Rolling Back Ordinance Raj: 10 Editorial
Rolling Back Ordinance Raj: 10 Editorial
Rolling Back Ordinance Raj: 10 Editorial
NOIDA/DELHI
EDITORIAL
Banking on
good faith
SUHRITH
PARTHASARATHY
On January 2, in one of many judgments delivered on its first working day of the year,
the Supreme Court, in Krishna Kumar Singh
v. State of Bihar, made a series of pronouncements with potentially huge implications for the future of democratic governance in the country. The case raised
intricate constitutional questions concerning the executives power to make law
through ordinance, but the majoritys opinion, authored by Justice D.Y. Chandrachud,
on behalf of five of the seven judges who
heard the case, is lucid both in its reasoning
and in its ultimate findings.
For far too long, the court recognised, the
power to make ordinances has been abused
to subvert the democratic process. A failure
of a legislature to confirm an ordinance,
therefore, in the courts ruling, was fatal both
to the validity of the law, and also, unless
public interest otherwise demanded, to the
rights and liabilities that may have accrued
from such a law. According to Justice
Chandrachud, the authority to issue ordinances is not an absolute entrustment, but is
conditional upon a satisfaction that circumstances exist rendering it necessary to take
immediate action. In other words, ordinances are not immune from judicial
challenge.
Ordinary idea of ordinance
The contest over the use of ordinances as a
tool to make laws stretches well beyond the
Constitutions adoption. Indeed, at the time
when the provisions incorporating these
powers were debated in the Constituent Assembly, B.R. Ambedkar suggested that any
concerns over the conferment of ordinancemaking powers on the executive were really
only a quibble over language. My own feeling is that a concrete reason for the sentiment of hostility, which has been expressed
by my honourable Friend, Mr. [H.V.] Kamath
as well as my honourable Friend, Mr. [H.N.]
Kunzru, really arises by the unfortunate
heading of [the] Chapter Legislative Powers
of the President, Ambedkar said. It ought
to be Power to legislate when Parliament is
not in session. I think if that sort of innocuous heading was given to the Chapter, much
of the resentment to this provision will die
down. Yes. The word Ordinance is a bad
word, but if Mr. Kamath with his fertile imagination can suggest a better word, I will be
the first person to accept it. I do not like the
word ordinance, but I cannot find any other
CARTOONSCAPE
Setback to climate
action plans
hat Donald Trumps scepticism about climate change will adversely impact
policies to address global warming became abundantly clear minutes after his
swearing-in as U.S. President. The White House
website quickly deleted all mention of climate
change. Turning its attention to other agencies, the
Trump administration instructed the U.S. Environmental Protection Agency to follow suit and scrub
all mention of climate change from its website as
well. But following a protest by scientists and others, the administration softened its stand and indicated that the agencys website was only being reviewed and that it had no immediate plans to
remove the content on climate change. Mr. Trump
has also resurrected the controversial Keystone XL,
that former President Barack Obama had blocked
after a protracted battle with policymakers, and
Dakota Access pipelines. The Trump administration had issued a gag order to scientists at the EPA
and the U.S. Department of Agriculture to stop
them from speaking to the media; it subsequently
changed its policy with respect to EPA but has mandated that even routine data and studies be reviewed before being released to the public. In line
with his thinking that global warming is an expensive hoax, Mr. Trump plans to re-energise the
fossil-fuel industry. The America First Energy Plan
listed on the White House website aims to increase
fossil fuel extraction in the name of creating more
jobs, and in the process eliminating, among other
things, Mr. Obamas climate action plan.
Even more alarming is Mr. Trumps intention to
reverse Americas involvement in the historic Paris
climate accord. Under the pact, 195 countries have
agreed to limit the increase in global temperature
since pre-industrial time to less than 2C in the 21st
century, and try to work towards reaching a
tougher target of 1.5C. In November 2014, Mr.
Obama announced a new target to cut greenhouse
gas emissions 26-28% below 2005 levels by 2025.
Among other measures taken in 2015, the U.S. had
finalised the clean power plan to reduce carbon dioxide emissions from the power sector to 32% below 2005 levels by 2030. With the average global
temperature already reaching 0.8C above pre-industrial levels, there are fears that further delay will
have long-term repercussions that would be near
impossible to mitigate. With the current and proposed policies by the U.S. already inadequate to
meet the Paris target, any negative deviation from
the plan will have implications for the entire world.
CM
YK
mately, the government failed to enact a statute confirming the terms of the ordinances,
and the last of them was allowed to lapse on
April 30, 1992. The employees of the schools,
who stood discharged from service, as a result of the termination of the ordinances, took
the State government to court.
When the case ultimately reached the
seven-judge bench for arguments there were
two fundamental questions to be answered:
whether the ordinances issued by the Bihar
government were constitutionally valid, and
whether the petitioners had derived any
legal right that survived the termination of
the ordinances. On the first, Justice
Chandrachud went beyond existing precedent to hold that not only repromulgated ordinances, but even ordinances issued at the
first instance, are subject to judicial review.
Here, he placed reliance on the celebrated
S.R. Bommai case (1994), where a nine-judge
bench of the court had ruled that the judiciary could strike down a proclamation of
emergency when the power had been exercised by the executive to secure an oblique
purpose.
Ordinances subject to scrutiny
Justice Chandrachud ruled that a similar
standard of review could be applied to ordinances too; the court, in these cases, he held,
will not enquire into the adequacy or sufficiency of the material before the President
or the Governor, but it can investigate to see
if there has been either a fraud or an abuse of
power committed by the executive.
But strong as the courts finding is on the
first question, on the second its verdict is potentially even more far-reaching. Here, the
court overruled two of its earlier judgments,
and binned what it described as a theory of
enduring rights. It ruled that an ordinance is
distinct from a temporary legislation, and it
therefore doesnt automatically create rights
and liabilities that go beyond its term of operation. While enacting a law, the legislature is entitled to define the period during
which the law is intended to operate, wrote
Justice Chandrachud. Hence, it lies perfectly within the realm and competence of
the legislature which enacts a temporary law
to provide that the rights or the liabilities
which are created during the tenure of the
law will subsist beyond the expiry of its
term. But an ordinance, unlike a temporary
statute, is not a creature of the legislature.
Therefore, the court held, these orders have
the same force and effect of a legislation only
so long as they are operational. In other
words, once the conditions imposed by Article 123 or Article 213, as the case may be, are
infracted, the question of what effects will
survive from the ordinance will have to be
independently assessed. In such circumstances, wrote Justice Chandrachud, the
court must examine whether the undoing of
acts performed under an ordinance would
run counter to public interest.
Now, while Justice Chandrachud is certainly correct in ruling that an ordinance
would not automatically create enduring effects, a test of public interest could prove
somewhat problematic in the future. There
may well be cases where an ordinance creates outcomes that are manifestly irreversible, despite public interest demanding its
reversing. However, that said, these issues
could well be ironed out when subsequent
benches are faced with such questions.
In the final analysis, the courts verdict has
to be seen as placing a vital check on what
has until now been a power rampantly abused by the executive. Inconvenient as legislative debate and deliberation can be, the legislature constitutes a critical foundation of
our democracy. When Parliament reconvenes next week, it must be seen by both the
ruling dispensation and the opposition as a
forum for debate, for making laws based on
critical reasoning. To await the completion
of the session, and to create laws then by circumventing this process through ordinance,
debases altogether the Constitution and its
finest ideals.
Suhrith Parthasarathy is an advocate practising at the
Madras High Court.
Coimbatore
Navi Mumbai
Thiruvananthapuram
Hempur, Uttarakhand
Kochi
ND-ND