Is India becoming an ordinance raj

August 13, 2021

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Ordinance — Image Source: https://rb.gy/16v7e5

This article is written by Ms. Nikara Liesha Fernandez from School of Law, Christ University, Bangalore. This article deals with an analysis on what an ordinance raj is and whether India has fallen prey to an ordinance raj style of governance.

Table of Contents

Introduction

An ordinance, in simple terms, is an authoritative decree or direction. This could be in the form of a law or a command. The key aspect that differentiates between an ordinance and a bill, which is also an authoritative rule or order, is the temporary aspect of the former. An ordinance is temporary in nature but it comes into force immediately after it has been promulgated by the President of the country or the Governor of the state on the advice of the Council of Ministers. A bill, on the other hand, is technically ineffective unless it has gone through all the stages of deliberations in the houses of parliament and only after receiving presidential assent does it have any real authoritative value in the form of an Act.

India inherited this concept of ordinances about two centuries ago from the British who derived this power of promulgating ordinances from the Indian Councils Act, 1861. The main preconditions for issuing ordinances have virtually remained the same except the time period for which the ordinance is valid which has been reduced from six months to six weeks. The latter being obeyed, an ordinance can be issued whenever the President/Governor is ‘satisfied’ that there exist certain circumstances that require him to take ‘immediate action’ also provided that at least one of the houses of Parliament is not in session. There has been a lot of controversy regarding these specific constitutional provisions which will be discussed further in the article.

What is an ordinance raj

A wordplay of sorts on the infamous terminology used to refer to the British era in India, ordinance raj derives its roots from the term British raj. This term was used to denote an India which was ruled by the British Empire as ‘Raj’ literally means ‘rule’.

Similarly, today, due to the actions of the various governments since independence who are all equally guilty of using and misusing the ordinance making power vested to them in the Constitution, India appears to be ruled through these ordinances which are made solely by the party in power especially when they do not command the majority in the Rajya Sabha as this would be a hurdle were they to pass the same content of the ordinance in the form of an act.

The term ‘ordinance raj’ is used widely especially by critics and the opposition who accuse the government in power of bypassing parliament’s law-making powers under the veiled intention of the necessity for ‘immediate action’.

Is India really becoming an ordinance raj

The data alone of the frequency and conditions under which the government has been promulgating ordinances is proof enough that India has indeed become an Ordinance Raj.

Though this power is not always misused, it is difficult to get a truly transparent image of whether each of the ordinances passed to satisfy the pre-conditions as stated above as if the judiciary were to probe into the matter, which it has tried to do on several instances, its efforts are in vain. This is because there is constant friction between the power of judicial review exercisable by the judiciary and the immunity claimed by the executive with respect to ordinances as protected by the Constitution which is, after all, the law of the land.

Past trends

Between 1950 and 2009, 651 ordinances have been promulgated by the government in power which makes an average of 10.85 ordinances being passed every year or in other words, the existence of approximately 11 situations a year that require the Government’s ‘immediate action’. President Nehru himself promulgated three ordinances on the very day the Constitution of India came into force. Was this construed as a precedent which the governments that succeeded the Congress have followed even today?

The BJP led NDA government while it was in power between 1998 and 2004 continued to have an average of 9.6 ordinances being promulgated a year. The UPA-I which succeeded them managed to bring the average down to 7.2 ordinances issued per year and the UPA-II later brought the total even lower to just 5 a year.

Unfortunately, this was short-lived as between 2014 and 2019, the Modi government shot the figure up to a royal 10 once again. Even as recently as September of 2020, after merely five months of lockdown due to the coronavirus pandemic the same government had issued a royal total of 11 ordinances. Although seven of these eleven ordinances can broadly be related to the handling of the pandemic which did indeed require immediate action, the other four seem completely unrelated as they cover the banking and agriculture sectors.

Ordinance making powers of the executive in India

Article 123 and 231 of the Indian Constitution safeguard the ordinance-making powers of the executive in India in the centre and state respectively. The common powers of the President and the Governor to promulgate ordinances are subject to the two conditions which have been stated above as well, which are:

(i) The parliament/legislative assembly must not be in session; and

(ii) The Governor/President must be ‘satisfied’ with the existence of circumstances rendering it necessary to take immediate action.

A further condition is placed on the governors which ensures that they do not use this power as a loophole to escape the limitations imposed on them in other parts of the Constitution. For example, when they promulgate an ordinance of a similar nature as a bill requiring Presidential sanction, they still need to do so with the prior permission of the President.

Article 123(2) goes on to state that ordinances issued under this article shall have the same force and effect of an act of Parliament but have to be laid before the houses of parliament within six weeks of reassembly of the house (or if one house reassembles on a different date than the other, six weeks from the later of the two dates of reassembly), failing which the ordinance would lapse. The ordinance can lapse even prior to six weeks if a resolution has been passed, disapproving the same by both the houses of parliament. The President can also, himself withdraw the ordinance at any point in time in case the situation requiring his immediate action has been resolved.

Is the constitutional right being misused

India is quite unique with regards to the separation of powers between the various organs of government namely the legislature, executive and the judiciary. Unlike countries like the United States of America and the United Kingdom who follow the doctrine of separation of powers in an absolutely rigid fashion, this particular doctrine is a bit of a grey area in the practice of Indian Governance. The Supreme Court in the landmark judgment of Keshavananda Bharati v. State of Kerala (1973) stated that the separation of powers was a basic feature of the Indian Constitution. Therefore, the issue of the executive taking on the function of the legislature through their ordinance-making powers has taken a new, dangerous turn through the re-promulgation of ordinances.

This constitutional right is indeed being terribly misused. Through the re-promulgation of ordinances, the executive can evasively erase the temporary nature of the ordinance by re-promulgating it again and again. This helps them succeed in meeting their own vested interests by promulgating a law bypassing the wing of the legislature themselves. This negates the latter’s legislative input and approval which forms the very essence of the law-making process.

This is further aided by Article 123 itself which places no numeric limit on the number of times an ordinance can be re-promulgated. Though there have been strict judgments of the Supreme Court which have strictly advised against the re-promulgation of ordinances as branding them undemocratic in nature, which will be elaborated on below, recent examples show that the executive has paid no heed to the same.

Examples of re-promulgation of ordinances

The Securities Laws (Amendment) Ordinance was promulgated three times in 2013 and 2014 and an ordinance seeking to amend the controversial Land Acquisition Act was promulgated twice in April and May of 2015.

Criticism by the legal fraternity

It is not difficult to find open dissatisfaction of the legal fraternity with the inadequacy of Article 123 in checking the arbitrary power of the government. As stated by Vivek Tankha, a senior advocate of the Supreme Court of India and a Congress MP, “a government cannot be questioned on its right to bring in an ordinance since this is guaranteed by the Constitution, Article 123 should be invoked only in absolutely urgent situations…The ordinance route, particularly for matters that affect the society, is less desirable than the normal process of scrutinising a bill by Parliament and its standing committees.” What we are seeing today is an abuse of Article 123 for what can be called a self-serving agenda, wherein the government brings in an ordinance to either counter political challenges or make a statement about an issue it has failed to address through governance.’

Right from the Constitutional Assembly Debates of Dr. B.R Ambedkar, the wording and content of Article 123 have been a bone of contention. Dr. Ambedkar even believed that changing the heading of the chapter from ‘Legislative powers of the President’ to ‘Powers to legislate when the Parliament is not in session’ would bring down some of the criticism directed towards the same.

Cases related to ordinances

Through the chronology of the cases stated below we see a sort of indecisiveness through the actions of the executive and the reactions of the judiciary towards the same on the main issue of whether the President’s actions empowered by Article 123 can be subject to judicial scrutiny or not and to what extent.

RC Cooper v. UOI (1970)

Although the Supreme Court of India, in this case, which is popularly known as the ‘Bank Nationalisation case’ did not completely get into the nitty-gritty of the limitations of the powers of the President with respect to ordinances, it did state that the President’s decision to promulgate an ordinance could indeed be challenged in court or in other words could be subject to judicial review on the point of whether immediate action was really required or whether it was just a convenient cover being used by the executive to bypass the due deliberations which would normally take place in parliament. This case made it clear that the President was not the final arbiter to decide whether the conditions necessitate the need for an ordinance or not and that his decisions were indeed not immune from interference by the other organs of government.

AK Roy vs. Union of India (1981)

The actions which preceded this case were the 38th Constitutional Amendment Act, 1935 which added a fourth clause to Article 123 which explicitly stated that the President’s satisfaction in passing an ordinance was final and could not be questioned on any grounds in any court of law. However, the 44th Constitutional Act, 1944 deleted this clause thus re-establishing that ordinances passed under Article 123 were subject to judicial review.

On the similar lines of the previous case, the Court, in this case, reiterated the fact that “judicial review is not excluded in regard to the question relating to the President’s satisfaction”. Although the Court in this case as well did not go too much into depth of the issue at hand due to insufficient evidence, it did lay a cautionary note that judicial review should be exercised by the Court on substantial grounds only and not at every casual and passing challenge.

T Venkata Reddy vs. State of Andhra Pradesh (1985)

This case once again stated that the President’s decisions could not be subject to judicial review or questioning as it drew a parallel to the similarity with the legislative power of the Parliament and State legislatures whose legislatures passed by them could also not be questioned with regards to the motives behind the same.

DC Wadhwa vs. State of Bihar (1986)

This case is what led to the formal birth of the infamous term ‘ordinance raj’. It dealt with the issue of increasing frequency with which ordinances were being promulgated by the President. A shocking total of 256 ordinances were promulgated in Bihar between 1967 and 1981. Specifically, this case included the issue of 11 ordinances that were kept in force without becoming an actual act for a continuous period of 10 years. To remedy this malaise, the Court held that the ordinance power under Articles 123 and 213 were to be used only in exceptional circumstances and not as a substitute for the law-making powers of the legislature. The Court even went to the extent of terming this practice as constitutional fraud.

Krishna Kumar Singh v. State of Bihar (2017)

This is one of the prime and most recent cases which drove home the fact that the authority to issue ordinances was not absolute in nature but depended solely on whether there existed satisfactory circumstances which necessitated immediate action. It reiterated the fact that the re-promulgation of ordinances was fraudulent in nature and a subversion of the natural democratic legislative process. Justice Chandrachud eloquently put forth the poignant point that “The existence of circumstances is an objective fact. The Governor (or the President) is required to form a satisfaction of the existence of circumstances which makes it necessary to take immediate action. Necessity is distinguished from mere desirability.” (para 27)

The Court in this case also drew reference to the principles from the case of S.R Bommai v. UOI (1994) with respect to the collective responsibility of the Council of Ministers whose advice itself could not be interfered with by the court who could instead only look into the basis on which such advice was given to ensure that the same was relevant in nature and did not reflect any malafide exercise of power.

Conclusion

From the above analysis, we can see that it is evident that the powerful ball of the ordinance raj is rolling in full form. Though the courts are trying their level best to contain this excessive misuse of a power whose original purpose is being twisted time and again to suit vested political interests, it is only the executive that can make the real difference in ensuring that they act in tune with what the framers of the Constitution intended for them by exercising self-restraint and issuing ordinances only when it is absolutely essential and not as a means to escape the legislative process.