Scroll Top



Preventive detention laws have been in existence in India for nearly centuries. Preventive detention involves detaining a person to prevent him from committing future criminal acts and/or from escaping future prosecution. Such a law had been promulgated by the Indira Gandhi Government under the name National Security Ordinance which was later brought in as the National Security Act,[1] which was passed in the year 1980. It had been enacted by the Parliament to maintain public order and national security. It is a stringent law that authorizes the Central or State Government to preventive detain a person if they are satisfied, that he or she is a threat to law and order and national security. Its main purpose is ‘‘to provide for preventive detention in certain cases and for matters connected therewith’’.[2] The Act has been severely criticized for majorly two of its clauses, firstly, the maximum period of preventive detention of a person is 12 months[3] and secondly, the detained individual must be informed of the grounds of the arrest within ten days.[4]


A.K. Roy, a Member of Parliament, had been detained by the District Magistrate of Dhanbad under the provisions of the National Security Act, 1980 on the grounds of engaging in activities that posed a threat to public order. [5]His petition was filed under Article 32 of the Indian Constitution contending that ordinance is an executive power, and not a legislative power, and therefore is not law. Additionally, several petitions were lodged under the said Article challenging the validity of the National Security Ordinance, 2 of 1980, and a few of the provisions of the National Security Act, 1980.[6]The Supreme Court of India allowed all the writ petitions filed.


  1. The scope, limitations, and justifiability of the ordinance-making power.
  2. Ambiguity of the provisions set forward in the National Security Act, which authorized the detention of persons for the grounds set forward in Sections 3 (1) and 3 (2) of the Said Act.
  3. c) Section 1 clause (2) of the 44th Constitutional Amendment,1978 is ultra vires of Article 368 of the Indian Constitution.
  4. d) Validity of preventive detention in the context of severe curtailment of personal liberty it imperatively entails.


The Supreme Court disapproved the plausibility of Petitioners’ contention that, the power of promulgating an ordinance is an executive power, not legislative, and thus, is not law, on three grounds. Firstly, based on Article 13 Clause (2) of the Constitution which says that “the State shall not make any law that takes away or abridges the right conferred by the Part III”,[7] in Clause 3 of the same, explicitly said that the definition of ‘‘law’’ consists of ordinances, unless the context provides otherwise.[8] Secondly, the Hon’ble Court further referred the Article 367 (2), which, if correctly interpreted states, that the Constitution does not, in theory, distinguish between an ordinance promulgated by the President a bill/act enacted by the Legislature.[9] Thirdly, Article 123 (2) specifies that an Ordinance which was promulgated under Article 123, and which satisfies the stated circumstances in clause (1) of the Article “shall have the same force and effect as an Act of Parliament”.[10]The Hon’ble Court concludes that the only difference provided by the Constitution between the Ordinance passed by the President and laws drafted by the Parliament is the life of the law. An ordinance shall cease to exist after seven and half months of its promulgation unless disapproved by the resolutions adopted by both the Parliamentary Houses before the expiry of that period, whereas the life of law drawn by the Parliament depends upon the terms mentioned in the law. Therefore, the ordinances issued by the President fall under the purview of legislative power.[11]The Hon’ble Court further took note of the fact that the authority to promulgate ordinances has not been subject to any restrictions under the Constitution.

The Apex Court, while addressing the petitioner’s arguments regarding the validity of preventive detention, held that as preventive detention is recognized and appropriately defined within the Constitution, it refers to Entry 9 of List I and to Entry 3 of List III,[12] it will not be deemed to be violating the fundamental liberties of the people. The Hon’ble Court also asserts that as long as preventive detention operates under the permissible boundaries of the entries of the lists along with non-violation of any other restrictions placed by the Constitution, it would not be invalidated. Furthermore, the Supreme Court highlighted that the notion of preventive detention was primarily brought to ensure that the nation’s safety is not compromised.

The Supreme Court of India further deliberated upon the vagueness of Sections 3 (1) and 3 (2) of the National Security Act, 1980. The said sections primarily authorize the Union and State Governments to detain an individual, if satisfied, that he/she is acting prejudicial to the ‘defence of India’, ‘maintenance of essential supplies’ ‘security of the state’, etc.[13] The petitioner argues that the ‘defence of India’, ‘security of India’, and ‘security of the state’ are ambiguous and can be misused by the detaining authority as per his whims and fancies, which will deprive a person’s liberty, has been denied by the court stating that that the petitioners’ side has adopted an unrealistic attitude. It was held that, if some definition of an expression can be formulated, then that doesn’t necessarily mean that it will provide certainty to that expression. The Hon’ble Court took several expressions as examples, including ‘bring into hatred or contempt’, ‘ill-will’, and ‘annoyance to the public’, within the criminal law, to strengthen their reasoning. The Hon’ble Court further refused to strike down the said provisions on the sole grounds of ambiguity and uncertainty but remarked that the Courts must strive to propound a narrower interpretation of the literal words.[14]

The Apex Court’s further rejected the petitioner’s argument, that Section 1 Clause (2) of the 44th Constitutional Amendment, 1978 is ultra vires the amending power of the Constitution conferred to the Parliament under Article 368 (1) of the Indian Constitution due to the reason that the constituent power cannot be delegated to other authority.[15] The Hon’ble Court stated that it is the under the Parliament’s power and discretion to exercise its constituent power for amending, repealing, and adding any provision of the Indian Constitution[16] as long as it acts per the procedure stipulated under the said article. Additionally, the petitioner’s contention, stating that the power to appoint a date for bringing a constitutional amendment into force is a constituent power that can never be delegated to another authority, has no legal backing. As, the power to issue a notification for bringing provisions of a constitutional amendment is not a constituent power, because it lacks the power of amending the Constitution in any way whatsoever.[17]Thus, the Parliament is permitted to vest the said power to any outside agency to bring a constitutional amendment into force.


  • Ordinance-making power of the President is a legislative power.
  • Section 3 (1) and Section 3(2) of the National Security Act,1980[18] are not struck down on grounds of uncertainty and vagueness.
  • Section 1 (2) of the 44th Constitutional Amendment is not ultra vires of Article 368 (1) of the Constitution of India.
  • Preventive detention is permissible by the Constitution and is subject to the constraints imposed by Part III of the Constitution of India.


A.K. Roy v Union of India is a historic judgement in the realm of constitutional law which focuses on the niche of ordinances and preventive detention laws. The 5-judge Constitutional Bench provided a clear understanding of the extent of the ordinance-making power of the executive. The Court further held that an ordinance shall be subjected to all the limitations stipulated under Article 21 of the Constitution. It further clarified that the Executive is not an independent body and could be held responsible towards the Legislature and further held that since the Parliament confers the power of bringing an amendment into force to the Executive, the Parliament can hold the Executive liable for unreasonable delays.

Author(s) Name: Rajasee Deshpande (Maharashtra National Law University, Nagpur)


[1] The National Security Act 1980, No. 65, Act of Parliament, 1980 (India)

[2] A.K. Roy v. Union of India (1982), 1 SCC 271

[3] The National Security Act 1980, § 13, No. 65, Act of Parliament, 1980 (India)

[4] Id. § 8

[5]  Id. at 2.

[6]The National Security Act 1980, No. 65, Act of Parliament, 1980 (India)

[7] INDIA CONST. art 13 cl (2)

[8] INDIA CONST. art 13 cl (3)

[9] INDIA CONST. art 367 cl (2)

[10] INDIA CONST. art 123

[11] A.K. Roy v. Union of India (1982), 1 SCC 271

[12]  INDIA CONST. art 246

[13] The National Security Act 1980, § 3, cl. 1,2, No. 65, Act of Parliament, 1980 (India)

[14] A.K. Roy v. Union of India (1982), 1 SCC 271

[15] Id.

[16] INDIA CONST. art 368 cl. (1)

[17] A.K. Roy v. Union of India (1982), 1 SCC 271

[18] The National Security Act 1980, § 3, No. 65, Act of Parliament, 1980 (India)