March 23

Gautam Bhatia: Executive Legislation and the Separation of Powers in India

An issue of continuing concern in public and administrative law, across jurisdictions, has been the gradual concentration of power in the hands of the Executive branch of the government, at the expense of the legislative branch. Specifically, in recent months, the relationship between the Executive and the Parliament in a parliamentary-democratic system, has come into sharp focus. For instance, the Supreme Court of the United Kingdom held that the UK government could not legally exit the European Union without parliamentary sanction. A South African Court struck down President Zuma’s decision to take South Africa out of the International Criminal Court. And on January 2, 2017, the Indian Supreme Court handed down an important judgment concerning the “ordinance-making powers” of the executive.

The Indian Constitution outlines a traditional, Westminster separation-of-powers model, where the primary law-making responsibility vests in an elected Parliament, and the task of implementing laws is left to the Executive (i.e., a cabinet appointed by the President (who is the constitutional figurehead), at the behest of the leader of the governing party). In the provisions that constitute structures of governance, the Constitution bears strong imprints of the British parliamentary system. One such imprint is the ordinance-making power: the Constitution authorises both the federal and the state Executives (acting through the President, or the President’s equivalent in the states, the Governor) to promulgate ordinances in circumstances where the central Parliament, or the State legislatures, as the case may be, are not in session, and “immediate action” is required. While they are in force, ordinances have “the force of law”. The Constitution also requires Ordinances to be “laid” before the legislature, within six months of it reconvening. Under the Indian constitutional system, where the legislature must convene at least once every six months, this means that the maximum “life” of an ordinance is seven and a half months, at the end of which it “ceases to be in force”.

The Indian constitutional scheme makes it clear that Ordinances – or, “executive legislation” – are meant to be used only in circumstances of grave emergency, and where the legislature is unable to pass a law to deal with that emergency. However, over the last three decades, a gradual devaluation of the Indian legislature (at both the central and the state levels) at the expense of the Executive has been accompanied by an increase in the frequency and volume of Ordinances to such an extent, that Ordinances now resemble an alternative form of law-making – but without the public scrutiny and the deliberative process that gives legislation its legitimacy. Another technique that the Executive has increasingly begun to resort to is that of “re-promulgation”: an Ordinance is promulgated when the legislature is not in session; it is then allows to lapse when the legislature reconvenes; and when the legislative session ends, it is “re-promulgated” in more or less the same terms. In 1987, the Supreme Court of India was called upon to adjudicate a situation in which an Indian state had been more or less governed entirely by repromulgated ordinances, for more than a decade. The Supreme Court handed down an ambiguous judgment that strongly criticized re-promulgation, and asserted the right of the judicial branch to review re-promulgated ordinances to test their bona fides, but stopped short of holding re-promulgation to be unconstitutional per se.

However, the associated questions of the scope of the Ordinance-making power, the extent to which Ordinances could be reviewed by constitutional courts, and perhaps most importantly – the consequences of Ordinances “ceasing to be in force” on the reconvening of the legislature – were finally answered by a seven-judge bench of the Supreme Court in January. In a landmark judgment called Krishna Kumar vs State of Bihar, the Supreme Court emphatically reasserted the principle of Parliamentary supremacy, and the principle that Ordinances were only meant to be used in exceptional situations. It did so by laying down two important propositions of law:

First, it held that the validity of an Ordinance was subject to judicial review; in particular, the question of whether circumstances existed that required emergency action, as stipulated in the Constitution, could be tested in the constitutional courts. The judicial standard to be applied broadly resembled the standards governing judicial review of administrative action: while the Court could not substitute its judgment for that of the Executive, it could nonetheless examine the material on the basis of which the Executive had reached its judgment, and set it aside if the material was non-existent, or entirely irrelevant. At the minimum, this would require the Executive to justify the existence of an Ordinance by showing, plausibly, that an emergency existed.

Secondly, the Supreme Court held that if an Ordinance “ceased to operate”, because it wasn’t laid before the legislature on its reconvening, than acts done during the lifetime of the Ordinance would also come to an end. In other words, actions taken during the existence of an Ordinance did not possess an “enduring effect”. In reaching this conclusion, the Court overruled two of its own prior judgments, delivered by benches of five judges, which had equated an Ordinance to a “temporary statute”, and had held that, in accordance with the principles governing temporary statutes, acts done during their lifetime would continue to have effect unless expressly revealed. The key conceptual advance that the Court made was to delink Ordinances from temporary statutes. According to Justice Chandrachud, the author of the majority opinion, a temporary statute was a law, made under normal circumstances, which had a defined shelf life; an Ordinance, on the other hand, came into existence in very different circumstances, and was meant to be an emergency measure. Consequently, even though the Constitution stated that Ordinances had “the force and effect of law”, this could not mean that Ordinances were equivalent to law. The Court did recognize that in certain circumstances, it would be impossible – or unrealistic – to reverse the effects of acts done during the lifetime of an Ordinance. Consequently, it carved out a narrow exception to the general rule, holding that in circumstances of “constitutional necessity”, Ordinances would continue to have an enduring effect. The exact scope of “constitutional necessity” will be worked out by later courts.

These two holdings – that Ordinances are subject to judicial review, and that Ordinances do not create enduring effects beyond their lifetime – together represent an important corrective to the creeping imbalance of power between the legislature and the Executive. They reaffirm – once again – the basic principle of separation of powers in a parliamentary democracy.

 


Gautam Bhatia is a practicing lawyer in Delhi. He also teaches at the National University of Juridical Sciences. He blogs at Indian Constitutional Law and Philosophy.