Scrutinizing the imminency facet of Legislature’s ordinance making power.

-Shiwansh Tripathi, Shaurya Shukla*

Introduction:-

In times where every sphere of life is fighting its existential crisis, constitution makers at time of
independence had blessed the parliament and Indian polity with the ordinance promulgating power to
tackle the governmental management crisis like these. Current circumstances have a crucial need for
such emergency powers. But can an ordinance be promulgated to throttle down any political agenda
under the neck of democracy? For over 5 decades now, political parties have been constantly trying to
bypass the normal legislative procedure and instead rule by the ordinance. These actions provide perfect
alternative to circumvent the normal legislative route.
There are a number of political perks entailed with promulgating an ordinance like:-

1- It bypasses the legislative discourse and dissents.

2- It has exactly same effect as law.
3- Since it is promulgated by president, criticism is not directed towards particular leader or party.

Article 1231 of the constitution provides executive with ordinance promulgating power. In order to
exercise this power certain things need to be ensured-

1- That both the houses are not in session.

2- President satisfaction of immanency.

Whole contention lies with the d\satisfaction of president. It is imperative to mention here that Article 74
of constitution states that a president will act on aid and advice of the parliament 2. Hence it is not the
president satisfaction, its council of minister who are pulling the plug from behind. As a result the power is
used to cater political agenda and curb dissenting voice.

The farm ordinance, which was later ratified in both the houses of the parliament created fervent furor in
the subcontinent. Can any legislation be advanced through route of ordinance? or should there be some
check and balance in order to regulate? Since the consistent skepticism about ordinance is aggrandizing
at exponential pace and more such ordinances are being promulgated, the authors in this article will be
discussing about the legislative power of the executives i.e. ordinance, and position of judicial scrutiny
regarding the same. The authors will start by initially describing the law regarding the ordinance and its
judicial developments, subsequently there will be suggestions and conclusions.
1
*Both are students at WBNUJS, Kolkata and CNLU, Patna respectively.
Indian Const. art. 123.
2
Indian Const. art. 74.
Analysis of historical jurisprudence regarding ordinances:-

Judiciary through number of precedents has made substantial advancement in jurisprudence of

ordinance. Whether immediacy of ordinance can be subjected to judicial scrutiny? The first case to
conclusively answer it was RC Cooper v Union of India where court held that the grounds on which
government is imminently required to promulgate an ordinance should be subjected to judicial scrutiny 3.
To counter its legal effect parliament came up with 38 th constitutional amendment inserting clause (4) to
Article 123 which stated that the president’s decision to promulgate an ordinance is final and cannot be
questioned on any ground4. This made Supreme Court’s judgment in RC Cooper Case redundant.
However, after Indian democracy survived the menace of emergency, janta government tried to damage
control the already ailing democratic principles. In order to do so, they passed 44 th amendment which
turned most of the emergency amendments redundant 5. One of such was removal of Article 123(4). But
the controversy surrounding the “immanency criterion” was far from over. Court in case of AK Roy v
Union of India held that immediacy of an ordinance can be put to test by judiciary 6. However court took
absolutely opposite stance in case of Venkatareddy v State of Andhra Pradesh when it assertively held
that promulgating ordinance and asserting immediacy is completely executive prerogative and any
interference in this arena will transcend the separation of power principle followed in Indian Polity 7.
Supreme Court again confronted the issue of ordinance in case of Krishna Kumar8, where one of the
issues was: to what extent court has authority to scrutinize the satisfaction of president? Chandrachud J,
pointed that parliament through 44th amendment has repealed 123(4). Hence going by the legislative
intention, parliament has the power of scrutiny9.

Afterwards, the question arose that up to what extent does this power exist? In case of SR Bommai v
Union of India, court held that court in certain situations may demand the documents and reports on
basis of which an ordinance was promulgated 10. However judiciary will have no power to check the
sufficiency and adequacy of an ordinance, only thing a bench has to assure is that the promulgation is not

3
Rustom Cavasjee Cooper v. Union Of India (1970 AIR 564, 1970 SCR (3) 530

4
The Constitution (Thirty-eighth amendment) Act, 1975, 17 Nov 2020, 11:31 AM, https://www.india.gov.in/my-
government/constitution-india/amendments/constitution-india-thirty-eighth-amendment-act-1975
5
The Constitution (Fourty-fourth amendment) Act, 1975, 17 Nov 2020, 11:32 AM, https://www.india.gov.in/my-
government/constitution-india/amendments/constitution-india-thirty-eighth-amendment-act-1975.
6
A. K. Roy, Etc vs Union Of India And Anr 1982 AIR 710, 1982 SCR (2) 272
7
T. Venkata Reddy Etc. Etc vs State Of Andhra Pradesh 1985 AIR 724, 1985 SCR (3) 509
8
Krishna Kumar Singh & Anr. Etc. ... vs State Of Bihar AIR 1998 SC 2288, JT 1998 (4) SC 58, (1998) IIIMLJ 100 SC, 1998 (3)
SCALE 482, (1998) 5 SCC 643, 1998 3 SCR 206
9
Supra at 5.
10
S.R. Bommai vs Union Of India 1994 AIR 1918, 1994 SCC (3) 1
the result of abuse of power on extraneous ground. Hence court through this decision can exercise the
limited judicial review, which at some instance is so limited that it turns out to be a limitation.

Ordinance Promulgation: an executive prerogative:-

The subjective criterion prescribed under constitution has always leaded to loopholes and exploitation of
that provision. The satisfaction of governor ordained under Article 123 is one such provision. Article
123(1) states that “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 Ordinance as the circumstances appear to him to require 11.”

The whole contention and subsequent exploitation revolves around “satisfaction of president” and
“immediate action.” There is no clear definition which exemplifies these two criterions hence promulgation
of ordinance is left absolutely at executive prerogative. If these criterions are clearly left at prerogative of
the executive, then every law could be justified on those grounds and parliament will tend to be
redundant, or merely confined to ordinance scrutinizing body. Though COVID-19 pandemic is an
emergency situation but many laws have been passed as ordinance under the shield of the pandemic.
The farm bill12 and the labor bill13 (which ultimately were passed in parliament) were such bills. It is difficult
to conceive as to why government need to pass the labor reforms through ordinance which in present
case should be solely used to tackle the corona crisis. Legislation like farm bill which has potential to
affect half of the nation’s population should be implemented after adequate discourse. With the
promulgation of an ordinance, the opportunity to discuss about good and bad aspects of a legislation is
also done away with.

Should guidelines be formulated?

Though subjectiveness surrounding ordinance provides a pathway to be exploited but the same cannot
be resolved through formulation of guidelines. Since the ordinance making power is meant to be used
under extra ordinary circumstances, the same circumstances could not be predicted. Features like
ordinance gives executive wide range of power to deal with the emergency situation. Hence formulation of
certain guidelines could cement certain exclusive situation under which executive could promulgate

11
Supra at 1.
12
Harikishan Sharma, Explained: In three ordinances, the provisions that bother protesting farmers, 17 Nov 2020, 11:56 AM,
https://indianexpress.com/article/explained/in-three-ordinances-the-provisions-that-bother-protesting-farmers-6598905/.
13
Yogima Seth Sharma, Govt introduces three crucial bills on labour lawsin Lok sabha amid congress’ opposition, 17 Nov 2020,
11:56 AM, https://economictimes.indiatimes.com/news/economy/policy/govt-introduces-three-crucial-bills-on-labour-laws-in-lok-
sabha-amid-congress-opposition/articleshow/78203977.cms?from=mdr.
ordinance. Though the same will reduce the exploitation of the power but could also lead to larger
administrative issue as every emergency situation could not be predicted.

Need of the Hour:-

Supreme Court needs to take a tougher stance towards promulgation of ordinance. Though ordinance is
subjected to parliamentary scrutiny but the same is done after the house is in session. Meanwhile
executive have reasonable amount of time to promulgate such ordinance which has wide ranging impact
on the Indian democracy. Supreme Court could not keep itself isolated under the pretext of “Separation of
Power” when it is one of the facets of “check and balance system.” The limited judicial review evolved in
SR Bommai case is mirage of scrutiny and does not serve any practical purpose. Further krisna Kumar 14
Case and SR Bommai case15 upheld the principle that if while deciding on immanency or satisfaction of
governor, one of the grounds in a bunch of irrelevant grounds is relevant, then it would tend to pass the
test.
Hence, exercise of scrutinizing whether the grounds of promulgation is vitiated by extraneous
circumstance and mala fide intention without checking the adequacy of the documents presented is futile
one. To find the mala fide intentions of governor in documents prepared by executives’ when the same
could be circumvented through sugarcoated high-sounding government report is a waste of Supreme
Court’s time. Instead court needs to offer some substantial scrutiny. SC has to go deep and ask some
difficult questions to executives. Such as, why this law as form of ordinance? Why now? Supreme Court
is sole interpreter of constitution, and instead of following literal and positivist approach, it has to come up
with more natural solution to curb the menace of parallel legislations.

CONCLUSION

The laws like farm bills and labor reform which was initiated through mode of ordinance, in pretext of
COVID situation is just a tip of iceberg. The problem lies deep down. There is no doubt ordinance
promulgating provision is an essential feature of a successful democracy but without any check and
balance system it could turn the constitution on its head. More and more laws are being promulgated
through route of ordinance. As interpreter and guardian of constitution, Supreme Court needs to get out of
bubble of black letter. Constitution cannot survive without transformation and transformation could not
occur deciding the cases while isolating politics. Hon’ble court should take the note of the fact that
immanency is decided at peril of president who acts on aid and advice of counsel of minister. Though
president should be impartial but in reality they are mere tool under subjugation of majority. Our court has
habit of taking revolutionary stance when it witnesses a political or constitutional tragedy. It should not
14
Supra at 8.
15
Supra at 10.
wait one for now. Court should take the matter in cognizance especially today when most of the
ordinances are passed disguising the need to tackle COVID even in effect it is not remotely located.