Law Optional (Separation of powers and constitutional governance) by Rajnish Jindal

Model Answer

Question #1. Resorting to ordinances has always raised concern on violation of the spirit of separation of powers doctrine. While noting the rationales justifying the power to promulgate ordinances, analyze whether the decisions of the Supreme Court on the issue have further facilitated resorting to this power. Should the power to promulgate ordinances be repealed?

Ans.

The ordinance power (Article 123) was originally conceived as an emergency provision. However, in the frequent use of ordinance power has led to the undermining the role of the legislature by executive and the doctrine of Separation of powers. The Constituent Assembly debates leave no manner of doubt that the said power ought not to be exercised merely to circumvent a failure to muster support in the legislature. The satisfaction of the president at the time of the promulgation of an ordinance is within the purview of judicial review. The government will have to satisfy the Court about whether the satisfaction for re-promulgation was based on some relevant material. Historically, in the 1950s, central ordinances were issued at an average of 7.1 per year. 

In RC Cooper Case 1970, Supreme Court held that the President’s decision to promulgate ordinance could be challenged on the grounds that ‘immediate action’ was not required, and the ordinance had been issued primarily to bypass debate and discussion in the legislature. In DC Wadhwa Case 1987, Supreme court held that the legislative power of the executive to promulgate ordinances is to be used in exceptional circumstances and not as a substitute for the law-making power of the legislature. In Krishna Kumar Singh Case 2017, Supreme Court held that the authority to issue ordinances is not an absolute entrustment, but is “conditional upon satisfaction that circumstances exist rendering it necessary to take immediate action”. It further stated that the re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes. An ordinance “ceases to operate” six weeks after the two Houses reassemble, except if it is converted into an Act by then. Re-promulgation sidesteps this limitation.

This practice becomes unacceptable when it degenerates into an “ordinance raj”, where ordinances are seldom brought before the legislature but are re-issued again and again, violating the spirit of the Constitution. Ordinance is an undemocratic route to law-making, which is the job of the legislature. Therefore, any executive attempt at law-making is not good for any democracy. Re-promulgation of ordinances is a fraud on the Constitution and a subversion of the democratic legislative processes. The raison d’être for this dictum is that re-promulgation represents an effort to overreach the legislative process which is the primary source of law-making in a parliamentary democracy.

Question #2. In Indian Constitutional system, the doctrine of separation of powers is envisaged. However, Judicial Legislation has become antithetical to this in the recent past. In this context justify the filing of large number of public interest petitions praying for issuing guidelines to executive authorities.

Ans.

The concept of separation of powers is the rudimentary element for the governance of a  democratic country. This principle corroborates fairness, impartiality and uprightness in the workings of a government. Although it is not followed in its strict sense yet, most of the democratic countries have adopted its diluted version under their respective constitutions.

However, in the recent times, Judicial legislation has come under scrutiny as it is seen as an encroachment on power of legislature and executive by judiciary, therefore disturbing the delicate balance between three organs of government in ways such as:

• Directive by Supreme Court to play National Anthem in cinema halls.
• MC Mehta case – Ban on BS 4 vehicles.
• Ban on alcohol on roads by Supreme Court.
• Arun Gopal case – Fixed timings for fireworks on Diwali.

But on the other side, PIL as an instrument of judicial activism on the other hand has also led to a delivering of the several important judgements such as –

• Assuring social justice – The vulnerable groups like workers, prisoners, elders etc. get justice through PIL. Example in Hussinara Khatoon Case 40,000 undertrials were released from jail.
• Enforcing rights of the weaker sections, thus making the justice more inclusive. Example in Asiad workers case, Supreme Court ruled that workers not getting minimum wage can approach Supreme Court directly.
• Putting legislative and executive bodies into action – Example Vishakha guidelines provided the framework for Sexual Harassment Prevention and Prohibition Act of 2013.
• Environmental protection – Supreme Court directed the central government to form an EPCA for Delhi environment betterment, directions regarding smog towers etc.
• Election Reforms – Supreme Court has spearheaded the process of electoral reforms through various judgements. Example the PIL filed by Lily Thomas and Lok Prahar resulted into disqualification of convicted MP’s.
• Filling the vacuum created by inaction of legislature and executive, PIL acts as a route through which people seek redressal for inaction.

Thus, PIL is an effective powerful instrument of legislation when used judiciously and in order to check the misuse of PIL, Supreme Court has given guidelines in State of Uttaranchal versus Balwant Singh case. These guidelines must be followed by all court so that judicial activism does not turn into judicial adventurism.