Any law being made in this modern era, power lies in the hand of democratic government and Article 123 and 213 of the constitution of India gives the power to the president and the governor respectively to bring ordinance when parliament is not in session that require immediate actions. However, these articles were fetched in the Indian constitution to curb the emergency situations but in current times one cannot ignore the harsh reality that these provisions are misused and normalizing alternative ways to pass laws when party politics comes in the way and results in clear violation of the intention and the objective of the legislature.
The President is allowed to pass any ordinance where immediate action is required but should appear that the action taken by the president in exercising legislative power should be during urgency. There are several ordinances that are passed which do not require immediate cause of action there have been many debates in the parliament which was opposed by the parties on the opposition calling it “Ordinance Raj” which in other word decried as “Constitutional Terrorism”. It is obvious that when these provisions were made they intended for “Immediate action” but not passing in the normal circumstances that is the reason the Chapter suggest “Extraordinary Power of the President”.
Article 123 of the Constitution defines certain criteria’s when both the house are in session, satisfaction of the President here satisfaction means the “Constitutional Satisfaction” as laid down in case of Samsher Singh Case. This Article focuses on the Misuse of the power of ordinance and it’s the need of an hour to revisit these provisions again so that it does not lead to biasness or politically influenced amendment and analysing ordinance brought during outbreak in the country.
Article 123 states certain conditions when an Ordinance can be promulgated but explicit specifications are required to meet the extraordinary circumstances. To elaborate further in the case of A.K Gopalan v State of Madras Court held that legislative power is supreme in our constitution which is also enshrined under article 21 as fundamental right to protect the life and liberty of the people against all executive power hence, the executive cannot make any ordinance which effect the society at large. Additional question that was put forward by the petitioners is ordinance really a “Law” under Article 21 because evaluating it violates the basic grundnorm of our constitution that is principal of separation of power. In the case of A.K Roy v The Union of India it was propounded that the legislative power is subject only to the limited restrictions that are given in the Constitution so any law passed by the legislature is ineffective if it violates Part III of the Constitution.
B.R Ambekar in constitutional assemble debate stated that the provision is problematic in itself. If we want to really change something then it’s the very essence of it. Other renowned personalities like Prof. K.T. Shah and Hirday Nath Kunzru kept on discussing the extraordinary power and emergency provisions that if we need to take so called “immediate actions” then why not making these provisions part of XVIII of the Constitution. As mentioned by D.Y CHANDRACHUD C.J that the power was given for “peace and good government” for “urgent situations which cannot brook delay” and therefore, should not be subjected to the “comparatively” tardy and time-consuming process of the Parliament. Also, stating that the intention behind the provision was not that it would be used “recklessly” or in a mala fide manner, it was enacted as a necessary evil and not to meet political ends. It seem similar to the ordinances that are to be resorted only in cases where there is danger to life, liberty or the general maintenance of peace and the government cannot wait for the Parliament to come back in session as it would cause delay which is unaffordable.
As laid down in D.C Wadhwa Case that a constitutional authority cannot do indirectly what it is not permitted to do directly. If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge. That would be clearly a fraud on the constitutional provision. In other words, it is the substance of the act that is material and not merely the form or outward appearance, and if the subject matter in substance is something which is beyond the powers of that legislature to legislate upon, the form in which the law is. Clothed would not save it from condemnation. The legislature cannot violate the constitutional prohibitions by employing an indirect method. As in the case of P. Vajravelu Mudaliar v. Special Deputy Collector it is said that legislation is a colourable one, what it means is that the legislature has transgressed its legislative power in a covert or indirect manner, if it adopts a device to outstep the limits of its power. Practice of colourable legislation is Ultra vires to the essence of constitution.
President has the legislative power to promulgate an ordinance and this legislative power is co-extensive with the power of the Parliament to make laws, it is difficult to see how any limitation can be read into this legislative power of the President so as to make it ineffective to alter or amend laws. If Parliament can by enacting legislation alter or amend laws, equally can the President do so by issuing an Ordinance.
Numerous instances where the President has issued an Ordinance replacing with retrospective effect a law declared void by the High Court or this Court. Now the question arises whether it’s on the discretion of the president to pass certain laws by ordinance or act pass by the parliament are there any qualitative difference? Article 14 of the Constitution brings the idea of qualitative difference firstly, the classification must be reasonable and not arbitrary in nature (l) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that differentia must have a rational relation to the object sought to be achieved by the Act secondly, what is rational nexus between them. It is necessary in order to pass the test of permissible classification and that the classification must not be “arbitrary, artificial or evasive” but must be based on some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislature.
As from the instances above we can see how these political parties takes the backdoor as in year 2014, Modi Government become sixth most frequent user of this method but at the same time this was done to ensure the safety for its people and nation as many a times a bill that is of major concern is opposed by the opposition parties for instance Specified Bank Notes Cessation of Liabilities Ordinance, on December 28th, 2016.
As B.R Ambedkar while drafting the constitution borrowed provisions from different developed countries as he wanted India to grow but seeing the misuse of the ordinance power has made it all gloomy. Now, its time when changes are needed because law should grow with time and ordinance should lapse if the legislature on re-assembly does not approve it unlike the case of D.C Wadhwa where ordinance was passed again and again which also lead to wastage of time and is also considered as the fraud on the constitution by Re promulgation of an ordinance again and again. As the society changes, its environment changes law should change with same pace and so the need of ordinance was required during outbreak in the country.
EFFECT OF ORDINANCE: CORONA OUTBREAK
Recently, whole nation is facing this pandemic and nationwide lockdown proclaimed to protect the people of Country from this deadly disease. Ministry of Home Affair invoked Section 6(2) (i) of Disaster Management Act, 2005 which states “take such other measures for the prevention of disaster, or the mitigation, or preparedness and capacity building for dealing with the threatening disaster situation or disaster as it may consider necessary” directing all the state governments and union territories governments to implement the central orders.
The question here arises is that is centre stepping into the shoes of state if yes, then it’s in violation of basic structure that is separation of power as mentioned above. The Epidemic Diseases Act, 1897 under section 2, it empowers the state government “When at any time the State Government is satisfied that the State or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease, the State Government, if it thinks that the ordinary provisions of the law for the time being in force are insufficient for the purpose, may take, or require or empower any person to take, such measures and, by public notice, prescribe such temporary regulations to be observed by the public or by any person or class of persons as [it] shall deem necessary to prevent the outbreak of such disease or the spread thereof, and may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed. Taking this provision into consideration every state law has the power to make their own law and shall have the same effect as per Entry 1 and Entry 6 of the state list and central government has the power as per Entry 29 of the concurrent list that it must necessarily deal with highly infectious disease which has the chances of being spread across states.
Seeing the situation ordinance was brought on 31st March stating the relaxation in the taxes that include Direct Taxes and Indirect Taxes. Other ordinance that is THE EPIDEMIC DISEASES (AMENDMENT) ORDINANCE, 2020 was brought into force on 22nd April, 2020 as the circumstances have deteriorated even after the nationwide lockdown. The changes were brought under various sections as the current ordinance is intended to ensure that during any situation akin to the current pandemic, there is zero tolerance to any form of violence against healthcare service personnel and damage to property. Various instances shows that incidents of violence have taken place which has demoralized the medical fraternity. It is felt that separate and most stringent provisions for emergent times are needed to act as effective deterrents to any such incidents of violence.
The ordinance brought into the effect was the need for the society and to protect the Right to life under Article 21 of the constitution and also to keep centre and state relationship under harmony and cooperative federalism especially at the time of emergency as Promulgated by the President as it satisfies all the conditions under Article 123 of the Constitution.
CONCLUSION AND SUGGESTION
Therefore, summarising the statement made above the changes that the author wants to suggest is in consistency with the constituent assembly as the method in which ordinance-making power is currently being implemented is a grave affront to the ideals of the Constitution.
The first and the foremost thing that is required as soon as ordinance is passed, Hon’ble President to call session until and unless such extraordinary situation appears for example Corona outbreak where immediate action was justified. Secondly, to make the explicit provision which make it clear that this power can be used only in extra ordinary circumstances. Thirdly, if ordinance is not passed by the session it should not be re-promulgated again and again in the parliament as this is a clear violation and also fraud on the constitution.
In order to ensure that ordinance promulgated is acceptable we need to make our provisions more stringent which should have restrictive effect rather than laissez-faire effect. Amending these provision can make the change in the society in present time and will also ensure about the future. At the same time while amending we need to see the very essence and the spirt of constitution.
By Reet Kaur Arora