Abstract
Ordinances were incorporated into the Indian Constitution through the Government of India Act 1935, which bestowed upon the Governor-General the capacity to proclaim Ordinances. Sections 42 and 43 of the Act specifically dealt with the Governor-General’s authority to promulgate Ordinances, stipulating that this power may only be exercised in circumstances necessitating prompt action. The framers of the Constitution perceived Section 42 of the Government of India Act, 1935, as the foundation for establishing the President’s competence to promulgate Ordinances. They were aware of the challenges and impediments associated with the authority to make Ordinances as outlined in that Act. External factors did not influence the President’s decision to confer such power. Conversely, Ordinances have frequently been utilized to undermine the legislative process. The present investigation endeavors to critically evaluate this exceptional authority’s essence, extent, and scope of this outstanding authority as envisioned by the Constitution while illuminating the deficiencies that must be addressed to counteract its misuse. Furthermore, it seeks to delineate what constitutes the abuse of this authority, how both the Union and state governments have transgressed its limitations, and the judiciary’s role in restraining the misuse of this power.
Keywords
Ordinance, Constitution of India, Delhi Services Bill
Introduction
An “Ordinance” refers to a declaration or regulation established by a governing body or an individual in a position of authority, as defined by The Oxford Dictionary. It signifies a decree or law issued by a state or national government without the explicit approval of the legislative body. While ordinances resemble laws, they are not legally enacted by Parliament; instead, they are issued by the President of India in the absence of the Lok Sabha and Rajya Sabha. Acknowledging that the Union Cabinet’s endorsement is necessary before promulgating an ordinance is crucial. Ordinances facilitate the swift implementation of legislative measures. The authority to enact laws, commonly known as the Ordinance-making power, is bestowed upon the President under the Indian Constitution, specifically in Article 123.[1] Should the President determine that circumstances necessitate the urgent enactment of ordinances and both Houses of Parliament are not in session, he is entitled to publish such ordinances as he deems necessary, as stipulated in Article 123. An ordinance promulgated under this Article possesses the same validity and impact as a Parliamentary Act.[2]
However, specific prerequisites must be satisfied:
- The ordinance must be introduced to both Chambers of Parliament and will expire after six weeks following the reassembly of Parliament. If both Chambers pass resolutions that oppose the ordinance before the specified deadline, it shall be revoked.
- The President can revoke the ordinance at any given moment. If the Chambers of Parliament are summoned to convene on different dates, the duration of six weeks shall be determined by the later dates specified for this provision. If an ordinance created under this article includes conditions that the Constitution does not permit Parliament to approve, it shall be deemed null and void.
Typically, the Parliament is responsible for enacting laws. While acknowledging that Ordinances are a necessary evil, the architects of the Constitution firmly believe that the responsibility of drafting Ordinances should be entrusted to the Executive branch. This delegation is deemed indispensable when the current legislative framework needs to be updated to accommodate new circumstances while Parliament is not in session. Article 123 confers authority upon the President to issue Ordinances when Parliament is not in session and the President has determined that exigent circumstances necessitate swift action.[3]
Research Methodology
This research paper is a doctrinal one, analyzing the ordinance-making power of the President and highlighting how it has been misused since the enforcement of the Constitution in 1950 through the recent “controversial” Delhi Services Ordinance in 2023. Through this paper, we will observe what the judiciary has to say on this provision of the Constitution. Also, the paper discusses what is the historical background of this provision.
The President’s promulgation of the Ordinance on May 19, 2023, effectively amended the Government of National Capital Territory of Delhi Act 1991 (GNCTD Act), thereby removing the authority of the Delhi government over the services. This was in direct contrast to the previous restoration of these services to the Delhi government by the Supreme Court, which occurred through a significant and groundbreaking judgment delivered on May 11, 2023.[4] The essence of this Ordinance is to invalidate the decision above of the Supreme Court. The Court had determined that the absence of control over government officers would inevitably result in the paralysis of governance, a situation that was not the intention of the Constitution makers when incorporating Article 239AA,[5] which grants a distinctive constitutional status to Delhi. Consequently, the Court proclaimed that the NCTD (National Capital Territory of Delhi) shall possess “legislative and executive power over services such as the Indian Administrative Services or Joint Cadre Services, which are of utmost importance for the effective implementation of policies and the realization of the NCTD’s vision to the day-to-day administration of the region.” The nullification of the court’s decision by the Ordinance raises significant legal and constitutional inquiries. The initial question is whether the Court’s decision can be invalidated by an Ordinance promulgated by the President or a Bill passed by Parliament. The Supreme Court has consistently asserted in numerous instances that Parliament, lacking judicial authority cannot annul the Court’s decision without altering the foundation of said decision. The Ordinance fails to provide any basis for the nullification of the Court’s decision. Upon removing the services from the Delhi government, the Ordinance bestows the authority to handle posting, transfer, and disciplinary matters upon an entity referred to as the National Capital Civil Services Authority. This authority comprises a chairperson and two members, with the Chief Minister assuming the role of chairman and the Chief Secretary and Home Secretary serving as the other members. The presence of at least two members constitutes a quorum, and the fact that these two members hold the power to make decisions lays bare the true intention behind establishing this authority. Despite the glorious title of the authority and the Chief Minister’s position as chairman, the underlying objective of this provision remains transparent. These two officers will make all decisions regarding posting, transfer, disciplinary issues, and the like, rendering the Chief Minister’s opinion inconsequential. Subsequently, these decisions will be submitted to the Lieutenant Governor of Delhi, whose verdict shall be deemed final. Such a statutory body, in which bureaucrats hold absolute decision-making authority and the input of an elected Chief Minister can be disregarded, is unprecedented in the annals of administrative history. This provision must align with Article 239AA (4)[6] of the Constitution, which grants the council of ministers, headed by the Chief Minister, the power to handle all administrative matters on the governance of the Union Territory of Delhi, excluding the exempted items. Enhancing the provisions does not imply creating a better understanding that has not granted the Parliament any authority to enact legislation vesting all powers in the Lieutenant Governor on the governance of the Delhi territory. Similarly, it does not authorize the President to pass legislation granting powers to civil servants to scrutinize the cabinet’s decisions or remove ministers concerning appointments, transfers, and disciplinary measures.[7]
The historical origins of Article 123 can be traced back to the Government of India Act 1935, which included two distinct sections about the authority of the Governor General to issue ordinances. Section 42[8] of the Government of India Act, 1935 granted the Governor General the ability to promulgate regulations exclusively during legislative recess, based on the advice of the ministers and following his judgment. However, under certain circumstances, the Governor General could override the ministers’ suggestions, albeit with the requirement of consulting them. Section 43[9] of the Act gave the Governor General the power to issue ordinances to effectively fulfill his duties as outlined in the Act, which necessitated the exercise of his discretion and individual judgment. This provision granted the Governor General a quasi-legislative authority to enact legislation. However, such ordinances had a limited lifespan of only six months, which could be extended with prior consent from the Crown. The framers of the Constitution looked to Section 42 of the Government of India Act, 1935, as a model for establishing the President’s power to issue ordinances. They knew the challenges and difficulties associated with the ordinance-making power provided in that Act. They were not bound by any external influence in their decision to confer or withhold such strength from the President. In considering the constitutions of England and America, which do not contain analogous provisions, they nonetheless chose to include such conditions in good faith, expecting that this power would be exercised solely in exceptional circumstances and not for political gain.[10]
Review of Literature
This research paper was written after reading numerous research papers that gave a concrete idea about the ordinance-making power of the President. Also, many case laws were analyzed during the research on this topic to understand better what our Hon’ble Courts have said about this provision. Some of the case laws are as follows:
In the matter of A. K. Roy v. Union of India,[11] the Supreme Court conducted a comprehensive examination into the extent of the judiciary’s ability to review ordinances. This examination considered the recent removal of clause (4) from Articles 123 and 213 by the Constitution (Fortieth Amendment) Act of 1978. The inclusion of the fourth provision, which the Constitution introduced (Thirty-Eighth Amendment) Act, 1975, prevented any judicial review of the President and Governor’s satisfaction. The court interpreted the omission of this language as an indication that judicial review is entirely excluded in matters about the President’s pleasure. Nonetheless, the Court stressed that the party challenging the satisfaction must establish a prima facie case demonstrating that the issuance of the ordinances was not necessary under any circumstances.
The doubt regarding the legitimacy of the Twenty-fifth Amendment Act, 1971 arose in the case of RC Copper v. Union of India.[12] This amendment curtailed an individual’s entitlement to property and empowered the government to acquire land for public purposes, subject to payment of compensation. The determination of such compensation was entrusted to the Parliament rather than the judiciary. Consequently, in the preceding Bank Nationalisation case, colloquially referred to as such, the Supreme Court deliberated on the constitutionality of the Banking Companies Ordinance 1969. The objective of this decree was to nationalise 14 commercial banks in India. The court decreed that the President’s decision could be nullified as it did not necessitate “immediate action” on his part.
The Supreme Court, in the case of TV Reddy v. State of Andhra Pradesh,[13] pronounced that the exercise of legislative authority through the enactment of ordinances cannot be subjected to scrutiny based on motives, lack of deliberation, or considerations of suitability, expediency, or necessity. However, Prof. M.P. Jain argues that due to the inherent differences between ordinances and laws, regarding both as equivalent is fallacious. The fact that an ordinance inevitably lapses after a stipulated period and requires renewal through an Act of the legislature implies that it is merely a temporary measure – a less superior form of legislation.
The extent of Judicial Review underwent an expansion in the case of SR Bommai v. Union of India,[14] wherein the court declared that when the President takes action without the requisite materials, said action falls within the realm of “manifestly unreasonable” and is regarded as being carried out in bad faith. The Supreme Court determined that the President’s exercise of power under Article 356(1)[15] to issue proclamations is subject to review by the courts and can be examined for dishonest intent.
The decision in the case of State of Orissa v. Bhupendra Kumar Bose[16] established that the privileges and duties granted by the Ordinance come into immediate effect upon its publication. These privileges and responsibilities can only be terminated if a valid legislative authority extinguishes them. However, if the Ordinance is considered an abuse of power and a violation of the Constitution, the state must promptly withdraw it. The validity of an ordinance may be questioned because it is a form of deceptive legislation, violates any of the Fundamental Rights outlined in the Constitution, infringes upon significant provisions of the Constitution such as Article 301,[17] or its retroactive impact is unconstitutional. On the contrary, ordinances are formulated by the executive body, which functions as a unified entity. As the head of the executive branch, the President issues ordinances based on the recommendations of the council of ministers. The necessity for prompt action serves as the primary criterion for promulgating ordinances. Consequently, assessing the President’s satisfaction regarding the genuine need or requirement for promulgating the Ordinances should be straightforward.
In the case of DC Wadhwa v. State of Bihar,[18] a challenge was brought against the State of Bihar’s extensive enactment and re-enactment of ordinances. Between 1967 and 1981, 256 ordinances were issued and re-promulgated, with some remaining in effect for as long as 14 years. Chief Justice P.N. Bhagwati expressed that the power to enact an ordinance is intended to address extraordinary circumstances and should not be exploited for personal political interests. While it may contradict democratic standards for the executive to legislate, this authority is vested in the President to address crises and, therefore, it should be subject to time limitations.
In the case of Krishna Kumar Singh v. State of Bihar,[19] the Supreme Court broadened the scope of judicial review of ordinances. The court can examine whether the President or Governor had sufficient relevant facts to justify the belief that an ordinance was necessary and whether any hidden motivations were present. However, the court will not assess the adequacy or completeness of the information. The court opined that the determination of whether rights, privileges, responsibilities, and liabilities continue after the expiration of an ordinance must be made through interpretation. The appropriate criteria are the test of public interest and constitutional necessity. This involves assessing whether the specified effects of the ordinance have occurred and become irreversible. In appropriate circumstances, the court may formulate the proper remedy.
Need for Ordinance-Making Power
The power to enact ordinances is an artifact of foreign governance. Sections 42[20] and 43[21] of the Government of India Act, 1935 granted the Governor-General of British India the ability to declare ordinances during the recess of the Federal Legislature and at any time concerning specific subjects, respectively. Similar powers were also bestowed upon the Governors of the provinces.[22][23] These ordinances were instruments of repression in the hands of the British Raj. It is important to note that, unlike the Government of India Act, 1935, the Constitution does not confer upon the President and the Governor the authority to pass ordinances at any time without subsequently presenting the legislation before the legislature. Thus, only the provisions of Sections 42 and 88 of the Act of 1935 are mirrored in our Constitution. This raises the question of why a power with a tainted history was included in our Constitution. The purpose was to establish a mechanism for legislation when urgent action is necessary during the parliamentary recess.[24] Dr. B. R. Ambedkar elucidated the necessity of granting the President and Governors the power to make ordinances in the following manner: “…it appears to me that the only solution is to confer upon the President the power to promulgate the law which will enable the executive to address that particular situation because it cannot resort to the regular legal process due to the absence of the legislature.”
Misuse of Ordinance-Making Power
The drafters of the Constitution anticipated the potential for misuse when granting legislative authority to the executive branch. This paper has already referenced the calls made by H. V. Kamath and Pandit Kunzru for establishing a clear upper limit on the duration of ordinances without parliamentary scrutiny. While P. S. Deshmukh dismissed any concerns about the President’s abuse of power during the Constituent Assembly debate, there was no mention of the ruling party’s potential for misuse. The misuse of the power to issue ordinances can be attributed to deficiencies in the articles that grant this power and the subsequent interpretation of these provisions by the courts. These provisions leave several important questions unanswered, thus expanding the opportunities for their misuse. Some of these questions include whether ordinances can be re-promulgated and whether the effects of an ordinance cease upon its expiration. Shubhankar Dam encapsulates the issue as follows: “The independent nature of ordinances, detached from legislative constraints and time limits, grants significant authority to executive decrees over primary legislation in problematic ways.”
The power may be misused either through the issuance of ordinances in situations that are not sufficiently urgent, with the aim of circumventing the established legislative procedure, or for other covert motives. Another method of misuse involves the re-promulgation of an ordinance on multiple occasions. The consequence of this is the emergence of a situation commonly referred to as “Ordinance Raj,” wherein the executive branch, faced with its inability to enact a law through the prescribed legislative procedure, appropriates the role of the legislature by means of issuing ordinances. Consequently, the ordinance remains in effect for an extended period of time during which the legislature, as the appropriate body, could have easily formulated any relevant legislation on the subject matter. This practice is also contrary to the original intent of the framers of the Constitution.
An objectionable practice of failing to present the ordinances for legislative review was reported in relation to this matter. This practice involved re-issuing the ordinances word for word after the legislative body’s adjournment. This was facilitated by the fact that the Assembly itself would also adjourn within a six-week period to prevent the ordinance from expiring mechanically, as stated in clause (2) of Article 123. The State government operated under the notion that laws could be created through executive action by issuing ordinances after each subsequent session of Parliament. This constituted legislation through executive decree, compromising the legislature’s constitutionally assigned duty.
Suggestions
The promulgation of an ordinance by the President is permissible only when both houses are not in session or when only one house is in session. It is important to note that ordinances are subject to the same constitutional limitations as Acts of Parliament. In other words, an ordinance can only be promulgated on matters falling within the legislative authority of the Parliament, and it cannot diminish or infringe upon any of the fundamental rights. Furthermore, it is mandated that every ordinance must be presented before the respective legislature within a period of six weeks from its reassembly for approval; failure to do so would result in the ordinance becoming null and void. It is worth emphasizing that the President does not possess the authority to issue an Ordinance for the purpose of amending the Indian Constitution.
The RC Cooper case established the principle that the President’s decision to promulgate an ordinance can be challenged if it is deemed that ‘immediate action’ was unnecessary, and the ordinance was primarily issued to circumvent debate and discussion in the legislature. Similarly, in the DC Wadhwa case, the Court opined that the executive’s legislative power to promulgate ordinances should only be exercised in exceptional circumstances and not as a substitute for the law-making power of the legislature. Hence, while the Constitution grants the President and the Governor the power to issue ordinances in extraordinary situations, it is imperative that this power is exercised in accordance with the insights provided by the RC Cooper and DC Wadhwa cases. Ordinances should be utilized exclusively for unforeseen or urgent matters, rather than as a mechanism to evade legislative scrutiny.
Conclusion
The power of ordinance-making is often a matter of controversy and discussion. It disrupts the equilibrium between the executive and legislative powers by introducing an element of arbitrariness into the Constitutional System, thereby disturbing the rule of law. When an Executive body exercises such power, it demonstrates a lack of regard for the legislature. So far, only a limited number of grounds have been established to challenge the validity of the Ordinances:
- When it directly violates a constitutional provision
- When the president exceeds his constitutional power
- When the President employs his power in a deceptive manner.
The obligatory participation and counsel of the Ministers is requisite when executing the executive authority of the President, and any such action without the guidance of the Council of the Ministers shall be deemed unconstitutional, as it would contravene Article 74(1). The contentment of the president is, in fact, the contentment of the council of ministers, and the “contentment” of a President or a Governor must be grounded upon such facts and circumstances that demonstrate “objectivity even in subjectivity.” Nevertheless, the power to issue ordinances is a power that extends to the same extent, it is not, however, a concurrent legislation owing to the various safeguards outlined in the Constitution, and subsequent interpretations by the judiciary have clarified the nature of this power.
Name: Tanishka Tiwari
College: Shambhunath Institute of Law, Prayagraj
[1] Constitution of Act, 1949, Art.123
[2] A.K. Roy v. Union of India, AIR 1982 SC 710
[3] Bag, Amartya, Ordinance Making Power of President: A Parallel Power of Legislation? (February 14, 2010). Available at SSRN: https://ssrn.com/abstract=1552673 or http://dx.doi.org/10.2139/ssrn.1552673 (Last visited on September 9, 2023 at 06:22PM)
[4] Government of NCT of Delhi v. Union of India, Writ Petition (C) No. 678 of 2023
[5] Constitution of India, 1949, Art.239AA
[6] Constitution of India, 1949, Art.239AA (4)
[7] PDT Achary, The legality of the Delhi Ordinance, The Hindu, Published on July 03, 2023 at10:46 pm, https://www.thehindu.com/news/national/the-legality-of-the-delhi-ordinance/article67038623.ece (Last visited on September 10, 2023)
[8] Government of India Act, 1935, s.42
[9] Government of India Act, 1935, s.43
[10] Amartya Bag, Supra Note 5
[11] Supra Note 4
[12] RC Copper v. Union of India, 1970 AIR 564
[13] TV Reddy v. State of Andhra Pradesh, 1985 AIR 724
[14] SR Bommai v. Union of India, AIR 1994 SC 1918
[15] Constitution of India, 1949, Art.356(1)
[16] State of Orissa v. Bhupendra Kumar Bose, 1962 AIR 945
[17] Constitution of India, 1949, Art.301
[18] DC Wadhwa v. State of Bihar, 1987 AIR 579
[19] Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1
[20] Government of India Act, 1935, &.42
[21] Government of India Act, 1935, &.43
[22] Government of India Act, 1935, &.88
[23] Government of India Act, 1935, &.89
[24] Sukrit Garg, A Critical Overview of Ordinance Making Power, Vol.5 Issue 2, IJLMH, 882, 883-884 (2022) https://www.ijlmh.com/paper/a-critical-overview-of-ordinance-making-power/