INTRODUCTION
This blog is centred around the research on the remarkable authority granted to the executive, which I refer to as quasi-legislative power. This power does not constitute legislation per se but rather is an attribution of legislative authority to the executive branch. Ordinances are executive actions that have the same constitutional authority as legislative actions. It is conferred to enable the executive to address extraordinary situations that require immediate action. In this discussion, we will examine two judgments: DC Wadhwa v. State of Bihar and Krishna Kumar Singh v. State of Bihar. Additionally, we will explore the historical context of ordinance powers by comparing practices in the United Kingdom and the United States, consider the dissenting opinion of Justice Madan B. Lokur, and review debates from the Constitutional Assembly (B N Rau, Professor K T Shah).
The Debate surrounding the necessity of laying an ordinance before the table has sparked significant discussion. This blog aims to delve into the historical context, the intended purpose, the viewpoints of various thinkers, and the ultimate ruling by the Hon’ble Supreme Court on this issue.
HISTORICAL EVOLUTION
England: In the United Kingdom, the Monarch’s native power to legislate internally was established as limited around four hundred years ago by Sir Edward Coke through his judgment in The Case of Proclamations. This ruling determined that: “The King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm”.[1]
The Law of England, it held, is divided into three parts: Common law, Statute law, and Custom.
Custom makes up the three components of English law. It was decided that the King’s declaration was none of the aforementioned. It was decided that the King’s only privilege was the one which the law of the kingdom permitted. In 1689, or by 1714 at the latest, the Bill of Rights eliminated the last appearance of the King’s authority to impose laws on British individuals.
In his judgment in Pankina v. Secretary of State for the Home Department MANU/UKWA/0319/2010: [2010] 3 WLR 1526, Lord Justice Sedley, speaking for the Court of Appeal, observed: The exercise of the Monarch’s prerogative has passed since 1689 — or perhaps more precisely, as Anson’s Law and Custom of the Constitution suggests, since 1714 — to ministers of the Crown. It is they who are now constitutionally forbidden to make law except with the express authority of Parliament: hence their need for statutory power to make delegated legislation. As Lord Parker of Waddington said in The Zamora [1916] 2 AC 77, 90,“The idea that the King in Council, or indeed any branch of the executive, has power to prescribe or alter the law to be administered by the courts of law in this country is out of harmony with the principles of our Constitution”.
British India: The viewpoint that prevailed in British colonies, as demonstrated by several acts in India, was in stark contrast to the proclamation that limited the Indian Council Act of 1861 empowers the Governor-General to issue directives with the force of law. “Section 23 stipulates that the Governor must exercise this power only in emergencies, with ordinances remaining effective for a maximum of six months”. This authority was retained in the Government of India Act of 1915. In the Government of India Act of 1935, the Governor’s power to issue ordinances was restricted to instances when the federal government is not in session, contingent upon his satisfaction of an emergent need. Section 42(2) provided that an ordinance promulgated under that provision would have the same force and effect as an Act of law. After six weeks had passed since the legislature’s reassembly, or if resolutions opposing it had already been enacted by the legislature, the ordinance would automatically expire. In some situations, the Governor General had to use his own discretion to issue an ordinance, while in other situations, he had to follow His Majesty’s instructions. Section 43 gave the Governor General the authority to issue ordinances that were effective for six months and could be extended for an additional six months if he was convinced that certain conditions existed that required him to act swiftly to fulfil his duties, for which he was to use his own discretion or judgment.
CONSTITUENT ASSEMBLY
The Union Constitution Committee was established by the Constituent Assembly on 30th April 1947 to provide a report on the ‘fundamental principles of the Constitution’. The memorandum drafted by B N Rau, the Constitutional Advisor, envisioned a constitutional authority for issuing ordinances. It was proposed in the memorandum that the President could promulgate an ordinance when Parliament is not in session, provided that, there are circumstances necessitating immediate action. Such an ordinance would carry the same weight and effect as an Act of Parliament but would only remain valid for a duration not exceeding six weeks from the reconvening of Parliament. B N Rau recognised that ordinances faced significant criticism during colonial rule; however, he aimed to mitigate the concerns raised by asserting that the President would typically act based on the counsel and advice of ministers accountable to Parliament, thus reducing the likelihood of misuse of the ordinance-making authority.
Following the submission of the Union Constitution Committee’s report to the Constituent Assembly, the topic of ordinance-making authority was addressed on 23 May 1949. Professor K T Shah remarked that, regardless of how justified such authority might seem, it represented “a negation of the Rule of law.” Consequently, he proposed that this power should be designed to maintain an extraordinary nature to address urgent situations: “…Of course, in extraordinary circumstances, as in the case of an emergency, the use of extraordinary powers would be both necessary and justified. I think that it is important, therefore, to make it clear, in the heading itself, that this is an avowedly extraordinary power which may take the form of legislation without our calling its legislative power. Legislative power, the executive head should not have. Or it may even take the form of an executive decree or whatever form seems appropriate in the circumstances. The point that I wish to stress is that we must not, by any mention here, imply or convey or suggest that the law-making powers of the President are any but extraordinary powers. I think this is sufficiently clear and will be acceptable to the House”.[2]
Professor K T Shah articulated the perspective that, even in the event of an ordinance being issued to address extraordinary circumstances, it should be presented immediately upon the convening of Parliament and must cease to be effective unless ratified by a specific resolution. He advocated for the limitation he suggested on the following grounds: “Most of us, I am sure, view with a certain degree of dislike or distrust the ordinance-making power vested in the Chief Executive. However, we may clothe it, however it may be necessary, however much it may be justified, it is a negation of the Rule of law. It is not legislation passed by the normal Legislature and yet would have the force of law which is undesirable. Even if it may be unavoidable, and more than that, even if it may be justifiable in the hour of the emergency, the very fact that it is an extraordinary or emergency power, that it is a decree or order of the Executive passed without deliberation by the Legislature, should make it clear that it cannot be allowed, and it must not be allowed, to last a minute longer than such extraordinary circumstances would require”.[3]
CONCLUSION
The Supreme Court interprets the term ‘shall’ as utilised in Articles 123 and 213, which pertains to the requirement of laying documents on the table. There exists a division of opinion, with a dissenting judgment from Justice Madan Lokur asserting that laying the document is not essential, as the consequences of both laying and not laying it on the table are equivalent; namely, that it ceases to have effect. I concur with this perspective, as both scenarios ultimately yield the same outcome. However, the majority judgment, led by DY Chandrachud, contends that failing to lay the document would constitute a fraud on the Constitution, rendering it void ab initio.
Why is it imperative to lay the document on the table? If an ordinance is not laid before the table, the Governor or President, upon their satisfaction (with the advice of the Council of Ministers), may re-promulgate it. While there is no absolute prohibition against re-promulgation, it is mechanically restricted, as the executive is expected to act in the public interest and must exercise this power only in necessary circumstances, based on their satisfaction. The mandatory requirement to lay ordinances before the legislature is crucial, as it infringes upon the essence of our Constitution, which is democracy—a fundamental structure that must not be violated. Ordinances are formulated in private chambers and possess the force of law (upon publication in the gazette). If there were no obligation for the executive to present these ordinances on the floor, it would encroach upon the legislative authority to enact laws through continuous ordinances. Ultimately, I would like to emphasize that “WE THE PEOPLE” form the foundation of our fundamental structure, which serves as our substratum. We are governed by laws established for us by our representatives, rather than by the arbitrary decisions of any single leader.
Author’s Name: Aysha Saifi (Law Centre 2, Faculty of Law, University of Delhi)
[1] The Owner of the Steamship “Zamora” v The Secretary of State for Foreign Affairs [1916] 2 A C 77
[2] Constituent Assembly Debate (Vol VIII) 1949
[3] Ibid
