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Issues Involved:
1. Ordinance-making power of the President. 2. Constitutionality of the National Security Act, 1980. 3. Implementation of the 44th Constitution Amendment Act. 4. Vagueness of the provisions of the National Security Act. 5. Procedural fairness before the Advisory Boards. 6. Conditions of detention under the National Security Act. Issue-wise Detailed Analysis: 1. Ordinance-making power of the President: The petitioners challenged the President's power to issue an ordinance depriving any person of life or liberty, arguing that: - The power to issue an ordinance is an executive power, not a legislative power. - Ordinance is not 'law' because it is not made by an agency created by the Constitution for making laws. - Article 21 of the Constitution implies that a person can be deprived of life or liberty only according to the procedure established by law, and an ordinance does not qualify as 'law' within this context. The Court rejected these arguments, holding that the power to issue an ordinance is indeed a legislative power and that an ordinance has the same force and effect as an Act of Parliament. The Court emphasized that the ordinance-making power is necessary for urgent situations and is subject to the same constraints as laws made by Parliament. 2. Constitutionality of the National Security Act, 1980: The petitioners argued that the National Security Act (NSA) is unconstitutional as it excessively interferes with personal liberty and violates Articles 14, 19, and 21 of the Constitution. The Court, however, upheld the NSA, stating that preventive detention is permissible under the Indian Constitution, provided it meets the requirements of Articles 14, 19, 21, and 22. The Court referred to past judgments, including Haradhan Saha and Khudiram, which upheld similar preventive detention laws. 3. Implementation of the 44th Constitution Amendment Act: The petitioners contended that the Central Government was under an obligation to bring section 3 of the 44th Amendment into force within a reasonable time. The Court acknowledged the delay but refrained from issuing a mandamus to compel the Government to act, emphasizing that the discretion to bring the amendment into force lies with the Central Government. The Court expressed hope that the Government would act without further delay. 4. Vagueness of the provisions of the National Security Act: The petitioners argued that terms such as 'defense of India,' 'security of India,' and 'security of the State' in the NSA are vague and give the executive uncontrolled discretion. The Court acknowledged the inherent difficulty in defining such terms with precision but held that they are not unconstitutionally vague. However, the Court found the term "acting in any manner prejudicial to the maintenance of supplies and services essential to the community" to be vague and capable of abuse. The Court directed that no person could be detained under this clause unless the essential supplies and services are clearly defined by law. 5. Procedural fairness before the Advisory Boards: The petitioners argued that the procedure before the Advisory Boards was unfair and did not provide the detenu with adequate means to defend themselves. The Court held that: - The detenu does not have the right to legal representation before the Advisory Board, as per Article 22(3)(b) of the Constitution. - The detenu does not have the right to cross-examine witnesses. - The detenu is entitled to present evidence in rebuttal. The Court emphasized that the procedure must be fair, just, and reasonable but recognized the limitations imposed by the Constitution itself. 6. Conditions of detention under the National Security Act: The petitioners raised concerns about the harsh conditions of detention. The Court directed that: - Detenus should be kept in detention near their place of residence to facilitate visits from family and access to personal amenities. - Detenus must be informed of their detention and location immediately. - Detenus should have access to reading and writing materials and be allowed to wear their own clothes and eat their own food. - Detenus should be segregated from convicts and housed in separate facilities. Separate Judgments: - Justice Gupta dissented on two points: the failure of the Central Government to bring section 3 of the 44th Amendment into force and whether an ordinance is 'law' within the meaning of Article 21. - Justice Tulzapurkar agreed with Justice Gupta on the implementation of section 3 of the 44th Amendment but otherwise concurred with the Chief Justice's judgment.
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