In Indian Constitution, the power to enact laws has been primarily given to Parliament and state legislatures as they enjoy the mandate of the public vote in their respective territories. At the same time, to meet the extraordinary situations demanding immediate enactment of laws, the Constitution empowers the President and Governors to enact laws in the form of ordinances by virtue of Article 123 and Article 213 respectively.
However, the said Articles expressly provide that these ordinances cannot be promulgated until two conditions have been satisfied i.e., firstly, that both the Houses of Legislature are not in session, and secondly, that the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action.
Recently, on November 27, 2020, the Uttar Pradesh Government promulgated “The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020” and on January 09, 2021, Madhya Pradesh Government promulgated “Madhya Pradesh Freedom of Religion Ordinance 2020”. However, whether the said Ordinances have been promulgated through constitutionally prescribed manner or not, is highly disputed.
Since, the Legislature of both the states were not in session during the promulgation of ordinances, the said first condition has been satisfied. However, whether the second condition has been satisfied or not is disputed. The question that whether the satisfaction of the President and Governor is non-justiciable or subject to judicial review on any ground, still remains open in India.
In SKG Sugar Limited v. State of Bihar, the Supreme Court stated as regards Governor’s satisfaction to make an ordinance under Article 213 that the necessity of immediate action and of promulgating an ordinance is a matter purely for the subjective satisfaction of the Governor. However, in the case of Cooper v. Union of India, Ray, J, (minority opinion) ruled that “the satisfaction of the President is subjective” and 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”.
The decision of Cooper Case (supra) cast a doubt on this question that the satisfaction of President or Governor is subject to judicial review or not. To remove this doubt, in 1975, the Parliament added Article 123(4) and Article 213(4) through 38th Amendment, making satisfaction of the President and Governor to issue an ordinance non-justiciable. Despite this, the Supreme Court, in the case of State of Rajasthan v. Union of India suggested that presidential satisfaction under Article 123(1) could still be questioned on the ground of mala fides.
In 1978, the Parliament deleted Article 123(4) through 44th Amendment and restored the status quo ante. Then, again in A.K Roy v. Union of India, the Court pointed out that a prima facie case must be established by the petitioners as regards the non-existence of the circumstances necessary for the promulgation of the Ordinance before the burden can be casted on the President to establish those circumstances. The Court observed that the power to issue ordinances is not meant to be used recklessly imaginary state of affairs or mala fide against the normal legislative process.
However, in subsequent case of T Venkata Reddy v. State of Andhra Pradesh, the Supreme Court ruled that since the power to make an ordinance is legislative and not executive power, its exercise cannot be questioned on grounds of its propriety, expediency and necessity. It was held that an ordinance should be clothed with all the attributes of an Act of legislature carrying with it its incidents, immunities and limitations under the Constitution.
It is pertinent to note that Constitutional Bench of the Supreme Court in the recent case of Rameshwar Prasad v. Union of India held that the subjective satisfaction of a Constitutional authority including the Governor, is not exempt from judicial review. No doubt the opinion was expressed in connection with executive action under Article 356 (President’s rule) which was not legislative in character, nevertheless, it indicates an assertion that unless specifically barred every executive action is subject to judicial review.
Similarly, in S.R Bommai v. Union of India case, the Supreme Court ruled that a proclamation issued by the President under Article 356 on the advice of the Council of Ministers is amenable to judicial review at least to the extent of examining whether the conditions precedent to the issuance of the Proclamation have been satisfied or not.
Thus, while an Act passed by a Legislature may not be challengeable on the ground of mala fides, the same ought not to be said of the Executive. Further, in the case of Gyanendra Kumar v. Union of India, the Delhi High Court observed that a challenge can be made to the existence of circumstances which necessitated the issuance of ordinances.
Thus, it seems that though the latest case law i.e. T Venkata Reddy (supra) touching the issue at hand directly exempts the power to issue ordinance from the purview of judicial review, the jurisprudence developed in the subsequent landmark cases of Rameshwar Prasad and S.R Bommai infers that the Governor’s satisfaction while enacting U. P’s and M. P’s ordinances can be subjected to judicial review if challenged in the Supreme Court or in their respective High Court.
A strong case for making the satisfaction justiciable qua these ordinances
It would be wrong to say that the ordinance should be clothed with all the attributes of an Act of legislature. The normal democratic legislative process involves the people’s representatives in the two Houses openly enacting a law after a full consideration and discussion. An ordinance seeks to circumvent this process for it is drafted secretly in government chambers and is promulgated without an open discussion. Had the said MP’s and UP’s ordinance been discussed in their respective State legislatures, the issues raised by public now would have been surely raised by the Opposition. The in-depth discussion of the provisions would have surely helped to balance the public interest i.e. protection from unlawful conversion, with the individual’s fundamental right i.e. right to privacy. As it can be observed now, the said balance is absent from both the ordinances (discussed later).
In Venkata Reddy, the Supreme Court also observed that if the ordinance later comes to an end for any reason, the ordinance does not become void ab initio. It is valid when promulgated and whatever transaction has been completed under the ordinance cannot be reopened when the ordinance comes to an end. This rather necessitates to hold that any ordinance, which even if fails to pass both the Houses of the Legislature cannot be made to reverse the changes occurred during the force of ordinance, must pass the constitutional tests. More than 54 people have been arrested in the U.P alone on the allegations of committing the offences prescribed under its ordinance. If they are convicted, subsequent declaration of unconstitutionality of the U.P ordinance would not be able to reverse these arrests.
It also needs to be emphasized that the Doctrine of Separation of Powers envisages not only separation of powers, as such, but also separation of three organs who wield these powers. When the Executive promulgates an ordinance, it exercises legislative power which in itself amounts to the negation of the doctrine of Separation of Powers, as it combines legislative power with executive power. Moreover, there is a vital difference between the two: an ordinance is made by the Executive while an Act is made by a democratically elected Legislature after due deliberation and discussion. Therefore, the making of an ordinance can never be equated with the enactment of an Act through the Legislature. One is the legislative act of the Executive, the other is the legislative act of the democratically elected Legislature. Thus, the said ordinances negate the doctrine of Separation of Powers envisaged under the Constitution of India.
Moreover, the necessity of showing the circumstances which render it necessary to take immediate action becomes invaluable when the ordinance substantially intrudes with the Fundamental Rights of the citizens. Both the ordinances drastically intrude with the right to privacy, a facet of Article 21 of the Constitution as held in the remarkable case of Justice K.S Puttaswamy, of the couples. Anyone who desires to convert, is required to give declarations to the District Magistrate at least 60 days before and within 60 days after the conversion. Also, the Convertor (person who is facilitating such conversion) needs to give a notice of 30 days prior to the conversion. The authorities are required to conduct a routine enquiry regarding the cause of such conversion. Further, the basic principle of natural justice i.e., burden of proof has also been reversed. In the ordinances, it is the accused, rather than the converted person, who has to prove that he has not violated any provision of the concerned ordinance.
Thus, it would not be wrong to say that the repetitive use of the power of promulgating an ordinance by the President and Governor by undermining the constitutionally-prescribed values only delegitimize these values in the public’s eyes. It is the need of the hour that the apex court reminds the executive of the restraint imagined by the Constitution-makers.
(Mohit Rana is an advocate in the Supreme Court of India and Ravi Singh Chhikara a final year law student from the Delhi University)
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