Ordinance with Malice – Published in Rising Kashmir

In the recent past, various ordinances were brought by the States including the Ordinance relating to interfaith marriages in the State of Uttar Pradesh and Madhya Pradesh, animal slaughter in Karnataka. All these Ordinances have serious penal consequences affecting personal liberty of citizens. In many cases booked under the UP Ordinance, the High Court of Allahabad took firm stand ensuring individual liberty. However, in many other cases, personal liberty has not been acknowledged in the same manner, obviously the courts found those cases on different facts.

To promulgate an ordinance, the Constitution of India imposes conditions on the executives for taking ‘immediate action’ in case the situations so arise during the time when the legislatures are not in session. The mandate of the constitution is for exceptional circumstances requiring emergent constitutional necessity and accordingly these Ordinances have to pass the test of the emergent existing circumstances requiring ‘immediate action’ by executives by making laws. The UP Ordinance was challenged in the Supreme Court. Initially the court issued notice without staying the effect of it and later closed the proceedings in view of the fact that the same challenge was pending in the High Court. In the meantime, the Ordinance got converted into an Act of legislature. Since it has become an Act, now the issue in court will be other legal aspects and not on the issue whether on such subject matter the executive is justified in invoking emergency provision.

Many times, legislation has been introduced in the legislature and while pending such legislation, the executive have preferred to come up with an Ordinance criminalising certain action. The other instances are where immediately after the session of legislature was over, next day Ordinance was issued. These instances shall also fall within the category of fraud and subversion of democratic processes. Whenever the Cabinet feels like, they bring the Ordinances.

In a non-personal liberty issue, a seven judges Bench of the Supreme Court in 2017 has clarified that this Ordinance making power of the executive cannot be equated with a temporary Act or parallel source of law making as done by a competent legislature. It also held that re-promulgation an ordinance is a fraud on the Constitution and ‘subversion of democratic legislative processes’.

The other disturbing feature of this ordinance culture is that much before these laws are placed before the competent legislatures; political victory is set up by invoking popular sentiments and passion of general public; without discussing their constitutional basis. Resultantly, when these ordinances are placed before the legislatures, either it is presumed that deliberations have already taken place or the legislators follow the most popular sentiments for passing it through. In this process, on the strength of sheer majority of members and political whip, the contents of deliberation on constitutional issues in law making are reduced to minimum and an Ordinance gets converted into a law passed by the legislature.

One cannot challenge the ordinance on the ground of malafide, questioning the motive behind it because the President’s or Governor’s satisfaction for its requirement is taken as final word. Generally, judiciary does not entertain a litigant for challenge to the Ordinances at that stage and await the legislature’s response; as it happened in challenge to Tripal Talaq ordinance. In that situation, it falls into the category of an un-controlled law making power of the Cabinet, which lies in the legislature. Probably, these are the reasons that executives of many established democracies, including USA, do not have Ordinance making constitutional powers.  

In Constituent Assembly debates, one of the members questioned as to why this ordinance making power should be continued from the British Act of 1935. He questioned the very legitimacy of such executive powers. However, it was realised that with certain conditions, as set out in our Constitution, this power was required. It was a faith oriented delegation of legislative power for extreme circumstances and was left at the wisdom of responsible government to use this power responsibly. It was never meant to use this power for destroying the personal liberty of people even for a day, let alone the period of six months.

Executive can justify issuance of an ordinance for the unforeseen issues of national security, external aggression, pandemic situation or natural calamity. This was the real purpose of this executive power when the Constituent Assembly debated on this issue and permitted this power to part of the Constitution. In 1982, the Supreme Court cautioned that this power was to be used to meet extra ordinary situation and not ‘perverted to serve political ends’. It is another matter that it went on to uphold the arrest of the accused for his acts prejudicial to ‘public order’ under the National Security Ordinance 1980, later replaced by the Act. But the Ordinances regulating free choice to choose a partner to marry or slaughtering of animals are nothing but subversion of democratic legislative processes, perverted to serve political end and abuse of power.

The only way this power can be used responsibly, is by defining the circumstances for taking ‘immediate action’ for legislative necessity to meet extreme circumstances in relation to ordinance making powers of the executives. I hope, at some point of time, the Supreme Court shall take up this issue to lay down a proper guideline to this effect. In case these circumstances are not defined, the very basic fundamental freedom of citizens shall stay at the mercy of politically motivated undemocratic action.

This article was published in the Rising Kashmir on March 3, 2021

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