Explained: Ordinance must pass test of legislative competence

May 21, 2023 01:18 PM IST

The issuance of the ordinance opens a new chapter in the protracted battle between the Centre and the Delhi government

The Union government on Friday evening promulgated an ordinance, effectively nullifying the Constitution bench judgment that shifted the authority of controlling bureaucrats in the national capital from the Lieutenant Governor to the Delhi government.

In T Venkata Reddy Vs State of Andhra Pradesh (1985), the Supreme Court ruled that an ordinance is as good as a law and cannot be treated as an executive action or an administrative decision. (HTArchive)
In T Venkata Reddy Vs State of Andhra Pradesh (1985), the Supreme Court ruled that an ordinance is as good as a law and cannot be treated as an executive action or an administrative decision. (HTArchive)

The ordinance cast a bundle of new provisions in the Government of National Capital Territory of Delhi (GNCTD) Act, 1991, reincarnating the supreme authority of L-G in having the final word in matters of transfers and postings of bureaucrats assigned to various departments under purview of the elected government in Delhi.

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While the Supreme Court’s May 11 judgment found no justification in a 2015 notification of the Centre putting “services” — as found in Entry 41 of List II (State List) of the Seventh Schedule of the Constitution of India — out of the ambit of the legislative and executive power of the elected government in the national capital, the ordinance seeks to lend statutory protection to this notification by adding it as Section 3A of the Amendment Act.

To overcome the effect of the five-judge bench judgment, the ordinance introduced Section 3A which states: “Notwithstanding anything contained in any judgement, order or decree of any Court, the Legislative Assembly shall have the power to make laws as per Article 239AA except with respect to any matter enumerated in Entry 41 of List II of the Seventh Schedule of the Constitution of India or any matter connected therewith or incidental thereto.”

The issuance of the ordinance opens a new chapter in the protracted battle between the Centre and the Delhi government over control at various levels in the administration of the Capital. Apart from the political heat that the ordinance is bound to generate, a fierce court fight is also in the offing where the legalities of the Centre’s ordinance will be put to tests of judicial principles and legislative competence.

Ordinance to nullify a constitutional court judgment

Article 123 of the Constitution gives the President of India powers to promulgate ordinances when Parliament is not in session and an immediate action is required. Ordinances may relate to any subject that Parliament has the power to make laws, and it must receive the approval of Parliament within six weeks of the from the reassembly of Parliament. It is compulsory for a session of Parliament to be held within six months under Article 85.

In RK Garg Vs Union of India (1982), the Supreme Court affirmed the power of the President to issue ordinances, pointing out the President is invested with this legislative power only in order to enable the executive to tide over an emergent situation which may arise whilst the Houses of Parliament are not in session. The President is bound by aid and advice of the cabinet in these matters. The apex court, in AK Roy etc VS Union of lndia (1982), firmly established that an ordinance is a ‘law’ and should be approached on that basis.

In T Venkata Reddy Vs State of Andhra Pradesh (1985), the Supreme Court ruled that an ordinance is as good as a law and cannot be treated as an executive action or an administrative decision. “When the Constitution says that the ordinance making power is legislative power and an ordinance shall have the same force as an Act, an ordinance should be clothed with all the attributes of an Act of legislature carrying with it all its incidents, immunities and limitations under the Constitution,” it held.

Having elucidated that ordinance is a ‘law’ for all purposes and thus, it can be subject only to the limitations prescribed by the Constitution and to no other, the question arises if a law can nullify a judgment. Yes, but only when certain conditions are met.

In Janapada Sabha Chhindwara Vs The Central Provinces Syndicate Ltd and Anr (1970) a constitution bench observed that it is not open to legislation to render a judgment ineffective. “It is open to the legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the legislature to say that to say that a judgment of a court properly constituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the court.”

Quashing a Karnataka law in 1993 in the Cauvery Water Disputes Tribunal case, the top court ruled that the legislature can change the basis on which a decision is given by the court and thus change the law in general, which will affect a class of persons and events at large. “It cannot, however, set aside an individual decision inter parties and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power of the State and to functioning as an appellate court or tribunal,” added the verdict, noting the ordinance issued by Karnataka will affect the flow of the waters of the river Cauvery into the territory of Tamil Nadu and Pondicherry.

Another line was drawn by the Supreme Court in State of Tamil Nadu Vs State of Kerala (2014). “The law enacted by the legislature may apparently seem to be within its competence but yet in substance, if it is shown as an attempt to interfere with the judicial process, such law may be invalidated being in breach of doctrine of separation of powers. In such situation, the legal effect of the law on a judgment or a judicial proceeding must be examined closely, having regard to legislative prescription or direction,” it held.

In 2017, the top court quashed an ordinance issued by the Kerala government to regularise admissions in two medical colleges in spite of the Supreme Court’s affirming the cancellation of such admissions. “The legislature cannot declare any decision of a court of law to be void or of no effect. It can remove the defects of the law pointed out by the court or on coming to know of it aliunde; otherwise, a court’s decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in such altered circumstances,” it said. The court stressed that the legislature can make a validating law. “Making validation as such, it removes the defect which the court finds in the existing law,” said the court.

In ST Sadiq Vs State of Kerala and Ors (2015), the Supreme Court laid down that the legislative function consists in “making” law and not in “declaring” what the law shall be. “If the legislature were at liberty to annul judgments of courts, the ghost of bills of attainder will revisit us to enable legislatures to pass legislative judgments on matters which are inter-parties,” it said.

Thus, doctrines of separation of power and independence of judiciary require the legislature to amend the law or bring in a new one so as to alter the foundation and meaning of the legislation and to remove the basis on which the judgment declared it bad.

Presumption of constitutionality to a law

Every law passed by a competent legislature is presumed to be valid and constitutional unless held otherwise by a court of law. This doctrine is called “presumption of constitutionality” and the legal principle is employed by courts when they are called upon to interpret a statute passed by a state assembly or Parliament.

Over the years, the Supreme Court has established the doctrine of “presumption of constitutionality” as a golden rule since the principle enshrines separation of power and deems in favour of the competence of the legislative wing.

One of the earliest rulings of the Supreme Court on this doctrine came way back in 1958. In Mohd Hanif Quareshi Vs State of Bihar, a constitution Bench further observed that there is always a presumption in favour of constitutionality of an enactment and the burden is upon him, who attacks it, to show that there has been a clear violation of the constitutional principles.

A constitution bench, in Mark Netto Vs State of Kerala and others (1978), declared that there is one and only one ground for declaring an Act of the legislature or a provision in the Act to be invalid, and that is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt. “In our opinion adjudication must be done within the system of historically validated restraints and conscious minimisation of the judges’ personal preferences. The court must not invalidate a statute lightly, for, as observed above, invalidation of a statute made by the legislature elected by the people is a grave step,” added the judgment.

In ML Kamra Vs CMD, New India Assurance (1992), the Supreme Court underscored that there is a presumption in favour of constitutionality of a legislation or statutory rule unless ex facie it violates the fundamental rights guaranteed under Part III of the Constitution. “The court ought not to interpret the statutory provisions, unless compelled by their language, in such a manner as would involve its unconstitutionality, since the legislature of the rule making authority is presumed to enact a law which does not contravene or violate the constitutional provisions,” it said.

This judgment also put out a guiding principle if a constitutional court were to interpret a statutory provision: “If the provisions of law or the rule is construed in such a way as would make it consistent with the constitution and another interpretation would render the provision or the rule unconstitutional, the court would lean in favour of the former construction.”

In Karnataka Bank Limited Vs State of Andhra Pradesh and others (2008), the top court held that if that which is passed into law is within the scope of the power conferred on a legislature and violates no restrictions on that power, the law must be upheld whatever a court may think of it.

Scope of judicial review

As challenges to the validity of several legislation reached the court’s doorstep the Supreme Court also evolved a set of tests to examine the validity of a law – legislative competence to pass a law on a particular subject, violation of any fundamental or constitutional right and manifest arbitrariness.

In M/s Dwarka Prasad Laxmi Vs State Of Uttar Pradesh (1954), the Supreme Court noted that in order to decide whether a particular legislative measure contravenes any of the provisions of Part III of the Constitution, it is necessary to examine with some strictness the substance of the legislation in order to decide what the legislature has really done. “Of course, the legislature cannot bypass such constitutional prohibition by employing indirect methods and therefore the court has to look behind the form and appearance to discover the true character and nature of the legislation,” it emphasised.

In Hamdard Dawakhana and another Vs Union of India and others (1959), the Supreme Court said that “when the constitutionality of an enactment is challenged on the ground of violation of any of the articles in Part III of the Constitution, the ascertainment of its true nature and character becomes necessary i.e. its subject-matter, the area in which it is intended to operate, its purport and intent have to be determined.”

In the Shayara Bano (triple talaq) case of 2017, the Supreme Court held that the thread of reasonableness runs through the entire fundamental rights chapter. “An Act which is manifestly arbitrary would be unreasonable and contrary to rule of law and, therefore, violative of Article 14 of the Constitution,” it added.

Staying an ordinance/law as an interim measure

With the doctrine of presumption of constitutionality in favour of a legislation, the Supreme Court has always cautioned against a routine interference with the operation of a law. Over the years, it has also distinguished between suspending the operation or consequences of a law and suspending the law itself.

In Bhavesh D Parish & Others Vs Union of India (2000), the Supreme Court noted that the courts must show judicial restraint in staying the applicability of a law unless the provision is manifestly unjust or glaringly unconstitutional. “Merely because a statute comes up for examination and some arguable point is raised, which persuades the courts to consider the controversy, the legislative will should not normally be put under suspension pending such consideration,” it held.

Again, in Siliguri Municipality & Ors Vs Amalendu Das & Ors, (1983), the court pointed out that the court must strike a delicate balance after considering the pros and cons of the matter, ensuring the larger public interest is not jeopardised as well as the institutional embarrassment is eschewed. “The main purpose of passing an interim order is to evolve a workable formula or arrangement to the extent called for by the demands of the situation...keeping in mind the presumption regarding the constitutionality of the legislation and the vulnerability of the challenge...only in order that no irreparable injury is occasioned,” it added.

The 2010 judgment in the State Of Uttar Pradesh & Ors Vs Hirendra Pal Singh ruled: “It is permissible for the court to interfere at interim stage only in those few cases where the view reflected in the legislation is not possible to be taken at all. Thus, the court should not generally stay the operation of law.”

In Health for Millions Vs Union of India (2014) the Supreme Court highlighted that the courts should be extremely loath to pass an interim order in cases of challenge to the constitutional validity of a legislation. “At the time of final adjudication, the court can strike down the statute if it is found to be ultra vires the Constitution. Likewise, the rules can be quashed if the same are found to be unconstitutional or ultra vires the provisions of the Act,” it added.

But the judgment added a caveat, keeping intact the power of judicial review at every stage of legal adjudication: “However, the operation of the statutory provisions cannot be stultified by granting an interim order except when the court is fully convinced that the particular enactment or the rules are ex facie unconstitutional and the factors, like, balance of convenience, irreparable injury and public interest are in favour of passing an interim order.”

Therefore, evident unconstitutionality of a law, public interest, irreversible injuries to constitutional rights as well as apparent breach of judicial dictums are some of the grounds that have prompted the Supreme Court to issue interim orders suspending operation of a law, which effectively (though not legally) means staying the legislation under challenge.

In Ashok Kumar Thakur Vs Union of India (2007), as the top court heard a raft of challenges to the 27% OBC quota and the exclusion of the creamy layer principle, it put on hold a legal provision relating to quota benefits for the OBC category. “It would be desirable to keep in hold the operation of the Act so far as it relates to the OBCs category only. We make it clear that we are not staying operation of the Statute so far as the Scheduled Castes and Scheduled Tribes candidates are concerned,” stated the order.

In KS Puttuswamy Vs Union of India (2015) - the right to privacy case, the Supreme Court, in effect, suspended several provisions of the Aadhaar Act as it issued a string of interim orders clarifying the government cannot make Aadhaar mandatory for availing of social benefits or for any other purposes. As the matter was referred to a larger bench for settling the contours of the right to privacy, the apex court issued directions which included wide publicity that it is not mandatory for a citizen to obtain an Aadhaar card and that the production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen.

The operation of the Maratha quota law was stayed by the Supreme Court in 2020, acknowledging that although an interim order is not normally passed to stultify statutory provisions, “there is no absolute rule to restrain interim orders being passed when an enactment is ex facie un-constitutional or contrary to the law laid down by this court.” The law was finally quased by the top court in May 2021.

Citing the stay order in the Maratha quota case, the Supreme Court in January 2021, suspended the operation of the three farm laws amid massive protests at the Delhi borders, and held that suspension of the laws may assuage the hurt feelings of the farmers and encourage them to come to the negotiating table with confidence and good faith. “Though we appreciate the aforesaid submission of the learned Attorney General, this Court cannot be said to be completely powerless to grant stay of any executive action under a statutory enactment,” it noted. Later, the government repealed the farm laws, rendering the court proceedings insignificant.

In December 2021, the Supreme Court stayed the operation of the Maharashtra government’s ordinance through which the state sought to introduce 27% reservation for OBCs in all zilla parishads and panchayat samitis without collecting data on OBCs in every municipal body seat. “The State Government hastened the process by issuing Ordinance which clearly impinges upon the legal position expounded by the Constitution Bench of this Court and restated in subsequent three judges’ decision,” said the court.

The long line of constitutional court judgments disambiguates that a court’s decision shall remain binding unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the changed circumstances. The twin requirements on removing the basis of a judgment will face the test whether the legislature possesses the competence which it claims over the subject-matter and whether in making the validation, it removes the defect which the courts had found in the existing law.

The May 11 judgment of the five-judge bench set down a clutch of important constitutional principles on cooperative and collaborative federalism to declare that the elected government in Delhi “must be allowed to function in the domain charted for it by the Constitution”. The ordinance, once challenged, will have to not only pass the muster of legislative competence, but will also have to size up to the grand constitutional principles of federalism and representative form of governance in Delhi.

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