Insights into Editorial: Rolling back Ordinance Raj
The Constitution Bench of the Supreme Court, in Krishna Kumar Singh’s case, has reiterated the principle that re-promulgation of ordinances is a fraud on the Constitution and a subversion of the democratic legislative processes.
- The raison d’être for this dictum is that re-promulgation represents an effort to overreach the legislative process which is the primary source of law-making in a parliamentary democracy.
The Supreme Court’s seven-judge constitution bench gave the verdict in this case while examining the validity of the Bihar ordinance which was re-promulgated seven times since 1989 by the state government to confer certain benefits on Sanskrit teachers. It was later allowed to expire. Though it was talking about a state ordinance, this judgment will be binding on ordinances promulgated by the president as well.
What are Ordinances?
Ordinances are temporary laws which can be issued by the President when Parliament is not in session. Ordinances are issued by the President based on the advice of the Union government. The purpose of Ordinances is to allow governments to take immediate legislative action if circumstances make it necessary to do so at a time when Parliament is not in session.
Ordinance Making Power of the President:
The President has been empowered to promulgate Ordinances based on the advice of the central government under Article 123 of the Constitution. This legislative power is available to the President only when either of the two Houses of Parliament is not in session to enact laws. Additionally, the President cannot promulgate an Ordinance unless he ‘is satisfied’ that there are circumstances that require taking ‘immediate action’.
Ordinances must be approved by Parliament within six weeks of reassembling or they shall cease to operate. They also cease to operate in case resolutions disapproving the Ordinance are passed by both Houses.
Concerns associated with the use of ordinances:
The temptation to use the power vested in the President and the Governors under Articles 123 and 213 of the Constitution is generally a result of one of the following three reasons: reluctance to face the legislature on particular issues, fear of defeat in the Upper House where the government may lack the required numbers, and the need to overcome an impasse in the legislature caused by repeated and wilful disruption by a vociferous section of the Opposition.
- Constitutional experts, the Opposition and the media are against the government issuing ordinances. Generally, their opposition is based on the grounds that an ordinance is an undemocratic route to lawmaking, which is the job of the legislature. Therefore, any executive attempt at lawmaking is bad, they argue.
- The danger of re-promulgation of ordinances lies in the threat which it poses to the sovereignty of Parliament and the state legislatures which have been constituted as primary law-givers under the Constitution. Open legislative debate and discussion provides sunshine which separates secrecy of ordinance-making from transparent and accountable governance through lawmaking.
- Also, more often the power to make ordinances has been abused to subvert the democratic process. A failure of a legislature to confirm an ordinance, therefore, in the court’s ruling, is fatal both to the validity of the law, and also, unless public interest otherwise demanded, to the rights and liabilities that may have accrued from such a law.
- Critics also say, the government uses its ordinance-making power as virtually an alternative tool of legislation.
Important observations made by the court in Krishna Kumar Singh v. State of Bihar case:
The Supreme Court had already declared in 1986, in D.C. Wadhwa, that repeated re-promulgation of ordinances was unconstitutional. Now, in Krishna Kumar Singh v. State of Bihar, it goes deeper and concludes that the failure to place an ordinance before the legislature constitutes abuse of power and a fraud on the Constitution.
- The judgment widens the scope of judicial review of ordinances. The court can go into whether the President or Governor had any material to arrive at the satisfaction that an ordinance was necessary and to examine whether there was any oblique motive.
- The court also observed that re-promulgation is fundamentally at odds with the principal of parliamentary supremacy. Article 123 of the Constitution spells out requirements before resorting to the extraordinary measure of promulgating an ordinance. The government has converted the emergent power under Article 123 into a source of parallel law-making that is antithetical to the scheme of the Constitution.
- This also runs contrary to the intent of our founding fathers and the mandate of the Constitution. The founding fathers were cognisant that the ordinance making power is a “negation of the rule of law” and envisaged that the aid of Article 123 and 213 of the Constitution will be taken in emergent circumstances when the legislature is not in session and extraordinary circumstances warrant the exercise of authority in order to avoid a situation of constitutional vacuum.
- Failure of governments, at the Centre as well as states, to place ordinances before Parliament and state legislatures would itself constitute a fraud on the Constitution, the court observed.
As the Supreme Court has pointed out, the power to issue an ordinance is essentially an emergency power to be used only in extraordinary situations. If employed otherwise, it a naked subversion of Parliament and a violation of the constitutional structure, under which it is the job of the legislature to make laws and the task of the executive to implement them.
The Constituent Assembly debates leave no manner of doubt that the said power ought not to be exercised merely to circumvent a failure to muster support in the legislature. The satisfaction of the president at the time of the promulgation of an ordinance is within the purview of judicial review. The government will have to satisfy the Court about whether the satisfaction for re-promulgation was based on some relevant material.
In the meantime, it would augur well for the government to strictly abide by the Supreme Court’s ruling in Krishna Kumar’s case or else will run the vice of unconstitutionality. Parliamentary supremacy and the power of judicial review are the cornerstone of our democratic republic. The Constitution Bench judgment of the Supreme Court is a vindication of the supremacy of Parliament and a reminder to the executive about the threat posed to the sovereignty of the Parliament by re-promulgation of ordinances.
The practice becomes unacceptable when it degenerates into an “ordinance raj”, where ordinances are seldom brought before the legislature but are re-issued again and again, violating the spirit of the Constitution. The court’s verdict has to be seen as placing a vital check on what has until now been a power rampantly abused by the executive.