Ruling by executive fiat: Time for greater judicial control?

The power of the executive to promulgate ordinances was incorporated into the Constitution of India, with certain checks on its abuse, in order to enable effective decision making in times of emergency. While a feature of Indian politics since independence, the frequency of law-making taking place through ordinances, and not the conventional legislative route, has increased significantly in recent years. For the first thirty years after India’s independence, one ordinance was promulgated for every ten bills introduced in the Parliament. For the next thirty years, the ratio was two ordinances for every ten bills. During the last Lok Sabha (2014-19), the ratio increased to three and a half ordinances for every ten bills. The same trend can be seen in the states too. Exemplifying the phrase ‘never waste a good crisis’, the central as well as state governments passed multiple ordinances during COVID-19, many of which have nothing to do with the pandemic.

In this article, I look at the promulgation and justiciability of ordinances from a constitutional standpoint and then analyze the correctness of using the ordinance route to bring in the anti-conversion legislation in Uttar Pradesh (UP) and the anti-cow slaughter legislation in Karnataka, both of which have garnered much attention recently.

Evolution of the Position of Law: The Question of Justiciability Finally Answered

The Constitution of India grants the executive original legislative power. Article 123 of the Constitution gives the President—acting on the aid and advice of the Council of Ministers—the power to promulgate an ordinance at any time, except when both the Houses of Parliament are in session, if he is satisfied that the circumstances at hand warrant immediate action. Once an ordinance is passed, it ceases to be in operation only if (i) it is not properly enacted within six weeks of the Parliament’s reassembly, (ii) it is withdrawn by the President, and (iii) both the Houses of Parliament disapprove it by a resolution. Article 213 of the Constitution gives the Governor of a state similar powers to that of the President under Article 123.

In R.C. Cooper v. Union of India, the Supreme Court (SC) held that the President’s power to pass an ordinance is conditional and can only be exercised when “circumstances exist which render it necessary for him to take immediate action.” However, the Court left unanswered the question of whether it was competent to decide whether the President’s decision to promulgate an ordinance was immediately necessary.

In 1975, during the Emergency, the Parliament clarified the ambiguity by passing the Constitution (Thirty-eight Amendment) Act which inserted a new clause in Articles 123 and 213 granting the President/Governor immunity from judicial scrutiny relating to the circumstances in which he promulgated an ordinance. This meant that as long as the President/Governor was satisfied that the circumstances warranted immediate action, his decision to promulgate an ordinance could not be questioned by the courts. The clauses were later deleted by the Constitution (Forty-fourth Amendment) Act, 1978.

Following the deletion of the clauses, in A. K. Roy v. Union of India, the SC recognized that the President’s decision to promulgate an ordinance “cannot be regarded as a purely political” since the provision barring judicial review was consciously and deliberately removed by the Parliament.  Yet, just like in Cooper, the Court fell short of decisively ruling on the justiciability of the President’s satisfaction under Article 123. It was finally in Krishna Kumar Singh v. State of Bihar that the SC ruled that the satisfaction of the President/Governor under Article 123/213 is not immune from judicial review. Since the power of the President/Governor to promulgate an ordinance is conditional, it is only when the conditions are met, i.e., there exist exigent circumstances, that he can exercise his power.

The role of the courts is to ensure that the President’s decision to promulgate an ordinance was based on some relevant material and not on ‘extraneous grounds’ or to secure an ‘oblique purpose’. The courts, however, cannot question the correctness or adequacy of said material. It is not required that the material meets some objective standard as long as it is prima facie not mala fide. The standard of review, therefore, is a procedural one and not a substantive one. Simply put, the executive would have to furnish some material before the courts demonstrating the urgency that required the passing of an ordinance. As long as there existed such material, the promulgation of the ordinance would be constitutional.

A Tale of Two Ordinances in Two States

The Prevention of Slaughter and Preservation of Cattle Ordinance, 2020 was promulgated by the Governor of Karnataka after the Karnataka Legislative Council adjourned without taking up an anti-cow slaughter bill despite the best efforts of the ruling Bharatiya Janata Party (BJP). An earlier BJP Government led by the current Chief Minister B.S. Yediyurappa had passed a similar anti-cow slaughter bill in 2010 (later repealed by the Congress Government) and the prohibition of cow slaughter had featured in the BJP’s manifesto in 2018. It is only upon failing to get the bill enacted through the ordinary legislative process like the last time that the ordinance was promulgated. Therefore, it is evident that it was done for political purposes instead of a means to deal with an emergency situation demanding immediate action, making it prima facie unconstitutional. The Karnataka Animal Husbandry Minister Prabhu Chavan even  had the time to travel to Gujarat and UP to study and gather information on the implementation of similar laws there before the ordinance was promulgated.

Similarly, the Prohibition of Unlawful Conversion of Religion Conversion Ordinance, 2020 passed in UP was not in response to an emergency situation. While the purported claim is that the ordinance is meant to combat a recent increase in cases of love jihad, the reality seems starkly different. For one, the Chief Minister of UP Yogi Adityanath and the other BJP functionaries have been speaking of love jihad since 2014. Therefore, it is not a new or previously undiscussed phenomenon in Indian politics. Secondly, the UP Government has no data to back its claim of a recent spike in love jihad cases. In fact, a recent probe by the UP Police conducted in Kanpur—after all twenty-two police stations within the city were asked to report suspicious instances of Hindu-Muslim romance—found that in a majority of the cases reported, the couple had been together out of their own free will. An analysis of habeus corpus petitions filed before the Allahabad High Court between 2009 and 2019 also found no evidence of love jihad in UP. In case the UP Government wanted to bring in an anti-conversion law, it should have done so through the ordinary legislative process, as was done in Uttarakhand and Himachal Pradesh in 2018 and 2019 respectively, instead of bringing in an ordinance in the absence of a need for immediate intervention.

Conclusion

The executive was given the power to promulgate ordinances as a matter of expediency in times of emergency and not to create an alternative legislative authority. It is time that the courts take a tougher stand and quash ordinances that are transparently political and attempt to bypass the deliberative legislative process. Even if the procedural standard of review is met, by proactively asking the executive to place on record the material that required immediate action in the form of an ordinance more often, the courts will cause a chilling effect on the promulgation of mindless ordinances that currently slip through the tracks. A petition currently pending before the Allahabad High Court has challenged the ordinance route taken by the UP Government to bring in anti-conversion legislation by arguing that it is unconstitutional since there was no emergent need for the same. Following in UP’s footsteps, Madhya Pradesh has already promulgated an anti-conversion ordinance. The decision of the Allahabad High Court will have a huge impact on the route that other states like Haryana and Karnataka, who have expressed the intention of passing anti-conversion laws of their own, follow in the future.

Harsh Jain

 Harsh is a second year law student from NALSAR University of Law, Hyderabad. His interests lie in the field of constitutional law, public law and public policy. 

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