The (mis)use of ordinance powers

IN PERSPECTIVE

During the initial months of this year’s lockdown, several Indian states, including Gujarat, Uttar Pradesh and Madhya Pradesh, passed ordinances and notifications exempting businesses in their territories from essential labour laws on sanitation, work hours, and dispute resolution. Some argue that these ordinances are unconstitutional as they violate the right to life under Article 21 and the right against exploitation under Article 23.

The public furore surrounding the labour law ordinances brings out some pressing questions: How is the executive supposed to use its ordinance powers? And why is the misuse of ordinance powers so disconcerting – and dangerous -- for our democracy?

Article 102 of the Draft Constitution of India, 1948, provided the President with ordinance-making powers. The Article provided for ordinances to be passed by the President when Parliament is not in session if “circumstances exist which render it necessary for him to take immediate action”. Unlike ordinary laws, ordinances would not be scrutinised or debated by the legislature. During the Constituent Assembly debates on this Article, several members expressed concern about the scope for misuse of these powers.

Invoking the British practice of passing ordinances to preventively detain Indians for long periods of time, Pocker Sahib Bahadur argued that ordinances could be used to deprive citizens of their personal liberty. H V Kamath and H N Kunzru expressed a similar concern, pointing out that the checks and balances of the ordinary legislative process did not apply to ordinances.

The Chairman of the Drafting Committee Babasaheb Ambedkar reminded the Assembly that the ordinance-making power was an emergency power with limited scope. He further stated that ordinances which violated the fundamental rights would be invalid. Ambedkar’s reassurance had the desired effect, and the Assembly passed the draft Article without any amendments. It became Article 123 in the Constitution of India, 1950, while a similar power for the Governor of a state is found in Article 213.

The debates in the Constituent Assembly make it clear that the Constitution-framers envisaged a limited ordinance-making power, which was to be exercised in a restrained manner that did not contravene the letter or spirit of the Constitution. Despite this, central and state governments routinely misuse these powers by passing ordinances that violate core constitutional values.

The exemptions from labour laws that are in effect in several states are a case study in the misuse of ordinance powers. In Gujarat Mazdoor Sabha vs State of Gujarat (2020), the Supreme Court ruled that a recent notification by the Gujarat government, which exempted factories registered under the Factories Act, 1948, violated both constitutional and statutory law. The court referred to the Directive Principles of State Policy (DPSP) to hold that Article 21 included the right to humane conditions at work and an ‘equal opportunity at social and economic freedom’.

While Gujarat Mazdoor Sabha deals with a notification and not an ordinance, the court’s ruling bolsters the argument that exemptions from labour laws are not permitted if they violate important constitutional values – even if their purpose is to mitigate the disastrous impact of Covid-19 on the economy. This strikes a blow against state governments which have used the pandemic to justify the passage of these ordinances.

However, the labour law ordinances in other states will remain in effect unless they are withdrawn or struck down by the court. In the meantime, they will impact the constitutional rights of millions of workers who may not have the ability or means to access justice.

Democratic backsliding

The misuse of ordinance powers is just one way in which the quality of democracy in India has been eroded, a phenomenon also known as ‘democratic backsliding’. Nancy Bermeo observes that actions that directly destabilise democracy -- like coup d’etats or election fraud -- have declined in popularity since the Cold War; instead, they have been replaced with more gradual forms of destabilisation, which occur when a democratically elected executive uses legal channels to enact institutional changes.

This correlates with a lack of public trust in democratic institutions and instruments, including the Constitution. The use of legal tools like ordinance powers to enact measures that undermine constitutionally-prescribed values only serves to delegitimise these values in the eyes of the public, especially so during a public health crisis.

In Gujarat Mazdoor Sabha, the court declared that the Constitution was “born from a transformative vision which aims to achieve social and economic democracy.” For the Constitution to survive – not only as a text but as a legitimate source of values and norms that dictate our daily life – it is essential that the executive exercises its powers with the restraint imagined by the framers of the Constitution.

(The writers are Research Associates at the Centre for Law & Policy Research, Bengaluru)