Sunday, August 23, 2015

Perpetual Ordinances in India - Part Two

The last post on this point mainly aimed to put the context out there of the point of discussion: there are ordinances in force today which were enacted during 1940-1946, and are used quite frequently. The example most common in my sphere of work is use of the Criminal Law (Amendment) Ordinance, 1944: an ordinance brought in to deal with war-time corruption and embezzlement. In the last post, I tried to see what reasons might compel a system to make war-time ordinances permanent without any intervention by the legislature. There didn't seem to be much in it. Barring of course, a reason in the form of the nation's judiciary consistently holding that the ordinance attained legal permanence not warranting any legislative dealing. Here, lets look at the judicial opinion on the point - both before and after independence.

The Privy Council and High Courts before 1950
In 1944 the Privy Council decided King Emperor v. Benoari Lal Sharma & Ors [72 Indian Appeals 57] and upheld the validity of the India & Burma (Emergency Provisions) Act 1940. The issue of its permanence had obviously not arisen yet, this being a dispute before 1946. What this decision is important for is the words used by Viscount Simon L.C. to describe the effect of the 1940 Act. He said the "operation of the words 'for the space of not more than six months from its promulgation' was suspended during the period therein specified." Suspended, not obliterated. The question did directly present itself before the Federal Court in J.K. Gas Plant Manufacturing Co. v. King Emperor [AIR 1947 FC 38].

The Appellants had been condemned by tribunals established by way of a combination of several war-time ordinances. An argument of the Appellants challenged the validity of the tribunal that condemned them, on the grounds that the ordinances must cease to apply after 01.04.1946. This claim was rejected by the Court. It understood the 1940 Act as not merely suspending the six-month validity for ordinances, but making those ordinances "subject to no time limit as regards their extent and validity". The Federal Court had lend support to the views of the Sind High Court [Duninchand Amboomai v. Crown (1947 Cri LJ 494)], and Madras High Court [In Re MS Mehdi (1947 2 MLJ 192)]. The Allahabad High Court arrived at the same conclusion soon after [Sridhar Achari v. Emperor (AIR 1948 All 182)], and within two years there seemed unquestionable validity for the idea of permanent ordinances.

Post 1950 and the Supreme Court 
The now-entrenched position was again followed by the Calcutta High Court in Mahabir Prasad Bajoria v. M.S. Biswas [AIR 1956 Cal 176]. But the seemingly obvious oxymoron of a permanent ordinance was bound to come up before the Supreme Court sooner or later. The validity of the High Denomination Bank Notes Demonetisation (Ordinance) 1946 was challenged and it went all the way to the Supreme Court. Five judges ultimately handed down the decision in Hansraj Moolji v. State of Bombay [AIR 1957 SC 497] and held permanent ordinances, although oxymoronic, were quite legal.  The Court held ordinances made by the Governor General were akin to acts of the legislature, and every act without a time limit is a perpetual act. As the phrase imposing the six month limit was "omitted" for all ordinances during the operation of the 1940 Act, this made them permanent.

This decision follows a simple logic: Ordinance = Act; Act if without time limit = Perpetual Act; therefore Ordinance without time limit = Perpetual Law. QED. I believe this is too simplistic. An ordinance in effect is akin to an Act but this does not mean the two are the same. The court somehow did not consider the fundamental nature of an ordinance being executive action as important. But this is what makes ordinances very, very different. What's more, the court was so content with the text of the Act that it did not deem appropriate to consider the intent or context of the 1940 Act. Neither was any reference made to the 1915 Act made by the British to extend operation of war-time ordinances. In my opinion, some more consideration of these issues was merited.

The Constitution Bench verdict in Hansraj Moolji has sanctified the legality of an irrational and seemingly illegal concept of permanent and perpetual ordinances. I admit, rationality is (sadly) no yardstick to test constitutionality. But colourable exercise of power is, and by allowing perpetual ordinances the court has enabled the executive to do indirectly what it could not do directly. This seemingly harmless pre-independence era relic of perpetual ordinances can be used to devastating effect if you think about it, and install a rather grim version of the "Ordinance Raj" some people have been fearing.

(the title of this post was changed from Permanent Ordinances in India - Part Two to Perpetual Ordinances in India - Part Two on 24.08.2015)

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