by Akhil Deo
On the 1st of June, the National Democratic Alliance(NDA) Government promulgated the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance (“land acquisition ordinance”) for the third time, while the Amendment Bill itself is being considered by a Joint Parliamentary Committee. Naturally this has opposition parties up in arms-calling it a “fraud on the constitution.” In fact several former bodies have already challenged the re-promulgation of the ordinance as unconstitutional before the Supreme Court (“SC”).
Article 123 of the Indian Constitution vests ordinance making power with the President. He may exercise this power if he satisfied that circumstances exist which render it necessary for him to take immediate action. However, he may not do this when both houses are in session. Further, the ordinance lapses six weeks after the reassembly of parliament.
The reasons for India’s controversial relationship with ordinances are best understood in the context of B.R Ambedkar’s justification of Article 123 during the Course of the Constituent Assembly Debates–
“..it is not difficult to imagine cases where the powers conferred by the ordinary law existing at any particular moment may be deficient to deal with a situation which may suddenly and immediately arise. What is the executive to do?.. it seems to me that the only solution is to confer upon the President the Power to promulgate a law which will enable the executive to deal with that particular situation because it cannot resort to the ordinary process of law because, again ex hypothesi, the legislature is not in session… “
Clearly, the power conferred under Article 123 was supposed to be used in cases of legislative inability of for emergent reasons, however by 2015, the ordinance route was employed upward of 640 times. Shubanker Dam, who has studied this legislative power in great detail finds that “with the exception of a single ordinance”, every other law could have waited for the next legislative session. There is consensus across the political spectrum that such power is often misused, yet almost every political party in power has taken recourse to it at one point or another.
This short note seeks to examine the nature of the president’s power under Article 123 and to examine if there is any merit to the challenge against the re-promulgation of the Land Acquisition Ordinance.
Judicial exposition on the nature and limits of ordinance making power of the executive
The SC has time and again had the opportunity to comment on the nature of a presidential ordinance. In RK Garg v. Union of India ((1981) 4 SCC 675) the SC found as follows: “..it is accepted that the President has legislative power under Article 123 to promulgate an ordinance and this legislative power is co-extensive with the power of the Parliament to make laws..” Again, in AK Roy v. Union of India(1982 AIR 710), the SC relying on Article 367 of the Constitution observed that:
“if indeed there was any doubt about the true position, that the Constitution makes no distinction in principle between a law made by the legislature and an ordinance issued by the President Both, equally, are products of the exercise of legislative power and, therefore, both are equally subject to the limitations which the Constitution has placed upon that power.”
Evidently, the SC has equated the power of parliament to promulgate laws with that of the president, holding that 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 be treated as an executive action or an administrative decision.”(Venkata Reddy v. State of Andhra Pradesh, 1985 AIR 724)
There are of course conditions that the text of Article 123 imposes upon the president-First, his satisfaction that such an action is necessary. However, the Court has already excluded this condition from the scope of judicial review. In Nagraj v. State of Andhra Pradesh (1985 AIR 551) the Court concluded that the motive of the Governor while promulgating an ordinance cannot be a reason for rendering it invalid, the Court held that:
“Besides, the ordinance-making power, being a legislative power, the argument of mala Fides is misconceived. The legislature, as a body, cannot be accused of having passed a law for an extraneous purpose. Its reasons for passing a law are those that are stated in the Objects and Reasons and if no reasons are so stated, as appear from the provisions enacted by it. Even assuming that the executive, in a given case, has an ulterior motive in moving a legislation, that motive cannot render the passing of the law mala fide. This kind of ‘transferred malice’ is unknown in the field of legislation.“
However, in the rather confusing case of State of Punjab v. Sat Pal Dang (1969 AIR 903), the state assembly had been adjourned by the speaker for a few months, despite the fact that the budget session had to be concluded before March the 31st to enable money to be drawn from the consolidated fund. The Governor decided to prorogue the assembly and promulgated an ordinance which provided that neither house could be adjourned until completion of financial business. Dismissing the charge of malafide motive against the governor the Court held that his actions were justified considering the unusual situation at hand. However the Court also observed:
“Whether a Governor will be justified to do this when the Legislature is in session and in the midst of its legislative work, is a question that does not fall for consideration here. When that happens the motives of the Governor may conceivably be questioned on the ground of an alleged want of good faith and abuse of constitutional powers.”
Clearly then this case has to be read with the second limitation on the exercise of power under Article 123,that at least one house is not in session. It is not readily apparent when the house is not in session- a House may be adjourned, which postpones the business of the house to a later date because it is unable to function. It may be prorogued, which implies that a session has come to an end, however when the house resumes, all of its work from the prorogued session survives. Lastly, the Lok Sabha may be dissolved, which ends its life completely. The power to prorogue or dissolve, however, rests with the president, with no real limitations on when he may exercise it. Therefore, a joint reading of the Nagraj case and the Sat Pal Dang case should reveal, in the least, that while the reason for issuing an ordinance is not capable of review, in choosing to exercise this power, the executive cannot create a situation whereby neither house is in session.
The Validity of re-promulgations
The case in point with respect to the validity of re-promulgating ordinances is undoubtedly DC Wadwha v. State of Bihar (1987 AIR 579), where the state passed close to 260 ordinances over a period of 14 years. In a scathing judgment which gave us the phrase- ‘fraud on the constitution’, the Court, while noting that the power under Article 123 cannot be “perverted to serve political ends,” held that:
“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.”
Strangely, almost immediately after making such an observation the Court goes on to loosely list circumstances in which re-promulgation is permissible:
“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, re-promulgation 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.”
The fate of the Land Acquisition Ordinance
The fate of the ordinance then rests on the following factors:
(a) Can the motive of the President be challenged? As per Nagraj, (supra) the answer is no. However, the reasoning deserves some scrutiny; if the Court arrived at this conclusion simply because an ordinance is equivalent to an Act of Parliament, then it must be incorrect. While the end result of both the executives legislative power and that of parliament is a law per Article 13, the manner in which such power is exercised is different and is subject to different limitations. The text of Article 245 states that the power of parliament to legislate is “subject to the provisions of this constitution”. However, Article 123 reads ” if he satisfied that circumstances exist which render it necessary for him to take immediate action.”
Famously in S.R Bommai v. Union of India, (1994 SCC (3) 1) the Court held that the validity of a proclamation of emergency was subject to judicial review and can be struck down if it is malafide or based on wholly irrelevant or extraneous grounds, this proclamation is also subject to the satisfaction of the president under Article 356. Unfortunately, while Article 356 provides that the grounds for exercise of such power is only on the breakdown of constitutional machinery, Article 123 is not so specific.
In any event, a closer re-examination of the facts with respect to the land acquisition ordinance will show that on Arpil 3rd the ordinance was re-promulgated for a second time, whichtook place after the Rajhya Sabha was prorogued by the President only days earlier. According to news reports, this was done explicitly to pave way for the ordinance. The Upper House was prorogued despite the fact that the House was in the middle of the budget session due to end only on the 8th of May. In Sat Pal Dang, (supra) the Court was of the opinion that such an act is questionable on grounds of abuse of constitutional power
(b) Is it justifiable under the Wadhwa exeptions? There are two possible ways of analyzing the Wadhwa exceptions: First, as Shubankar Dam argues, given that the purpose of Article 123 was to deal with emergent situations that demand immediate consideration, if parliament does not choose to exercise its power to extend its session or is too busy with other matters, does that not indicate that the situation itself does not warrant immediate action? Second, even if the exceptions are accepted, the reason that the NDA Government failed to secure the passing of the original amendment bill was because it lacked a clear majority in the Rajya Sabha and not because the House was busy with other matters or that the session was short..
A review of cases relating to promulgation of ordinances by the Governor and the President should reveal that first, while the power of the President is subjective and his motives as such are not subject to review, the condition that neither house is in session must be satisfied naturally and not as a result of executive action. Second, even if the exceptions provided for in DC Wadhwa are valid, the NDA government does not satisfy them in its re-promulgations.
The real test will be how far the Supreme Court is willing to expand its power of judicial review. Already in Bommai, the Court has held that a subjective decision of the President is capable of being scrutinized, all that is left for the Court to do is refrain from conceptualizing Presidential legislation and parliamentary legislation as the same thing. Despite the fact that both these powers result in the creation of a law there are different constitutional limitations on the manner in which they can exercise them.
Akhil Deo is a fourth year student at HNLU