Notes from a Foreign Field: Executive Law-Making in Romania [Guest Post]

[Editor’s Note: This is a guest post by Dragoș-Alin Călin and Irina Alexe. Dragoș-Alin Călin is a judge of the Court of Appeal in Bucharest and Co-president of the Romanian Judges’ Forum Association. Irina Alexe is an associate scientific researcher within the Institute for Legal Research ‘Andrei Rădulescu’, Romanian Academy. Readers of the blog will find this essay of interest, as it deals with the phenomenon of legislation by ordinance, in Romania.]

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Introduction

The starting point of this article rests on a law recently adopted by the Parliament of Romania which rejected an emergency ordinance issued by the Romanian Government, more than 13 years before. The said emergency ordinance was issued in the matter of judicial organization (GEO no.131/2006 for the amendment and supplement of Law no. 508/2004 on the establishment, organization and functioning within the Public Ministry of the Directorate for Investigation of Organized Crime and Terrorism).

It is certain that by quasi-generalising the method of legislating by simple or emergency ordinances, in the last ten years, a shift in the constitutional role of the Parliament as sole law-making authority to the Government took place. Actually, the Government has become a real legislator in almost all fields, since Parliament has changed into a sort of notary public, which many times ratifies, with or without any amendments or supplements, and sometimes rejects, after some significant periods of time, the normative acts issued by the Government, in the absence of any deadlines provided for in the Romanian Constitution for completing the Parliamentary procedure.

In its Opinion no. 950/2019, the Venice Commission acknowledged that “legislation by the GEOs became a routine. Fundamental rules of the functioning of key State institutions are changed too quickly and too often, without preparation and consultations, which raises legitimate questions about the soundness of the outcomes and of the real motives behind some of those changes. The resulting legal texts are not clear. This practice weakens external checks on the Government, it is contrary to the principle of separation of powers and disturbs legal certainty”.

Certain issues related to the legislative delegation in Romania. Statistical data relating to delegated or emergency enactment during the period 2010-2019.

The legislative delegation is regulated by Article 115 of the Constitution of Romania, republished. The competence of the Parliament to legislate may be exercised by a body of the executive power, namely by the Government, when one of the two possible types of situations indicated in the text occurs: (I) the Government’s authorization by the Parliament, under a special law, to issue, within a limited period of time, any ordinances in certain fields which cannot be subject to the organic laws, respectively, (II) the exceptional, permanent constitutional empowerment of the Government, which may be materialized by issue of an emergency ordinance, not involving an express empowerment on the part of the Parliament, to legislate in certain fields, which could be also covered by organic laws, when the conditions provided for in Article 115(4) are fulfilled and none of the prohibitions indicated under Article 115(6) occurs.

Nevertheless, the examined statistical data lead to the conclusion that the opportunity of legislation by exceptional means, by the Government, has become a rule in Romania and has not been used as an exception for a long time, as there are also years in which the Government seems to have coped with an extraordinary situation described by the constitutional text once every two or three days, which, obviously, does not reflect reality.

During the reference timeframe, 60.46% of the primary law adopted in Romania was represented by emergency ordinances and simple ordinances issued by the Government, as well as by any laws relating to their approval or rejection (a number of 2559 out of 4232).

As such, the Parliament does not operate anymore as a main legislative authority, contrary to its constitutional role, and the Government becomes the main and actual legislator. The Parliament seems to play only a secondary part; however, this is exercised late, the negative record being of 15 years and 2 months, a period needed for the rejection of the GEO no.16/1999 by Law no.66/2014. The timeframe of 13 years and one month follows in the hierarchy for the rejection of the GEO no.131/2006 for the amendment and supplement of Law no. 508/2004, by Law no. 16/2020.

For more than 60 ordinances or emergency ordinances, the Parliament needed more than three years for examination, in the case of each ordinance, including normative acts entailing an immediate approval (4 years and 6 months for the adoption of Law no.9/2020 for the rejection of the Government Ordinance no.13/2015 regarding the use of certain data recorded in the registers with the passengers’ names in the cross-border cooperation for preventing and fighting against terrorist acts; 3 years and 6 months for the adoption of Law no.238/2011 for the approval of the GEO no.53/2008 on the amendment and supplement of Law no.656/2002 on the prevention and sanctioning of money laundering, as well as for establishing some actions for preventing and fighting against financing terrorist acts; 3 years and one month for the adoption of Law no.38/2013 for the approval of the GEO no.2/2010 regarding certain measures for the organization and functioning of the working apparatus of the Government and for the amendment of certain normative acts).

Also during the reference period, only 6.29% of the issued laws contain solutions of rejection of certain simple ordinances or emergency ordinances (71 of 1128), the latter containing provisions establishing permanent legal rules, and not exclusively temporary or transitory solutions, as in the case of the GEO no.131/2006, previously mentioned.

During the period 2017-2018, three amendments were adopted to the generally referred to as laws “of judiciary”. A significant part of these amendments was harshly criticized by the Venice Commission orGRECO, being extremely detrimental to judiciary. As regards these amendments to the “laws of judiciary”, given mainly the insufficiency in the regulation, the gaps, the contradictory provisions, inadequate to the needs of the judicial system, the Romanian Government issued five emergency ordinances (GEO no.77/2018; GEO no.90/2018; GEO no.92/2018; GEO no.7/2019; GEO no.12/2019).

For example,GEO no.77/2018 was adopted with intuitu personae effects, to ensure the continuity of the positions of chief inspector of Judicial Inspection. From the publication date (5 September 2018) and until the date hereof, the GEO no.77/2018 was not approved by the Parliament and nor did the Constitutional Court of Romania rule on those three pleas of unconstitutionality raised on the dockets of courts (the oldest having been raised by a court order delivered on 19 December 2018).

Conclusions

Since the year 2012, the Venice Commission warned about such a constitutional situation, in Opinion no.685/17 December 2012. Almost eight years later, things seem to be identical or even more complicated, the law making in waves carried out by the Government has affected the quality of legislation and has overlooked the principle of balance of powers, and the executive power has carried out an essential and continuous role in legislating.

By the Decision no.28 dated 29 January 2020, the Constitutional Court of Romania itself notices such imbalance, considering that “the Government decision to undertake responsibility does not reflect any emergency to regulate in a given field, does not represent a measure taken in extremis, but rather taking an option opportunistic in nature, to extend over time certain temporary measures ordered under the Government Emergency Ordinance no.7/2019 and to remove from enforcement of the provisions of Law no.242/2018. At the same time, it appears that it was not necessary to adopt such a measure with maximum celerity, and possibly it could have been adopted only under the conditions in which “the major challenges” generated by Law no.242/2018 could not be overcome. 88. As regards the importance of the regulated field, it is found that, in principle, the field of justice is one in which the Government may undertake responsibility [see, for example, Decision no.375/2005]. (…) 90. Given the above, the Court acknowledges that the criticized laws breaches Article 114 of the Constitution and, implicitly, Article 61 paragraph (1) of the Constitution, by excessive limitation of the role played by the Parliament. Hence, it also appears a breach of the constitutional principle of balance of powers [Article 1 para. (4) of the Constitution] since one of the State powers, namely the executive power, assumed a preeminent role in the enactment activity, excessively using an enactment procedure which, by its nature, is exceptional.”

The significant timeframes within which the Parliament approves or rejects normative acts issued by the Government, in the absence of clear time limits provided for in the Constitution of Romania, are liable to lead to subordination, which is contrary to the principle of balance of powers.

In such a context, until an expected constitutional revision, a possible solution would be found in the principle of loyal cooperation and of mutual respect between the state authorities/institutions.

Guest Post: The Andhra Pradesh Ordinances Case – Towards Substantive Judicial Review

[This is a guest post by Amlan Mishra.]

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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.

The Supreme Court’s Ordinance Judgment – II: Two Debates

In the previous essay, I discussed the two key conceptual issues at the heart of the Supreme Court’s Ordinances judgment (Krishna Kumar Singh vs State of Bihar). In this essay, I focus on two debates that arise out of the judgment: first, did the seven-judge bench overrule D.C. Wadhwa vs State of Bihar? And secondly, was Justice Chandrachud correct in holding that there was a distinction between an Ordinance “ceasing to operate”, and becoming “void”, for non compliance with the conditions laid out under Articles 123 and 213? And relatedly, was Justice Lokur correct in holding that there is no mandatory requirement of laying the Ordinance before the Legislative Assembly?

Did the Supreme Court Overrule D.C. Wadhwa?

In D.C. Wadhwa, the Constitution Bench had this to say about re-promulgation of Ordinances:

“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… 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, by adopting the methodology of repromulgation.”

In other words, while the Court held that in general re-promulgation would be a fraud on the Constitution, there may be special circumstances, where the Legislature, during its Session, was simply unable to consider the Ordinance. In such circumstances, re-promulgation would be acceptable.

In Krishna Kumar Singh, the Majority discussed repromulgation in Section “J” of its judgment. Justice Chandrachud observed that he would consider the issue “on first principles.” After discussing the exceptional nature of the Ordinance-making power, he then observed:

“Once the legislature has reconvened after the promulgation of an ordinance, the Constitution presupposes that it is for the legislative body in exercise of its power to enact law, to determine the need for the provisions which the ordinance incorporates and the expediency of enacting them into legislation. Once the legislature has convened in session, the need for an ordinance is necessarily brought to an end since it is then for the legislative body to decide in its collective wisdom as to whether an ordinance should have been made and if so, whether a law should be enacted.”

And:

“Re-promulgation postulates that despite the intervening session of the legislature, a fresh exercise of the power to promulgate an ordinance is being resorted to despite the fact that the legislature which was in seisin of a previously promulgated ordinance has not converted its provisions into a regularly enacted law. What if there is an exceptional situation in which the House of the legislature was unable to enact a legislation along the lines of an ordinance because of the pressure of legislative work or due to reasons? Would the satisfaction of the Governor on the need for immediate action be arrived at for an act of re-promulgation, after a legislative session has intervened?… Re-promulgation of ordinances is constitutionally impermissible since it represents an effort to overreach the legislative body which is a primary source of law making authority in a parliamentary democracy. Re-promulgation defeats the constitutional scheme under which a limited power to frame ordinances has been conferred upon the President and the Governors.”

Notice that Justice Chandrachud explicitly framed the question in terms of D.C. Wadhwa (what happens if the legislature has too much business to transact and cannot consider the Ordinance?), but instead of answering it directly, only held that “Re-promulgation of ordinances is constitutionally impermissible.” While on the one hand he didn’t expressly hold that there could be no exceptional circumstances, and didn’t say that he was overruling Wadhwa, the unqualified statement: “Re-promulgation of ordinances is constitutionally impermissible” is quite a strong one.

In fact, the Majority opinion’s relationship with Wadhwa remains curiously ambiguous throughout the judgment. Immediately after this, in Section J2, the Court cited Wadhwa, and then critcised it for only expressing a “hope and trust” that repromulgations would not happen (hope and trust that was soon belied). It then returned to Wadhwa in Section M, while discussing the actual repromulgations in the present case. It specifically observed that Wadhwa had been “criticised” for its “exceptional circumstances” escape clause, especially given that it was always open to the House to the government to seek an extension of a legislative session so that an Ordinance could be considered. But then, the Majority held that “be that as it may, it is not the case of the State of Bihar in the present case that there was any reason or justification to continue with a chain of ordinances nor is there any material before the court to indicate exceptional circumstances involving a constitutional necessity.” Or, in other words, it did not need to consider the criticism of Wadhwa.

While the previous Section that we considered (J2) indicated that the seven-judge bench of the Court was overruling Wadhwa by stating in an unqualified manner that repromulgations were a fraud on the Constitution, this Section (M) indicated the other way, because the Court noted the criticism of Wadhwa and then said that it was irrelevant to the present case. So did Krishna Kumar overrule Wadhwa?

The answer is blowing in the wind.

Voidness and Laying before the Assembly

Justice Chandrachud held that on disapproval by Parliament, or on failing to be laid before Parliament, the Ordinance would “cease to operate“. He held that the word “cease to operate” carried a different meaning from the word “void“; and given that Article 123 itself used the word “void” elsewhere, clearly, the two meant different things. Consequently, it could not be held that failure on disapproval or lapse, the Ordinance would become void ab initio.

Meanwhile, in his partially dissenting opinion, Justice Lokur held that despite the presence of the word “shall” (every such Ordinance…shall be laid before the legislative Assembly“), laying of the Ordinance before the Assembly was not mandatory. Justice Lokur advanced a structural reading of Article 213 (and, by extension, Article 123). He observed that Article 213 simply stated that if an Ordinance was not laid before the Assembly, it would ipso facto expire six weeks after the Session began. That was the only consequence contemplated by the Section, and in the absence of anything else, it could not be presumed that there was any other consequence to not laying the Ordinance before the Assembly. Given that in all circumstances the Ordinance would lapse at the end of the six weeks, it could not be held that laying it was “mandatory”, in any meaningful sense of the word.

In this section, I will argue against the views of both Justice Chandrachud and Justice Lokur. Although they were addressing two separate points, in my view, both contentions are adequately answered by the same response, which is grounded in the separation of powers, and the supervisory role of the Assembly under Articles 123 and 213 (a point repeatedly emphasised by Justice Chandrachud).

Let us start with the separation of powers. Separation of powers is a basic feature of the Constitution. Separation of powers, in the Indian constitutional scheme, does not mean a rigid separation of legislative, executive and judicial functions, but, as held in Indira Nehru Gandhi vs Raj Narain, the existence of “checks and balances”, and ensuring that one organ of the State does not “predominate” over the others.

Now, according to Article 123, a condition precedent to the exercise of the President’s ordinance-making power is that “circumstances exist which render it necessary for him to take immediate action.” The system of checks and balances requires a degree of scrutiny over the exercise of this power. However, since the purpose of Article 123 is to equip the President to deal with emergencies, any check or balance upon his power must be post facto and not ex ante (unlike, e.g., the assent requirement for passing bills). One possible check, that is judicial review, is highly circumscribed, and – after this judgment – limited to the Bommai standard of scrutinizing only the existence of material, and not the reasonableness of the decision itself. However, the Constitutional scheme itself provides for a more substantive check upon the Executive’s misuse of the Ordinance-making power, and that is through a requirement that the Ordinance shall be placed before both Houses of Parliament, and “cease to operate” once six weeks have passed after the Parliament re-assembles, or if both Houses pass resolutions disapproving of the Ordinance. If – as per Justice Lokur – this requirement was not mandatory, the Constitutionally-imposed check would become irrelevant.

Justice Lokur might respond that the check lies in the fact that whatever happens, the Ordinance lapses after six weeks. What stronger check could there be? To answer this, we need to go into history. A perusal of the history of the Ordinance-making power reveals that the requirement of placing the Ordinance before the legislature was not always a condition. In the 1861 Indian Councils Act, and in the 1915 Government of India Act, there was no such requirement; however, there was another kind of check, which was that the Ordinance would expire after six months (i.e., Justice Lokur’s suggested remedy). Under Section 72 of the Government of India Act, 1935, the requirement of placing the Ordinance before the legislature was introduced for the first time, and was incorporated into Article 123 of the Constitution. Note that this requirement replaced the six-month sunset clause. During the Constituent Assembly Debates, attempts to reintroduce a sunset clause were defeated, on the stated ground that because an Ordinance had to be placed before Parliament, the longest possible period that it could last was seven and a half months. The importance of this requirement (i.e., of placing the Ordinance before Parliament) was highlighted by Dr Ambedkar, when he pointed out that the Assembly had consciously not incorporated the equivalent of Sections 43 and 44 (which did away with this requirement) into the Constitution, but only Section 42. In other words, the Constitutional history shows that faced with a choice between automatic expiry and “laying” before the Assembly, the Constituent Assembly consciously chose the latter. The Assembly’s choice would be set at nought if the requirement of laying was considered to be optional.

Now, this history is coupled with the fact that since Ordinances – as held by Justice Chandrachud himself – are an exception to the normal rule of the legislature making laws, and not a “parallel system of lawmaking”, the requirement of checks and balances ought to apply with an even greater force in the case of Ordinances.

A combination of these arguments leads to the inference that the requirement of placing the Ordinance before the Parliament is meant to enable Parliament to act as a post facto check upon the President’s use of the Ordinance-making power, and to review whether there actually existed a situation of emergency that warranted the use of the power, or whether the Executive had abused its authority (which makes the case for mandatory laying even stronger). This proposition may be buttressed by the following: In R. K. Garg vs Union of India, the Supreme Court held that the Ordinance-making power was meant to “tide over” an emergent situation, and that the executive is “clearly answerable to the legislature”. R.K. Garg also held that – if the President, on the aid and advice of the executive, promulgates an Ordinance in misuse or abuse of this power, the legislature can not only pass a resolution disapproving of the Ordinance, but can also pass a vote of no confidence in the executive. Consequently, according to R.K. Garg, the placing of the Ordinance before the Parliament is for the purpose of ensuring that the executive remains answerable to the primary law-making body, and also for the legislature to act if, in its opinion, the President abused his power.

The purpose of placing the Ordinance before Parliament was expressed by Pandit Hriday Nath Kunzru during the Constituent Assembly Debates, when he stated that “as I pointed out the other day, the objection to a procedure of the kind lid down in this article is not merely that it unnecessarily prolongs the duration of an Ordinance, but that it prevents the legislature from considering whether the terms of the Ordinance are justified by the emergency. The legislature when it meets, may either disapprove of the Ordinance or if it agrees with the executive in thinking that a special situation calling for special action exists, may feel that the Ordinance confers excessive powers on the executive and may modify it in such a way as to safeguard the liberties of the ordinary man in so far as this is consistent with the existence of an emergency. When a crisis occurs, it does not mean that the rights of the people are to be suspended altogether.”

Consequently, when the Ordinance is placed before Parliament, Parliament’s task is somewhat analogous to that of judicial review of legislation – i.e., to ensure that the conditions precedent for the Ordinance to be valid (i.e., the situation of urgency) actually existed when the Ordinance was passed. Therefore, if the Parliament fails to endorse the Ordinance – either through a Resolution signifying disapproval, or through conscious inaction allowing the Ordinance to lapse – then such action should count as Parliament’s assessment that the conditions precedent for passing an Ordinance were not satisfied, and as a result, the Ordinance is void ab initio. And therefore, contra Justice Chandrachud, the term “cease to operate” in Article 123 should be given this meaning.

To this, the following argument may be added. In particular, there is no requirement for public deliberation/debate or discussion before an Ordinance is promulgated. One of the core features of the rule of law, which has been held to be part of the basic structure, is the requirement of publicity: i.e., laws should only be framed after a public, deliberative process. Because Ordinances are meant to deal with emergency situations, this essential feature of the rule of law is dispensed with under the Constitution; however, as submitted above, this leads to a serious democratic deficit with respect to ordinances. The constitutional scheme seeks to correct this deficit post facto by the requirement that the Ordinance be laid before the Parliament when it opens, so that one essential step of lawmaking – that of public deliberation in the House – is fulfilled, even if it is after the fact. For this reason, the laying of the Ordinance before the Parliament must be considered an integral part of the Ordinance-making power, and not merely a subsequent event. If the laying before Parliament is an integral part of the Ordinance-making process, then until this happens, the Ordinance should be considered to be only conditionally or presumptively valid – that is, it enjoys the “force” and “effect” of law, but remains legally incomplete until it is deliberated by Parliament. Consequently, acts done under the Ordinance should also enjoy a conditional validity, and any permanent or enduring effect should be subject to the Ordinance itself being ratified or enacted into law.

This incidentally, addresses Justice Lokur’s concern in paragraph 15 of his judgment, where he rejects the contention that Ordinances have no “force and effect of law” until laid before the Assembly, on the ground that “the force and effect of a law cannot depend on an uncertainty and the occurrence of a future event, unless the law itself so provides. An Ordinance, on its promulgation either has the force and effect of a law or it does not – there is no half-way house dependent upon what steps the Executive might or might not take under Article 213(2) of the Constitution.” The halfway house, as I have argued, is the doctrine of conditional validity.

A combination of all these reasons, I would respectfully submit, makes the case for the laying of the Ordinance before the Assembly to be mandatory, contra Justice Lokur; and it also provides a powerful alternative to Justice Chandrachud’s view: notwithstanding the use of the word “cease to operate” and “void” in Article 123, there is good cause to hold that lapse or disapproval of an Ordinance makes it void ab initio, and that means that all acts done in the meantime automatically go.

(Disclaimer: The author assisted in legal arguments on behalf of Interveners taking the position that there ought to exist judicial review of the circumstances in which Ordinances are passed, and also that Ordinances do not create enduring effects).

 

 

Supreme Court to decide on the Scope of Presidential Legislation

A seven-judge bench of the Supreme Court today began hearing arguments in Krishna Kumar Singh vs State of Bihar. The case arose out of an original reference from a two-judge bench in 1998. The State of Bihar had taken over Sanskrit Schools through an ordinance passed in 1989. The ordinance was re-promulgated a few times, before lapsing in 1992. The teachers of the schools then filed a petition before the High Court contending that they had become – and continued to remain – government servants, with all attendant benefits. The High Court rejected the plea.

Before the Supreme Court, therefore, there were two questions: first, were the Ordinances valid? And secondly, what was the effect of acts that were taken under an Ordinance which eventually lapsed? Recall that Articles 123 and 213 of the Constitution authorise the President and the Governors (i.e., the political executive) to legislate via “ordinances” under certain specific circumstances. The basic idea is that in cases of urgency, and when the Parliament is not in session, the Executive can temporarily take over the job of law-making to deal with emergent situations. Ordinances have to be ratified within six weeks of Parliament reassembling, otherwise they lapse.

The two-judge bench split on both issues. On the first issue, Justice Sujata Manohar held:

“The State of Bihar has not even averred that any immediate action was required when the 1st ordinance was promulgated. It has not stated when the Legislative Assembly was convened after the first Ordinance or any of the subsequent Ordinances, how long it was in session, whether the ordinance in force was placed before it or why for a period of two years and four months proper legislation could not be passed. The constitutional scheme does not permit this kind of Ordinance Raj. In my view all the ordinances form a part of a chain of executive acts designed to nullify the scheme of Article 213. They take colour from one another and perpetuate one another, some departures in the scheme of the 4th and subsequent Ordinances notwithstanding. All are unconstitutional and invalid particularly when there is no basis shown for the exercise of power under Article 213. There is also no explanation offered for promulgating one Ordinance after another. If the entire exercise is a fraud on the power conferred by Article 213, with no intention of placing any Ordinance before the legislature, it is difficult to hold that first Ordinance is valid, even though all others may be invalid.”

In other words, Sujata Manohar J effectively subjected the ordinances to judicial review, holding that there would have to be some material demonstrating the circumstances that necessitated “immediate action” on part of the Governor to pass an ordinance, as required by Article 213.

On the second issue, Sujata Manohar J held that whether or not any acts done, or rights accrued under an ordinance would have a permanent effect even after the ordinance lapsed or, for any other reason, was not ratified by Parliament, would depend upon the nature of the acts or the rights. Consequently, she held:

“Basically, an effect of an Ordinance can be considered as permanent when that effect is irreversible or possibly when it would be highly impractical or against public interest to reverse it e.g. an election which is validated should not again become invalid. In this sense, we consider as permanent or enduring that which is irreversible. What is reversible is not permanent.”

Justice D.P. Wadhwa disagreed on both counts. Surveying the case law, he held that an ordinance has the same effects as “law”, and should be understood as having the “attributes of an Act of legislature carrying with it all its incidents, immunities and limitations under the Constitution.” Consequently, on the issue of judicial review, he held that “the Court may not go into the question whether circumstances existed for exercise of power under the provision of the Constitution and as to what was the urgency or emergency to promulgate an ordinance.” 

Nonetheless, following D.C. Wadhwa’s judgment, he struck down the re-promulgated ordinances as being fraudulent exercises of power. On the issue of permanent effect, he compared ordinances to temporary statutes, and held:

“The effect of the first Ordinance has been of enduring nature. Whatever the Ordinance ordained was accomplished. Its effect was irreversible. Ordinance was promulgated to achieve a particular object of taking over the Sanskrit Schools in the State including their assets and staff and this having been done and there being no legislation to undo the same which power the Legislature did possess, the effect of the Ordinance was of permanent nature. Ordinance is like a temporary law enacted by the Legislature and if the law lapses whatever has been achieved thereunder could not be undone, viz., if under a temporary law land was acquired and building constructed thereon it could not be said that after the temporary law lapsed the building would be pulled down and land reverted back to the original owner. The only consideration to examine the Ordinance is to see if the effect is of an enduring nature and if the Ordinance has accomplished what it intended to do.”

Because of the disagreement between the two judges, the question was referred to a higher bench, and after being progressively referred over the years, is now finally being heard and decided by seven judges of the Supreme Court. The questions are twofold:

(a) What is the scope of judicial review over the political executive’s ordinance-making power?

(b) Do the acts undertaken under an ordinance which eventually fails to be ratified by Parliament and become law survive even after the ordinance ceases to exist?

The importance of this case can scarcely be understated, as the Court’s judgment will have far-reaching effects upon the balance of power between the Parliament and the Executive. This case is also best understood in the context of a global concern with how political power is being incrementally transferred from the legislature to the executive, across jurisdictions. This concern was voiced more than forty years ago in Arthur Schlessinger’s famous The Imperial Presidency, and is presently an issue of burning controversy in the U.K. concerning Brexit. The Court’s judgment, therefore, is crucial to the future of the separation of powers under the Indian Constitution.