Opinion How many ordinances are too many?
Governments invoke this power with alarming regularity. The courts must share the responsibility
Governments invoke this power with alarming regularity. The courts must share the responsibility
While the merits of the food security law were being debated,the government moved to promulgate the National Food Security Ordinance (hereafter,FSO). Reports suggest that the government also plans to promulgate ordinances to undo a recent Supreme Court verdict on the AICTEs powers to regulate technical education and the CIC order that brings certain political parties within the ambit of the Right to Information law. While politicians were crying hoarse about the disregard of parliamentary supremacy,a somewhat serial PIL litigant challenged the constitutionality of the FSO,contending that it was not urgently required.
Article 123 of the Constitution confers the power of promulgating an ordinance to the president if he is satisfied that circumstances exist which render it necessary for him to take necessary action. This is a unique power,somewhat at odds with the parliamentary tradition based on the strict separation of powers between the executive and the legislature. It follows a similar provision in the Government of India Act,1935,which allowed the governor general to promulgate an ordinance when the federal legislature was not in session.
During the freedom movement,the Congress had vehemently opposed the ordinance-making power of the governor general. Many members of the Constituent Assembly objected to the provision on various grounds,particularly on the long life given to ordinances,some even suggesting that to meet an emergency,the legislature could be convened at shorter notice. B.R. Ambedkar,on the other hand,was steadfast in his defence of the provision,arguing that emergency situations may arise that require the exercise of such a power. He was hopeful that the government of the day would not abuse the power,and that Parliament would meet often enough to alleviate the fear of a prolonged life for ordinances without legislative debate and sanction.
While emergencies are rare,governments have invoked this power with alarming regularity. In A.K. Roy vs Union of India,the SC noted that between 1960 to 1980,no less than 200 ordinances had been issued. In D.C. Wadhwa vs State of Bihar,the court found that ordinances were re-promulgated to keep legislation in force for 14 years without being placed before the legislature.
Arguably,part of the blame for such abuse lies with the SCs constricted reading of Articles 123 and 213 in a series of judgments. In R.C. Cooper vs Union of India,while the majority did not pronounce on the issue,the minority did express the view that an ordinance may be challenged in a court by establishing bad faith,mala fide and corrupt motive. The Indira Gandhi government acted as it knew best with an amendment that provided that the satisfaction of the president could not be questioned in any court of law. The Janata regime removed this provision with the 44th Amendment,providing a golden opportunity for the courts to step in and prevent the abuse of ordinance-making powers.
Alas,the SC continued its hands-off approach when called upon to decide what conditions should be precedent for an ordinance. In A.K. Roy vs Union of India (1981),the court,while reluctant to adjudicate on the matter,raised the bar further for any such challenge by insisting that a prima facie case must be made by the petitioners challenging an ordinance to show that the circumstances necessitating such an ordinance did not exist. This was peculiar,as advice tendered by ministers to the president and governor are privileged. How,then,is a citizen to know what advice was tendered?
The window for judicial review was shut further in T. Venkata Reddy vs State of Andhra Pradesh (1985),where the court equated the legislative power of the legislature with the legislative power of the president. The court held that just like the courts are not to get into the propriety,expediency or necessity of the determinations of the legislature,they are not entitled to get into a similar exercise of power by the executive. However,while the Constitution does not prescribe any limit on the exercise of power by the legislature,Articles 123 and 213 clearly stipulate the conditions for the exercise of such a power by the president or governor.
The judicial philosophy of non-interference in adjudicating the satisfaction of the president underwent a change in the famous case of S.R. Bommai vs Union of India. Faced with interpreting a similar provision under Article 356,dealing with the imposition of presidents rule in states,the SC held that the satisfaction of the president can always be challenged on the ground that it is mala fide or based on wholly extraneous or irrelevant grounds.
Whether or not the Bommai approach is used by the court to interpret the ordinance-making power of the president or governor remains to be seen. However,it is important to point out that ordinance-making powers cannot be resorted to for making far-reaching changes (often at significant economic and other costs) for political or other extraneous gains,when there are no emergencies requiring such action. The courts are best placed to stem this rot.
The writers are Delhi-based lawyers
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