Article 123 and 213 of the Indian Constitution confers the Executive with the power of ordinance making. According to Article 123, the ordinance must be promulgated only when both the Houses of the Parliament are not in session, and when he is satisfied that the circumstances are of such nature that it requires an immediate action. Equivalently, Article 213 necessitates that in order to promulgate an ordinance, the State Legislative Assembly should not be in session, and the Governor has to be satisfied that an immediate action is imperative. The purpose of vesting the ordinance making power on the Executive is for enabling them to enact laws during situations of urgency when an immediate action is required, but the legislature is not in session. However, Executives have used this power to evade the legislative process in order to satisfy political agendas. Since the Executive promulgates an ordinance on the advice of the Council of Ministers; it is likely that their political opinion also influences the Executive’s decision making. Moreover, according to Article 74(2), the advice given by the Ministers to the President cannot be inquired into. In Bihar, 256 ordinances were promulgated between 1967 and 1981, and these ordinances were re-promulgated and kept alive for 14 years. In a case, the Supreme Court held that the ordinance making power of the President’s was not beyond judicial review. However, the Court was unable to go further into the issue because the ordinance was replaced by an Act. There was also an instance when the President had prorogued a House of the Parliament in order to make an ordinance relating to a controversial matter.
The Courts in India have held that unconstitutionality, malafide intentions and requirement of immediate actions are grounds for challenging an ordinance. But when it comes to ‘satisfaction of the President’, the Courts have held that it cannot be subjected to judicial review. Similarly, the Governor’s satisfaction also cannot be questioned. Though it is not true that the ordinance making power is beyond the scope of judicial review, the Courts have not specified the extent of the review. Recently, the Uttar Pradesh Governor promulgated the Uttar Pradesh Prohibition of Unlawful Religious Conversion Ordinance, 2020. However, it was contended that the ordinance was unconstitutional and that the issue alleged by the State for which the ordinance was passed did not require an ‘immediate action.’ It cannot be denied that certain ordinances were promulgated in good faith and for the greater good. However, specific ordinances that were promulgated were purely political in nature, and it has gravely affected many citizens. Considering that the rights of many have been affected due to the misuse of the ordinance making power, it is necessary to understand the redressals available for a citizen.
In the recent past, various ordinances have been passed by the Central and State Governments, and it was contended that certain ordinances are unconstitutional, that due procedure was not followed or that it was promulgated for catering to political strategies. Bad faith and malafide intentions have also been alleged. It has also been observed that the need for an immediate action could not be justified in certain cases, and it had adversely affected the rights of citizens.
ORDINANCE MAKING AS A WAY TO MEET NARROW POLITICAL AGENDAS
The law-making authority of India is the Legislature. However, when the authority is in recess, but there exists an emergency that requires an immediate action, the Executives, at the centre and state level respectively, has the power to provide for such emergencies by way of promulgating ordinances. According to Article 13 (3) (a) of the Indian Constitution, the law includes ordinances, meaning that an ordinance passed by the President or the Governor has the same force and effect as any other Act passed by the Parliament or the State legislature, respectively. Article 123 and 213 of the Indian Constitution confers the President and the Governor the power to promulgate ordinances when both the houses of the Parliament and the State Legislative Assembly, respectively, are not in session.
This modus operandi of making laws, indisputably, has been and continues to be an efficacious way of meeting contingencies. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Ordinance was promulgated by the President in the year 2014. This ordinance was promulgated in order to establish special courts for the trial of offences committed against the members of Scheduled Castes and Scheduled Tribes. Likewise, the National Food Security Ordinance, 2013 and the Criminal Law (Amendment) Ordinance, 2013 has also played a paramount role in meeting the inadequacies of the existing legislations. However, this power of promulgating ordinances has also been subjected to substantial misuse by political parties for meeting their political needs. An ordinance is promulgated by the President at the centre or the Governor at the state level, on the aid and advice of the council of ministers, which creates a possibility for the ministers to foist their preferences on the executive to meet their political agendas. For instance, in the year 1986, a suit was filed against the Governor of the state of Bihar for promulgating 256 ordinances between the years 1967 and 1981 and for keeping the ordinances in force for 14 years through re-promulgations; an ordinance was passed by the then Acting President of India, Justice M. Hidyatullah, called the ‘Banking Companies (Acquisition and Transfer of Property) Ordinance of 1969’, two days prior to commencement of the monsoon session of the Parliament. The element of ‘immediate action’ as mandated by both Article 123 and 213 were absent in both circumstances.
Furthermore, in the recent past, the misuse of the ordinance making power had escalated. On November 27, 2020, the Governor of the state of Uttar Pradesh promulgated the Uttar Pradesh Prohibition of Unlawful Conversion of Religious Ordinance, 2020, popularly and unofficially known as the ‘Love Jihad Law.’ The objective of the ordinance was to prohibit religious conversions, which are effectuated through “misrepresentation, force, undue influence, coercion, allurement or any other fraudulent means.” Though it was claimed by the Uttar Pradesh Government that the ordinance was promulgated solely for preventing marriage done for the purpose of unlawful conversions, yet numerous cases were filed against individuals, especially Muslim men, despite the fact that the marriage was consented to by the woman, the man and their families. Soon after the ordinance was promulgated, many right-wing organizations had embarked on a crusade in search for inter-caste marriages so as to foist cases on the couples through the application of the ordinance. Within three months, after the passing of the ordinance, 54 people were arrested, the majority of whom were Muslims. In view of the fact that the Uttar Pradesh Government is pro-right wing and considering that the majority of the people arrested under the ordinance were Muslims, it is extremely difficult to negate the fact that the ordinance has been misused. At the beginning of 2021, a couple had approached the Allahabad High Court owing to the harassment that was directed towards them by the police by invoking the ‘Love Jihad Law’, notwithstanding the fact that they have been married for almost three years and that the marriage had been effectuated through consent, and earlier the Court had also emphasized that the conviction under the ordinance requires material that evidences force or coercion and that mere suspicion is inadequate. According to Article 13, a law includes an ordinance provided that the ordinance is not inconsistent with or in derogation of the fundamental rights. However, the ordinance in question is prima facie in violation of Article 21 and 25 of the Indian Constitution, which relates to the right to privacy and freedom of conscience, respectively. The ordinance is also in contradiction to the Special Marriage Act, 1954.
On November 20, 2020, the Governor of Kerala promulgated the Kerala Police (Amendment) Ordinance, 2020, to amend the Kerala Police Act, 2011, by inserting section 118A, which provides for the “punishment for making, expressing, publishing or disseminating any matter which is threatening, abusive, humiliating or defamatory.” This was brought about to curb abusive content on the internet, especially the derogatory content that was targeted towards women. The opposition alleged that the ordinance was draconian and that it violated the democratic right of freedom of expression. The ordinance had immense potential to be misused; it was alleged that the ordinance could be used to curb not only abusive content but also those content which is directed towards the Government; that is, it could be used to put a stop to dissent which was being directed to the Government through social media. Soon after the ordinance was promulgated, there was a massive public disapproval. However, within four days after the ordinance was passed, the Kerala Government suspended the amendment ordinance and stated that another ordinance would be brought about to withdraw the controversial ordinance. Unquestionably, this was due to the public outrage that was directed against the ordinance, and the fact that the Government took the public opinion into consideration, was fairly remarkable.
Numerous ordinances were promulgated at the centre and state level in the recent past. The majority of them were passed with bona fide intentions, but a few, like those specified above, clearly indicated mala fide intentions.
THE CITIZENS AND THEIR RIGHT TO CHALLENGE AN ORDINANCE
Up to the present time, the ordinances were invariably promulgated when both the houses of the Parliament or the State Legislature were not in session. Still, the question of misuse arises because, at times, when the ordinances were promulgated either days before a new session or by proroguing a session of the Parliament or the State Legislature. In essence, the requirement of immediate action or the satisfaction of the executive were absent in certain scenarios.
In the case of A.K. Roy v. Union of India, it was held that the power of ordinance making is not beyond the scope of judicial review, thereby meaning that the validity of the ordinance passed can be assessed by the Courts. Moreover, ‘the power of ordinance making is a legislative action, and hence it can be challenged on the same grounds as related to law-making.” If an ordinance is promulgated without taking into consideration the relevant materials, then it would fall under the category of “obviously perverse” and the action would be considered to be taken in bad faith.
As evinced, according to Article 13, an ordinance must not be inconsistent with the fundamental rights. Hence, constitutional validity is a valid ground to challenge an ordinance. The Uttar Pradesh Prohibition of Unlawful Conversion of Religious Ordinance, 2020, can assuredly be challenged for infringing the right to privacy guaranteed by Article 21 and also for the procedure adopted for promulgating the ordinance, which when analyzed negates the requirement of immediate action. In essence, it is a colourable legislation. Moreover, in the case of Salamat Ansari v. State of UP, the High Court held that right to choose a partner is integral to Article 21.Since the power of promulgating ordinance is granted by the Constitution, if the circumstance does not require an immediate action, despite that if an ordinance is promulgated, then it would be unconstitutional. As far as the Kerala promulgated the Kerala Police (Amendment) Ordinance, 2020 is concerned; if the ordinance was in force, this could have been challenged for violating freedom of speech.
The Executive’s satisfaction regarding an immediate action is necessary for promulgating an ordinance. However, the ‘satisfaction’ of the executive is not a justiciable matter, however, in 1994; the Court held that the executive’s satisfaction can be challenged on the ground of mala fide intention or if the ordinance was promulgated on irrelevant grounds. This has been reiterated by the 44th Constitutional Amendment. Re-promulgation of an ordinance is also a ground for challenging an ordinance because, according to the Hon’ble Supreme Court, re-promulgation is a fraud on the Constitution.
In the case of D.C Wadhwa v. State of Bihar, it was held that “the power to promulgate an ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be perverted to serve political ends.” There are several remedies available which can be availed by the people. Moreover, both Article 123 and 213 necessitates the executive to present the promulgated ordinance before both the houses of the Parliament/State Legislature; the houses of the Parliament/State Legislature also has the power to disapprove the ordinance, or it automatically ceases to operate at the expiration of six weeks from the reassembly of the Parliament/State Legislature. The trend of misusing the power of ordinance making is not continuous, but the frequency of misuse is relatively high. The rampant misuse necessitates remedies on which the citizens can rely; remedies that can render justice to those who have been affected by the misuse of this power will turn into a tool that would be used to surpass scrutiny, which can jeopardize the democratic nature of the nation.
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Author - Catherine Jose, Student at Christ (Deemed to be University), Bengaluru.