Court case(1982) 1 SCC 271

A.K. Roy, a Marxist Member of Parliament, was detained under the National Security Ordinance, 1980 on the ground that his activities prejudiced public order. The Ordinance was replaced by the National Security Act, 1980, which authorised preventive detention to prevent acts prejudicial to the defence of India, the security of the State, relations with foreign powers, public order or the maintenance of essential supplies. A batch of petitions challenged the Act. The petitioners also pointed out that section 3 of the 44th Amendment Act, 1978, which would have required advisory boards to be constituted on the recommendation of the Chief Justice of the High Court and reduced the period of detention without an advisory board's opinion to two months, had been passed but never brought into force by notification.

Chandrachud CJ, for the majority, upheld the Act. An ordinance is "law" within Articles 13 and 21 and the President's power under Article 123 is a legislative power, so preventive detention can be authorised by ordinance; the satisfaction of the President is not wholly immune from review. The grounds of the NSA, although wide, are not so vague as to be unconstitutional, because they are concepts well known to law. Preventive detention is itself contemplated by Article 22 and cannot be struck down as inherently violating Article 21. A detenu has no right to legal representation before the advisory board under Article 22(3)(b), but if the detaining authority appears through a lawyer the detenu must be allowed one; there is no right to cross-examine. Detenus must be kept apart from convicts and allowed books, food and visits. On the 44th Amendment, the Court held that the power to bring the Act into force by notification is conferred on the executive by Parliament and the Court cannot issue a mandamus to compel it, though it expressed hope that the Government would act. Gupta and Tulzapurkar JJ dissented on this point.