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Journalism of Courage
The Delhi High Court8217;s poser to the counsel for Surrinder Singh Gill in his petition against the Prasar Bharati Ordinance is a challenging one. A constitutional issue has been raised. The outcome is likely to invite the apex court8217;s intervention. The poser: can an ordinance be challenged in court for mala fide intention on the part of ministers?
Note that the court is not asking whether an ordinance is justiciable. An ordinance has the force of a law enacted by Parliament or a state legislature. So it is also subject to scrutiny by courts of law. Article 123 makes this clear: 8220;An ordinance promulgated under this article shall have the same force and effect as an Act of Parliament8230;8221; Further, 8220;If and so far as an Ordinance makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void8230;8221;.
Mala fide is associated with malice, yet another mental state, though strictly speaking distinct. Notions such as group-prejudice are no doubt sociological categories. This concept can be divided into, a a prejudice of a specific group against an individual and b the prejudice of an individual against another individual or group.
Group mala fide is a very unlikely judicial category. There is the extreme example of genocide, which in international law is admitted to arraign a collectivity of individuals also. But it is questionable whether genocidal intent and mala fide could be treated as congruent terms. The former is determined by the result of actions and is technically unrelated to whether the perpetrator is motivated bybad faith or ill will. There are other extreme instances of this genre in history, like the burning at the stake of large communities of people for religious reasons during the Inquisitions following the Reformation and Counter-Reformation struggles in Europe.
To be sure, in modern times such acts would be abhorred by all legal systems and would violate human rights. There is the contemporary case of Serbia8217;s ethnic cleansing which constitutes the most horrendous case of collective inhumanity, in one sense qualitatively exceeding the Nazis. Yet the theoretical question is whether the ground of mala fide is attributable to a group in holding such actions to be criminal. Such actions no doubt far exceed the mischief of mala fide intention. But even so, collective mala fide in itself may not be a tenable criterion of indictment.
As mala fide is traceable to a state of mind, it should be clearly shown to have infected8217; the subject. That the object8217; or target of the alleged mental state suffered undeservingloss cannot itself be proof of mala fide intent. In such cases, invoking Article 14 of the Constitution and its allied anti-discrimination provisions may be more pertinent.
It can be argued, for instance, that a Nazi-led Reichstag8217;s anti-Zionist law is void on grounds of mala fide intent. But of course Nazi-like regimes take care to preempt judicial scrutiny. Still, post-facto judicial determination either by a domestic court or by an international tribunal on grounds of gross violation of human rights is possible. But such remedies seem far beyond the confines of mala fide considerations.
In democratic politics, where legislation enacted by legislative bodies under multi-party systems is the norm, the identification of the subject8217; of mala fide is problematic. Could an entire majority that has voted for a Bill be regarded as tainted?
Would an ordinance, as distinct from an Act of Parliament, make any difference in this regard? Of course, in the case now before the High Court, an ordinance is at issue.The only difference in this case is that an individual or a few individuals, the Minister for Informa-tion and Broadcasting, Sushma Swaraj, and her junior colleague, Mukhtar Abbas Naqvi, can be regarded as the authors. It is even more possible to lead evidence in confirmation of Swaraj exhibiting a hostile attitude towards Gill. But would this suffice to indict the ordinance as vitiated by mala fide and ignore the minister8217;s plea that a policy option for restructuring an important administrative agency cannot be denied to the government, even if in doing so the agency8217;s chief executive lost his job? Bad blood between the minister and the chief executive cannot by itself eclipse the policy8217;s rationale.
An ordinance is not legally a mere ministerial order but a cabinet decision. A mala fide charge will then have to be sustained against the entire cabinet. In such instances, it is not tenable to apply a severability doctrine delinking the cabinet8217;s joint responsibility from the individual responsibility ofthe minister.
And then there is presidential assent to be reckoned with in determining mala fide. At one level it can be argued that a court of law in quashing an enactment or ordinance is deemed not to have attributed the cause of invalidation to the President. Conse-quently no constitutional discourtesy is involved vis-a-vis the head of state. After all, courts invested with judicial review do at times declare statutes and ordinances unconstitutional, and no discourtesy to the President is even implied even though such statutes and ordinances by definition have presidential assent.
Can one apply the same logic in judicial scrutiny of mala fide intent behind legislation? Prima facie it seems proper. Just as the President is not expected to vet and weigh every Bill or ordinance for its validity when according his assent, he is also not expected to scrutinise such instruments for hidden mala fide intent before assenting.
Still, there is scope to contend that judicial review of laws on normal grounds ofexceeding constitutional limitations is quite different from the far serious and rather abnormal instance of mala fide exercise of power by legislatures and governments. This may imply a sharing of constructive responsibility even by the otherwise formal function of assent giving. And, paradoxically, precisely because of this consideration judicial intervention on the sole ground of mala fide of an ordinance seems rather constrained.
The writer is a former vice-chancellor of Dr. B.R. Ambedkar Open University
