Article 123 and Democracy: The Inherent Conflict

The power to make laws in most modern societies lies in democratic institutions. Under the Constitution of India (“the Constitution”) as well, this power is entrusted with the legislature. However, Article 123 of the Constitution allows the head of executive (which is the President under the Constitution) to promulgate ordinances to deal with situations which require immediate attention. It is considered to be a very important provision of the Constitution (with two major constitutional amendments focusing on them)[1], and has come to be accepted despite its obvious and inherently undemocratic nature. This article intends to show that this provision to promulgate ordinances is often misused and needs to be amended.

The President is allowed to exercise legislative powers in cases which require “immediate action”. It would appear, however, that this legislative power is exercised by the President without any urgency. Several ordinances are regularly passed on subjects where no immediate action is required and which would not justify bypassing the democratic process.[2] In fact, the number of ordinances promulgated and the subject-matters dealt therein would make one believe that the Indian legislative system is functioning with President only.

It is obvious that this was not what was intended by the Constituent Assembly when the provision for ordinances was included in the Constitution. The use of the words “immediate action” make this clear. It was also suggested in the Constituent Assembly to change the heading of the Chapter to read “Extraordinary Powers of the President” instead of the current “Legislative Powers of the President” to make it clear that the powers “are extraordinary; that is to say, they are not to be employed in normal times”[3].

It would appear that the provision is often used by the ruling Governments to quickly enact laws that (in their opinion) do not require much debate or attention. This is because the President has to act on aid and advice of the Council of Ministers, and keeping in mind the ordinances promulgated in the past, amendments to the existing laws is often made through ordinances. Ordinances appear to be a loophole that the ruling Governments have found to push laws without bringing much attention or spending time in Parliament.

Romesh Thapar explains, “[government] by ordinance is the pattern these days. Apart from the fact that the speculators have to be curbed, there is no time to go through the tedious procedures in Parliament which permit disruptive lobbies to build, lobbies that paralyse action.”[4] None of this, however, justifies the fact such procedures have practically just become tricks to bypass the ordinary democratic process. In a later article, Thapar agrees, “There is not a situation in India which cannot be handled by the normal law of the land, that is, if the instruments of policy implementation are kept intact and not reduced to disarray by politicians and fawning bureaucrats.”[5]

An inherent premise of the above argument is that if something is undemocratic, it is undesirable. However, there is no reason for this to be true. A good decision can come out of an undemocratic procedure as well. An analysis of ordinances promulgated in the recent past would reveal that most of them are introduced as bills in Parliament and accepted.[6] This would imply that the democratic process has approved of the ordinance as being correct and desirable.

Why, then, is the lack of democracy in ordinance procedure being portrayed as bad in the present article? This is because of several reasons. Correctness of decision aside, the fact, in theory at least, remains that the provision is undemocratic at heart — a State may be ruled by a monarch for a long time, however, that does not justify his exercise of power over other people regardless of the correctness of the decision. Further, such a State does not have any legitimacy attached to it. As several authors have argued, legitimacy of institutions runs to the core of a State, and a failure to justify its legitimacy could directly attack its sovereignty.[7]

Moreover, just because practically a provision is used only to arrive at the correct decision does not mean that this will remain the case in the future as well. Many scholars agree that there is a “[p]ossibility of abuse of the ordinance-making power”[8] and there is “no guarantee that such powers will not be abused in the future”[9].

This potential for misuse arises from the way Article 123 is phrased and the lack of provisos or safeguards thereto. The President may promulgate ordinances if he is satisfied that there are circumstances which make it necessary for him to take action. While the ordinance is amenable to judicial scrutiny, the court would not look into the preconditions of necessity.[10] Moreover, even the concept of mala fide would not apply as legislative intentions are out of judicial reach.[11] Further, it is for the petitioner to prove that necessary circumstances could not have existed.[12] Such a scheme of things is strange — the burden of proof should be on the executive to prove that the undemocratic use of power was necessary, and not vice versa.

One of the biggest factors adding to the potential for misuse is the fact that ordinances can go without adequate legislative review for more than half a year at a time. And even if the ordinance lapses or is repealed by the Legislative Assembly, the ordinance would not be void ab initio. Any legal effect caused by the ordinance in that period would continue to exist. Thus, even if the democratic institutions are to approve or disapprove of the acts later, the fact is that the undemocratic laws can affect the nature of the Indian State quite drastically.

Several authors have argued that any provision for ordinances is unnecessary and should be taken out of the Constitution. A.G. Noorani has argued:

How do countries like the US and Canada deal with such a situation? In the same way that any other country does — summon the legislature urgently. [This power] has been abused not only by the States but also by the Centre with no check by the Supreme Court.… The precondition of urgency has been ignored…. The existence of the circumstances has never been probed into by the courts.[13]

Various other authors support this — “Legislation by ordinances is not extra-constitutional, but improper and undemocratic.”[14] Prof. M.P. Jain agrees with Noorani, saying that “[t]he executive in Britain or the USA enjoys no such power.”[15] In a different article, Noorani argues, “History will be made the day the Supreme Court holds that the very power to make … ordinances is judicially reviewable and is subject to strict conditions”[16].

Such a situation, where the power to promulgate ordinances is completely taken out of the Constitution of India would indeed be ideal. However, if the State is of the opinion that it is necessary to retain this provision (to deal with urgent situations, for instance), it is essential that essential safeguards be put into place.

The time period for which the ordinance is to be in force needs to be reduced drastically, to a few weeks at most. This is because if there is a situation which requires immediate attention, then the legislature needs to be summoned as soon as possible to deal with it. Ordinances should only be used as a temporary measure till the legislature assembles for the emergency meeting.

Further, provisos must be included to the effect that necessity of action or urgency to promulgate action needs to be proved by the executive. Ordinances should only be used for situations of utmost emergency, and having a provision which requires material to be shown to ensure that necessary conditions exist is necessary to balance the provision with at least some responsibility added to the executive. Another provision that could be included to ensure that ordinances are promulgated only in situations of urgency is to include a restriction which says that ordinances can only be issued when emergency has been proclaimed by the President. This would again make sure that ordinances are not issued unnecessarily when a democratic procedure could be followed. Ultimately, the aim should be to reduce the undemocratic elements to a minimum (or, if possible, completely eliminate it), and where in the Constitution it still remains, high requirements be imposed for its usage.

*3rd year student, BA LLB (Hons.), Jindal Global Law School, O.P. Jindal Global University, Sonipat.

[1]  The Constitution (Thirty-Eighth Amendment) Act, 1975 and the Constitution (Forty-Fourth Amendment) Act, 1978.

[2] For instance, Arbitration and Conciliation (Amendment) Ordinance, 2015; Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015; Negotiable Instruments (Amendment) Ordinance, 2015; among many others.

[3]  Constituent Assembly Debates, p. 201

[4]  The Trouble about Ordinances, Romesh Thapar, Economic & Politicial Weekly (13-7-1974).

[5]  Law or Ordinance?, Romesh Thapar, Economic & Political Weekly (23-11-1974).

[6]  Ordinances promulgated in and after 2014 have been considered for this analysis.

[7]  Mithi Mukherjee, An Imperial Constitution?: Justice as Equity and the Making of the Indian Constitution, in India in the Shadows of Empire: A Legal and Political History, pp. 199-201 (Oxford University Press, 2011).

[8]  Introduction to the Constitution of India, Durga Das Basu, Nagpur LexisNexis, (22nd Edn., 2014) p. 207.

[9]  Ordinance Raj (Editorial), The Economic Weekly (20-2-1954).

[10]  A.K. Roy v. Union of India, (1982) 1 SCC 271; S.K.G. Sugar Ltd. v. State of Bihar, (1974) 4 SCC 827.

[11]  T. Venkata Reddy v. State of A.P., (1985) 3 SCC 198; State of Karnataka v. B.A. Hasanahba, 1998 SCC OnLine Kar 93 : AIR 1998 Kar 210.

[12]  Gyanendra Kumar v. Union of India, 1996 SCC OnLine Del 367 : AIR 1997 Del 58.

[13]  Ordinance Raj, A.G. Noorani, Economic & Political Weekly (12-12-1998).

[14] Ordinance Raj (Editorial), The Economic Weekly (20-2-1954).

[15]  Indian Constitutional Law, M.P. Jain, Nagpur LexisNexis (6th Edn., 2003) p. 181.

[16]  Supreme Court and Ordinances, A.G. Noorani, Economic & Political Weekly (28-2-1987).

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