JUDGMENT

CHANDRACHUD, CJI. (For himself and on behalf of Bhagwati and Desai, JJ.):— This is a group of writ petitions under. Art. 32 of the Constitution challenging the validity of the National Security Ordinance, 2 of 1980, and certain provisions of the National Security Act, 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 other 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 Peoples Union of Civil Liberties, the SC Bar Association and the State of Jammu and Kashmir which is interested in the upholding of the Jammu & Kashmir Public Safety Act, 1978. Shri R. K. Garg argued the writ petition, respondents being represented by the Attorney General and the Solicitor General.

2. 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 V. M. Tarkunde appeared in person for the Peoples Union of Civil Liberties and Dr. L. M. Singhvi for the SC Bar Association.

3. Broadly, Sri 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 Sec. 1 (2). 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 the broad, undefined powers of detention conferred by the Act. Dr. L. M. 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.

4. The National Security Ordinance, 1980, was passed in order "to provide for preventive detention in certain cases and 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 Sept. 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".

5. Shri R. K. 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 peoples 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