Bypassing Elected Legislatures - Ordinance Raj in India

1. There’s a touch of irony in speaking about India’s Ordinance Raj on the 14^th of August, one day before my country celebrates its 69^th Independence Day. Precisely 69 years ago our first Prime Minister, Jawaharlal Nehru, made a rousing speech about India’s tryst with destiny, which he promised would be redeemed at the stroke of the midnight hour that night. Two and a half years later, when the newly minted Republic gave itself its Constitution, it included Articles 123 and 213, giving a renewed lease of life to the very Ordinance-making power that had been severely criticized just years earlier as being a diabolical weapon in the hands of colonial rulers for suppression of the natives. And today, a year before we become a septuagenarian country that prides itself on its commitment to democracy and the rule of law, we find that executive Ordinances have become the preferred means of introducing legislative enactments; that successive governments from every shade of political opinion have made liberal use of this mechanism; that even the most routine and mundane statutes are often brought in by issuing Ordinances, after which the legislature is presented with a fait accompli; that indeed, Ordinances issued on the advice of the Ministers, rather than Bills introduced and debated in Parliament or State Assemblies, have become the new normal.

2. The irony, indeed, is that when the framers of India’s Constitution were debating whether or not to insert Articles 123 and 213 in the draft, the United Kingdom itself had long since discarded the power to regulate its citizens by statutes promulgated under the Royal prerogative; they had retained such a power only for the subordinate subjects in their colonies, whose lesser legislative freedoms were often over-ridden by executive decrees issued by Viceroys or Governors General. So far as British citizens themselves were concerned, the powers of the Monarch to issue Royal Decrees had been whittled down substantially over the centuries, first when Henry VIII was forced to withdraw his infamous Statute of Proclamations, 1939, just eight years after it was enacted; then in 1610 when Sir Edward Coke, Chief Justice of the Common Pleas, gave his opinion to the House of Lords in “The Case of Proclamations, (1610) EWHC KB 22; (1611) 12 Co Rep 74” to the effect that the King could neither create new offences nor exercise his prerogative beyond what Parliament by law allowed; further still with the passage of the Bill of Rights in 1689; and by 1766, when Blackstone published his celebrated Commentaries on the Laws of England, he was able to record that the Royal Prerogative had fallen into disuse; indeed, even to the extent that it survived, it could be exercised only to frame narrow and specific regulations which did not have the scope or power of statutes, which only Parliament could by then enact.

3. By contrast, Ordinances were liberally used to keep the restive natives of the colonies in line. In undivided India (now Bangladesh, India and Pakistan, in alphabetical order) the Governor General was empowered under section 72 of the Government of India Act, 1915 and later section 42 of the Government of India Act, 1935, to issue Ordinances as an emergency measure on those subjects which fell within the legislative powers of the fledgling colonial Legislature; such power was to be exercised only when the Federal Legislature was not in session, and could remain in force no longer than six months, extendable in certain situations for another six. Though the Governor General enjoyed an even more drastic law-making power under section 44 of the 1935 Act, I’m not going into that, as it came to a merciful end with Independence. The problem is with the Governor-General’s power to issue Ordinances under section 42, which metamorphosed under our 1950 Constitution into Article 123 at the Federal or National level, and Article 213 at the level of States, or provinces. Sadly, having bitterly opposed the exercise of this quasi-legislative power by Britain’s Governor-General, the founders of our Nation happily switched sides once they were ensconced in power, and between 15^th August, 1947 and the framing of our Constitution on 26^th January 1950, Parliament was bypassed no fewer than 99 times by issuing Ordinances under the very same section 42 of the 1935 Act. Perhaps as a result of this liberal use of legislation by the executive, the Constituent Assembly, when it debated the need for Ordinance-making powers, blithely brushed aside all the naysayers, and insisted that such provisions were a necessity, and were in any event hedged in by supervening control by Parliament and the State Legislatures. And the coup de grace was delivered by Dr. B. A. Ambedkar, who wondered why anybody would doubt the motives of future governments or legislators, and insisted that such powers would be used only in insurmountable emergencies.

4. Going purely by the language of Article 123[1] (substantially the same for the present purposes as that of Article 213, which applies to the States), perhaps Ambedkar’s confidence was justified. As with section 42 of the 1935 Act, on which it is modelled, Article 123 can only be invoked when the Houses of Parliament are not in session, and it requires the President to be satisfied that circumstances exist which render it necessary for him to take immediate action, i.e. to enact a law which cannot await the re-assembling of Parliament. Such law made by Presidential decree has to be laid before both Houses of Parliament immediately upon their reassembly, and shall cease to operate six weeks after reassembly, unless already disapproved by resolutions passed by both Houses before that date. The Article makes it clear that while an Ordinance will have the same force and effect as an Act of Parliament, if it makes any provision which Parliament is not competent to enact, then such provision shall be void.

5. But the cold mortar of the Constitutional draftsmen’s words soon became warm putty in the hands of successive administrations, who succumbed to the temptation of using Ordinances as a quick-fix solution to avoid Legislative logjams. As the nascent Republic faced up to the challenges thrown up by widespread poverty, chronic shortages, the need for land reforms, redistribution, health care, lack of educational facilities and the like, the Prime Minister at the Centre and Chief Ministers in the States alike found that it was easier by far to introduce new laws by getting the President or the Governor to simply sign an Ordinance at a time when the Houses of Parliament or the State Legislature were not in session, and to then present a neatly bow-tied, fully-implemented law to the Legislature when it reassembled, with a Bill to ratify the law. For the impatient leaders this had the “virtue” of doing away with tortuous discussions and messy debates on the floor of the Legislature, leaving the elected Members with little to do but suggest some small modification or minor change in emphasis, and to then pass the Bill that would convert the Presidential Ordinance into a law made by Parliament. It would take an exceptionally strong and independent set of Legislators to unscramble the egg once a new law with its entire paraphernalia was already in force throughout the country or the concerned state; but having tested the waters with some emergency legislations to deal with the immediate aftermath of Independence, Partition, displacement of people, the refugee crisis, and so on, and having found most Members of Parliament and the State Legislatures pliable enough once faced with a fait accompli which was difficult to untangle, our leaders gradually embarked upon a whole-sale recourse to Ordinances as the preferred means of introducing legislation. In quick measure, Governments of every shape and stripe virtually dropped the pretence of demonstrating the need for immediate action, and blithely started issuing Ordinances to introduce laws which had been on the drawing board for years, or laws which were fairly routine in nature, and even those which created new regulatory agencies and hierarchies. Over the decades that followed the Constitution that we adopted in 1950, every State introduced land reform laws and forest expropriation laws via the Ordinance route, while the Central Government used Ordinances to nationalize and take over the life insurance business (1956), large swathes of the banking industry (1970), the general insurance business (1972), coal mining (1973), coking coal, petroleum and natural gas (1974), and on and on and on. Routine amendments to labour laws and taxation laws were introduced by Ordinance, civil liberties were taken away by Ordinance, entirely new regulatory regimes like the Securities and Exchange Board of India were created by Ordinance, and so on. A report published by the Lok Sabha, the House of the People or Lower House of Parliament, in November 2015[2], reveals that in the 64 years from 26^th January 1950 till 31^st December 2014, the President of India promulgated 679 Ordinances, averaging more than 10 per year. But averages are misleading, and tend to hide the fact that as many as 34 Presidential Ordinances were issued in 1993, 32 in 1996, and 31 in 1997. Can it be supposed for even a moment that the President was faced with an emergent situation such that he could not await the reassembly of Parliament 679 times in 64 years, or that 34 laws needed to be urgently enacted without awaiting the reassembly of Parliament in 1993?

6. The Lok Sabha Report of November 2015 highlights the anguish of several Speakers of the House in the first three decades of the Republic, who strongly criticized the bypassing of Parliament in this manner, but expressed their inability to do anything about it due to Parliamentary convention. Sadly, the Supreme Court of India, which was not bound by any constraints of convention, has remained a silent spectator to this pernicious practice. Instead of interpreting the Constitutional provisions on the anvil of a free nation governed by the rule of law, the Supreme Court was persuaded to accept formulations handed down by the Privy Council in Bhagat Singh v. King Emperor, AIR 1931 PC 111; 58 IA 169, Raja Bahadur Kamakhya Narain Singh v. Commissioner of Income Tax, AIR 1943 PC 153; 70 IA 180, and Lakshmidhar Misra v. Rangalal, AIR 1950, where the Governor General’s satisfaction on the need for an Ordinance was held to be beyond judicial scrutiny. Taking a cue from what the colonial masters applied to the subjects they ruled, the Supreme Court in R.C. Cooper v. Union of India, (1970) 1 SCC 248 and several other judgments[3] has held that it cannot examine whether circumstances existed that made it necessary for the President to take immediate action, and not to await the reassembly of Parliament.

7. Time and again the Supreme Court has sought to restore the sanctity of legislative process by cautioning against misuse of Ordinances, but each time it has ended up in homilies and advice, which unfortunately are not seen as binding by the next Bench that deals with this issue. In R.K. Garg v. Union of India, (1981) 4 SCC 675, the Court reminded the Government that “It may be noted, and this was pointed out forcibly by Dr. Ambedkar while replying to the criticism against the introduction of Article 123 in the Constituent Assembly, that this legislative power conferred on the President under this Article is not a parallel power of legislation. It is a power exercisable only when both Houses of Parliament are not in session and it has been conferred ex necessitate in order to enable the executive to meet an emergent situation”. In A.K. Roy v. Union of India, (1982) 1 SCC 271 the Supreme Court noted that clause (4) of Articles 123/213, which had been inserted by the Constitution (Thirty-Eighth) Amendment Act, 1975, had been deleted by the Constitution (Forty-fourth Amendment) Act, 1978, thus strongly suggesting that Parliament itself recognized the need for judicial review of the President’s satisfaction. The deleted clause (4), was as follows:

“123(4) Notwithstanding anything in this Constitution, the satisfaction of the President mentioned in clause (1) shall be final and conclusive and shall not be questioned in any court on any ground”.

But though the Constitution Bench in A.K. Roy (supra), held that it was arguable that the Forty-fourth Amendment left no doubt that judicial review is not excluded in respect of the President’s satisfaction, the Court left that question undecided. In D.C. Wadhwa v. State of Bihar, (1987) 1 SCC 378, another Constitution Bench held that if the Executive takes over the law-making function of the Legislature, it “would be clearly subverting the democratic process which lies at the core of our Constitutional scheme, for then, the people would be governed not by the laws made by the legislature as provided in the Constitution but by laws made by the executive”. Once again, however, the Supreme Court in that case confined itself to striking down the repeated re-promulgation of Ordinances by the Bihar State Government, but did not settle the issue of judicial review of Presidential satisfaction. 

8. Subsequent advances in the scope of judicial review of Presidential or Gubernatorial satisfaction while exercising other powers reserved for them, however, suggest that in the currect state of affairs, the Supreme Court of India is more likely to examine the existence of emergent situations necessitating recourse to Ordinances. In S.R. Bommai v. Union of India, (1994) 3 SCC 1, a 9-judge Bench of the Supreme Court held that judicial review is a part of the basic structure of the Constitution, and consequently found that the satisfaction of the President prior to issuing a proclamation to suspend the State Legislature under Article 356, was open to question before the superior courts, and this line of reasoning was expanded in Rameshwar Prasad v. Union of India, (2006) 2 SCC 1. And in Indra Sawhney II v. Union of India, (2000) 1 SCC 168, the Supreme Court held that judicial review could, in a fit case, extend even to examining the underlying rationale and motivation for passing an Act of Legislature, and especially for questioning the existence of a state of affairs which the Legislative enactment declares to be in existence. Recently a Constitution Bench in Nabam Rebia v. Deputy Speaker, 2016 SCC Online SC 694 has further expanded the scope of judicial review over a Governor’s actions, to cover even areas in which the Constitution appears to grant such actions immunity from judicial scrutiny.

9. Another area in which the Supreme Court’s readiness to borrow from colonial precedents has played havoc with the legislative process is in its interpretation of the words “shall cease to operate” in Article 123(2)(a). The Constituent Assembly debates made it clear that Articles 123 and 213 were being introduced only to deal with emergent situations in which the Executive could not await the reassembly of the Legislature, and that in order to prevent the Executive from bypassing legislatures, or subverting the legislative process, an Ordinance would cease to operate, or would lapse of its own accord, unless replaced by a legislative enactment within six weeks of reassembly. It is truly unfortunate that the Supreme Court, in two Constitution Bench decisions rendered in 1962 and 1985, proceeded to equate an Ordinance with a temporary statute which is subsequently repealed, and to apply the principles of legislative repeal to the cessation or lapse of an Ordinance. The Supreme Court lost sight of the fact that a temporary statute is one which is enacted by a competent legislature, but for a fixed duration or a particular period of time, such as a wartime rationing law, a rent control legislation, and so on, whereas an Ordinance is an executive enactment made only to bridge the gap before the legislature can reassemble, one which automatically ceases to operate unless adopted and ratified by the legislature. In State of Orissa v. Bhupendra Kumar Bose, AIR 1962 SC 945; (1962) Supp (2) SCR 380, the Supreme Court held that if actions taken under an Ordinance had attained finality, they would not be reversed merely because the Ordinance ceased to operate. At the same time the Court made it clear that the general rule is that when a temporary statute expires, no proceedings can be taken upon it, and all proceedings initiated under it shall cease. In T. Venkata Reddy v. State of Andhra Pradesh, (1985) 3 SCC 198, the Constitution Bench was faced with a situation where posts of hereditary, part-time village officers all over the State had been abolished by an Ordinance on 6.1.1984, and though a Bill to replace the Ordinance had been tabled, it was referred to a Select Committee and hence could not be passed. However, in order to avoid an impasse, the Governor had re-promulgated the Ordinance from time to time. In the meanwhile, identical Acts abolishing hereditary, part-time village officers in Karnataka and Tamil Nadu had been upheld by the Supreme Court. In these peculiar circumstances the Supreme Court held that the mere “lapse” of the first Ordinance would not result in revival of the part-time posts which already stood abolished on 6.1.1984, as the Court treated the same as a “closed or completed transaction”. The unfortunate thing is that both Bose and Venkata Reddy were rendered in very special and limited factual situations, but the Court set out broad formulations and ratios, which have the effect of empowering the Executive to completely bypass the legislative wing. As a consequence, we have a situation where properties of citizens which have been seized under a lapsed Ordinance are not returned to him, on the pretext that such seizure is a “completed action” which now requires an Act of Parliament to be undone. The absurdity is self-evident: bypass Parliament by making an Ordinance a couple of weeks before it reassembles, seize properties under the Ordinance, allow the Ordinance to lapse as you are unable to persuade Parliament to ratify the same, and then say that we cannot restore the properties unless Parliament makes a law to restore the properties.

10. Yet another area in which our Supreme Court has been altogether too liberal in its interpretation of Ordinances is in permitting the Executive to promulgate Ordinances with unlimited retrospectivity. While it is acceptable for the elected legislature to make a law which operates retrospectively in certain circumstances, it appears absurd to read such a power into the limited legislative function conferred upon the Executive for meeting emergent situations until the next session of the legislature. Considering that an Ordinance can only be promulgated when the legislature is not in session, and ceases to exist six weeks after the session recommences, it is absurd to allow the Executive to make a law that stretches into the past, such that it spans many periods when the legislature was actually in session, and when, consequently, the Executive had no power to make an Ordinance. Yet, by interpreting (wrongly, in my view) the words “same force and effect as an Act” on the basis of a circular and flawed reasoning, the Supreme Court has held that an Ordinance can be retrospective in the same manner as an Act of Parliament or a State Legislature.

11. Perhaps the only aspect on which the Supreme Court held the executive within the bounds that the framers of the Constitution intended, is in the matter of re-promulgation of Ordinances. In D.C. Wadhwa (supra) the Court made it clear that since an Ordinance is a short-term, emergency measure intended only to bridge the gap until the next session of the legislature, successive re-promulgations each time the Legislature is prorogued, constitutes a fraud on the Constitution, and is unacceptable.

12.  The lesson which Constitutional draftsmen might draw from the Indian experience is to avoid conferring legislative powers upon the executive, and, if such powers are unavoidable, to make any such enactment strictly time-bound and transitory. It appears (though I could not confirm this) that countries like Srilanka, Malaysia, Singapore, Canada and Australia allow executive ordinances or decrees only in actual situations of national emergencies. I also understand that the United Kingdom allows such emergency decrees only for a period of 30 days. We in India, by contrast, have Ordinances being issued without even a semblance of emergency, and taking permanent and lasting effect.

[1] 123. Power of President to promulgate Ordinances during recess of Parliament.

(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 Ordinance 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.

[2] http://164.100.47.192/loksabha/writereaddata/Updates/EventLSS_635907162497207518_presidential_address_english.pdf

[3] State of Punjab v. Satyapal Dang, AIR 1969 SC 903, etc.

Chander Uday Singh is a Senior Advocate in Supreme Court of India.

The opinions expressed in this article are the personal opinions of the authors. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same.