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[This is a guest post by Amlan Mishra.]


The Andhra Pradesh High Court, in a 332 page judgement delivered two weeks ago, struck down an ordinance, which had reduced the term of office of the State Election Commissioner (SEC) from 5 to 3 years and varied the criteria for selection (effectively removing the incumbent SEC). The constitutionality of this variation in terms of office and the SEC’s consequent removal has been commented upon in this blog. The court’s decision echoes much of what was said in this blog about this issue. However, in this post, I will explore how the court dealt with the constitutionality of the ordinance and the standard of review it must be subjected to. I will argue that the court puts forth a substantive standard of review which if pursued by constitutional courts will be crucial to save democracy from executive aggrandisement. I will borrow from the Miller II case and argue that the AP case also provides an opening for transplanting Miller II’s standard of review in India.

Law on constitutionality of ordinances: a formal limited review

In Krishna Kumar v. Union of India (Krishna Kumar II), a 7-judge bench of the Supreme Court provided doctrinal clarity on constitutional review of ordinances. To summarise, the court rejected the simplistic textual reading of Article 123 and 213 which provides that ordinances will have the same ‘force and effect’ as an Act of the Parliament. The court noted that the ordinance power was not a prerogative power of the Governor/ President, but is subject to a condition precedent (the governor should be satisfied that ‘immediate action’ has to be taken) and condition subsequent (the ordinance should be laid on the floor of the house). An ordinance, it concluded, does not merit the same deference as an act of a parliament, and can be challenged for violating either condition. About the condition subsequent, the court noted that this is a mandatory condition, which was a deliberate break from the colonial past. In the past the Governor General had the power to promulgate some ordinances without laying them in the legislature. About the condition precedent, the court held that the Bommai standard of review would apply to the presidential/gubernatorial satisfaction of the ‘necessity’ to take immediate action:

The truth or correctness of the material cannot be questioned by the court nor will it go into the adequacy of the material. It will also not substitute its opinion for that of the President. Even if some of the material on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action. The ground of mala fides takes in inter alia situations where the Proclamation is found to be a clear case of abuse of power, or what is sometimes called fraud on power — cases where this power is invoked for achieving oblique ends.

Thus, the court will not probe the adequacy of the material to see if immediate action is warranted. If some irrelevant considerations are mingled with relevant considerations, then the relevant considerations alone will suffice to support the ordinance. In words of J. Chandrachud in Krishna Kumar II, it is only when the “court finds that the exercise of power is based on extraneous grounds and amounts to no satisfaction at all that the interference of the court may be warranted in a rare case.

Notice that in deciding relevancy of the material, the court’s approach in Bommai and in Krishna Kumar was a formal or procedural review. Moreover, some relevant criteria (accompanied with other irrelevant considerations) may be enough to declare the satisfaction of the governor or the president constitutional. Scholars have expressed concerns that procedural review may allow any vaguely relevant material to be supplied by the government in order to pass the ‘relevancy’ test. Prof. Shubhankar Dam in his book Presidential legislation in India (2013), suggests that a substantive review may better probe the real inspiration of an ordinance to correctly understand if ‘immediate action’ is warranted

A more searching review: Prof Sbubhankar Dam’s proposal for substantive review

To illustrate how a more searching substantive review is important, Prof Dam takes the example of a hypothetical Bank Nationalisation ordinance. The putative goal of the ordinance is to remedy financial collapse and unemployment. However, some ministers are said to benefit from it. Prof Dam argues that to understand if the ordinance is ‘necessary’ to take immediate action, wading into pre-legislative controversies is crucial. A more searching review of motives by leading evidence may become crucial.

Prof. Dam contrasts the procedural review in the Bommai case (followed in both Krishna Kumar I and Krishna Kumar II) with another older case of the Karnataka HC: Hasnabha v. State of Karnataka. In Hasnabha, elected members of agricultural committee were removed vide an ordinance by making the membership of the committee a nominated position. The putative goal of the government was to include ‘experts’ in these committees and nominate ‘weaker sections’. What would happen here if the Bommai standard of procedural review (which checks if relevant material is present for the satisfaction), was applied in this case? The government’s putative goal offers some ‘relevant’ material, possibly enough to justify the constitutionality of the Act. The court in Hasnabha however applied a more searching review along two lines by appreciating evidence advanced by both sides in depth.

First it examined the content of ordinance and the argument for relevancy put forth by the government. It noted that elections did not foreclose the prospect of having ‘expert members’ as the voting was from amongst expert traders and agriculturalists. It also noted that representing weaker sections and having experts (the two putative reasons the government provides) were inherently contradictory. It concluded that weaker sections were already well represented by reservations as per the old Act. Second, the timing and background of the decision became crucial for the court. The ordinance was brought immediately after the election results were published. Why was the ordinance not brought before the elections? The court brought on record statements made by the Chief Minister on the Assembly floor that these ordinances were crucial for furthering ruling party interest.

Marshalling all this information and leading detailed evidence, the court concluded that the exercise of power was malafide and not inspired by the need to take immediate action.

In summary, contrasting Hasnabhai with the two Krishna Kumar cases illustrates how sifting though pre-legislative controversies is crucial to see if the situation warranted ‘immediate action’. Here a searching review becomes crucial, to stop the subversion of democratic institutions by tokenistic justifications. Examining the broader context of the decision is crucial to see if the ordinance is a tool for circumventing legislative scrutiny and achieving mala fide goals.

The Andhra Pradesh Ordinance case: a prototype for substantive review

To begin with, the Andhra Pradesh High Court does something extraordinary. It summons on record all the files which form the basis of the governor’s satisfaction. Notably, these files were being used by the government to defend its case and were upon request of the petitioner taken on record. As we shall see, the court however does a deep analysis of these files to hold against the government. This in my view is extraordinary even by Hasnabha standards where the court in making its determination had merely relied upon submissions made by government advocates and the ordinance itself to know about the basis of the Governor’s satisfaction.

The court notes that while the ‘purported goal’ of electoral reform appears in these files, the underlying animosity between the ruling party and the SEC is also very evident. Here, a deferential court using a ‘formal Bommai Standard of review’ may have taken this one ‘relevant’ purpose of ‘electoral reforms’ to adjudge this ordinance sufficiently ‘necessary’. But the court holds otherwise, after an in-depth perusal of the four files, which reveal an undercurrent of animosity.

To further establish this ‘oblique motive’ the court relies on evidence led by the petitioners. The SEC, it notes had become unpopular with the ruling party members for calling out election malpractices in local elections. The history of prior litigation with the government, arising out of the decisions taken by the SEC is marshalled to set the factual background of the ordinance. Also is cited the letter the SEC had written to the Union Home Ministry ringing bells about election violence and verbal attacks on him. The statements of Chief Ministers and influential ruling party members criticising the SEC for partisanship also enter the court’s considerations. Much like Hasnabha, the court asks why the idea of ‘electoral reforms’ through this ordinance was brought only after the SEC had deferred local body elections (much to the chagrin of the ruling party). The effect of the ordinance given this background and timing, the court argues, was to do away with an unfavourable SEC and his decision of deferral of elections.

The court concludes:

The aforesaid circumstances clearly reveal that upto 07.03.2020 and 09.03.2020, at the time of declaration of the Election Notification, there was no point regarding electoral reforms. The issue arose only on issuance of notification on 15.03.2020, suspending the election notification and postponing the elections, and when the State Government remained unsuccessful before Hon’ble the Supreme Court in challenging the said notification. The SEC projected the unprecedented events and acts of the ruling party to the Central Government, which is controverted by other side. The statements of the Council of Ministers to sack Mr.A are on record. Thereafter, on the basis of two or three complaints, the entire action has been taken in the name of electoral reforms and promulgated the impugned Ordinance, making amendment to Section 200 of the APPR Act.

Looking to the aforesaid events, in our considered opinion, there is no public interest or constitutional necessity exists to take immediate action by the Governor for promulgation of Ordinance. In the manner the events took place, it indicates the desirability of the State Government to bring the Ordinance in the name of electoral reforms to remove the incumbent SEC, Mr.A and the power so exercised by the Governor under Article 213 of the Constitution cannot be said to be based on the satisfaction of the circumstances exist which may render it necessary for him to take immediate action…….. In fact, the action has been taken merely on the desirability of the State Government, without there being any public interest or constitutional necessity warranting exercise of the power for promulgation of the impugned Ordinance.

Notice that the court does an extensive substantive review here by correctly laying down the circumstances of the decision and weighs the purported goal of ‘electoral reforms’ against much of what was said and done by the ruling party against the incumbent SEC. It correctly highlights the pre-legislative controversies, without the appreciation of which adjudging ‘necessity’ of the decision would have been difficult.

Sadly, the court does not attempt to reconcile its substantive review with the aforementioned Bommai formulation on procedural review. In practice however it breaks with the Bommai standard of limited review and weighs the impact of the ordinance by taking on record evidence about the controversial background of the ordinance. It concludes that the satisfaction is not well founded.

Substantive review: transplanting Miller’s effect test into India

Under this head, I propose to examine how insidious democratic backsliding can be countered if substantive review is deployed by courts to judge the effect of government action on democratic institutions. As a case in point, in the recent Miller II case in the UK, the decision to prorogue the parliament (which had the effect of shortening parliamentary discussion on the impending Brexit) was in question. The court had this to say about adjudging the constitutionality of the prorogation

For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing (b), without reasonable justification (a), the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course (at para. 50)

Scholars have highlighted that this kind of review, which looks at the ‘effect of the decision’, breaks with the old ‘Wednesbury’ principle (of the reasonable person) and proposes a more searching substantive review. If the act has the effect to frustrate democratic principles, the burden of providing reasonable justification lies on the executive. Unlike Bommai where mere some formal relevancy would suffice, this test probes the question of relevancy in detail. The Bommai case on the other hand is based on a similar Wednesbury ‘reasonable person’s judgement’ of whether the material supplied is relevant to necessitate promulgation on ordinance.

Prof. Khaitan here has rightly pointed out (in the context of Miller prorogation case) that democracy is being threatened and executive aggrandisement happens in very insidious ways. Borrowing from discrimination law, he proposes the effects test to check if the state action has the effect of frustrating a democracy. Notice how the Miller test (quoted above), which we grouped into (a) and (b) is echoed in Prof. Khaitan’s formulation:

“(a) for an improper purpose

(b) when the probable effect of such dissolution would be to frustrate state parliamentary action in a matter where the passage of intervening time would present it with a fait accompli…”

 

Prof. Khaitan retains the ‘purpose’ test (a), which is much like the Bommai test to check ‘relevancy’ of material which forms the basis of presidential satisfaction. However, his test goes one step forward and evaluates if the act has the effect to frustrate a democratic body’s functioning (b). Contrary to the Bommai formulation wherein oblique purpose has to be attributed to the executive, sometimes without much analysis, a substantive review presents a better way to adjudge the effect of government action, in cases of sly democratic subversions.

Allowing the court to take into account the full range of evidence and circumstances rather than limiting it to a limited review of relevant materials placed before it, becomes crucial here. Even in the Miller case, the court undertook substantive review to appreciate the context and timing of the decision: that “a fundamental change (Brexit) was due to take place in the Constitution of the United Kingdom on 31st October 2019”. A longer prorogation precisely in this background, could not be reasonably justified by the government. Thus the prorogation had the effect of frustrating parliamentary accountability without justification.

In India given the present Bommai standard of review, transplanting this Miller-effect test does not appear feasible. I argue that a tradition of cases starting from Hasnabhai in Karnataka and the present AP Ordinance case provide an opening, to graft the effect test in India. These cases pay lip-service to the Bommai standard and do not explicitly break from it to articulate any new kind of review. In practice however, they provide a much stronger standard of review. They examine the timing and impact of anti-democratic government action (of overturning elections and overruling an election officer) (b), and attempt to weigh this against the material/evidence supplied by the government justifying its actions (a). This accurately mimics the Miller’s effect test (b) and examination of whether the effect has a ‘reasonable justification’ (a).

The immediate need of this transplant is in the Kashmir case. Here, as Gaurav Mukherjee has pointed out the Bommai standard of adjudging ‘relevancy’ of material does little to arrest the permanent subversion of ‘consent’ of federal units effectuated through the President’s rule and presidential order. There is pressing need that India move towards a substantive judicial review involving attention to these background and a detailed examination of evidence to understand the effect of actions of higher constitutional functionaries on democratic principles.