To negate and nullify the unanimous, verdict of Five Judges Constitutional Bench of the Supreme Court in NCT of Delhi V/s Union of India(1) thereby recognizing the legislative and executive powers of the NCT of Delhi over ‘Services’, the president of India, on the recommendation of the central government, promulgated “Government of NCT of Delhi (Amendment) Ordinance, 2023 by invoking legislative powers under Article 123 of the Constitution of India. The ordinance once again sparked off fierce debates in the country as to its justifiability when in well-reasoned judgment, the Supreme Court unanimously held that the elected government of NCT of Delhi shall have the exclusive control over the ‘services’ in the matter of transfer, promotion etc. of the bureaucratese working in the Delhi Government.
It would not be out of place to say that the ordinance making powers of the president of India and the governors of the states under Article 123 and 213 have been widely misused and abused by almost all the ruling parties, both at the center as well as in the states.
In this Article, we shall endeavour to examine the justifiability of these constitutional provisions i.e. promulgation of the ordinances itself in a democratic country like ours; the practice of repromulgation of the ordinance without even laying it before parliament or the state legislature as the case may be; practice of promulgating ordinances by the government even in normal times and last but not the least, the practice of making ordinances by the governments to negate and nullify the decision made by constitutional courts in India.
HISTORY OF ORDINANCES IN INDIA2
The ordinance making power of the President of India can be traced back to the British era. Under Indian Councils Act, 1861 the Governor General of India had the power to promulgate ordinances in emergent situation. The ordinance promulgated had a life span of six months, after which it ceases to be in force.
Again, under Government of India Act, 1935, the Governor General had the power to promulgate ordinances in his discretion, however in certain cases, he was required to obtain previous instructions from the Crown One main difference between ordinance making power of Governor General earlier and the power of President of India under the Constitution of India, 1950 is that unlike the president, the Governor General could have promulgated the ordinance even in cases where the legislature was in session.
The ordinance making power of the President and the Governors are legislative power. The President of India and a Governor of the States under Article 123 and 213 respectively of the Constitution of India, can exercise this legislative power of promulgating ordinance in accordance with the aid and advice of the council of ministers, when he is satisfied that the circumstances exist which render it necessary for him to take immediate action. Thus, satisfaction of the President and the Governor is a condition precedent to the exercise of this power. It can be exercised by the President only in cases where both the houses of the parliament are not in session. Likewise, the Governor of a state shall only do it, when the legislative assembly and where there are legislative council as well, then both should not be in session. This extra-ordinary power can only be exercised in emergent situation. The satisfaction of the president (or of the governor) shall not be questioned in any court on any ground, however the constitutional courts can examine if the president or the governor has exceeded the limits imposed by the Constitution.
The Constituent Assembly held debate on draft Article 102 on 23.05.1949 which provides for the ordinance making power of the president. Some of the members were avers to the very idea of such legislative power in the hands of the executive. They were of the opinion that such a power violates the doctrine of separation of powers. One member, namely ‘Hriday Nath Kunzru’ Criticized such a provision in the Constitution by saying that even in extra-ordinary and emergent situation, the parliament could be convened when it is not in session and that there is no need to have such a power vested in the executive. K.T. Shah, another member of the constituent assembly categorized the ordinance making power ‘a negation of the rule of law’ and an “extreme power in the hands of the executive”. However, these arguments were rejected by Ambedkar, who said that the Constitution has sufficient protection to prevent misuse of ordinance making power.
Further, the Constituent Assembly also debated the draft Article 130 and viability of Governor’s power of making ordinances. Despite, some members made certain reservations, Dr. Ambedkar clarified that the governor is not supposed to act in his discretion or as per his individual judgment, but in the scheme of the Constitution, he shall be required to act as per the advice of the council of ministers.
Resultantly, both draft Article 102 & 130 were approved, which later on became Article 123 and 213 in the Constitution of India. It is worthwhile to mention that even the countries like USA, UK, Canada and Australia have no such provisions.
The ordinance making power of the president or the governor is an avowedly extra-ordinary power, which has to be only exercised in the case of an emergency, when the parliament or the legislative assembly (and also legislative council in case of bi-cameral legislature) is not in session.
The satisfaction of the President or the Governor as to the existence of circumstances which necessitated immediate action is purely objective.
The ordinance promulgated by the President or the Governor shall be laid before the parliament or the state legislature within six-weeks after the parliament or the state legislature re-assembled. The Article 174 of the Constitution of India provides that the state legislature has to be convened no later than six months of the completion of its last session.
Similarly, Article 85(1) stipulates that the parliament has to be also convened no later than 6 months of the completion of its last sitting.
If the ordinance promulgated is not laid before the parliament or the state legislative, as the case may be, within six weeks of reconvening of parliament/state legislatures, then the ordinance shall cease to be in force and shall be lapsed.
Thus, the maximum life-span of an ordinance is 6 months and six weeks, i.e. 7½ months, unless disapproved by parliament / state legislature before such period. An ordinance promulgated by the President under Article 123 and the Governor under Article 213 has the same force and effect as an Act of the parliament or the state legislature, as the case may be, though it is the parliament / state legislature which is the constitutional authority to enact law, when in session (under Article 245 and 246).
MISUSE OF ORDINANCE MAKING POWER :
The provisions relating to ordinance making power contained in the Constitution are perhaps the most abused and misused by the successive governments to serve their political ends. The country since the very commencement of the Constitution of India has witnessed startling and flagrant violation of such an extra-ordinary power vested in the president or the governor, in a systematic manner, thereby subverting the democratic process.
The framers of our constitution intended that such an extra-ordinary power would be exercised by the President or the Governor, in most urgent and emergency situation, but in practice, these provisions have been frequently resorted to in routine manners at the whims and fancies of the governments. Some argue that the ordinance making power are discretionary power vested in the executive, which is not true at all, as both the President and the Governor, being merely a ceremonial heads, cannot act of their own but as per the wishes and advice of the government i.e. council of ministers.
One can understand when the ordinance making power is resorted to in emergency situation such as pandemic (like covid-19), external aggression or in case of armed rebellion. Most shocking is that the government at times has resorted to ordinance route for negating and nullifying the decisions and judgments of the Supreme Court / High Courts, which are against the government. This type of act is a serious infraction of the spirit of the constitution and violative of the doctrine of separation of power.
We have also witnessed a number of times the government has resorted to ordinance route by bypassing the debates, deliberations and discussion which are usually held, when the parliament or the state legislature intends to pass an Act.
Since the inception of the constitution, as many as 679 ordinances have been promulgated till 31 December 2014, by the successive governments at the center. These do not include ordinances promulgated by governors of different states.
As per the data published by PRS Legislative Research and Lok Sabha Secretariat the UPA government had promulgated 61 ordinances between year 2004 to 2014, whereas after 2014, the NDA government promulgated as many as 76 ordinances between 2014 to 2021, thereby surpassing all the previous records.
Even after 2021, several ordinances have been promulgated by Modi Government, mostly not in emergent situation, thereby subverting the democratic norms.
Even more startling is that despite the constitution itself has certain safeguards to prevent misuse of the ordinance making power, yet some state governments after promulgating the ordinance, instead of laying it before the state legislature within the stipulated period allowed it to lapse and then re-promulgate the ordinance once again, which have similar provisions as that of the lapsed ordinance, thereby subverting the very spirit of the Constitution.
Since the inception of the Constitution, the most shocking and flagrant violation of ordinance making power of Governor, has been done by the state of Bihar.
One D.C. Wadhwa, a professor of Economics in course of his research on land tenures in Bihar, revealed the most startling practice by the State of Bihar that the Governor of the state had promulgated and repromulgated Ordinances 256 times during the year between 1967 and 1981. These ordinances were never laid before the state legislatures and allowed to lapse by the government and then re-promulgated after their lapse. D.C. Wadhwa also authored a Book titled ‘Re-promulgation of ordinance: A fraud on the Constitution of India’. Based on this research he also filed a PIL before the Supreme Court against this flagrant violation of the constitutional norms by the State of Bihar. The five Judges Constitutional Bench examined the practice of the Governor taking over the primary law making function of the legislature in the State of Bihar in “D.C. Wadhwa V/s State of Bihar(3)” and deprecated such practice by expressing their displeasure that such rule by ordinance is nothing but it is ‘Ordinance Raj’ in the State of Bihar. The constitutional bench held that the executive cannot by taking resort to an emergency power exercisable by it only when the legislature is not session, take over the law making function of the legislature. That 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. The government cannot bypass the legislature and without enacting the provisions of the ordinance in an Act of the legislature repromulgate the ordinance as soon as the legislature is prorogued. The Supreme Court further held that when constitutional provision stipulates that an ordinance promulgated by the Governor to meet an emergent situation shall cease to be in operation at the expiration of six weeks from the reassembly of the legislature and the government if it wishes the provision of the ordinance to be continued in force beyond the period of six weeks has to go before the legislature which is the constitutional authority entrusted with the law making function. It would be most certainly be a colourable exercise of power for the government to ignore the legislature and to
re-promulgate the ordinance and thus to continue to regulate the life and liberty of the citizens through ordinance made by the executive. The court further held that by transgressing its constitutional limitation, the executive cannot covertly and indirectly arrogate to itself the law making function of the legislature, for a constitutional authority cannot do indirectly what it is not permitted to do directly.
The Supreme Court hoped and trusted that such practices shall not be continued in the future. However, the Supreme Court remained silent as to the effect of failed ordinance, which has been rendered void and unconstitutional by the court. Surprisingly enough, after this judgment was pronounced, the State of Bihar continued such flagrant violation of the constitutional norms and re-promulgated as many as 53 ordinances between 1991 and 1993 and out of that some ordinances were re-promulgated at least five times. None of them were placed before the state legislatures.
WHETHER THE SUBJECTIVE ‘SATISFACTION’ OF THE PRESIDENT OR GOVERNOR AS TO THE NECESSITY OF PROMULGATING THE ORDINANCES IS JUSTICIABLE OR NOT?
The Parliament vide 38th Amendment inserted a new clause (4) to Article 123 and 213 which provides that the ‘satisfaction’ of the president or governor as to the necessity of promulgating an ordinance cannot be called in question before any court of law. Thus, this amendment cleared the ambiguity and made ‘satisfaction’ of the president or governor as not justiciable. However, vide 44th Amendment Act, the parliament in its wisdom omitted newly added clause (4) from Article 123 and 213 of the constitution, thereby bringing back the ambiguity in Article 123 and 213.
The Supreme Court, as early as 1970, in “Cooper’s V/S Union of India”(4) held that it was open to an aggrieved person to challenge the ordinance making power of the president or the governors on the ground that no such genuine satisfaction could be made in the facts and circumstances of the case or that the action of president or the governor was malafide.
The Supreme Court, however, in the case of ‘A.K. Roy V/s Union of India’(5) held the subjective satisfaction of the president is nothing but the satisfaction of his council of ministers in which real executive power resides. While not really going into the question as regards the justiciability of the president’s satisfaction, the Supreme Court held that if the challenger to president’s ‘satisfaction’ is at least able to prima facie show that there could not have existed any circumstances necessitating the issuance of the ordinance, it can be challenged in the constitutional courts.
Further, the Supreme Court in the case of ‘Venkata Reddy V/S State of A.P.’(6) overruling its earlier decision, held that the satisfaction of the president cannot be challenged, as the same is not justiciable in a court of law. The court held that obviously it is a matter which is not within the competences of court to investigate.
This issue, however, has been largely settled in Krishna Kr. Singh V/s State of Bihar,(7) where a seven bench constitution bench held as under “The satisfaction of the President under Article 123 and of the Governor under Article 213 is not immune from judicial review particularly after the amendment brought about by the 44th amendment to the Constitution by the deletion of clause (4) in both the Article. The test is whether the satisfaction is based on some relevant material. The court in the exercise of its power of judicial review will not determine the sufficiency or adequacy of the material. The court will scrutinize whether the satisfaction in a particular constitutes a fraud on power or was actuated by a oblique motive. Judicial review in other word would enquire into whether there was no satisfaction at all.”
Barely three year later of the judgment in D.C. Wadhwa (Supra), the State of Bihar again promulgated an ordinance, thereby taking over 429 Private Sanskrit Schools in the state and the services of teacher and other employees of the school got transferred to the state government. This ordinance too was not laid before the state legislature in flagrant violation of the constitution bench decision in D.C. Wadhwa (Supra). This ordinance was allowed to lapse and when the state legislatures were not in session, re-promulgated the same. This practice continued twice thereafter. None of the ordinance were laid before the state legislatures and even last of them was allowed lapse. Some staff of the Sanskrit School preferred a Writ Petition before Patna High Court and prayed for payment of salaries. The matter ultimately reached before seven judges of bench of the Supreme Court (Krishna Kumar Singh & Anr. VS State of Bihar(7)).
The Supreme Court held that Re-promulgation defeats the constitutional scheme under which a limited power to frame ordinances has been conferred upon the president and the governors.
The Supreme Court further held the trust of the constitutional bench in D.C. Wadhwa (Supra) has been belied by the succession of re-promulgated ordinances in this case. Since the Supreme Court did not address the question of legal status of action taken under an ordinance which has lapsed on its expiry of its tenure or on being disapproved. The Supreme Court in this case (Krishna Supra) examined the issue as to action initiated under an ordinance survive the end of an ordinance which has not been adopted into an act of the legislature. Since no express provision has been made in Article 123 and Article 213 for saving of rights, privileges, obligations and liability which have arisen under an ordinance which has ceased to operate, the Supreme Court examined this issue by applying the test of public interest and constitutional necessity and finally held re-promulgation of all the ordinances as void and unconstitutional by terming it a fraud on constitutional power.
The court further held that those ordinances do not create rights or confer the status of government employees. However, the Supreme Court moulded the relief, in the interest of justice and declared that no recoveries shall be made from any of the employees of the salaries which have been paid to them during the tenure of ordinances.
On several occasion, the president or the governors have promulgated ordinance on the eve of a session. Different speakers of the Lok Sabha at times disapproved such promulgation of the government. Further, some speakers also disapproved the promulgation of the ordinances on the ground of ‘shortage of time’ in the parliament.
As early as in 1952, the then speaker of the Lok Sabha Sh. G.V. Mavalankar, observed:
“I myself do not like promulgation of ordinances. It is only in extreme cases that an ordinance should be issued. The ordinary Rule should be ‘No ordinance’”. Again in 1971, the then speaker of the Loksabha Dr. G.S. Dillon observed:
“I would invite the attention of the Government to see that there is real emergency or urgency in justifying the issue of an ordinance.”
Further, in year 1971 itself, Dr. Dillon again said:
“All I can say is that I do not approve of an ordinance just at the time when the house is about to meet.”
The then speaker, Dr. Dillon again in 1973 said:
“Ordinances by themselves are not very welcome, especially so when the date (for session of the house) is very clear. It is not only clear but is also near. In such cases, unless there are very special reasons, ordinances should be avoided. This is the ruling which I gave on 22 November 1971 and the same was given by my predecessors.”
Dr. Dillon, again in 1974 quipped:
“Where ordinary legislation can serve the purpose, where is the need for this (issue of ordinances)? This I have already said, my view about this question of ordinances are not only my views but they are views of my predecessors …….. I just reiterated them and added a bit of my own emphasis in my words, according to the situation. I stand by those various observations.”
In the year 1980 also, the then speaker Dr. Balram Jakhar observed:
“My distinguished predecessors have made observations in regard to these matters from time to time in the past. They did not approve of the issue of ordinances on the eve of parliament session. I agree with them.”
ORDINANCES PROMULGATED ONLY WITH A VIEW TO NULLIFY JUDGMENTS OF THE SUPREME COURT / HIGH COURTS :
In recent times, more particularly post 2014 era, several ordinances have been promulgated to nullify the judgments of the Supreme Court by the central government. Notable among them are Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Ordinance, 2014, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2014, 2015 (First & Second); Enemy property (Amendment and Validation) Ordinance, 2016 (First, Second, Third and Fourth) and most recently Government of NCT of Delhi (Amendment) Ordinance, 2023. All the above ordinances were later on laid before the parliament and converted into Acts.
CONCLUSION:
In view of the above discussion, it can be concluded that the ordinance making power must be resorted to by the governments only in extreme emergent situations. It should not be promulgated on the eve of reconvening of parliament / legislatures. Shortage of time should not be a ground to promulgate ordinances. The ordinances must not be promulgated with a view to nullify and negate the judgments of the Supreme Court / High Courts. Last but not the least, to reduce the need of promulgating ordinances, the six months gap between two session of the parliament should be reduced to three months.
REFERENCES:
- Civil Appeal No. 2357 of 2017, 5 Judges Bench of Supreme Court, decided on May 11, 2023.
- Presidential Ordinances, 1950-2014, Loksabha Secretariat New Delhi 2015
- AIR 1987, SC 724, (5 Judges bench, Supreme Court)
- AIR 1970, SC 564.
- AIR 1982, SC 710.
- AIR 1985, SC 724.
- Civil Appeal No. 5875 of 1994, (5 Judges Bench, Supreme Court), decided on 02.01.2017.
