Demonetisation Decree Imperilled as Supreme Court Signals Imminent End of Ordinance Raj

Re-promulgation of ordinances is illegal, the apex court ruled, in a judgment that will be applicable to all central ordinances, including demonetisation.

A view of the Supreme Court. Credit: PTI/Files

A view of the Supreme Court. Credit: PTI/Files

Thanks to a recent Supreme Court judgment declaring the re-promulgation of ordinances unconstitutional, the government’s effort to validate demonetisation through ordinances may come to naught.

The Specified Bank Notes (Cessation of Liabilities) Ordinance, promulgated in December to give effect to demonetisation, faces the risk of becoming unconstitutional if re-promulgated after the end of the next session of parliament. This is because the government has failed to obtain sufficient support in the Rajya Sabha for the ordinance to be replaced by a Bill.

Even otherwise, the ordinance lacks the necessary rationale to explain its urgency and may not stand judicial scrutiny, if challenged. The same apex court judgment upholds judicial review of the president’s satisfaction of the “circumstances which render it necessary for him to take immediate action” through the promulgation of an ordinance.

Krishna Kumar Singh vs State of Bihar

The Narendra Modi government, since coming to power in 2014, has issued 26 ordinances, of which 11 were re-promulgated. If the Supreme Court’s recent judgment in Krishna Kumar Singh vs State of Bihar, delivered on January 2, is any indication, the re-promulgated ordinances would be considered as unconstitutional, even during the period that they are in force.

An ordinance, promulgated by the executive when the legislature is not in session, expires at the end of six weeks of its reassembly if the legislature does not disapprove it through a resolution before that. An ordinance, therefore, has be replaced by a Bill and passed by parliament or the state legislature before its expiry.

The Supreme Court’s seven-judge constitution bench gave the verdict in this case while examining the validity of the Bihar ordinance which was re-promulgated seven times since 1989 by the state government to confer certain benefits on Sanskrit teachers. It was later allowed to expire. Though it was talking about a state ordinance, this judgment will be binding on ordinances promulgated by the president as well.

Though the ordinance-making power is legally unfettered, parliament has been ensuring that the power of the president in this regard is not misused by the executive. Rule 71 of the Rules of Procedure and Conduct of Business in Lok Sabha provides:

  1. Whenever a Bill seeking to replace an Ordinance with or without modification is introduced in the House, it shall be placed before the House along with the Bill a statement explaining the circumstances which had necessitated immediate legislation by Ordinance.

  2. Whenever an Ordinance, which embodies wholly or partly or with modification the provisions of a Bill pending before the House is promulgated, a statement explaining the circumstances which had necessitated immediate legislation by Ordinance shall be laid on the Table at the commencement of the session following the promulgation of the Ordinance.

In Krishna Kumar Singh, the Supreme Court’s majority judgment, authored by Justice D.Y. Chandrachud, observed:

“The requirement of laying an Ordinance before the legislature body subserves the constitutional purpose of ensuring that the provisions of the Ordinance are debated upon and discussed in the legislature.   The legislature has before it a full panoply of legislative powers and as an incident of those powers, the express constitutional authority to disapprove an Ordinance.

The placement of an Ordinance before the legislature is a constitutional necessity; the underlying object and rationale being to enable the legislature to determine the need for and expediency of an Ordinance; whether a law should be enacted ; or whether the Ordinance should be disapproved”.

The question of placing the ordinance before the legislature, once it reconvenes, was considered vital by the five majority judges on the seven-judge bench. The five judges are justices S.A. Bobde, Adarsh Kumar Goel, Uday Umesh Lalit, Chandrachud and L. Nageswara Rao.

They said they were ruling in this manner because constitution benches of the Supreme Court have repeatedly placed significant emphasis on the safeguards introduced by the constitution to ensure against the abuse of power by the executive in exercising legislative power while framing an ordinance.

The constitution bench in A.K. Roy, which noted that the constituent assembly conferred the ordinance-making power on the heads of the executive in the Union and the states as a “necessary evil”, held:

“The Constituent Assembly held forth, as it were, an assurance to the people that an extraordinary power shall not be used in order to perpetuate a fraud on the Constitution which is conceived with so much faith and vision. That assurance must in all events be made good and the balance struck by the founding fathers between the powers of the government and the liberties of the people not disturbed or destroyed.”

While the constitution stipulates that an ordinance shall have the same force and effect as a law enacted by the legislature, it is necessary to emphasise that the friction created by article 213(2) is subject to its provisions. First, the duration of an ordinance is limited until the expiration of six weeks from the reassembly of the legislature; second, the duration of an ordinance can be curtailed to a period even less than six weeks after the legislature has reassembled, upon the passing of a resolution disapproving the ordinance; and third, the constitutional requirement that an ordinance shall be laid before the legislature.

Re-promulgation of an ordinance – promulgating an ordinance again after the life of an earlier ordinance has ended – is fundamentally at odds with the scheme of articles 123 and 213, the majority judges noted in Krishna Kumar Singh.

“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 other reasons? Would the satisfaction of the governor on the need for immediate action be arrived for an act of re-promulgation, after a legislative session has intervened?” the majority judges asked themselves in paragraph 43 of their judgment.

In paragraph 44, they answered thus:

“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. The danger of re-promulgation lies in the threat which it poses to the sovereignty of Parliament and the state legislatures which have been constituted as primary law givers under the Constitution.   Open legislative debate and discussion provides sunshine which separates secrecy of ordinance making from transparent and accountable governance through law making.”

In D.C. Wadhwa, the Supreme Court’s five-judge constitution bench ended with a ‘hope and trust’ that law making through re-promulgated ordinances would not become the norm. That trust has been belied by the succession of re-promulgated ordinances in this case, the majority judges held.

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