By Shristi Banerjee, WBNUJS
Editor’s Note: There are certain provisions of the Indian Constitution which can, owing to the absence of express provisions, be misused to serve political ends. There are such loopholes which can be utilised to violate the basic structure of the constitution and would hence inflict fraud on the constitution. More specifically, the paper discusses the ordinance making power under the Constitution and how this power has been misused over the years. Ordinance is often mentioned as an executive action without any redressal. In many instances, the Executive has played hoodwink on the legislature by re-promulgating the ordinance to serve political ends which again qualifies for fraud on the Constitution. According to the Author, Article 74 (2) of the Constitution should be done away with while promulgation of ordinance.
The Constitution of India was a result of extensive brainstorming for 2 years, 11 months and 18 days. With high minds pouring in the ideas to make a suitable book of law for the country, some provisions of the constitution were left open ended, probably because only the ruling circumstances were expected to tie the ends together. The presence of a dual hypothesis in such cases, such provisions are often subject to misuse to assert more power by a particular organ of federalism. There are innumerable such provisions which can lead to a distorted consequence merely by manhandling the unexpressed words. Such loopholes can be utilised to disfigure the basic structure of the constitution and would inflict fraud on the constitution.
There are innumerable such provisions of the constitution which can, owing to the absence of express provisions, be misused to serve political ends. During the Bank Nationalization case, the ordinance was passed 2 days before convening of the parliament but by the time the case reached the court, it became an act and hence the question was left unanswered. Indira Gandhi made sure that the satisfaction of the president was unquestionable by the 38th amendment. It was later undone by the 44th amendment by the Janata government. Adhering to certain constraints, the scope of this project would be limited to certain questions that would answer whether re promulgation of ordinance would amount to fraud on the constitution, whether re promulgation of ordinance defies the spirit of constitutionalism and whether there is any kind of judicial transgression .The project would end with the opinion regarding the existing method of re promulgation of the ordinance.
THE PURPOSE OF ORDINANCE
India follows a quasi federal structure and channelizes its power in three streams, namely, legislative, executive and judiciary. The string of law-making lies in the hands of the legislature. This significant function has been allotted to a branch which indeed represents the people of India. So, it can gauge the need of the people, give them essential representation and then form the law after extensive debate and deliberation which would ensure that the provisions included are in the best interest of the people. This would keep the democratic spirit intact. In T Venkata Reddy v State of Andhra Pradesh[i], power to pass ordinance was said to be equivalent to that of passing laws by the legislatures. The power to promulgate ordinance has been derived from the provision of section 72 of the government of India Act, 1935.
The executive has the work of implementing the laws that are passed by the legislature and the members do not directly represent the people. But during times when the legislature, i.e. both the house of the parliament are not in session, the law making process need not be hindered. So, in case any emergency situation crops up, the executive has been given the power to deal with such situations and pass the law.[ii] To address such immediate concerns, ordinance as a tool has been introduced. Art. 123[iii] and article 213[iv] of the constitution gives the power to promulgate ordinances to the president and the governor respectively.
Article 123 and Article 213 of The Constitution mention certain words to depict the urgency of passing an ordinance. The president should be satisfied that the existing circumstances are of such nature that an immediate law is imperative. But, each and every ordinance passed till date has been questioned on the urgency requirement. The condition of approval by the parliament within 6 weeks of date of convening of the session was kept for responding to the urgency of the situation. The National Food Security Ordinance which was introduced in early 2013 was questioned on the same grounds. The Government tried to wrap up 5 years’ work in just a day. Furthermore, the Union government brought in another ordinance declaring section 8(4)[v] of the Representation of People’s act valid against the Supreme Court ruling that declared it invalid.
This ordinance came just before the CBI court was about to give a decision on a case pending against the Bihar chief minister, Lalu Prasad Yadav. In both the instances ordinance was not indispensable and was passed to address some political motive of the government which questions the legitimacy of the entire provision. Since 1952, 637 ordinances have been promulgated[vi] and the requirement of urgency while passing an ordinance has always been compromised with except in one case where there was demonetization of Rs 1000, 5000 and 10,000 by the Janata government.
In many instances, after the ordinance gets lapsed without getting passed in the houses within 6 weeks of reassembly, the government re- promulgates it once the house is not in session. The Government of Bihar brazenly promulgated 256 ordinances between 1967 and 1981 whereas the state assembly passed only 189 acts in the same period.[vii] This led to blatant disregard of the basic structure doctrine that includes separation of power as one of its entity and it can be said to be a trial by the executive to usurp the power of the legislature which would be a fraud on the constitution. In D.C. Wadhwa and Ors v State of Bihar and Ors[viii], this was challenged and Bhagwati J. ruled that the ordinance making power could be exercised by the executive only when there was an emergent situation that needed redressed and it cannot be “perverted to serve political ends.” Also, in P. Vajravelu Mudaliar v Special Deputy Collector[ix], it was held that such an abuse of the power by the executive in a covert and indirect manner would be colourable legislation. If a constitutional authority does an act which is not expressly permitted by the constitution, it would amount to fraud on the constitution.
The judiciary has stepped in to fill in some of the gaps that would make the provision less exploitative. In R C Cooper v Union of India[x], it was decided that an ordinance could be challenged in case an ‘immediate action’ was not required.[xi] But the criterion of immediate action has to be on the satisfaction of the president, i.e. the cabinet and that can be very subjective and may tilt towards a particular political outcome. The 38th Constitutional Amendment brought in Clause 4 of Article 123 making presidential satisfaction unchallengeable. But it was soon done away with by the 44th Constitutional Amendment. In A.K. Roy v Union of India[xii], it was said that judicial review could be exercised on the president’s decision but on substantial grounds.
But the judiciary has not taken a clear stance on the challengeability of ordinances on such grounds. These missing links make it a power-stealing tool for the executive. The provision also expressly doesn’t deny joint sitting to pass an ordinance; it can be used as a loop hole to pass the ordinance without any effort.
CONSTITUTIONALITY AND JUDICIAL TRANSGRESSION
The question that arises is what is wrong if the executive also has similar power as that of the legislature? Why different wings with different composition are needed to handle different matters? The very simple answer to these questions would be the constitutionalism theory put forward by Montesquieu. The separation of power is imperative among the organs of the government in order to check each other’s functions. Our constitution has not limited the powers of the government; it has given powers to the population who would give themselves the law. Homogeneous composition of the wings of democracy would not allow the purpose to be served. Hence, separation of powers is indispensable. Moreover, in case of misuse or unnecessary overlapping of power, the judiciary has the power to guide them back on their way. Although, the question of reviewability of “president’s satisfaction” in case of ordinance has been left open ended by the judiciary but deciding on such cases, the judiciary is not said to transgress into the law making power, rather it is taking an active step in the preservation of democracy.
In spite of all the loopholes, it won’t be feasible to stop the re promulgation of the ordinances. The reason being that if on a particular session, the number of bills lined up to be passed is more, then the passing of the ordinance as an act is delayed for another session. In such case, if the issue requires continuing redressal then it would be unreasonable to put bar on the number of times an ordinance is passed. Moreover, the ordinance is passed according to art 74 (1) of the constitution[xiii] which assures that no such law would be passed by an individual’s will. Also, in S.R. Bommai v Union of India, it was decided that “president’s satisfaction” can be challenged on the grounds that it is mala fide or based on wholly extraneous or irrelevant grounds. So, it would also protect this provision from passing any draconian law. So, such safe guards have been made which would prevent ordinance from being parallel legislation. In order to make it transparent, Article 74 (2) of the constitution[xiv] should be done away with while promulgation of ordinance. It would make sure that the cabinet decision was made in order to address the need of the people.
Ordinance is often mentioned as an executive action without any redressal. This project is an effort to trace the fraud that the executive commits on the constitutional provision by making use of the ambiguous language of the legislature. The provision of ordinance making is certainly loosely tied as the Supreme Court has laid that “immediate reasons” for passing the ordinance could be challenged but it is not clear on whether the satisfaction of the President on such urgency could be challenged or not. This makes the entire process of passing an ordinance questionable and hints at usurpation of power by the executive which would be fraud on the constitution. In many instances, the executive has played hoodwink on the legislature by re promulgating the ordinance to serve political ends which again qualifies for fraud on the constitution. But, the freedom of judiciary gives it the power to demarcate the line dividing their powers. Such action would not amount to judicial transgression but would be on the lines of constitutionalism.
Edited by Hariharan Kumar
[i] 1984 AIR 724
[ii] Such a power was given to the executive and not the judiciary so that the transparency could be maintained if the judiciary would have independent and non prejudiced power to check the work of the executive.
[iii] (1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that
circumstances exist which render it necessary for him to take immediate action, he may promulgate such
Ordinances as the circumstances appear to him to require.
(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament,
but every such Ordinance— (a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the
second of those resolutions; and (b) may be withdrawn at any time by the President.
Explanation.—Where the Houses of Parliament are summoned to reassemble on different dates, the period of
six weeks shall be reckoned from the later of those dates for the purposes of this clause.
(3) If and so far as an Ordinance under this article makes any provision which Parliament would not under
this Constitution be competent to enact, it shall be void.
[iv] (1) If at any time, except when the Legislative Assembly of a State is in session, or where there is a
Legislative Council in a State, except when both Houses. of a State having a Legislative Council are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause. (3) If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the Legislature of the State assented to by the Governor, it shall be void: Provided that, for the purposes of the provisions of this Constitution relating to the effect of an Act of the Legislature of a State which is repugnant to an Act of Parliament or an existing law with respect to a matter
enumerated in the Concurrent List, an Ordinance promulgated under this article in pursuance of
instructions from the President shall be deemed to be an Act of the Legislature of the State which has been
reserved for the consideration of the President and assented to by him.
[v] It allowed MPs and MLAs who are convicted while serving as members to continue in office till an appeal against such conviction is disposed of, is unconstitutional.
[viii] AIR 1987 SC 579
[x] 1970 AIR SC 564
[xi] In Bank Nationalization case (1970) 1 SCC 248, it was held that the satisfaction of the president can be challenged on the grounds of bad faith, mala fide and corrupt motive.
[xii] AIR 1981 SC 710
[xiii] There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the
President who shall, in the exercise of his functions, act in accordance with such advice: Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration
[xiv] The question whether any, and if so what, advice was tendered by Ministers to the President shall not be
inquired into in any court.