Ordinance route

The ordinance-making power of the executive needs to be suitably restrained to create a balance of power between the executive and the legislature in India and to check the misuse of the same.

Telecom towers over a building. It is hard to make the case that had immediate action by promulgating an ordinance—to create TRAI—not been taken, private investment in the telecommunications sector would never have happened.

PRESIDENT Pranab Mukherjee gave his assent to the Food Security Ordinance on July 5, allowing the United Progressive Alliance government to start the rollout of the programme which is estimated to cost Rs.1.25 lakh crore annually. Political parties and commentators alike have criticised the move to promulgate the ordinance as an election-year gimmick. A deeper investigation of the use of the ordinance-making power granted to the executive under Article 123 of the Constitution reveals a casual disregard for the norms of democratic politics typified by parliamentary supremacy. A careful analysis of the pattern of promulgating ordinances may compel more deliberation on the efficacy of this power as it currently exists. In doing so, it traces judicial pronouncements on this power, along with an examination of some of the “emergent” reasons provided by different governments for legislating through ordinances.

Executive authority Article 123 of the Constitution enables the President of India to promulgate an ordinance if neither House of Parliament is in session and “circumstances exist, which render it necessary for him to take immediate action”. Every ordinance has to be laid before Parliament, and ceases to exist six weeks from the end of the next sitting of Parliament. Since the Constitution mandates that Parliament be called into session at least once every six months, ordinances have a de facto expiration period of approximately seven and a half months. Article 213 gives the same power to the Governor of a State.

Ordinance-making power is not a new feature added to the Indian Constitution. Articles 42 and 43 of the Government of India Act, 1935, gave the same power to the Governor General. Members of the Constituent Assembly, having experience of abuse of such power, were understandably wary of including the same in the Constitution. Both Hriday Nath Kunzru and Professor K.T. Shah called for restricting the executive’s power to promulgate ordinances through greater oversight by legislatures. They were, however, overruled by Dr B.R. Ambedkar, who stated that ordinance-making powers were necessary since existing law might be deficient to deal with a situation “which may suddenly and immediately arise”. According to him, the only solution was to “…confer upon the President the power to promulgate a law which will enable the executive to deal with that particular situation because it cannot resort to the ordinary process of law…” when the legislature was not in session.

It is clear that the framers of the Constitution envisaged ordinance-making powers only for unforeseen, sudden situations and where the executive required additional legal sanction to address the situation. The executive, however, decided to completely disregard this requirement of necessity for immediate action. According to data furnished in the Statistical Handbook of the Ministry of Parliamentary Affairs, more than 41 ordinances were promulgated during the term of the first Lok Sabha itself. Indeed, in the pre-Indira Gandhi period, that is, before 1966, more than 75 ordinances were passed by the Central government. The necessity of taking immediate action by promulgating ordinances has remained debatable at best through the years.

Instances of necessity of “immediate action” Parliamentary debates indicate that in many cases where ordinances have been promulgated, the necessity for promulgating them has been extremely debatable. Some instances of ordinance-making from the past 15 years (1997 onwards) highlight this truth.

The Telecom Regulatory Authority of India (TRAI) was created in 1997 first by an ordinance and then by an Act of Parliament. The Minister in charge stated that the ordinance route was taken since “…we were facing difficulties in attracting private investment without an authority like the TRAI. Private investors… were not convinced about our ongoing processes of privatisation and liberalisation.” Important as it is to send out a signal of commitment towards a particular government policy, in this case liberalisation of the telecommunications sector, it is hard to make the case that had immediate action by promulgating an ordinance not been taken, private investment in the telecommunications sector would never have happened.

Similarly, the Electricity Regulatory Commissions Ordinance was promulgated on April 25, 1998, one day before the government of the day decided to convene the next session of Parliament. The National Commission for Minority Educational Institutions (Amendment) Ordinance, 2006, was promulgated in January 2006, even though Parliament was to convene from February 16, 2006. In both cases, no satisfactory reason was given for promulgating these ordinances in haste.

The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Ordinance, 2002 (SARFAESI) was promulgated in June 2002. The then Minister for Finance and Company Affairs, while deploring the need for taking the ordinance route, said that he did not wish to go into the details of why an ordinance had to be promulgated in that specific instance. He, however, said one factor that forced the promulgation of the ordinance was the time that was being taken by the Standing Committee concerned to finalise its views on the Bill.

The National Tax Tribunal Ordinance was promulgated in 2003. As per the parliamentary debate on the National Tax Tribunal Bill, the ordinance was promulgated because various committees had recommended that such a tribunal be established, and as “… huge revenue is blocked in litigation because of pendency of appeal and reference is before the High Court, which has adverse affect on the national economy ”. As one Member of Parliament pointed out, though a number of months had elapsed since the promulgation of the ordinance, no tribunal had been established at the time of the debate and no cases referred to it.

The Manipur University Ordinance, 2005, was promulgated even though the Bill for establishing the university had been introduced in Parliament and looked at by a Parliamentary Standing Committee. The Standing Committee had made its recommendations, which were accepted by the government. Yet, the promulgation of the ordinance was justified by saying that the interests of the students of the university should not suffer.

There is thus a repeated and deliberate attempt to push through policy prerogatives by taking the ordinance route. Sometimes this has been justified on the grounds of delays by parliamentary committees and at others by giving reasons that do not seem to meet the “ necessary… to take immediate action ” test. To be fair, there have been instances where the use of the ordinance-making power has seemed more legitimate. One example would be the Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Ordinance, 2010, which was promulgated to meet a deadline imposed by the Delhi High Court. Yet another would be the Indian Medical Council (Amendment) Ordinance, 2011, under which the government dissolved the Medical Council of India. Yet, the overarching narrative has been that of misuse, if not outright abuse. One check against this move may have been strong judicial review of the grounds on which ordinances are promulgated. The approach of the apex court has, however, been to protect the sanctity of this power of the executive rather than subject it to strict review.

Judicial review Courts have uniformly held, in varying formulations, that the power of the President and the Governors to issue ordinances is in the nature of an emergency power. In A.K. Roy vs Union of India and R.C. Cooper vs Union of India (bank nationalisation case), the Supreme Court said that ordinance-making power was a legislative power given to the President and was not similar to the exercise of his executive powers. As such, ordinances are also “law” under Article 13. Using the same reasoning, the Supreme Court reached damaging conclusions in Venkata Reddy vs State of Andhra Pradesh and K. Nagaraj and Ors. vs State of Andhra Pradesh .

In Venkata Reddy , the constitutional validity of the Andhra Pradesh Abolition of Posts of Part-time Village Officers Ordinance, 1984, was challenged. One of the grounds of challenge was that the ordinance was void on account of the lack of application of mind by the Governor. The court asked itself the question whether “ the validity of an ordinance can be tested on grounds similar to those on which an executive or judicial action is tested ”. In answering the question it cited its earlier judgment in K. Nagaraj and held that since promulgating an ordinance was a legislative action, the grounds on which it could be challenged were the same as those on which laws made by Parliament could be challenged. The “ motives of the legislature in passing a statute is beyond the scrutiny of courts ”.

That the motives of the legislature are not gone into when the validity of a law is considered is a settled principle in law. It is a settled principle because it is difficult to ascribe a single, clear motive for the enactment of a law to the entire legislative body. Members of the same legislature may support (or oppose) the enactment of a law for different reasons. Therefore, courts refrain from scrutinising the motives of legislatures.

Ordinances are, however, framed by the executive, which is a single, unified entity. The President or the Governor (in the States) is the head of the executive who acts on the advice of the Council of Ministers when promulgating ordinances. Under our constitutional scheme the Council of Ministers shares collective responsibility. In addition, ordinances are only to be promulgated when it is “necessary to take immediate action”. There is then no great difficulty in ascertaining the motives of the President or the Governor when an ordinance is promulgated to meet an immediate situation.

The Supreme Court has slowly been compelled to move in this direction as well. D.C. Wadhwa vs State of Bihar relates to the State of Bihar promulgating and re-promulgating ordinances on a “massive scale”. Between 1967 and 1981, as many as 256 ordinances were promulgated and re-promulgated, and some of them continued in existence this way for up to 14 years. In pronouncing its judgment the Supreme Court departed from the above-mentioned precedent and went into the relevant governmental information preceding the promulgation and re-promulgation of these ordinances.

The power of review over ordinances was implicitly taken one step further in 1998 in the case of Krishna Kumar Singh vs State of Bihar , where the court struck down a number of ordinances, stating that no basis for the exercise of ordinance-making power had been shown. It stated explicitly: “ There is also no explanation offered for promulgating one ordinance after another. ”

Though the sheer profligacy in ordinance-making compelled the Supreme Court to start performing some sort of judicial review, there is as of now no clarity on the nature and extent of judicial review over ordinance-making.

Conclusion Data reveal there are two distinct periods when the Central government used ordinances particularly proactively: the period coinciding with Indira Gandhi’s tenure, and the early and mid-1990s (see table). Both these periods, for various reasons, can be characterised as those of a muscular executive and a comparatively weak and/or unstable Parliament. The mid-1990s especially were marked by the beginning of coalition politics and short-lived governments. Though by no means conclusive, the linkage between weak Parliaments and proactive ordinance-making is disturbing. If nothing else, it indicates a casual disregard of legislatures whenever the executive is in a position to do so.

Our Constitution gives vast powers to the executive to act independently of Parliament. It can, for example, declare a state of emergency, set up important administrative authorities such as the Pension Fund Regulatory and Development Authority (PFRDA) and the Unique Identification Authority of India (UIDAI), and indeed the Planning Commission without having to seek parliamentary approval first. It then becomes imperative that the ordinance-making power be suitably restrained to create a balance of power between the executive and the legislature. Creating strong judicial review over ordinance-making may be one such mechanism. One news report states that the UPA government may postpone the monsoon session of Parliament by a couple of weeks. One of the reasons why this is apparently being done is that the UPA “ felt it would be better to give it a gap [between the promulgation of the Food Security Ordinance and the start of the session] before the monsoon session commences ”. This, if true, may provide the most necessary and immediate incentive to lay down benchmarks for the review of the ordinance-making power.

Anirudh Burman works with the Centre for Policy Research and is a graduate from Harvard Law School.