article in the Indian Express, about how post – Habeas Corpus, when the Indira Gandhi Government fell, Bhagwati was fiercely anti-establishment and critical of the previous regime, presumable since, he like most of the country did not foresee her return to power almost immediately. Nevertheless, it was he, who on her ascent to power in 1979, wrote a letter to her Government saying:

‘I am sure that with your iron will and firm determination, uncanny insight and dynamic vision, great administrative capacity and vast experience, overwhelming love and affection of the people and above all, a heart which is identified with the misery of the poor and the weak, you will be able to steer the ship of the nation safely to its cherished goal.’

Needless to say, he went on to become Chief Justice of India. However, it must be noted by all that Justice Bhagwati was a pioneer of judicial activism best seen today through the vast PIL jurisprudence. His decisions on locus standi in SP Gupta and Bandhua Mukti Morcha are activist in so far as they greatly further the cause of depressed classes in society; Maneka Gandhi (AIR 1978 SC 597) represented a new step in the constitutional rights paradigm. Baxi terms such a volte face, of first succumbing to the Government’s policy pressures so as to achieve high office before going on to use such high office to redemocratise the nation and help the citizens of India, as nothing but a process of ‘judicial catharsis’.

Nevertheless, its indeed sad that the Article 50 mandated separation of executive from judiciary did not quite have any sort of relevance in the time when it was needed the most. Hindsight is a wonderful thing, it allows one the capacity to do things and say things without facing the consequences one would have faced then. But, as in Justice Bhagwati’s case,  it is never too late to repent, even if it appears almost a repentance of convenience.