By Shafali Malhotra,
The Constitution of India grants an ‘extraordinary’ power to the President that allows him to pass an ordinance when (a) both Houses of the Parliament are not in session and (b) he is satisfied that circumstances exist which render it necessary for him to take immediate action. An ordinance has the same force as any other Act, however, it ceases to exist if resolutions disapproving it are passed by both Houses of the Parliament, or if it is not replaced by an Act within six weeks from the reassembly of Parliament, whichever comes first. Since the President acts on and is bound by the advice of the Council of Ministers, ordinance making is essentially an extraordinary power granted to the executive. Similar power is also granted to the Governor of every State.
In the recent past, the UPA Government has been criticized for promulgating the Food Security Ordinance, 2013, as an election year gimmick. Yet again, the Cabinet has cleared the Representation of the People (Amendment and Validation) Ordinance, 2013, to overturn the recent Supreme Court judgment mandating disqualification of legislators immediately upon conviction. This is despite the fact that a Bill (having the same effect) was sent to the Parliament Standing Committee for its consideration. Such a move has not only invited severe criticism from various quarters, but has left the Government red faced as the President asked the Home and Law Minister to explain why it was considered necessary to clear the ordinance in haste. Now with Rahul Gandhi also slamming the ordinance, the Government is likely to withdraw it.
This is certainly not a recent phenomenon.
The Government (both at the Centre and the State) has misused this ‘extraordinary power’ with alarming regularity, for political gain and to subvert the parliamentary process.
On the other hand, the Supreme Court has shown reluctance in defining limits to the exercise of this power and has further given contradictory verdicts on whether it is even subject to judicial review. This has resulted in considerable confusion. In this scenario, it is necessary to revisit and examine ordinance making powers under Articles 123 and 213 of the Constitution, as it currently exists.
Ordinance making power is a legacy of British Raj in India. It was incorporated from the Government of India Act, 1935 (wherein the Governor General was granted similar powers). During the freedom movement, this power was vehemently opposed by the Congress. Even while drafting the Constitution, some members of the Constituent Assembly objected to its inclusion, as being anti-democratic and having high likelihood of abuse. Nevertheless, this power, considered to be a necessary evil, was inserted in the Constitution.
It is pertinent to point that the Constituent Assembly debates emphasize that this power is extraordinary and should be exercised sparingly at the times of emergency.
“Satisfaction of the President”
One of the prerequisites of passing an ordinance is that the President must be satisfied that circumstances exist that require immediate action. The Apex Court has been unable to make up its mind whether this subjective satisfaction of the President can be questioned in the Court of law. To ‘clarify’ this question, Indira Gandhi led Government (prone to being authoritarian and dictatorial) passed the Constitution (38th Amendment) Act, 1975, which expressly excluded satisfaction of the President from the purview of judicial review. Fortunately, the Janata Party, vide Constitution (44th Amendment) Act, 1978, deleted this clause. This amendment was in approval of the minority view in the Bank Nationalisation Case (1970) 1 SCC 248, holding that the power of the President could be challenged by establishing bad faith, mala fide and corrupt motive.
In 1982, a five judge bench, in A.K. Roy vs Union of India (1982) 1 SCC 271, held that the subjective satisfaction of the President regarding existence of circumstances is not completely non-justiciable. The challenger must make out a prima facie case that there could not have existed any circumstances necessitating the issuance of an ordinance. Three years later this ‘eternal’ question again came up before the Apex Court, in Venkata Reddy vs State of Andhra Pradesh (1985) 3 SCC 198, wherein another five judge bench passed a contradictory verdict, holding that the propriety, expediency and necessity of passing an ordinance cannot be questioned in a Court of law.
Two five judge benches of the Supreme Court have given contradictory verdicts to this question. One holding that the ‘satisfaction of the President’ can be questioned in a Court of law (although making it virtually impossible for the ordinary citizen to challenge), while the other holding it is not. This has led to considerable confusion. As a result, the Government has now got unfettered power to promulgate ordinances, irrespective of any urgency, without any accountability for the same. As is evident, this power is time and again misused for political gain and subverting the parliamentary process.
It is high time that the Supreme Court should step up and clear this anomaly. It needs to keep in mind the exigencies of our times and not make such a challenge an impossible dream for the ordinary citizen. Further, it should define in clear terms the parameters within which this power can be exercised. In doing so, the Court should uphold the supremacy of the Parliamentary process.
Shafali Malhotra is a Lawyer working with iJustice which is a public interest legal advocacy initiative of the Centre for Civil Society (CCS).