Explained: What is the Ordinance making power of the President?

President of India Ram Kovind

Apart from other executive powers, the Governors and the President have legislative powers with which they can meet certain emergencies. These are laid down separately in two articles of the Constitution that give the President (Article 123) and the Governors (Article 213) the power to promulgate Ordinances when the legislature is not in session. Generally speaking, the power at both levels is the same: Governors and the President, facing the need for ‘immediate action’, may promulgate Ordinances having the force of legislative Acts, but central or state executive must lay Ordinances before the legislature when it reassembles. Unless approved by both houses, the Ordinance expires six weeks after reassembly. The technique of issuing an ordinance has been devised to enable the executive to meet a sudden situation arising in the country when the Parliament is not in session, and which cannot be dealt with under the ordinary law. (Ambedkar, VIII CAD, page 213) The executive does not need to expound the reasons for promulgating an ordinance and a declaration to that effect in the preamble of the ordinance is sufficient. The executive of England or the USA enjoys no such power.

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Populism, democracy and accountability

Democracy means “the rule of people” and the word is derived from two Greek words, i.e. ‘Demos’ and ‘Kratia’, which literally translates to the Rule of People. India, the land of a heterogeneous population which is sometimes considered as a ‘fruit bowl’ (wherein different fruits denote different religions, cultures, castes, races etc.), is also a constitutional democracy. In a constitutional democracy like India, the People elect their representatives through Ballot-box or highly controversial EVMs on election day for five years and the government is guided by the principles of the Constitution. While voting at a ballot box, the voter expresses his will and choose her representative. In essence, the majority party in the Parliament enjoys the will of the people. But do they have the power to translate the will of the People into justifying their unconstitutional actions? That is the difference between a populist government and a democratic one.

The populists use the machinery of the state to fulfil their goals which are generally apolitical and are often against the established constitutional norms and they do it with the support of the “majority of the People” who fall in line with their ideology, simply by conviction. Generally, democracy requires different institutions of the state to be transparent, accountable and independent. But what happens in populist regimes is totally different, they capture all the so-called independent institutions. The capturing might not be direct, such as booth-capturing on the voting day, but it can simply be filling up offices of these independent institutions with persons who will deliver certain decisions which are favourable to the populist regimes. The only “legality” which these regimes have is the popular support of the People, our beloved Janta Janardhan.

The founding fathers of the Indian Constitution envisaged a dream of a nation built on principles of democracy. The Executive, i.e. The Prime Minister and his ministers, are accountable to the Legislature, which is accountable to the People of the Nation. When a government takes any decision, it must be constitutionally valid. A decision that goes against the principles of the Constitution is unconstitutional. Even though the populist regimes have a brutal majority in the Parliament, still ideally they must abide by the principles of the Constitution. But in fact, they do not. They do what they want to do. The populist regimes which are guided by religious fanatics are more dangerous as the important decisions, such as, locking down a religious congregation during a pandemic is taken by the heads of religious establishments than the government. The decision to stop the spread of the virus is taken by the contractors of divinity, not scientific mind, not democratically elected government. But such an attitude is only shown when the decision is about their religion. The minorities are usually slapped with several provisions of the penal code.

But complaints aside, what do we need in such populist regimes? Is there any solution? According to the Constitution of India, the Hon’ble Supreme Court is the guardian of the Constitution, the protector of rights, the third branch of the government to keep a check on the populist regimes, but where is the Supreme Court? There are dead bodies lined outside the cremation grounds, there are “The People” who are dying without oxygen, there are “the People” who are not getting necessary medication due to black marketing of the same, and there are children who are now orphans. Who will protect their rights? The government is silent, the parliament is silent and the Courts are silent- just like the bodies buried under the ground- silent.

The majoritarian government will not stop until they fulfil their agendas. They will win the States, they will get the seats, they will capture every institution. But the Supreme Court- the most powerful counter-majoritarian institution in the country- must come forward and protect the rights of the citizens. They have nothing to lose. An opposition leader will be sent to jail if she raises her voice. An NGO will be charged under FCRA or UAPA if they will question the government more than needed. A common man will be labelled as anti-national. But the Hon’ble Judges of the Supreme Court of India have nothing to lose.

The Hon’ble Supreme Court of India, please save us!

Constitutionality of the 1975 National Emergency and the 44th Amendment

On 24th June 1975, the then Prime Minister Smt. Indira Gandhi and her cabinet declared emergency. The fundamental rights were suspended by subsequent orders and several laws were made to detain citizens and opposition. The abuse of power of the office of the Prime Minister was at the peak and the democratic index was buried ten feet under. The rubber stamp on the abuse of power and curtailment of fundamental rights was given by the Hon’ble Supreme Court in the case of ADM Jabalpur v. Shivkant Shukla. Recently, a petitioner has approached the apex court with a plea to declare the 1975 Emergency as unconstitutional and asked for compensation as well. But the important question here is: Was the Emergency unconstitutional?

Constitution before and after the 44th Amendment

The emergency was declared in 1975 and the horrors of emergency were (somewhat) crucified by the 44th Amendment passed in 1978 by the subsequent government. Before the amendment, an emergency could be declared because of war, external aggression or ‘internal disturbance’ and the 1975 emergency was declared due to internal disturbance. It was the phrase used in the constitution which was vague and broad. It was kept open-ended as an internal disturbance was not defined. Hence, the abuse of power was a possibility. With the amendment, the phrase internal disturbance was replaced with armed rebellion which was more restrictive in its interpretation than the previous word. Earlier, the prime minister alone could have taken a decision with regard to emergency and there was no need to have the consent of all the cabinet ministers and there was no need to give the consent in writing to the president. This was done by Indira Gandhi where she overlooked the differing views of the ministers and many of the ministers were not even present when the decision was taken. But later, they were presented with a fait accompli. It is to avoid such a situation in future that Article 352(3) was introduced through the amendment.

 Furthermore, before the amendment, the emergency ceases to operate (except when it is a proclamation revoking the previous proclamation) at the expiration of two months [which is now one month]. The legislature keeps a check and balance on the executive, hence, the time period was reduced to one month. Another significant safeguard introduced by 44th amendment is to lay down that a resolution approving the proclamation of emergency has to be passed by each House by a majority of the total membership of each House and not less than two-thirds of the majority of the members present and voting in each House (Article 352(6)). It brought a wholesome safeguard. Moreover, through 44th amendment the question whether the emergency should continue in force or not must periodically come before both Houses which was not the case before as the executive could have extended the emergency based on its own whims and fancies. Another safeguard introduced by the 44th Amendment is that the President is obliged to revoke a proclamation of emergency issued under Article 352(1) if the House of People passes a resolution disapproving the same (Article 352(7)). Another invention that was incorporated was the clause 8 in Article 352: where a notice in writing, signed by not less than 1/10th of the total members of the Lok Sabha has been given, of their intention to move a resolution disapproving the proclamation of emergency, to the Speaker if the House is in session or to the President, if House is not in session, a special sitting of the House is to be held within 14 days from the date on which such notice is received by the Speaker or the President, as the case may be. The underlying idea behind amending Article 352 by the 44th amendment is to ensure that what happened in 1975 is not repeated again.

The horrors are put to bed by the amendment. Even exorcism of the phantom of ADM Jabalpur is done by the Puttaswamy Judgment.

Supreme Court and the hearing

On 14th December, Senior Advocate and the Queen’s Counsel appeared for the petitioner who filed the plea to declare the emergency as unconstitutional and had argued that “this abuse of power was so enormous, it has scarred our country. Your lordships must declare that the emergency proclamation was wrong”. It is correct that the abuse of power during the emergency was colossal but can the Court hold that what is done through the various articles of the constitution was unconstitutional? Indira Gandhi used the vaguely framed provisions of the Constitution to exploit the fundamental rights and the Court gave the stamp. The proclamation of emergency was according to the Constitution and it is interesting to witness what the Queen’s Counsel would argue in the Supreme Court of India. The violation of Fundamental Rights could have been prevented if the Court has not ruled that ‘Article 21 is the repository of Rights’ in the ADM Jabalpur.

Strangely, instead of dismissing the petition, the Court has issued a notice to the Government to “to see whether a simpliciter declaration, something which is feasible or desirable after a passage of time and issue, restricted to that aspect.” A declaration, if done, might complicate a lot of actions of the previous governments were which were later rectified by the subsequent amendments to the Constitution. It will lead to a number of petitions being filed in the Supreme Court. On the other hand, the Supreme Court already has a number of issues which are pending before it, for example, the case of the electoral bonds, abrogation of Article 370, CAA etc., but the Court chose to hear this case which has no impact whatsoever in contemporary times. The pending cases are important and are required to be heard with immediate effect. To conclude, the heavens will not fall if the Supreme Court will not hear this plea which seeks to declare the 1975 emergency as unconstitutional.

Right to Protest, Restrictions and Democracy: Supreme Court and the Chilling Effect

Recently in the case of Amit Sahni v. Union of India, the Supreme Court passed a judgment on an infructuous matter which will have a long-lasting effect on civil liberties, especially the right to protest. The judgment of the Court feels like a judgment written by the central government in furtherance of an ‘executive court’. The 3-judges bench creates a chilling effect on the free speech and expression and the right to assemble peaceably (without arms).

The matter relates to the protests being held that Shaheen Bagh (New Delhi) and it was filed in February 2020. The protestors at Shaheen Bagh were dispersed in March after the Nation-wide lockdown which, ‘usually’ lead to dismissal of the matter. The judges ignored the factual matrix present in the case and the reasons for blockade were not because of the protestors, but the administration (police) which blocked the nearby roads and public routes. The Court classifies the constitutional and peaceful protests as “encroachments or obstructions.”

What did the court say?

The Court recognised the right to protest and the right to dissent in a democracy. The Court held that the Articles 19(1) (a) and (b), “in cohesion, enable every citizen to assemble peacefully and protest against the actions or inactions of the State.” Then, the Court moves onto the “reasonable restrictions” stated under Article 19(2) and (3). The judgment looks like as if the norm is turned into an exception, and the exception is now the norm. The Court tried to balance the right to protest with the right of other citizens to commute. It must be noted that the balancing is not done by applying the principles of proportionality, but by presuming that the protests ‘always’ disturbed the smooth traffic and commute of the citizens. The Court did not accept the plea that “an indeterminable number of people can assemble whenever they choose to protest.” This creates a chilling effect on the right to protest – the court cannot sit as an executive and lay down policies. Suppose the government plans to make some amendment in the Constitution which infringes the basic structure of the Constitution, then should the citizens sit quietly and just witness the democratic backsliding or come on the streets to express their will? As Gautam Bhatia says “in today’s day, it is important to retrieve and to build constitutionalism without the Courts, even as it remains equally important to continue to engage with and in the courts.” The check on the executive power must come from the fourth branch of democracy, which is the civil societies, media and the citizens. (See the blog on Executive Aggrandizement and democratic backsliding)

The Right to Assemble Peacefully and the Right to Protest

The rights are guaranteed under clause 1 of Article 19 which are not absolute. The restrictions on those rights placed under clause 2-6 cannot be read widely, but narrowly. They are the exceptions to the rights and must be narrowly tailored. The Supreme Court in the case of Shreya Singhal v. Union of India held that “a restriction in order to be reasonable must be narrowly tailored or narrowly interpreted so as to abridge or restrict only what is absolutely necessary.” Further, even in the Constituent Assembly the fears of wider interpretation of ‘reasonable’ restrictions were evident as one of the members Mr Sahaya said:

“In the larger interests of the country, and particularly at the formative stage of the country, to give such wide powers in the hands of the State and with regard to such Fundamental rights as, freedom of speech, freedom of assembly and freedom of movement would, I believe, be harmful and result in the creation of a suffocating and stuffy atmosphere as opposed to the free air of a truly free country.”

The right to assemble peacefully is a fundamental right and an enabling right which leads to opening up of spaces and opportunities for civil societies and citizens at large to engage effectively in decision-making processes. This right help to foster increased transparency and accountability and are basic prerequisites for the ultimate goal of securing substantive enjoyment of different human rights in a constitutional democracy. The right to assemble peacefully is a vehicle which enables other socio-political-economic rights. The state can restrict the said right only by a law in the “interests of the sovereignty and integrity of India or public order”. Fearing the so-called “reasonable restriction”, one of the members of the constituent assembly said (H.J. Khandekar):

“For instance, we are given to believe that we could carry on organised agitation for the welfare of Labour, that we can make, in an organised fashion, a demand for the grant of bonus, and if necessary can assemble in public meetings to back up this demand. The truth is that the law restricting the right of holding public meetings would be enforced. Consequently in view of such a law or laws of this kind to be passed in future it may not be possible to hold any public meeting. Thus it is clear that the Government would be in a position to prevent if it so desires, any agitation by Labour for demanding bonus, since all these restrictive laws would be applicable to the workers also. I, therefore, fail to see the significance of the right of forming associations when I find that its substance is taken away by clause (4).”

The Court by giving the state the wider power to designate the area of the protest and the number of people in the protest somehow validates the fears put forth by the Hon’ble member of the Assembly. The Court also says that the protestors, exercising their right to protest, infringes the right to commute of other citizens as protests lead to traffic jams etc. This requires balancing of rights, not just a blanket assumption. According to the Special Rapporteur on the rights to freedom of peaceful assembly and of association (20 March 2019, Geneva), it was recommended that, “The State’s obligation to facilitate includes the responsibility to provide basic services, including traffic management, medical assistance and clean-up services. Organizers should not be held responsible for the provision of such services, nor should they be required to contribute to the cost of their provision.” On the choice of place and time, which the Court declined to entertain, the Rapporteur recommends that,

“The choice of the venue or location of an assembly by the organizers is an integral part of the right to freedom of peaceful assembly…… Likewise, public areas around iconic buildings are a logical place for to convey a message with regard to institutions housed in these buildings.”

If the state is to ‘choose’ the place of protest, then it will infringe the right to protest as the protests are done to create an impact on the decision-making process and are for maximum participation by the citizens. It is done to make citizens aware of the actions and inactions of the state. If the state chooses the place of protest, then it might choose a place far from the central place of attraction where those sitting in the institutions can see. Like it happened in Jaipur where the place of protest chosen by the state government was 9 kilometres away from the earlier site chosen by the protestors. The free flow of traffic should not automatically take precedence over freedom of peaceful assembly. In this regard, the Inter-American Commission on Human Rights has indicated that “the competent institutions of the State have a duty to design operating plans and procedures that will facilitate the exercise of the right of assembly … [including] rerouting pedestrian and vehicular traffic in a certain area”. Furthermore, the Special Rapporteur points to a decision of the Spanish Constitutional Court which stated that “in a democratic society, the urban space is not only an area for circulation, but also for participation.”

A protest is done in the larger public interest, it is done to exercise dissent against various policies of the state (and sometimes against the judgments of the Court). Holding a protest outside the city, or where there is no attention will ‘extinct’ the genesis of the protest and will fetch no fruits. The Supreme Court held “it has to be borne in mind that total extinction is not balancing” (see Asha Ranjan v. the State of Bihar (2017) 4 SCC 397).

The difficulties caused to the citizens exercising their ‘right to free movement’ is due to the states’ failure to take adequate and sufficient steps. If the state will take necessary actions to “ensure that such dharnas and demonstrations are held within their bounds [and the traffic is diverted, instead of closing the roads], it would have balanced the rights of protestors as well as the residents.” (Mazdoor Kisan Shakti Sangathan v. Union of India, 2017)

Instead of being a mute spectator, the state and the police authorities should have arranged routes and spaces near Shaheen Bagh for the commuters to exercise their right to ‘free movement’ instead of blaming the protestors for their own insufficiency and inadequacy. The decision of the court to provide a blanket ban on the demonstrations lead to infringement of rights of the citizens and creates a chilling effect. It is the duty of the state to balance the rights of stakeholders and the Court must only adjudicate and protect the rights of every citizen. The purpose of holding protests is that they reach concerned persons for whom these are meant and to exercise the democratic right guaranteed by the Constitution. The decision of the Court is wrong as it will lead to fresh restrictions on the right. To conclude, in the words of TM Krishna, “Unless public spaces are freely available for demonstrations, we will remain a mute democracy.

Executive Aggrandisement and Democratic Backsliding in India: A Conceptual Analysis

In the starting of the year 2020, there was a headline that “India falls to 51st position in Democratic Index” by a survey done by the Economist’s Intelligence Unit. Further back in 2018, the Indian National Congress, the main opposition party in the Parliament, launched a campaign called “Save the Constitution”. There are many incidents and events wherein the People claim that democracy is dying. Is democracy really crumbling?

The Constitution of India is based on democratic principles and the very democracy has been jeopardised by the elected government in the past (as well). But now it is not like the 20th century when we saw Mrs Gandhi’s emergency of 1975 and military coup in Pakistan (coup d’état by Musharraf), which shattered the democracy and the democratic principles of India and her adjoining neighbour. But how is the situation in 2020 different from 1975?  What we are witnessing now is not ‘shattering’ of the democracy, it is more like a gradual erosion. A democratic decay.

The Indian Constitution has established three organs of the state: Judiciary, legislature and executive, each of them are assigned a definitive sphere of powers and functions. To check upon these institutions, we have the idea of “Constitutionalism”— which is, various sorts of accountability demand to keep a check on the powers of the organs of the state in the form of rights against the state, limiting the scope of the authority of the organs among various other checks. Herein, a question arises, despite all these checks then how is the democracy backsliding or decaying in India in 2020?

Executive Aggrandisement and democratic backsliding

Democratic backsliding, as Bermeo says, is “the state-led debilitation or elimination of any of the political institutions that sustain an existing democracy”, which basically means that when the state eliminates or dismantles the aforementioned “checks” on its powers to sustain themselves in power. Backsliding happens precisely where oppositions are already incapacitated by electoral failures and other internal divisions like lack of leadership. In parliamentary democracies, like India, the political executive is discerned as the “sole repository” of the democratic mandate, which is the Modi-led-Cabinet in India (as the Executive’s political party, i.e. the BJP is mostly in majority in the legislature). In the book, “Constitutional Democracy in Crisis?”, Elkins states that “most, if not all, of the concerns regarding constitutional democracy, has to do with an executive”. When this executive weakens the checks on executive power by a series of institutional changes that hamper the power of opposition (accountability seeking) forces to challenge executive preferences, this ‘kind of’ democratic backsliding is called “Executive Aggrandisement”. The values of constitutionalism and democracy are hampered by the aggrandisement of the executive; institutional accountability is the key and inseparable from the “efficient institutional design”. The change brought by the democratically elected executive in weakening the checks upon itself is often done by labelling independent checking institutions as “anti-establishment/anti-government” or by “packing them with the cadre of their political party”, as reflected by Professor Khaitan of Oxford University. When there is a crisis of executive accountability, we can witness gradual erosion of accountability-seeking mechanisms such as 1. Electoral accountability (there is always fear and probability of electoral fraud and tampering, see here and here); 2. Accountability by the judiciary (power of judicial review, see Article 13) and legislature (see Article 74 and read here); and 3. Accountability to civil societies, media and the academics (read here and here).

The accountability to the legislature is mostly done away it, as the majority party-led by the Executive always controls the House and there is a little scope for the opposition to come forward and create pressure on the executive. Furthermore, in India, accountability to the “upper house or the Rajya Sabha” is also overridden by introducing important bills as ‘money bills’ (see Aadhar Act). The judiciary is already restricted due to many reasons such as it gets to ‘review’ the orders of the executive ex-post facto, it may be inefficient or be overworked and surprisingly, the Apex Court has become an “Executive Court” in India already, as Bhatia calls it. Hence, the final check on the Executive must come from the electorate, media, civil societies and academics as they are neither appointed nor elected by the executive. These external checks are really necessary to occlude the executive from backsliding democracy. However, the executive tends to tempt the electorates by showing them (illusory) short term promises and ‘cheaper methods’ like caste and communal politics, reservation etc to coax the voters to vote for their political party.

How is ‘executive aggrandisement’ done?

The most visible democratic backsliding can be seen when there is an attempt to side-line the right to free speech and expression (such as filing FIRs against journalists and activists) and judicial autonomy (such as transfers of the constitutional court’s judges who pass orders ‘against’ the executive and further, the ‘micro-assaults’ of the executive cannot be assessed individually by the Judiciary). Other ways are also brought in force such as blocking websites (read here and here), discouraging dissent, and enactment of draconian laws (which are usually against the principle of ‘innocent until proven guilty’). Most bizarre and not-so-open way of democratic backsliding lies where when the ‘big media outlets’ are often owned (through holding companies) by those businesses which are dependent on government contracts. Hence, there rises a conundrum for the journalist between freedom of speech and expression (and) a job, basically a Hobbesian choice.

There are certainly other ways in which backsliding is done and the amusing thing about these particular ways is that these issues seem is to be ‘normal’, when seen individually, for any mass protests and any individual or collective dissent. Those who speak against the executive, either any former judge or any opposition party member, is framed as a person having “special interests” or in general anti-national, a common term in India. Those who work for the disadvantaged groups and question the executive for its actions are banned and booked under state-made draconian laws. Many times, there remains a lack of collective action towards the ‘ill-actions’ of the government and the majority of the population is lost in the trance (of government’s short-sighted actions like the building of various religious congregations).

Furthermore, the “democratically” elected executive tends to make laws (which are usually passed without debates and discussions) which goes against the very basic human rights of the individuals, but challenging such laws is “highly risky” as the person who challenges may face many barriers such as, first, she is called a ‘foreign element’ for challenging or raising the voice against the “law”, second, attributing ‘nefarious purpose’ to the law is often difficult (as the intention of the Parliament cannot be brought under Judicial scrutiny) and third, all the changes made by the law has some ambiguous justification ( as the “intention” is to deepen the democracy, instead of destroying it). The “rules” of law are a major setback for those who want to come together and raise their voices against the actions taken by the executive. The laws framed to govern and protect the individuals are used against those very individuals.

All this is worrisome because of the reason that these changes came into force by the democratically elected government with a strong majority in the Parliament and the popular support of the masses. In a Democracy, where the executive doesn’t have any check is more likely to erode the very principles of democracy by taking one piece at a time from the “collage of institutions”.

A way forward?

This aggrandisement happens due to lack of devout action plan, nor any consensus, within the opposition party, media, academia and the citizens, to impart cohesion. The separation of opinion amidst the checkers of the executive lead to the point where democracy stands alone in a lonely corner. There needs to be a collective voice against the actions of the executive to prevent backsliding. As Sunil Khilnani (The Idea of India) says fasts, silences, penances are just techniques of an eccentric parent but are not designed to nourish the accountability of a democratic institution. In the absence of any institutional challenges to the executive, we [as citizens] should take lessons from the pre-independence Congress party wherein the mass organisation of people became the key to establish the democratic constitution. It shall be successful, as we already have seen how mass mobilisation of The People have also helped in reversing the most erroneous decisions of the Supreme Court (For example Mathura Rape Case).

There must be a push for free media and ‘citizens as watchdogs’ to put the elected executives under strict scrutiny. Other institutions which are not tied to the executive through the umbilical cord (political party) can work efficiently to hold the executive accountable for its actions and they must inform citizens about the actions of the executive in an unbiased way. As professor Khaitan says the reason for informing citizens will help the voters, as “they [voters] cannot exercise their function of holding governments to account at the ballot box unless they are properly informed”.

There needs to be scrutiny and review of every action of the government as ‘the very rules of the game are being changed’ now. We the People of India need to come together to “retrieve and build constitutionalism without the courts”, as the Constitution is so much more than just the Courts (as we all see it as). To conclude, as said by professor Khaitan said,

“Democracy is being killed by a thousand cuts—incrementally to avoid the noise and mess of big guns—but systemically. These mortal cuts are being inflicted by democrats themselves, who are justifying their expediency in the name of democracy itself (as surgery, rather than assault)”

[Note: If would like to read more extensive on this topic, then kindly proceed to Constitution Database page (Under the heading: Constitutionalism)]