Venkatesh Nayak on Presidential Power and Indian Constitutionalism, Some Troubling Developments?

(Pix (c) Larry Catá Backer 2014)

Venkatesh Nayak, Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative in New Delhi, has requested the circulation of the following essay, entitled "Promulgating Ordinances – Public Scrutiny and Judicial Review."  It treats ramifications of a more vigorous use of rule by presidential decree that appeared to be the first efforts of the new government in India in the assertion of regulatory power. 

 Within 72 hours of assuming power and even before any of its elected representatives were sworn in formally as Members of Parliament, the National Democratic Alliance (NDA) Government advised the President of India to promulgate two Ordinances. . . . There is only a cursory mention in the notifications that the Hon’ble President of India is satisfied that circumstances exist which necessitate the promulgation of these Ordinances. What these circumstances are we do not know except for some reporting in the mass media. A brief summary of the discussion of some landmark judgements delivered by the Supreme Court on the subject is given below. (Venkatesh Nayak,"Promulgating Ordinances – Public Scrutiny and Judicial Review." )

The essay touches in a very useful way on the case law of presidential power within the framework of Indian constitutionalism but from the perspective of transparency and engagement.  For that reason alone the essay is worth considering.  Yet it is particularly interesting as the issue arises in the wake of the victory of Mr. Modi, in part on promises of greater transparency n government. The essay follows.

"Promulgating Ordinances – Public Scrutiny and Judicial Review."

Venkatesh Nayak, Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative in New Delhi ( 

-->Views expressed in this note are personal )

I Background

Within 72 hours of assuming power and even before any of its elected representatives were sworn in formally as Members of Parliament, the National Democratic Alliance (NDA) Government advised the President of India to promulgate two Ordinances. The first notified in the Official Gazette, on 28th February, removes the bar on ex-Chairpersons and Members of the Telecom Regulatory Authority of India (TRAI) from being appointed to any other position under the Government.[1] The only saving grace is that a cooling period of two years is stipulated for them before getting another appointment. The second Ordinance seeks to amend the Andhra Pradesh Reorganisation Act passed by Parliament earlier this year to carve out India’s 29th State- Telangana from the erstwhile undivided State of Andhra Pradesh.[2] This Ordinance makes certain amendments to the territories covered by the Khammam district under this State bifurcation law. Both Gazette notifications do not contain a Statement of Objects and Reasons as to why it has become necessary to promulgate these Ordinances. There is only a cursory mention in the notifications that the Hon’ble President of India is satisfied that circumstances exist which necessitate the promulgation of these Ordinances. What these circumstances are we do not know except for some reporting in the mass media. The TRAI Ordinance is said to have been brought in to make way for the appointment of an ex-Chairperson of TRAI in the Prime Minister’s Office. The second Ordinance is said to have been brought in to transfer seven mandals (sub-districts) from the new State of Telangana back to Andhra Pradesh before the bifurcation takes effect. Media reports indicate that this Ordinance was drafted during the previous regime under the United Progressive Alliance. Several political parties have opposed this Ordinance while there are only a few murmurs about the TRAI Ordinance.


II People’s Right to Know the Reasons for Promulgating Ordinances

The Bharatiya Janata Party (BJP) which is the single largest constituent of the NDA made several promises regarding transparency and accountability in its election manifesto. The new Prime Minister’s website also highlights transparency and accountability as the foundation of the NDA’s preferred method for governance for the next five years. Yet, the NDA Government has not officially communicated to the people why it thought it fit to bring in these twin Ordinances.

Under Section 4(1)(c) of the Right to Information Act (RTI Act), every public authority has the duty to publish all relevant facts while announcing decisions which affect the public. Both Ordinances will affect the public at large in a big way. For example, the AP Ordinance affects the lives of thousands of persons living in those villages. The TRAI Ordinance affects every person who retires from the membership of TRAI. If media reports are to be believed, this Ordinance also affects the opportunities of all senior level serving bureaucrats who were in the reckoning for the top bureaucrat’s job in the Prime Minister’s Office. None of the official press releases routed through the Press Information Bureau, about these Ordinances, contain a statement of the circumstances which necessitated their promulgation. To the best of our knowledge, there is no explanation of the circumstances requiring these ordinances published on the websites of the President’s Secretariat, the Prime Minister’s Office, the Ministry of Home Affairs, the Department of Telecommunications nor the Ministry of Law and Justice as on the date of the writing of this note.

According to media reports, the new Union Cabinet is said to have approved the proposal for promulgating these twin Ordinances in its initial meetings. This presupposes the existence of Cabinet Notes containing the amendment proposals. According to Section 8(1)(i) of the RTI Act, Cabinet papers including the deliberations of the Council of Ministers and Secretaries and other officers are exempt from disclosure. However, after the decision is taken by the Cabinet and the matter is complete or over, the decision and the materials on the basis of which such decision was taken shall be made public under the Act. In effect this is a duty of proactive disclosure outside of Section 4(1) of the RTI Act and its compliance is not dependent upon a stimulation received from any citizen in the form of a formal RTI application under Section 6(1).[3] The NDA Government needs to demonstrate its commitment to transparency and accountability by complying with the requirements of the RTI Act. Anything lesser would remain merely an exercise in public relations.


III Promulgation of Ordinances and the Power of Judicial Review

Legal experts have begun writing in the media about the arbitrary manner in which the TRAI Ordinance was brought in. Several political parties have opposed the AP Ordinance and even called for strikes and bandhs (shut downs). As both Ordinances were promulgated less than two weeks before the first session of Parliament with the 16th Lok Sabha, this is the right moment to examine the jurisprudence developed hitherto about challenging the validity of Ordinances. In this section we will examine the provisions of the Ordinance-making power of the President followed by a summary of the jurisprudence on the ‘justiciability’ of the exercise of this power.

III.1 Power of the President to Promulgate Ordinances:

Under the Constitution, the power to make laws ordinarily vests with the Parliament and the State Legislatures, in ordinary circumstances. The fields (subjects) to which their legislative powers extend are listed in the Seventh Schedule of the Constitution. Chapter 1 of Part XI of the Constitution describes the manner of exercise of these powers and the manner of resolving problems that may arise due to overlapping legislations passed by Parliament and the State Legislatures on any of the subjects listed in the Concurrent List.

However, when Parliament is not in session, the President has the power to issue Ordinances on all subjects over which Parliament has jurisdiction. These Ordinances will have the same force as that of any statute enacted by Parliament. Article 123 which provides for the Ordinance making powers of the President is reproduced below[4]:

“Chapter III
Legislative Powers of the President

Power of President to promulgate Ordinances during recess of Parliament.

123. (1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.
(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance—

(a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and
(b) may be withdrawn at any time by the President.

Explanation.—Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.
(3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.”

An Ordinance has a life time of six weeks only, unless it is approved by Parliament through a formal enactment. Parliament may regularise the Ordinance or disapprove it. This position gives rise to the following questions:

1) Is the exercise of the power to promulgate Ordinances amenable to judicial review (is it justiciable)?

2) If so on what grounds can judicial review be sought?

3) What would happen if the effect of an Ordinance is enduring or long lasting beyond the life of an Ordinance, especially when it lapses without regularization?


III.2 Is the exercise of the ordinance making power amenable to judicial review?

The Supreme Court of India and the High Courts in various States have been called upon time and again to test the constitutional validity of Ordinances promulgated by the President and the Governors. The gist of the jurisprudence that has developed till date is given below with reference to five landmark judgements of the Supreme Court on the subject.[5]

Rustom Cavasjee C Cooper vs Union of India and T M Gurubuxani vs Union of India (1970):[6]
Brief facts: In 1969, when the Central Government decided to nationalise several private sector banks, it got the then Acting President of India, Mr. V V Giri[7] to promulgate an Ordinance a day before he demitted office to contest the Presidential elections. Mr. Rustom Cooper a shareholder in several banks that were covered by the Ordinance challenged its validity in the Supreme Court along with another petitioner who was similarly affected. The Petitioners challenged the Ordinance on the ground that it violated the right to equality (Article 14), the freedom to practice any trade, occupation or business, and the right to property (which was still a fundamental right).

An eleven-judge Constitution Bench of the Court heard the matter. By the time the case came up for hearing the Ordinance had been replaced with an Act of Parliament. Justice J C Shah, writing for the majority (10:1), held as follows:

“235. The sole question is whether the power of the President in Article 123 is open to judicial scrutiny. It was said by counsel for the petitioner that the Court would go into the question as to whether the President was satisfied that circumstances existed which rendered it necessary for the President to promulgate an Ordinance. Liversidge's case [1942] A. C. 206 was relied upon by counsel for the petitioner. That case interpreted the words "reasonable cause to believe". It is obvious that when the words used are "reasonable cause to believe" it is to be found out whether the cause itself has reason to support it and the Court goes into the question, of ascertaining reasons. In Liversidge's case [1942] A. C. 206 it was said that the words "has reasons to believe" meant an objective belief whereas the words "if it appears" or "if satisfied" would be a subjective satisfaction. …

237. The interpretation of Article 123 is to be made first on the language of the Article and secondly the context in which that power is reposed in the President. When power is conferred on the President to promulgate Ordinances the satisfaction of the President is subjective for these reasons. The power in Article 123 is vested in the President who is the executive head and the circumstances contemplated in Article 123 are a guide to the President for exercise of such power. Parliament is not in session throughout the year and during the gaps between sessions the legislative power of promulgating Ordinance is reposed in the President in cases of urgency and emergency. The President is the sole judge whether he will make the Ordinance. The President under Article 74(1) of the Constitution acts on the advice of Ministers. Under Article 74(2) the advice of the Ministers is not to be enquired into by any Court. The Ministers under Article 75(3) are responsible to Parliament. Under Article 123 the Ordinances are limited in life and the Ordinance must be laid before Parliament and the life of the Ordinance may be further shortened. The President under Article 361(1) is not answerable to any Court for acts done in the performance of his duties. The Ministers are under oath of secrecy under Article 75(4). Under Article 75(3) the Ministers are collectively responsible to the House of the People. Under Article 78 it shall be the duty of the Prime Minister to furnish information to the President. The power under Article 123 relates to policy and to an emergency when immediate action is considered necessary and if an objective test is applied the satisfaction of the President contemplated in Article 123 will be shorn of the power of the President himself and as the President will be acting on the advice of Ministers it may lead to disclosure of facts which under Article 75(4) are not to be disclosed. For these reasons it must be held that the satisfaction of the President is subjective.

243. The only way in which the exercise of power by the President can be challenged is by establishing bad faith or mala fide and corrupt motive. Bad faith will destroy any action. Such bad faith will be a matter to be established by a party propounding bad faith. He should affirm the state of facts. He is not only to allege the same but also to prove it. In the present case there is no allegation of mala fide.

244. It was said on behalf of the petitioner that the fact that Parliament would be in session on 21 July, 1969 and that the Ordinance was promulgated on Saturday, 19 July, 1969 was indicative of the fact that the Ordinance was not promulgated legitimately but in a hasty manner and the President should have waited. If the President has power when the House is not in session he can exercise that power when he is satisfied that there is an emergency to take immediate action. That emergency may take place even a short time before Parliament goes into session. It will depend upon the circumstances which were before the President. The fact that the Ordinance was passed shortly before the Parliament session began does not show any mala fide. It was said that circumstances were not set out in the affidavit and therefore the Court was deprived of examining the same. The Attorney General rightly contended that it was not for the Union to furnish facts and information which were before President because first such information might be a State secret, secondly, it was for the party who alleged non-existence of circumstances to prove the same and thirdly the respondent was not called upon to meet any case of mala fide.

245. It was said that no reason was shown as to what mischief could have happened if the Ordinance would not have been promulgated on the date in question but no reason was required to be shown. The statement of objects and reasons shows that there was considerable speculation in the country regarding Government's intention with regard to 'nationalisation' of banks during few days immediately before the Ordinance. In the case of Barium Chemical's [1966] Supp. S.C.R. 311 it was said by this Court that if circumstances lead to tentative conclusion, that the Court would not have drawn a similar inference would be irrelevant. The reason is obvious that in matters of policy just as Parliament is the master of its province similarly the President is the supreme and sole judge of his satisfaction on such policy matters on the advice of the Government.” [emphasis supplied]

In summary, the Court clearly held that an Ordinance could be challenged on grounds of mala fide intention or corrupt motive. However the fact that an Ordinance was issued just a few days before the scheduled session of Parliament was did not show any mala fide and was not sufficient ground for setting it aside. In an age when there was no RTI Act and Article 74(2) which prevented the courts from inquiring into the advice given to the President by the Union Cabinet, Petitioners had no way of establishing the intention of the Government, whether bad or corrupt, in promulgating an Ordinance. What is interesting to note is that the Banks Nationalisation Ordinance contained some details of the circumstances which necessitated its promulgation unlike the twin Ordinances which were promulgated in 2014. We shall return to the issue of access to information about the motives of the Government for promulgating an Ordinance after examining the rest of the jurisprudence.

A K Roy Vs Union of India and Anr. (1981):[8]
Brief facts: In 1980 after the Congress rode back to power, the then President Mr. Neelam Sanjiva Reddy promulgated the National Security Ordinance which empowered the administration to detain any person on the ground that he was indulging in activities prejudicial to public order. The Petitioner- a Marxist MP- was detained by the district administration of Dhanbad under this Ordinance. Ten other MPs intervened in this case as they felt that the Ordinance making power of the President was destructive of Parliamentary democracy. Peoples Union for Civil Liberties (PUCL), the Supreme Court Bar Association and the State of Jammu and Kashmir also intervened in this case. A five-judge Constitution bench heard the matter during which time Parliament had regulariszed the Ordinance into a formal enactment. Chief Justice Y V Chandrachud writing on behalf of the majority (3:2) held as follows:

“24. We may here take up for consideration some of the submissions made by Shri Tarkunde on the validity of the National Security Ordinance. He contends that the power to issue an ordinance under Article 123 is subject to the pre-conditions that circumstances must exist which render it necessary for the president to take immediate action. The power to issue an ordinance is conferred upon the President in order to enable him to act in unusual and exceptional circumstances. Therefore, according to Shri Tarkunde, unusual and exceptional circumstances must be show to exist, they must be relevant on the question of the necessity to issue an ordinance and they must be such as to satisfy a reasonable person that, by reason thereof, it was necessary to take immediate action and issue an ordinance. The legislative power to issue an ordinance being conditional, the question as regards the existence of circumstances which compelled the issuance of ordinance is justiciable and it is open to this Court, says Shri Tarkunde, to determine whether the power was exercised on the basis of relevant circumstances which establish the necessity to take immediate action or whether it was exercised for a collateral purpose. In support of this contention, Shri Tarkunde relies on the circumstance that the amendment introduced in Article 123 by the 38th Constitution Amendment Act, 1975, was deleted by the 44th Constitution Amendment Act, 1978. Section 2 of the 38th Amendment Act introduced Clause (4) in Article 123 to the following effect:

“Notwithstanding anything in this Constitution, the satisfaction of the President mentioned in Clause (1) shall be final and conclusive and shall not be questioned in any Court on any ground.”

This amendment was expressly deleted by Section 16 of the 44th Amendment Act. Shri Tarkunde says that the deletion of the particular clause is a positive indication that the Parliament did not consider it safe or proper to entrust untrammelled powers to the executive to issue ordinances. It therefore decided that the President's satisfaction should not be 'final and conclusive" and that it should be open to judicial scrutiny. Shri Tarkunde added that the exercise of a conditional power is always subject to the proof of conditions and no distinction can be made in this regard between conditions imposed by a statute and conditions imposed by a constitutional provision. Relying on Section 106 of the Evidence Act, Shri Tarkunde says that circumstances which necessitated the passing of the ordinance being especially within the knowledge of the executive, the burden lies upon it to prove the existence of those circumstances.

25. It is strongly pressed upon us that we should not avoid the decision of these points on the plea that they involve political questions. Shri Tarkunde distinguishes the decision in the Rajasthan Assembly Dissolution case [1978]1SCR1 on this aspect by saying that Article 356 which was under consideration in that case uses language which is much wider than that of Article 123. He relies on Seervai's observation in the Constitutional Law of India' (2nd Edition, Volume III pages 1795 and 1797) to the effect that "there is no place in our Constitution for the doctrine of the political question", since that doctrine is based on, and is a consequence of, a rigid separation of powers in the U.S. Constitution and our Constitution is not based on a rigid separation of powers. Reliance is placed by Shri Tarkunde on the decision in the Privy Purse case [1971]3SCR9 in which Shah, J. observed that "Constitutional mechanism in a democratic polity does not contemplate existence of any function which may qua the citizens be designated as political and orders made in exercise whereof are not liable to be tested for their validity before the lawfully constituted courts". In the same case Hegde J., said that 'There is nothing like a political power under our Constitution in the matter of relationship between the executive and the citizens".

26. We see the force of the contention that the question whether the pre-conditions of the exercise of the power conferred by Article 123 are satisfied cannot be regarded as a purely political question. The doctrine of the political question was evolved in the United States of America on the basis of its Constitution which has adopted the system of a rigid separation of powers, unlike ours. In fact, that is one of the principal reasons why the U.S. Supreme Court had refused to give advisory opinions. In Baker v. Carr, Brennan J. said that the doctrine of political question was "essentially a function of the separation of powers". There is also a sharp difference in the position and powers of the American President on one hand and the President of India on the other. The President of the United States exercises executive power in his own right and is responsible not to the Congress but to the people who elect him. In India, the executive power of the Union is vested in the President of India, but he is obliged to exercise it on the aid and advice of his Council of Ministers. The President's "satisfaction" is therefore nothing but the satisfaction of his Council of Ministers in whom the real executive power resides. It must also be mentioned that in the United States itself, the doctrine of the political question has come under a cloud and has been the subject matter of adverse criticism. It is said that all that the doctrine really means is that in the exercise of the power of judicial review, the courts must adopt a 'prudential' attitude, which requires that they should be wary of deciding upon the merit of any issue in which claims of principle as to the issue and claims of expediency as to the power and prestige of courts are in sharp conflict. The result, more or less, is that in America the phrase "political question" has become "a little more than a play of words".

28. There are, however, two reasons why we do not propose to discuss at greater length the question as regards the justiciability of the President's satisfaction under Article123(1) of the Constitution. In the first place, the Ordinance has been replaced by an Act. It is true, as contended by Shri Tarkunde, that if the question as regards the justiciability of the President's satisfaction is not to be considered for the reason that the ordinance has become an Act the occasion will hardly ever arise for considering that question, because, by the time the challenge made to an Ordinance comes up for consideration before the Court, the ordinance almost invariably shall have been replaced by an Act. All the same, the position is firmly established in the field of constitutional adjudication that the Court will decide no more than needs to be decided in any particular case. Abstract questions present interesting challenges, but it is for scholars and text-book writers to unravel their mystique. It is not for the courts to decide questions which are but of academic importance.

29. The other reason why we are not inclined to go into the question as regards the justiciability of the President's satisfaction under Article 123(1) is that on the material which is placed before us, it is impossible for us to arrive at a conclusion one way or the other. We are not sure whether a question like the one before us would be governed by the rule of burden of proof contained in Section 106 of the Evidence Act, though we are prepared to proceed on the basis that the existence of circumstances which led to, the passing of the Ordinance is especially within the knowledge of the executive. But before casting the burden on the executive to establish those circumstances, at least a prima facie case must be made out by the challenger to show that there could not have existed any circumstances necessitating the issuance of the Ordinance. Every casual or passing challenge to the existence of circumstances, which rendered it necessary for the President to take immediate action by issuing an ordinance, will not be enough to shift the burden of proof to the executive to establish those circumstances. Since the petitioners have not laid any acceptable foundation for us to hold that no circumstances existed or could have existed which rendered it necessary for the President to take immediate action by promulgating the impugned Ordinance, we are unable to entertain the contention that the Ordinance is unconstitutional for the reason that the pre-conditions to the exercise of the power conferred by Article 123 are not fulfilled. That is why we do not feel called upon to examine the correctness of the submission made by the learned Attorney General that in the very nature of things, the "satisfaction" of the President which is the basis on which he promulgates an Ordinance is founded upon materials which may not be available to others and which may not be disclosed without detriment to public interest and that, the circumstances justifying the issuance of the Ordinance as well as the necessity to issue it lie solely within the President's judgment and are, therefore, not justiciable.” [emphasis supplied]

The Court refused to go into the justiciability of the President’s action of promulgating the Ordinance on the grounds that:

a) it was merely academic in nature as the Ordinance had been replaced by a law enacted by Parliament; and

b) enough material was not placed before the Court to look into the claims made regarding the circumstances that necessitated the promulgation of the Ordinance.

However, the Court clearly left the avenue open for a Petitioner to mount a challenge to an Ordinance if he/she made out a prima facie case to show that there were no circumstances necessitating the Ordinance. The Court would not however entertain casual challenges to the validity of Ordinances. The Court also refused to examine the submission of the Attorney General Mr. L N Sinha that the President’s judgement (read satisfaction) was not justiciable because the materials that formed the basis of such judgement could not be disclosed in public interest. At this point of history the Government could refuse to place such materials before the Court by taking recourse to Article 74(2) of the Constitution and Sections 123-124 of the Indian Evidence Act relating to public interest immunity from disclosing unpublished official papers (often called ‘Government privilege’) in court. How under such circumstances would a Petitioner show prima facie facts that circumstances did not exist requiring promulgation of the Ordinance was a moot point then. However in the age of RTI Act it may be possible to marshal such facts under the provisions mentioned at Section II of this note. We will discuss this issue in some detail in Section IV.

R K Garg etc. etc. vs Union of India and Ors. (1981):[9]
An year later another five-judge Constitution Bench ruled on this issue. The Petitioner had challenged the validity of the Special Bearer Bonds (Immunities and Exemptions) Ordinance, 1981. Justice P N Bhagwati (as he then was) who had agreed with the majority view in A K Roy, held as follows:

“5. Having set out the provision of the Act-and be it noted again that the provisions of the Ordinance were substantially in the same terms as the provisions of the Act-we may now proceed to consider the challenge against the constitutional validity of the Ordinance on the ground that the President had no power to issue the Ordinance under Article 123 of the Constitution. There were two limbs of the argument under this head of challenge; one was that since the Ordinance had the effect of amending the tax laws, it was outside the competence of the President under Article 123 and the other was that the subject matter of the Ordinance was in the nature of a Money Bill which could be introduced only in the House of the People and passed according to the procedure provided in Articles 109 and 110 and the President had therefore no power under Article 123 to issue the Ordinance by-passing the special procedure provided in Articles 109 and 110 for the passing of a Money Bill. There is, as we shall presently point out, no force in either of these two contentions, but we may point out straightaway that both these contentions are academic, since the Act has been brought into force with effect from the date of promulgation of the Ordinance and Sub-section (2) of Section 9 provides that anything done or any action taken under the Ordinance shall be deemed to have been done or taken under the corresponding provisions of the Act and the validity of anything done or any action taken under the Ordinance is therefore required to be judged not with reference to the Ordinance under which it was done or taken, but with reference to the Act which was, by reason of its restrospective enactment, in force right from the date of promulgation of the Ordinance and under which the thing or action was deemed to have been done or taken. It is in these circumstances wholly unnecessary to consider the constitutional validity of the Ordinance, because even if the Ordinance be unconstitutional, the validity of anything done or any action taken under the Ordinance, could still be justified with reference to the provisions of the Act. This would seem to be clear on first principle as a matter of pure construction and no authority is needed in support of it, but if any were needed, it may be found in the decision of this Court in Gujarat Pottery Works v. B.P. Sood, Controller of Mining Leases for India and Ors. …

6. … Moreover, the law made by the President by issuing an Ordinance is of strictly limited duration. It ceases to operate at the expiration of six weeks from the reassembly of Parliament or if before the expiration of this period, resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions. This also affords the clearest indication that the President is invested with this legislative power only in order to enable the executive to tide over an emergent situation which may arise whilst the Houses of Parliament are not in session. Furthermore, this power to promulgate an Ordinance conferred on the President is co-extensive with the power of Parliament to make laws and the President cannot issue an Ordinance which Parliament cannot enact into a law. It will therefore be seen that legislative power has been conferred on the executive by the Constitution makers for a necessary purpose and it is hedged in by limitations and conditions. The conferment of such power may appear to be undemocratic but it is not so, because the executive is clearly answerable to the legislature and if the President, on the aid and advice of the executive, promulgates an Ordinance in misuse or abuse of this power, the legislature cannot only pass a resolution disapproving the Ordinance but can also pass a vote of no confidence in the executive. There is in the theory of constitutional law complete control of the legislature over the executive, because if the executive misbehaves or forfeits the confidence of the legislature, it can be thrown out by the legislature. Of course this safeguard against misuse or abuse of power by the executive would dwindle in efficacy and value according as if the legislative control over the executive diminishes and the executive begins to dominate the legislature. But nonetheless it is a safeguard which protects the vesting of the legislative power in the President from the charge of being an undemocratic provision. We might profitably quote here the words of one of us (Chandrachud, J, as he then was) in the State of Rajasthan v. Union of India: [1978]1SCR1 where, repelling the contention of the petitioner that the interpretation which the Union of India was inviting the Court to place on Article 356 would impair the future of democracy by enabling the Central Government to supersede a duly elected State Government and to dissolve its legislature without prior approval of Parliament, the learned Judge said-

...there may be situations in which it is imperative to act expeditiously and recourse to the parliamentary process may, by reason of the delay involved, impair rather than strengthen the functioning of democracy. The Constitution has therefore provided safety-valves to meet extraordinary situations. They have an imperious garb and a repressive content but they are designed to save, not destroy democracy. The fault, if any, is not in the meeting of the Constitution but in the working of it. These words provide a complete answer to the criticism of Mr. R K Garg.” [emphasis supplied]

It appears that the Petitioner challenged the motive behind the Ordinance and consequently the subsequent enactment which regularised it without making any argument about the ‘circumstances’ in which the Ordinance was promulgated. By holding that the power of the President to promulgate Ordinances was co-extensive with the power of Parliament to make laws on the subjects specified in the Constitution, the Court appears to have deferred to the power of Parliament to approve or disapprove an Ordinance. In our humble opinion by holding that the contents of the Ordinance were policy matters that the Court would not inquire into, the scope for judicial review of the President’s exercise of the Ordinance-making power was somewhat curtailed. Strangely there is no reference to the R C Cooper or the A K Roy case in this judgement.

T Venkata Reddy etc. etc. vs. State of Andhra Pradesh (1984):[10]
The later cases pertain to challenge to the Ordinances promulgated by the Governors of States. In T Venkata Reddy, a five-judge Constitution Bench was called upon to decide the validity of the Ordinance promulgated by the Governor of Andhra Pradesh abolishing posts of part time village officers. Justice E S Venkataramaiah and Justice Ranganath Misra (as they then were) held as follows:

“14. The above view” (i.e, R K Garg) “has been approved by another Constitution Bench of this Court in A.K. Roy etc. v. Union of India and Anr. 1982 [CriLJ340] at page 299. Both these decisions have firmly established that an ordinance is a 'law' and should be approached on that basis. The language of Clause (2) of Article 123 and of Clause (2) of Article 213 of the Constitution leaves no room for doubt. An ordinance promulgated under either of these two articles has the same force and effect as an Act of Parliament or an Act of the State Legislature, as the case may be. When once the above conclusion is reached the next question which arises for consideration is whether it is permissible to strike down an ordinance on the ground of non-application of mind or mala fides or that the prevailing circumstances did not warrant the issue of the Ordinance. In other words, the question is whether the validity of an ordinance can be tested on grounds similar to those on which an executive or judicial action is tested. The legislative action under our Constitution is subject only to the limitations prescribed by the Constitution and to no other. Any law made by the legislature, which it is not competent to pass, which is violative of the provisions in Part III of the Constitution or any other constitutional provision is ineffective. It is a settled rule of constitutional law that the question whether a statute is constitutional or not is always a question of power of the legislature concerned, dependent upon the subject matter of the statute, the manner in which it is accomplished and the mode of enacting it. While the counts can declare a statute unconstitutional when it transgresses constitutional limits, they are precluded from inquiring into the propriety of the exercise of the legislative power. It has to be assumed that the legislative discretion is properly exercised. The motives of the legislature in passing a statute is beyond the scrutiny of courts. Nor can the courts examine whether the legislature had applied its mind to the provisions of a statute before passing it. The propriety, expediency and necessity of a legislative act are for the determination of the legislative authority and are not for determination by the courts. An ordinance passed either under Article 123 or under Article 213 of the Constitution stands on the same footing. When the Constitution says that the ordinance making power is legislative power and an ordinance shall have the same force as an Act, an ordinance should be clothed with all the attributes of an Act of legislature carrying with it all its incidents, immunities and limitations under the Constitution. It cannot he treated as an executive action or an administrative decision." [emphasis supplied]

It is strange that in this judgement there is no discussion of the views of the majority in the Cooper case where it was held clearly that mala fide or corrupt motive could be a ground for challenging the validity of an Ordinance. It is also submitted with the deepest respect to the wisdom of the Court that in A K Roy the Court did leave the door open for challenging the validity of an Ordinance on grounds of mala fide. However the burden of proving whether there was mala fide was placed on the Petitioner. In A K Roy the Court also refused to examine the correctness of the claim of the Attorney General that the judgement of the President in promulgating an Ordinance was not justiciable because the materials available to the President to arrive at his judgement would not be made public.

It is also respectfully submitted that in a landmark judgement delivered in 1981[11] a seven-judge Constitution bench of the Apex Court had held that the materials that formed the basis of the advice tendered to the President by the Council of Ministers cannot be kept confidential from the Courts or the Petitioners under Article 74(2) of the Constitution. That protection is available only for ministerial advice given to the President and nothing else. So a combined reading of these two clearly established positions in law ought to have led to the logical conclusion that the Court could have called for the materials on the basis of which advice was tendered to the President for promulgation of an Ordinance to determine whether circumstances warranted the promulgation or if there was any mala fide or corrupt motive behind such action. Nothing in the judgement indicates that any party brought the interpretation given in S P Gupta to the knowledge of the Court.


Dr. D C Wadhwa and Ors. vs State of Bihar and Ors (1986):[12]
In 1986 a five-judge Constitution Bench was called upon decide the validity of the action of the Governor/State Government of Bihar in repromulgating Ordinances frequently between sessions of the Legislature without bringing them before it for approval. Chief Justice P N Bhagwati speaking for the Bench, held as follows:

"5. ... This circular letter clearly shows beyond doubt that the repromulgation of the ordinances was done on a massive scale in a routine manner without even caring to get the ordinances replaced by Acts of the Legislature or considering whether the circumstances existed which rendered it necessary for the Governor to take immediate action by way of repromulgation of the ordinances. The Government seemed to proceed on the basis that it was not necessary to introduce any legislation in the Legislature but that the law could be continued to be made by the Government by having the ordinances repromulgated by the Governor from time to time. The question is whether this practice followed by the Government of Bihar could be justified as representing legitimate exercise of power of promulgating ordinances conferred on the Governor under Article 213 of the Constitution.

6. … The power conferred on the Governor to issue Ordinances is in the nature of an emergency power which is vested in the Governor for taking immediate action where such action may become necessary at a time when the Legislature is not in Session. The primary law making authority under the Constitution is the Legislature and not the Executive but it is possible that when the Legislature is not in Session circumstances may arise which render it necessary to take immediate action and in such a case in order that public interest may not suffer by reason of the inability of the Legislature to make law to deal with the emergent situation, the Governor is vested with the power to promulgate Ordinances. But every Ordinance promulgated by the Governor must be placed before the Legislature and it would cease to operate at the expiration of six weeks from the reassembly of the Legislature or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any. The object of this provision is that since the power conferred on the Governor to issue Ordinances is an emergent power exercisable when the Legislature is not in Session, an Ordinance promulgated by the Governor to deal with a situation which requires immediate action and which cannot wait until the legislature reassembles, must necessarily have a limited life. Since Article 174 enjoins that the Legislature shall meet at least twice in a year but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next Session and an Ordinance made by the Governor must cease to operate at the expiration of six weeks from the reassembly of the Legislature, it is obvious that the maximum life of an Ordinance cannot exceed seven and a half months unless it is replaced by an Act of the Legislature or disapproved by the resolution of the Legislature before the expiry of that period. The power to promulgate an Ordinance is essentially a power to be used to meet an extra-ordinary situation and it cannot be allowed to be "perverted to serve political ends." It is contrary to all democratic norms that the Executive should have the power to make a law, but in order to meet an emergent situation, this power is conferred on the Governor and an Ordinance issued by the Governor in exercise of this power must, therefore, of necessity be limited in point of time. That is why it is provided that the Ordinance shall cease to operate on the expiration of six weeks from the date of assembling of the Legislature. The Constitution makers expected that if the provisions of the Ordinance are to be continued in force, this time should be sufficient for the Legislature to pass the necessary Act. But if within this tune the Legislature does not pass such an Act, the Ordinance must come to an end. The Executive cannot continue the provisions of the Ordinance in force without going to the Legislature. The law-making function is entrusted by the Constitution to the Legislature consisting of the representatives of the people and if the Executive were permitted to continue the provisions of an Ordinance in force by adopting the methodology of repromulgation without submitting to the voice of the Legislature, it would be nothing short of usurpation by the Executive of the law-making function of the Legislature. The Executive cannot by taking resort to an emergency power exercisable by it only when the Legislature is not in Session, take over the law-making function of the Legislature. That would be clearly subverting the democratic process which lies at the core of our constitutional scheme, for then the people would be governed not the laws made by the Legislature as provided in the Constitution but by laws made by the Executive. The Government cannot by-pass the Legislature and without enacting the provisions of the Ordinance into an Act of the Legislature, repromulgate the Ordinance as soon as the Legislature is prorogued. Of course, there may be a situation where it may not be possible for the Government to introduce and push through in the Legislature a Bill containing the same provisions as in the Ordinance, because the Legislature may have too much legislative business in a particular Session or the time at the disposal of the Legislature in a particular Session may be short, and in that event, the Governor may legitimately find that it is necessary to repromulgate the Ordinance. Where such is the case, repromulgation of the Ordinance may not be open to attack. But otherwise, it would be a colourable exercise of power on the part of the Executive to continue an Ordinance with substantially the same provisions beyond the period limited by the Constitution, by adopting the methodology of repromulgation. It is settled law that a constitutional a authority cannot do indirectly what it is not permitted to do directly. If there is a constitutional provision inhibiting the constitutional authority from doing an Act, such provision cannot be allowed to be defeated by adoption of any subterfuge. That would be clearly a fraud on the constitutional provision...." [emphasis supplied]

The Dr. D C Wadhwa case made it crystal clear that the Ordinance-making power could be used for fraudulent purposes by an elected Government acting through a pliant Governor. Usurpation of the power of the Legislature in this manner is anathema to the concept and practice of rule of law. However the Court only recognized repromulgation in the manner described in this case as a ground for justiciability of the exercise of the Governor’s power to promulgate Ordinances. The Court refused to accept that R C Cooper had any bearing on this case as the question of the satisfaction of the Governor had not been raised in this case by the Petitioners.

Krishna Kumar Sigh and Anr. vs State of Bihar and Ors. (1998):[13]
In 1998, a two-judge Bench of the Apex Court was called upon to determine the validity of the Ordinance promulgated by the Governor of Bihar in 1989 and subsequent Ordinances pertaining to the taking over the Sanskrit Schools by the Government. The State Government had not given up the practice of repromulgating Ordinances without approaching the State Legislature for approval, despite the Court frowning upon such practice in Dr. D C Wadhwa. In Krishna Kumar Singh the judges dissented with each other on whether the effect of an Ordinance would endure beyond its lifespan. Justice Sujata V Manohar held as follows:

“20. … Since the Governor acts with the aid and advice of the Council of Ministers, the Ordinance-making power is given to the executive to promulgate a law when urgency of the situation so demands provided the legislature is not in session. Since this is an exception to the normal rule that laws must be enacted by the Legislature, Clause (2) of Article 213 provides certain safeguards. An Ordinance so promulgated must be laid before the Legislative Assembly of the State or when there is a Legislative Council in the State, before both the Houses when they reassemble. It shall cease to operate at the expiration of six weeks from the re-assembly of the Legislature. But even before the expiration of six weeks if a resolution disapproving the Ordinance is passed by the Legislature, it will cease to operate. This provision has to be read with Article 174 which enjoins that not more than six months shall intervene between the last session of the Legislature and the next session. Thus, an Ordinance is necessarily of a limited duration, not extending beyond 7-1/2 months.

25. Clearly, the power to promulgate an Ordinance is not a substitute for regular legislation passed by the Legislature of a State. It is a power conferred on the Executive in order to deal with any urgent situation while the Legislature is not in session. It is also of a limited duration. Article 213 does not contemplate that one Ordinance should be succeeded by several subsequent Ordinances without, at any stage, placing the Ordinances before the Legislature. It was this kind of practice which was condemned by the Constitution Bench of this Court in Dr. D.C. Wadhwa's case (supra). This Court observed in that case that the Government of Bihar made it a settled practice to deliberately go on re-promulgating the Ordinances from time to time on a massive scale in a routine manner. Immediately at the conclusion of each session of the State Legislature, a Circular Letter used to be set by the Special Secretary in the Department of Parliamentary Affairs to all the Commissioners, Secretaries etc. intimating to them that the session of the Legislature had been got prorogued and that under Article 213(2)(a) all the Ordinances would cease to be in force six weeks after the date of re-assembly of the Legislature. They should, therefore, get in touch with the Law Department and take immediate action to get all the concerned Ordinances re-promulgated before their date of expiry. The Court observed that the startling facts showed that the Executive in Bihar had almost taken over the role of Legislature in making laws not for a limited period but for years together in disregard of the constitutional limitations. This was clearly contrary to the constitutional scheme and was improper and invalid. Accordingly, the Court struck down the Ordinance which was before it. The manner in which a series of Ordinances have been promulgated in the present case by the State of Bihar also clearly shows misuse by the Executive of Article 213. It is a fraud on the Constitution. The State of Bihar has not even averred that any immediate action was required when the 1st ordinance was promulgated. It has not stated when the Legislative Assembly was convened after the first Ordinance or any of the subsequent Ordinances, how long it was in session, whether the ordinance in force was placed before it or why for a period of two years and four months proper legislation could not be passed. The constitutional scheme does not permit this kind of Ordinance Raj. In my view all the ordinances form a part of a chain of executive acts designed to nullify the scheme of Article 213. They take colour from one another and perpetuate one another, some departures in the scheme of the 4th and subsequent Ordinances notwithstanding. All are unconstitutional and invalid particularly when there is no basis shown for the exercise of power under Article 213. There is also no explanation offered for promulgating one Ordinance after another. If the entire exercise is a fraud on the power conferred by Article 213, with no intention of placing any Ordinance before the legislature, it is difficult to hold that first Ordinance is valid, even though all others may be invalid. The same course of conduct has continued from the first to the last Ordinance. I, therefore, do not agree with brother Wadhwa, J's conclusion that the 1st Ordinance is valid but the subsequent Ordinances are invalid. In my view all are invalid." [emphasis supplied]

Justice D P Wadhwa, on the other hand, held as follows:

“65. The very opening words of Article 213 are pointer to the fact that such power of promulgating ordinance is to be exercised when the Governor is satisfied that circumstances exist which rendered it necessary for him to take immediate action. The Ordinance so promulgated has the same force and effect as an Act of Legislature of the State assented to by the Governor. It, is only to meet an emergent situation when existing law is either deficient or no law exists to meet that situation that an Ordinance is promulgated by the Executive. Legislature cannot foresee every situation which may develop suddenly requiring immediate action. It has been held that it is within the subjective satisfaction of the Governor to come to the conclusion if any situation has developed suddenly requiring immediate action on his part and then resorting to issuance of an Ordinance invoking his powers under Article 213 of the Constitution. ...

70. ... The Court may not go into the question whether circumstances existed for exercise of power under the provision of the Constitution and as to what was the urgency or emergency to promulgate an ordinance. ..."

75. While we are both agreed that the ordinances from the 2nd Ordinance onwards are invalid, one of us (Sujata Manohar, J.) is further of the view that the 1st ordinance is also invalid and cannot be delinked from the chain. Further, even if the 1st ordinance is valid, its effect cannot last beyond its life-time. Wadhwa, J. is of the view that the 1st Ordinance is valid and its effect is enduring till it is reversed by express legislation.

76. In view of the difference of opinion between ourselves on the constitutional validity of the first ordinance, and on the effect of it on the status of the concerned teachers, the matters may be placed before the Hon'ble the Chief justice of India for constituting a larger bench.” [emphasis supplied]

Neither judge referred to R C Cooper. Justice Wadhwa made a reference to R K Garg and Dr. D C Wadhwa but only in the context of explaining that an Ordinance was on the same footing as a law enacted by Parliament or State legislatures. It appears that the Petitioners also did not argue on the point of ‘circumstances’ necessitating the Ordinances.

However this case did not end here. Upon referral to the Chief Justice, a five-judge Constitution Bench heard this matter again in November 2004, after more than five years. The Bench directed that the matter be listed before a seven-judge Constitution Bench for further hearing as it involved the issue of enduring effect of an ordinance beyond its lifespan. No further hearings are reported in this matter and the case is shown as ‘Pending’ on the website of the Supreme Court. This case has been pending for two decades since filing in the Apex Court.[14]


IV Discussion

The jurisprudence that has developed on the subject of the power of the President and the Governors to Promulgate Ordinances makes it clear that that power is meant to be exercised in order to deal with emergent situations irrespective of the distance in time that the next session of the concerned legislature may be from the date of such promulgation. However, an eleven-judge Constitution Bench in R C Cooper has held that the exercise of the Ordinance-making power is justiciable on grounds of mala fide intention or corrupt motive. This Bench and the five-judge Constitution Bench in A K Roy have unequivocally kept the door open for justiciablity on the ground that circumstances did not necessitate the promulgation of the Ordinance. The burden of proof however is on the challenger to such action.

After S P Gupta, the Courts are no longer hampered by Article 74(2) of the Constitution which prevents a Court from inquiring into advice tendered by Ministers to the President or Sections 123-124 of the Indian Evidence Act, 1872 which prohibit the government from submitting evidence from its unpublished official papers to a court. It is well established that the materials that formed the basis of the ministerial advice can be disclosed to both Courts and Petitioners if the Court determines that no injury to the public interest would be caused by such disclosure. So a Petitioner may demand production of documents relating to the determination of the concerned Government/President/Governor, as the case may be that circumstances exist for the promulgation of an Ordinance.

After October 2005, the position in law has radically changed. The Government has a duty to voluntarily publish all facts while announcing important decisions to the public under Section 4(1) of the Right to Information Act, 2005 (RTI Act). These twin Ordinances very well qualify as important decisions of the Central Government, but all facts necessitating their promulgation have not been placed in the public domain. Further, Cabinet papers including Cabinet notes may be sought for by any citizen under the Act and they will have to be disclosed after a decision has been taken and if the matter is complete or over and no other exemption listed in Section 81) of the Act is applicable. This author has successfully obtained copies of Cabinet Notes under the RTI Act and also argued for Appellants successfully to obtain materials that formed the basis of the advice of Ministers tendered to the President on the manner of disposal of mercy petitions.[15] So it is possible to obtain copies of the Cabinet Notes pertaining to the twin Ordinances under the RTI Act. One could reasonably expect them to reveal the justification for the promulgation of these Ordinances as in their absence, the exercise of this power would become arbitrary. The justification recorded in these Cabinet Notes may indicate some details of the circumstances that existed for the promulgation of the Ordinances. This information could then be assessed to make a decision whether nor not to challenge in Court the ‘circumstances’ claim made by the Government.

However, the delay likely to be caused by the Government in disclosing Cabinet Notes under the RTI Act (after two very likely rounds of rejections internally – one by the public information officer and the other by the first appellate authority) and then the long wait at the concerned Information Commission for a resolution of the second appeal, may simple put a dampener on any effort to make the action of the President under Article 123 and that of the Governor under Article 213 justiciable in court. Nevertheless if Courts were to act swiftly and invoke their powers to summon the materials on the basis of which the decision to promulgate an Ordinance was taken, the arbitrary use of Articles 123 and 213 may be checked. It is respectfully submitted that when the Supreme Court and the High Courts are the appointed guardians of the Constitution and fundamental rights of citizens, they cannot and must not leave such matters to the legislatures to decide where there is strong public perception that the Ordinance-making power has been exercised without sufficient and just cause.

If the Governments themselves re-establish the practice of mentioning details of the circumstances that necessitate the promulgation of an Ordinance, in the form of Statement of Objects and Reasons, prefixed to the text of the Ordinance, and also disclose the relevant Cabinet Note in toto, soon after the decision is taken and the matter is complete or over, citizens will have an opportunity to make an assessment for themselves about the motives of the Government. Where necessary they may elect to challenge the Ordinance in court. Transparency of this kind will lead to greater accountability even before the matter reaches Parliament or the State Legislatures, as the case may be. Opacity in the decision-making process only leaves Ordinances as fait accompli because Courts have refused to look into matters that are of academic import only. This is not how a transparent and accountable Government must function. The NDA Government has a real opportunity to move away from the practices of secrecy that were the hallmark of previous governments and set new standards by voluntarily disclosing the circumstances that necessitated the twin Ordinances and follow the same method for promulgating any other Ordinance in future.


*****

(* Venkatesh Nayak is Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi. Views expressed in this note are personal.)

NOTES

[1] For the text of the Ordinance see: http://egazette.nic.in/WriteReadData/2014/159626.pdf accessed on 02 June, 2014.


[2] For the text of the Ordinance see: http://egazette.nic.in/WriteReadData/2014/159646.pdf accessed on 02 June, 2014.




[3] The partial revocation of President’s Rule in the States of Telangana and Andhra Pradesh issued by the President under Article 356(1) of the Constitution is a good example of giving reasons for the exercise of the President’s emergency powers. See the text of the proclamation in the Official Gazette dated 01, June, 2014 at: http://egazette.nic.in/WriteReadData/2014/159680.pdf


[4] Under Article 213 of the Constitution, the Governor of any State has similar powers to promulgate Ordinances when the Legislature of that State is not in session.


[5] The Blog of PRS India has a useful ready-reckoner on the powers of the President and the Governors to promulgate Ordinances along with references to some case law at this link: http://www.prsindia.org/theprsblog/?p=3088 accessed on 02 June, 2014.


[6] AIR1970 SC 564.


[7] Mr. Giri was Acting President since May 1969 due to the demise of the earlier incumbent- Mr. Zakir Hussain.


[8] (1982) 1SCC 271.


[9] (1981) 4SCC 675.




[10] (1985) 3SCC 198.


[11] S P Gupta vs President of India, AIR 1982 SC149. This judgment was delivered two days after AK Roy.


[12] (1987) 1SCC 378.


[13] (1998) 5SCC 643.


[14] Readers may ascertain this by keying in the case no. as Civil Appeal 5875 of 1994 under the ‘Case Status’ link on this website- accessed on 02 June 2014.


[15] See Venkatesh Nayak vs Department of Personnel and Training, Case No. CIC/WB/C/2010/000120,dDecision dated 30 August, 2010, Venkatesh Nayak vs PIO& OSD (ER), Department of Atomic Energy, Case No. CIC/SG/A/2012/001023, decision dated 26 June, 2012 and Subhash Chandra Agarwal vs Ministry of Home Affairs, Case No. CIC/SS/A/2012/000051, decision dated 26 June, 2012.

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