National Security Act, 1980, is preventive detention law in India. It was replaced by ‘National security ordinance, 1980’. For preventive detention in India, the provisions of NSA are applied. It was challenged before the Supreme court in the case of ‘A.K. Roy v. Union of India, (1981)’.
In the first part, we will discuss the challenge to the Section 3 which provides the ground for preventive detention. In the second part, we will discuss the validity of Procedure prescribed for execution of preventive detention.
Section 3(1) and 3(2)
The question arose out of the provisions of section 3(1) and 3 (2) of the National Security Act which, according to the petitioners, were so vague in their content and wide in their extent that, by their application, it was 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: –
(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.
(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.”
The contention that some terms are so vague
It was contended 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.
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 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.
Reference of the cases
In support of his propositions counsel relied on the decisions of the American Supreme Court in United States of America v. L. Cohen Grocery Company, Champlin Refining Company v. Corporation Commission of the State of Okalahoma, Ignatius Lanzetta v, State of New Jersey and David H. Scull v. 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 had also drawn attention to the decision of Court in the State of Madhya Pradesh & Anr. v. 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.
The Court’s answer on these contentions
On Sub-Section (1)
The court said that in making these submissions counsel seems 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 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. 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.
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, 153A(1) (b), 153B (1)(c), 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.
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. The court therefore, refused to strike down these provisions of section 3 of the Act on the ground of their vagueness and uncertainty. But the court cautioned that since the concepts are not defined, undoubtedly because they are not capable of a precise definition, courts must strive to give to those concepts a narrower construction than what the literal words suggest.
But, the court said that 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 3(2) 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.
The particular clause in sub-section (2) of section 3 of the National Security Act 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. The court considered 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. According to court, 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.
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.
The court proposed 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 respect of which the order of detention is proposed to be passed, are made known appropriately, to the public.
A.K. Roy v. Union of India, (1981)