Vol.

11(2) Oxford University Commonwealth Law Journal (July 2011)

Presidents Legislative Powers in India: 2 Myths

SHUBHANKAR DAM*

1. Introduction Indias parliamentary democracy has an anomalous feature: the president can promulgate legislation to the exclusion of Parliament.1 Indeed, president may do so only when Parliament is not in session. While the power to promulgate such legislation or ordinances is limited to circumstances when it is necessary to take immediate action, in practice, they are endemic in India.2 In the 60 years between 1950 and 2010, 512 ordinances have been promulgated, averaging 8.5 ordinances per year.3 Recourse to ordinances has steadily risen, especially since the seventies. Reduced number of parliamentary working days and increase in political instability (measured by the absence of stable single-party or coalition majorities in Parliament) appear modestly correlated to the frequency of ordinances.4 And despite some decline in their numbers in the recent past, ordinances remain prominent in India. According to Article 123, ordinances have the same force and effect as Acts of Parliament. But unless properly enacted into law, they cease to operate at the expiration of six weeks from the date of reassembly of Parliament. This Act-ordinance equivalence effectively turns the president into a part-time Parliament, and ordinances into primary legislation.
* Assistant Professor of Law, Singapore Management University School of Law.
1

India Const. Art. 123(1) (If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.)
2

For an introduction to ordinances in India see Shubhankar Dam Constitutional Fiats: Presidential Legislation in Indias Parliamentary Democracy (2010) 24 Columbia Journal of Asian Law 96. For a tabular study of ordinances and it use at the state level (with special reference to the State of Bihar), see D. C. Wadhwa, Re-promulgation of Ordinances: A Fraud on the Constitution of India (Pune: Gokhale Institute of Politics and Economics, 1983). The book led to a writ petition in the Supreme Court and ultimately culminated in an important decision. D. C. Wadhwa v State of Bihar A.I.R. 1987 SC 710. The documents relating to the case were recently put together in a book. D. C. Wadhwa Endangered Constitutionalism: Documents from a Supreme Court Case (Pune: Gokhale Institute of Politics and Economics, 2008).
3

Anon, Statistical Handbook: Ministry of Parliamentary Affairs (New Delhi: Govt. of India, 2010) p 59. Dam, above n 2, p 103-15.

Electronic copy available at: http://ssrn.com/abstract=1862601

Consequently, Acts and ordinances mirror one another; they can achieve similar things (impose taxes, create offences, confer rights etc.) and have similar limits. The equivalence, however, is not a constitutional innovation. It is, like the very idea of ordinances, an enduring legacy of British colonial legislation in India. Introduced by the Indian Council Act, 1861, the Actordinance equivalence was retained in all subsequent British-enacted legislation on India, and eventually incorporated into the Constitution in 1950.5 Judicial opinions and academic commentaries have enthusiastically taken to this equivalence. There is no qualitative difference, the Supreme Court says, between an ordinance issued by the President and an Act passed by Parliament.6 And because the presidents power in Article 123 is co-extensive with the power of Parliament to make laws, limitations cannot be read into it.7 Both are products of legislative power and, therefore, equally subject to the limitations which the Constitution has placed upon that power.8 Ordinances, in other words, should be clothed with all the attributes of an Act of legislature carrying with it all its incidents, immunities and limitations under the Constitution.9 This interpretation of the same force and effect clause is wrong. And the equivalence is a myth for Article 123 does not mean what it says. That is the argument I will make in this article. Despite language to the contrary, presidential ordinances in some cases cannot and, in some other cases, should not have the same force and effect as that of Acts. Two kinds of differences, I will argue, are implicated in the presidents power to promulgate ordinances, something I have previously explained as the presidents intermediate legislative power.10 In some respects, Acts and ordinances are absolutely different; they are entirely different things and, therefore, must produce contrary legal effects. In other respects, they are largely similar, but with degrees of variations on how that similarity may be legally employed. That is to say, they

Dam, above n. 2, p 110-113. R. K. Garg v Union of India [1982] 1 S.C.R. 947, at para 7. Ibid. A. K. Roy v Union of India A.I.R. 1982 SC 710, at para 14. T. Venkata Reddy v State of A.P. A.I.R. 1985 SC 724, at para 14.

10

See Shubhankar Dam, Making Motives Count: Judicial Review of Presidential Ordinances in India (2012) 33 Statute Law Review (forthcoming).

Electronic copy available at: http://ssrn.com/abstract=1862601

are qualifiedly different. And working through these differences will exemplify the 2 myths that have grown around the words conferring the same force and effect to Acts and ordinances. 2. Myth One: Ordinances Dont Require Publication The General Clauses Act, 1897 (the 1897 Act) Indias federal interpretation statute in 5 provides for the commencement of Acts: Where any Central Act is not expressed to come into operation on particular day, then it shall come into operation on the day on which it receives the assent. Note that publication is not a requirement; Acts come into operation on the day they are assented to. This is not unique to India. United Kingdom,11 New Zealand,12 Canada13 and Australia14 have similar rules on commencement. And if ordinances are read syllogistically with this provision, it would imply that they too come into effect on the day of assent, irrespective of publication. A. P. Pandey made this argument earlier. Reading [the] provision mutatis mutandis in relation to an ordinance, it appears that an ordinance also comes into operation on the date on which it is promulgated, he said.15 But promulgation, he reminds us, is not synonymous with publication; the latter is only a record that promulgation had indeed taken place.16

(a) Why Acts are different from ordinances.

Despite the linguistic equivalence in Article 123, this syllogistic view of ordinances is incorrect. Acts and ordinances are decidedly different in how they are enacted. And that
11

Interpretation Act 1978, s 4(b) (An Act or provision of an Act comes into force where no provision is made for its coming into force, at the beginning of the day on which the Act receives the Royal Assent.)
12

Interpretation Act 1999, s 8(2) (If an Act does not state or provide for a commencement date, the Act comes into force on the day after the date of assent.)
13

Interpretation Act 1985, s 5(2) (If no date of commencement is provided for in an Act, the date of commencement of that Act is the date of assent to the Act.)
14

Legislation Act, 2001 (ACT), s 75(1) (The provisions of a law providing for its name and commencement automatically commence on its notification day.)
15

A. P. Pandey Hundred Years of Ordinances in India: 1861-1961 (1968) 10 Journal of Indian Law Institute 259, 289.
16

Ibid. Note that the argument has an obvious flaw. 30 in that Act makes it clear that the expression (Central Act) wherever it occurs, except in section 5 shall be deemed to include an Ordinance promulgated by the President under article 123 of the Constitution. Despite this exclusion, the 1897 Act does not explain how ordinances are to come into effect. In that sense, the provision does not really help us in any meaningful way.

difference should have a bearing on the rule regarding commencement. Acts, at least in theory, are products of a deliberative process. Proposals for Acts originate in specific departments and at the pre-drafting stage move through a maze of consultations before being presented to the Cabinet for consideration.17 With Cabinets approval, the Ministry of Law and Justice (Legislative Department) turns the proposal into a Draft Bill.18 And these Draft Bills tend to have long shelf lives in Parliament. They may be referred to various committees for consideration, or, if tentatively approved, go through several rounds of reading, amendment motions and debates before being voted on.19 If both houses of Parliament approve it by the requisite majority, the Bill is sent to the president for assent. The process generates a degree of publicity and reporting that makes the immediate commencement of Acts, at least, minimally tolerable. But ordinances are different, both in theory and practice. For obvious reasons, they are not subject to parliamentary scrutiny prior to promulgation. Once provisionally agreed upon by the Cabinet that an ordinance is needed, a Draft Bill is prepared. And subject to final approval, it is sent to the president for assent. A former Joint Secretary with the Union Government shared her experiences with the promulgation of an ordinance in 1992.20 It was August 1992. Mr. Narasimha Rao was the Prime Minister On August 27 morning, I was sent for by the Health Secretary and told that an ordinance was to be promulgated that evening. I was dispatched to the Ministry of Law where the ordinance was dictated line by line by an Additional Secretary. I came to know only through him that the ordinance was intended to thwart the Chief Minister of Andhra Pradesh for wantonly granting permission to establish around 20 medical colleges Bringing an ordinance was the brainchild of Prime Minister Narasimha Rao, a former Chief Minister of Andhra Pradesh. At 6 pm, the legal officer handed over a typewritten draft to me and I rushed back to Nirman Bhavan... Late that night, the Presidents assent to promulgate the ordinance was obtainedOvernight, the

17

Anon Manual of Parliamentary Procedures in the Government of India (New Delhi: Ministry of Parliamentary Affairs, 2004) ch 9.
18

Ibid. Ibid. The Indian Medical Council (Amendment) Ordinance, 1992 (Ordinance 13 of 1992).

19

20

Central Government had wrenched all powers from States to give permission to establish new colleges, increase seats or introduce post-graduate courses in medical colleges.21 Three things must be said in this regard. Surely, not all ordinances are promulgated in this manner. But this experience, I believe, is emblematic of the secrecy associated with the process. By its very nature, ordinances are held to a different standard; they do not have public requirements similar to Acts. While this was a regulatory ordinance designed to administer medical schools, the implications are particularly egregious when non-public actions create offences or impose burdens.22 Of course, one could find instances where Acts have been legislated with remarkable haste and without public debate such that it makes a mockery of Parliaments deliberative expectations. But, by its very nature, Acts are guaranteed a minimum degree of public presence (introduction in Parliament, a motion to vote etc.) that is not true with respect to ordinances. Whatever the possibilities, an Act unlike an ordinance cannot be enacted in a matter of hours. Legislatively, that is outside the realm of possibilities. And lastly, it is not inconceivable that given its low premium on publicity, the provision on commencement of Acts is itself unconstitutional. But assuming it is not, i.e. assuming that it is constitutionally acceptable for Acts of Parliament to come into effect immediately on assent that rule, I would argue, should not apply to ordinances.23 With respect to the procedure by which they become law, ordinances are absolutely different from Acts and, therefore, should not attract the implications of the same force and effect provided for in Article 123. To put it differently, Acts and ordinances may have the same force and effect only to the extent that they are similar. They are different with respect to procedure and, therefore, should be subject to different rules on commencement. Acts may come into force immediately on presidential assent, but ordinances must be published before they can commence. Any other interpretation would tantamount to imposing legal burdens based on non-

21

Shailaja Chandra, Abolish MCI, councils, THE PIONEER, Sep. 3, 2009, available at http://www.dailypioneer.com/199932/Abolish-MCI-councils.html. Such instances are not unheard of. During the heated office of profit controversy in 2006, there were reports in the media that the Union Cabinet had abruptly sent Parliament into recess to be able to promulgate an ordinance that had been drafted overnight. See Anon, To bring an ordinance, UPA winds up session, THE INDIAN EXPRESS Mar. 23, 2006 available at http://www.indianexpress.com/news/to-bring-in-ordinance-upa-winds-up-session/976/0.
22

See e.g. The Prevention of Terrorism Ordinance, 2001 (now repealed).

23

For discussion on the publication requirement of see Sixtieth Law Commission of India Report (New Delhi: Govt. of India, 1974) pp 30-33.

public legislation. But what is the status of this publication requirement? Is it one of mere expediency, to be done away with when inconvenient? Or, is it a legal requirement grounded in public law that cannot be dispensed with? The requirement, I would argue, is of the latter kind. And a rule of law framework may help explain why that is so. (b) Ordinances and the rule of law argument Rule of law as a legal term of art is not in Indias Constitution. But public law analyses are often done in its name.24 And though its precise role in constitutional interpretation is suspect, its hermeneutic presence straddles across the broad sweep of legislative,25 executive26 and even constituent power.27 Almost nothing seems immune from it, if only in words.28 In Kartar Singh v Punjab,29 Sahai J., in evaluating the constitutionality of the now repealed Terrorist and Disruptive Activities Act, 1985 suggested that democratic accountability should be so maintained that every action of the Government be weighed in the scale of rule of law.30 Recently, in Sudhakar v A.P.,31 Kapadia J. held that even the presidents prerogative powers were not immune from judicial review on rule of law grounds.32 Discretionary executive power, even prerogative powers, must be subject to the rule of law and they cannot be

24

See Upendra Baxi Rule of Law in India in Randall Peeerenboom et. al. (eds.) Asian Discourses of Rule of Law (London: Routledge, 2004) pp 328-. See also Richard H. Fallon The Rule of Law as a Concept in Constitutional Discourse (1997) 97 (1) Columbia Law Review 1; Michel Rosenfeld Constitutional Adjudication in Europe and the United States: Paradoxes and Contrasts (2004) 2 International Journal of Constitutional Law 633.
25

See e.g. Maneka Gandhi v Union of India A.I.R. 1978 SC 597. See e.g. Satwant Singh Sawhney v Assistant Passport Officer A.I.R. 1967 SC 1836. See e.g. Indira Nehru Gandhi v Raj Narain A.I.R. 1975 SC 2299.

26

27

28

The centrality of this rule of law rhetoric in legal discourse is hardly jurisdiction specific. For its increasing references in diverse international instruments, see Randall Peerenboom Human Rights and Rule of Law: Whats the Relationship? (2005) 36(4) Georgetown Journal of International Law 809, 810-815.
29

1994 S.C.C. (3) 569. Ibid. at para 442. (emphasis added) A.I.R. 2006 SC 3385. Ibid. at para 7.

30

31

32

compromised on grounds of political expediency.33 And similar language is easily available in matters dealing with constitutional amendments. In P. Sambamurthy v A.P.,34 the Supreme Court invalidated Article 371D (5) in the Constitution on the ground that the provision violated the rule of law something it said was clearly a basic and essential feature of the Constitution.35 Authorizing State Governments to defy or annul decisions of administrative tribunals, the Court said, was inconsistent with the basic principle of the rule of law that the executive is bound by law.36 These decisions could be easily multiplied. But the point is essentially the same: whatever its analytical purchase, rule of law has become a catholic and possibly convenient term of art through which to analyse the exercise of state power. How does this help with the argument that ordinances unlike Acts must be published to come into force? Heres the simple point. If rule of law is pervasively present in Indias Constitution in the way the Supreme Court suggests it is, then the presidents power to promulgate ordinances cannot be exercised in a manner that diminishes the former. But does that concept require that citizens be subject to only public legislation? The question takes us to the debate on what rule of law really means a matter on which legal theorists and political philosophers have had and still have vast disagreements.37 Twentieth century debates on the rule of law have largely centred around two versions; between those advocating a thin or narrow understanding against those preferring a thick or wide one. The narrow version restricts the rule of law to features that make law, irrespective of its content, efficacious.38 The wider version rejects this content neutral understanding of the term.39 While there is a large body of literature defending these separate, but sometimes,
33

Ibid. at para 6. [1987] S.C.R. (1) 879. Ibid. at 889. Ibid.

34 35

36

37

For a classical and modern introduction to the rule of law, see Brian Tamanaha On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge University Press, 2004).
38

See e.g. Joseph Raz The Authority of Law: Essays on Law and Morality (Oxford: Oxford University Press, 1979) pp 210-232.
39

See e.g. Roberto Unger Law in Modern Society (New York: Free Press, 1976) pp. 176-181, 192-223; R. Dworkin, A Matter of Principle (Cambridge: Harvard University Press,1985) pp. 11-18; Sir John Laws, The Constitution: Morals and Rights [1996] P.L. 622; Luc Tremblay The Rule of Law, Justice and Interpretation (Montreal: McGillQueen's University Press, 1997); T.R.S. Allan Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford:

overlapping positions, almost everybody agrees that rule of law whatever else it might mean at the minimum requires that citizens be subject to public legislation.40 Proposed by Fuller in his argument about the inner morality of law, laws public requirement and its connection to the rule of law now enjoy near universal appeal.41 This public requirement, Jeremy Waldron has recently argued, should be understood not in the sense that every last member of the community must know about the laws, but in the sense of being available to anyone who is sufficiently interested and available in particular to those who make a profession of being public normdetectors lawyers as we call them and who make that expertise available to anyone who is willing to pay for it.42 What this unanimity regarding the public requirement tells us is that non-public ordinances are inconsistent with the most elementary demands of the rule of law. If rule of law requires anything at all, it at least requires that laws be public. And this must be true of ordinances. Without the benefit of a nominally deliberative process associated with Acts, they can come into effect only when they are published, or more robustly, only after they have been duly publicised. It is in this sense that the publication requirement is not merely pragmatic or expedient it is legal. Pandey, therefore, is wrong; contrary to Acts, ordinances come into effect only after they have been promulgated and published.43

(c) An uncontroversial opening

Oxford University Press, 2001); David M. Beatty The Ultimate Rule of Law (Oxford: Oxford University Press, 2004).
40

For a summary of the important competing positions, see Peerenboom, above n. 27, pp 826-834; Paul P. Craig Formal and substantive conceptions of the rule of law: an analytical framework [1997] P.L. 467. 41 L. Fuller The Morality of Law (New Haven: Yale University Press, 1964) ch 2.
42

Jeremy Waldron The Concept and the Rule of Law (2008) 43(1) Georgia Law Review 1, 26. (emphasis in original)
43

It is worth point out that the Nagpur High Court in Laxmibai v. State of M.P. A.I.R. 1951 Nag. 94 came to the conclusion that an ordinance promulgated under the provisions of the Government of India Act, 1935 (26 Geo 5 Ch. 2) came into effect on its publication. But in that case, judges had the benefit of a provision 3 of the Central Provinces General Clauses Act, 1914 (Act 1 of 1914) that provided rather clearly a Governors Act comes into operation on the date on which it is first published in the official Gazette. Hidayatullah J., reading this provision mutatis mutandis in relation to an ordinance concluded that it is clear that an ordinance also comes into operation on the day on which the ordinance is so published. While the High Court was undoubtedly correct in its conclusion, its reasoning is not of much help to us. The Court had the benefit of a statutory provision and applied it syllogistically to ordinances. But we do not have the benefit of a similar statutory provision now. And it is for that reason that we are having to rely on general principles to decide the appropriate commencement of ordinances.

The argument is really one of commonsense, and hardly original. In ZL & VL v Secretary of State,44 the rule of law implications of non-public legislation was in question. The appellants asylum proceedings were processed under the provisions of a new law that was in effect but not published.45 In reviewing the legality of actions taken under that law, the Court of Appeal acknowledged that it was beyond argument [in the UK] that an Act of Parliament [took] legal effect on the giving of the Royal Assent, irrespective of publication.46 Nonetheless, it reiterated the idea that the rule of law requires that individuals and those advising them, since they will be presumed to know the law, should have access to it in authentic form.47 And rather than confront the two potentially conflicting ideas, Lord Phillips opted to review the matter in manner he believed cured the unfairness which would otherwise have resulted from the use of [a provision of law] before it was promulgated.48 Courts in other jurisdictions, however, have been less forgiving. In The Sunday Times v UK,49 the European Court of Human Rights, for example, made it sufficiently clear that law, amongst others, must be adequately accessible.50 That meant that the citizen must be able to have an indication that is adequate in the circumstances of the legal rules.51 But it also meant that publicly available laws must be formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the

44

[2003] 1 All ER 1062. See also Black Clawson International Ltd v. Papierwerke AG [1975] AC 591 (The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should he able to know in advance what are the legal consequences that will flow from it. Where those consequences are regulated by a statute the source of that knowledge is what the statute says.) Id. at 638.
45

Nationality, Immigration and Asylum Act, 2002 (2002 c. 41). The Act, including the relevant provision - 115(6) - came into force on 7 November 2002 pursuant to Royal Assent. It was, however, not published by the Queens Printer till 28 November 2002.
46

[2003] 1 All ER 1062 at para 16. Ibid, at para 25. Ibid, at para 29. [1979] ECHR 1. Ibid, at para 49. Ibid.

47

48

49

50

51

consequences which a given action may entail.52 These views are commonplace now; the US Supreme Court and its Canadian counterparts at state levels have stressed them on several occasions.53 These authorities reiterate the basic point that ordinances as substitute legislation in India cannot claim a legal status until they become meaningfully accessible. The argument is simple and relatively uncontroversial. But its real effect is to open up the possibility that Article 123 does not mean what it says. If Acts and ordinances must commence differently, then, despite language to the contrary, the same force and effect clause is a myth. Acts and ordinances are not mirror images of one another; indeed, by their very nature, they cannot be. And contrary to what the Supreme Court has said, ordinances cannot be clothed with all the attributes of an Act of legislature ...54 Once this possibility is recognised albeit through an uncontroversial application it opens the door to further situations where Acts and ordinances cannot have the same force and effect. In the next section, I turn to one such controversial situation.

3. Myth Two: Failed Ordinances Have An Enduring Quality

The second myth concerns the effect of failed ordinances. Once promulgated, ordinances, in keeping with Article 123(2), must be placed before Parliament and, ideally speaking, enacted into law through normal parliamentarily procedures. With ordinances turned into legislation, questions regarding their scope, purpose or effect become questions of statutory interpretation. But ordinances fail at times. Parliament may, for example, pass a resolution disapproving an ordinance.55 Or, anticipating a parliamentary rejection, president may withdraw an ordinance before it is voted on in Parliament.56 In both these situations, ordinances end as ordinances; they do not become legislation. What are the legal effects of failed ordinances? In particular, do

52 53

Ibid. See e.g. Grayned v Rockford 408 US 104, 108 (1972); Black v Law Society (Alberta) 27 D.L.R. (4th) 527; Re Ont. Film & Video Appreciation Soc. v Ont. Bd. of Censors 147 D.L.R. (3d) 58.
54

T. Venkata Reddy v State of A.P. para 14 India Const. Art. 123(2) (a). India Const. Art. 123(2) (b).

55

56

10

transactions initiated or completed at a point in time when an ordinance was validly in force continue to enjoy legal effect after it ceases to operate? A hypothetical ordinance, and related facts, will clarify the question. Competitive kiteflying, especially in Western India, is a popular sport. But it is dangerous too; glass-stained strings often cause injuries to humans and birds alike.57 With Parliament not in session, the president promulgates an ordinance The Prohibition on Kite-Flying Ordinance, 2011 criminalizing the use of certain strings and kite-flying in residential zones. The Ordinance, however, proves unpopular. And four weeks later, the reassembled Parliament refuses to enact it into law. Consequently, it fails and in the language of Article 123 ceases to operate six weeks from the date of Parliaments reassembly. During the 10 weeks that the Kite-Flying Ordinance was in force, several persons were convicted under the law. Several other trials were underway when the law failed. Do these convictions and incomplete trials continue to have legal validity despite the failure of the Ordinance?

(a) Distinguishing lapse from repeal

At the outset, it is worth pointing out that the benefits of the 1897 Act is not available to ordinances.58 That Act, in section 6, provides that Where ... any Central Act ..., repeals any enactment hitherto made ..., then, unless a different intention appears, the repeal shall not - ... (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid. If applicable, it would have resolved the controversy: all convictions secured and all trials initiated during the pendency of the Kite-Flying Ordinance remain valid beyond its official tenure. Note, however, that the provision applies only to repeal. Earlier, I pointed out that the process of promulgating ordinances, by its very nature, is different from the way legislation is enacted. But an ordinance as a product, by its very nature, is
57

See Anon 250 kite flying accidents mark Makar Sakranti in Rajasthan DNA, Jan. 15, 2011 available at http://www.dnaindia.com/india/report_250-kite-flying-accidents-mark-makar-sakranti-in-rajasthan_1494860
58

For a longer argument on this point, see Dam, above n. 2, pp135-138.

11

also different from an Act in one respect. Acts do not lapse, only ordinances and Bills do. An otherwise valid Act ceases to have legal effect if and only if it is repealed, either by a separate act or by the terms of the act itself. Of course, it may fall into disuse. A state of disuse, however, is not the same as being legally invalid.59 In contrast, an ordinance ceases to have effect, i.e. lapse, after six weeks from the date Parliament reassembles, unless it is enacted into legislation. The lapse of an ordinance, however, is not the same as its repeal. Repeal involves an affirmative act; it is a conscious decision to remove an Act from having the force and effect of law. In contrast, lapse involves inaction; to allow an ordinance to lapse is to let it drift into a state of legal invalidity. Repeal is a statement of parliamentary disapproval; lawmakers formally act to remove it from the statute books. Lapse of an ordinance, on the other hand, signifies a failure to secure a formal approval to include it in the statute books. And this distinction is important in so far as the 1897 Act provides for the continuity of rights, privileges, obligations etc. only in cases of repeal. Indeed, there is nothing in that Act that could be summoned to explain the continuing validity of actions initiated or completed under a lapsed ordinance; it says nothing about it. Therefore, in resolving the question of continuing validity of actions under a failed or lapsed ordinance, we are left with so-called general principles of statutory interpretation and their effect on the overall architecture of Article 123. In Bhupendra Bose v State of Orissa,60 the Supreme Court turned to those very general principles in addressing the matter. The petitioner challenged the results of an election to a local municipal body on the ground that procedural requirements were not complied with. The High Court agreed and invalidated the result. Alarmed by the possibility that similar arguments could nullify elections to all municipal bodies, the Governor promulgated an Ordinance. Electoral laws were retrospectively amended to override the High Courts judgment and reasoning. However, the State Assembly, after it reconvened, refused to enact the Ordinance into law; it lapsed. Did the lapse of that Ordinance revive the High Courts earlier decision invalidating the elections? The Supreme Court said no. With the interpretative benefits of the 1897 Act unavailable to them, the judges turned to so-called general principles of statutory interpretation to resolve the matter.
59

See Peter Benson Maxwell On The Interpretation of Statutes (Colorado: Fred Rothman & Co., 1991) pp 380-383. See also White v. Boot, 2 TR. 274; Leigh v Kent 3 TR 362; R. v Wells, 4 Dowl. 562.
60

A.I.R. 1962 SC 945.

12

Based on a quick survey of three English decisions,61 Chief Justice Chandrachud concluded that no inflexible rule could be laid down regarding the effects of a temporary Act.62 As he put it, at least in some cases, repeal effected by a temporary Act would be permanent and would endure even after the expiration of the temporary Act.63 The precise nature of the effect, he said, must depend upon the nature of the right or obligation resulting from the provisions of the temporary Act and upon their character whether the said right and liability are enduring or not.64 And having regard to the object of the Ordinance and to the right created by the validating provisions, the Court concluded that it must be held to endure and last even after the expiry of the Ordinance.65 The reasoning was reiterated in Venkata Reddy v State of A.P.66 The Governor, acting on the advice of the State Cabinet, promulgated the Andhra Pradesh Abolition of Posts of Part-time Village Officers Ordinance, 1984, to abolish the post of part-time Village Officers and to create a new category of posts referred to as Village Assistants.67 The Ordinance, despite a series of repromulgation, lapsed; the State Assembly refused to enact it. The petitioner, then a part-time Village Officer, argued that the Ordinance having lapsed, his earlier post stood revived. The Supreme Court rejected that argument. Once again, Chief Justice Chandrachud came to the conclusion that failed ordinances do not become void retrospectively. It says that it shall cease to operate, and that, he said, only means that it should be treated as being effective till it ceases to operate on the happening of the events mentioned in [the provision].68 The part-time posts stood abolished on the date on which the Ordinance was promulgated, and its effects were irreversible except by a new legislation, he

61

See Steavenson v Oliver 151 E.R. 1024; Warren v Windle 102 E.R. (K.B.) 578; Wicks v Director of Public Prosecutions (1947) A.C. 362.
62

A.I.R. 1962 SC 945, at para 22. Ibid, at para 22. Ibid, at para 21. Ibid, at para 23. A.I.R. 1985 SC 724. Ordinance No. 1 of 1984 A.I.R. 1985 SC 724, at para 18.

63

64

65

66

67

68

13

added.69 To be sure, Parliament and State Legislatures werent powerless to undo the effects of failed ordinances; but only a proper legislation with retrospective effect could achieve that.70 And that, Chief Justice Chandrachud concluded, is the only way to revive closed or completed transactions generated under a failed ordinance.71

(b) Bhupendra Bose: a critique

The reasoning in both these cases, I would argue, is flawed. First, they proceed on the premise that ordinances are analogous to temporary Acts. They are not. A temporary Act is identical to an Act of Parliament except that it is self-expiring in nature. While ordinary Acts remain in force till amended or repealed, a temporary Act defines its own tenure. And it has complete discretion in that. For example, a temporary Act may expire at the end of three years, and yet provide that all rights, duties and obligations created by the Act will endure in perpetuity. Or, it may provide that the effects of the law will remain in effect for a further period of three years or, any number of years and then expire. As a product of Parliaments plenary legislative power, a temporary Act has complete discretion in designing itself. None of this is applicable to an ordinance. It cannot provide for the endurance of its rights and duties. As the Supreme Court itself pointed out, such enduring provisions would run counter to the cessation requirement in Article 123.72 Therefore, to equate ordinances with temporary Acts is to confer greater legitimacy on the former than it deserves. Second, because the Court interprets the effects of lapsed ordinances through the prism of temporary Acts, it has the implied effect of privileging presidential fiat over parliamentary legislation. In Venkata Reddy, for example, the post of part-time Village Officer was created by an Act.73 An ordinance abolished that, and despite its subsequent lapse, generated a permanent state of affairs. Only a new Act, the Court says, can undo that state of affairs. This view of lapsed

69

Ibid. Ibid, at para 19. Ibid. A.I.R. 1962 SC 945, at para 19. Madras Hereditary Village Offices Act, 1895.

70

71

72

73

14

ordinances creates a paradox: the executive can undo legislative rights and duties merely by issuing an ordinance. But their effects can be undone and status quo ante restored only by another proper legislation. This hierarchy is obviously inconsistent with the scheme of legislative powers in Indias Constitution. While the President, I believe, has significant legislative powers in the Constitution, it does not extend to undoing the effects of parliamentary legislation willynilly. Third, the Courts approach does not fit into the architecture of Article 123. Ordinances are time-sensitive; they cease to operate six weeks after Parliament reassembles. In concluding that lapsed ordinances generate enduring effects, Chief Justice Chandrachud pointed to the language in Article 123. A lapsed ordinance merely ceases to operate, and that, to him, only [meant] that it should be treated as being effective till it ceases to operate on the happening of the events mentioned in [the provision].74 However, consider the facts in Bhupendra Bose. With the electoral ordinance upheld, in what sense does it cease to operate? It does not cease to operate for the petitioner; his loss remains forever valid. Nor does it cease to operate for those who benefitted from the retrospective validation of election results; they continue to remain in office. And it certainly does not cease to operate for all future contestants to whom the changed regulations will apply. The facts in Venkata Reddy have a similar effect. With the lapsed ordinance having permanently destroyed the part-time posts, for whom does the ordinance cease to operate? The petitioner has irreversibly lost his job; those appointed to the newly created posts benefit forever. In what sense, then, does a failed ordinance cease to operate? Given the Courts interpretation, ordinances cease to operate only in the sense that they are no longer part of the statute books in India. After it has lapsed, anyone looking up the compendium of legislation in India would not find it there. But this limited cessation, I would argue, is insufficient. To say that it ceases to operate prospectively is to make it valid for all times to come and, therefore, negates the temporal dimensions in Article 123.

(c) The semantic possibilities of Article 123 Semantically, ceases to operate in Article 123 is capable of two meanings. It can have a formal or narrow meaning; from this perspective, ordinances cease to operate in the sense that
74

A.I.R. 1962 SC 945, at para 18.

15

they are no longer part of the statute books in India. But it can also have a more substantive or wider meaning; ordinances cease to operate in the sense that they wipe out all legal traces of the law such that it never existed. In other words, the law and its effects past and present cease to operate. Which of the two should one prefer? As I have tried to explain, in both Bhupendra Bose and Venkata Reddy, Chief Justice Chandrachud preferred the narrow view. More importantly, he presented his argument in a matter-of-fact manner as if a simple recital of Article 123 necessarily led to that conclusion. That is clearly not the case. Article 123 is capable of bearing at least two meanings and we need a measure by which to arbitrate between them; simply reciting the provision does not achieve anything. Given these semantic possibilities, what should be the legal effect of the ceases to operate clause? Appeals to consequential and policy reasons are inevitable in determining that. I have already shown that a narrow reading of that clause produces a paradoxical hierarchy; the executive can permanently undo the deliberated effects of the legislature such that a further legislation is necessary to revive the status quo. But a narrow interpretation is also suspect from a policy perspective. Currently, ordinances have minimum, if any, legal costs. For the executive, they are a low-risk high-yield option. They can conveniently resort to ordinances without worrying about its future possibilities. If they succeed in legislating it into an Act, they obviously succeed. But failure also counts as success. Their efforts will anyhow generate permanent effects. And statistics bear this out. Ordinances have grown exponentially in recent times; they are a convenient fall back option for the executive.75 During its most egregious years, ordinances were treated as a parallel legislative route.76 Though reduced number of parliamentary working days and the emergence of unstable coalition governments are principally at fault, judicial interpretations also bear responsibility for the executives cavalier approach. Courts have made it all too easy for them. Admittedly, undoing the effects of completed administrative and judicial actions under a lapsed ordinance is an arduous task. It can become a legal nightmare with potential for infinite complexities. But that is a good thing. Prior knowledge regarding the potential complexities unless it succeeds in securing legislative approval in future will (and should) weigh heavily on
75

Dam, above n 2, p 102-104.

76

By parallel, here I mean statistically parallel. That is to say, there have been occasions where the President has promulgated as many number of ordinances in a year as the number of Acts legislated in that same year.

16

the executive in assessing if circumstances exist that make an ordinance necessary. And a legal requirement to undo completed transactions under a lapsed ordinance will do much to promote responsible practices while dramatically reducing its numbers to begin with. Finally, three hypothetical examples should drive home the point that a wide reading of Article 123 is a better option. Consider the legal effects of our hypothetical Kite-Flying Ordinance. Prior to its lapse, several persons were successfully prosecuted under the law. Because of the narrow interpretation, the convictions will always remain valid. To those convicted, the ordinance never really ceases to operate. While the ordinance may cease to exist as law, it leaves behind a trail of permanent effects. This scenario is mostly similar to the facts in Bhupendra Bose and Venkata Reddy. But the narrow interpretation can produce permanent effects in a different sense. Take the case of a university. In India, a university can only be established by an Act.77 An ordinance, therefore, can also establish a university. Assume that the ordinance lapses five months later because Parliament refuses to enact it. During those five months, the university had put in place an academic infrastructure sufficient to commence functioning. Governmental bodies tentatively approved its courses; first-year admissions were complete and classes had begun. The ordinance lapsed at this point. What should be the legal effect of that lapse? Nothing, if the Supreme Court is correct. The university will continue as if the ordinance is permanently valid. Similarly, consider the effect of repeal by an ordinance. Parliament in the exercise of its legislative power can repeal legislation; ordinance, therefore, can also do it.78 Assume that an ordinance repeals an existing piece of legislation and eventually lapses. Does the lapse revive the repealed Act? A temporary Act, on its expiry, does not revive the repealed law, unless specifically provided for in the Act itself.79 And if an ordinance is legally equivalent to a temporary Act, as the Supreme Court says it is, lapse will have no effect. The repealed Act

77

See Prem Chand Jain v R.K. Chhabra 1984 (2) SCR 883.

78

See King-Emperor v. Benoarilal 72 Ind. App. 57 (Assuming that the condition as to emergency is fulfilled, the Governor-General may repeal or alter the ordinary law just as the Indian Legislature itself might do.). Some doubts were raised on the permissibility of repeal through ordinances in Sib Nath Banerjee v. King-Emperor AIR 1943 Cal. 344. But later decisions have put to rest this controversy. See e.g. Jnan Prosanna v. W.B. 53 C. W. N. 55 (The Provincial Legislature could undoubtedly amend the existing Provincial law and that being so the Governor can do so by Ordinance if circumstances exist justifying the promulgation of such Ordinances.)
79

S. Krishnan v The State of Madras A.I.R. 1951 SC 301.

17

remains permanently repealed, unless subsequently revived by a new Act. The implications are obvious. The executive can permanently repeal a valid piece of legislation. Both temporally and schematically, the Supreme Courts narrow interpretation is problematic. Temporally speaking, there are two ways in which ordinances do not cease to operate as a result of this interpretation. There can be cases where an ordinance ceases to operate, i.e. enjoy the status of law, but leaves behind a trail of permanent effects, especially with reference to transactions already completed. With reference to those affected by it, these ordinances, it may be said, are partially in operation. The Kite-Flying Ordinance, Bhupendra Bose and Venkata Reddy are examples of this kind. But in some cases ordinances, despite their lapse, do not cease to operate even in this nominal sense; they are permanently in operation. The university situation is one such example. Here, the lapsed ordinance, for all intent and purposes, remains in the statute books forever. All future legal disagreements must be resolved with reference to the provisions of that ordinance and, in that sense, remains a valid source of law. The narrow interpretation, therefore, has effectively written off the cease to operate clause into non-existence. But the consequences of that interpretation go beyond the temporal concerns. Schematically speaking, it privileges the executive in ways that are inconsistent with the arrangement of legislative powers in the Constitution. The power to promulgate ordinances in moments of legislative emergency has morphed into a parallel power to legislate, such that Indias executive can permanently repeal valid laws without parliamentary involvement. For these reasons, the narrow interpretation is erroneous. In contrast, the more substantive or wide interpretation described earlier does a better job of accounting for these challenges.

(d) Two improved version reconsidered Some progress has been made in this regard. In Krishna Kumar Singh v State of Bihar,80 Judge Sujata Manohar broke away from the received view in her separate opinion in the matter. The State of Bihar had taken over the management and control of non-governmental educational institutions, thereby, turning the previous employees into government employees under the new

80

A.I.R. 1998 SC 2288.

18

management.81 Eventually, the Ordinance failed. Contrary to the prevailing narrow interpretation in the Supreme Court, Judge Manohar argued against permanent effects. One should not readily assume that an Ordinance has a permanent effect, since by its very nature it is an exercise of a limited and temporary power given to the Executive, she said.82 According to her,

[such] a power is not expected to be exercised to bring about permanent changes unless the exigencies of the situation so demand. Basically, an effect of an Ordinance can be considered as permanent when that effect is irreversible or possibly when it would be highly impractical or against public interest to reverse it e.g. an election which is validated should not again become invalid. In this sense, we consider as permanent or enduring that which is irreversible. What is reversible is not permanent.83 Relying on this standard based on reversibility, practicality and public interest, she reversed the employees to their precious non-governmental status.84 While this version of the ceases to operate clause is an improvement over the narrow interpretation, it does not go far enough. Note that her opinion does not revise the narrow interpretation in any major way; at best, it slightly moderates the pendulum away from permanent effects. Rather than the presumptive permanence the Supreme Court has conferred on failed ordinances, Judge Manohar is willing to engage in some form of heightened scrutiny. Its effect, however, is not readily obvious; her irreversible, impractical or public interest tests are wide enough to satisfy most situations arising out of lapsed ordinances. A conviction, she would presumably argue, cannot be undone. Or, a university, once established, cannot presumably be torn down. Or, even a piece of legislation once repealed, cannot presumably be reversed. And while she did reverse the status of employees in Krishna Kumar, Judge Manohar is approving of the Courts conclusion in Bhupendra Bose. An election once validated, she says, should not again become invalid.85 Her revised version, then, is more apparent than real.

81

Ibid, at para 16. Ibid, at para 31. Ibid. Ibid, at para 37. Ibid.

82

83

84

85

19

The only meaningful reform to the narrow interpretation rule was proposed in Maitreyee Mahanta v State of Assam.86 This little known decision from the Gauhati High Court is the nearest judges have come to approving the wide interpretation I have defended here. The petitioner belonged to a community that had previously been notified Other Backward Class (OBC) in the State.87 Despite the pejorative sounding label, communities often agitate for them. Once labeled OBC, they are constitutionally guaranteed a certain quota of government jobs and seats in government universities and colleges. Wanting greater protection in jobs and admission, the community argued that they be declared Scheduled Tribes (ST) under the Constitution.88 That would have guaranteed further benefits under the Constitution. Parliament not being in session, the President promulgated an Ordinance effectively declaring them a ST community. In the mean while, the State withdrew the existing notification conferring OBC status on the community. The Ordinance, however, lapsed. The community was now left with no protection; their OBC status had been withdrawn, and the ST status had lapsed. Should it still benefit from reservations in government colleges intended for those belonging to ST communities? In other words, should the effect of the lapsed ordinance endure? Refusing to treat the lapsed Ordinance as a temporary Act and lapse as analogous to repeal, Judge Ramakrishna pointed out that no action has been taken by the Parliament to make a law pursuant to the rights conferred on certain citizens under the Ordinance with a view to enable those citizens to continue to enjoy such rights.89 And unless and until the competent authority enacts such a law to confer such benefits afresh , it is not possible to hold that as a right has already accrued, that right has to be saved, he said.90 But he accepted the petitioners argument in the alternative that the rights created by the State notification conferring OBC status on the community in 1975 has become permanent and stood revived on the lapse of the Ordinance.91 The efflux of 25 years had created permanent rights, and allowing the unfortunate

86

A.I.R. 1999 Gau 32. Ibid, at para 5. India Const. Art. 342 A.I.R. 1999 Gau 32, at para 26. Ibid, at para 26. Ibid, at para 30.

87

88

89

90

91

20

turn of events to continue without considering the legitimate rights of the petitioners, he thought, would result in serious injustice to them.92 For those reasons, though the community could not claim ST benefits under the lapsed Ordinance, their OBC rights remain valid in law.93 To be sure, Judge Ramakrishnas opinion is not analytically grounded. He does not explain why the wide rule with respect to the cease to operate clause is better. And despite his clear statement against enduring rights, the point on retrospective invalidation is left ambiguous. This shortcoming, notwithstanding, Maitreyee Mahanta is a useful starting point for reassessing the utility of a wider rule of interpretation. To summarize the argument, an ordinance, by its nature, is different from an Act in two respects. Earlier, I drew attention to a procedural difference; an ordinance is different from an Act in the way it is promulgated into law. Here the difference pertains to the product the very thing we call ordinance. An ordinance, unlike an Act, can lapse; it ceases to operate if it is withdrawn by the president or if it is not enacted into law through normal parliamentary procedure. In contrast, an Act ceases to operate only if it is repealed, expressly or by implication. Because of these differences, ordinances, contrary to the language in Article 123, cannot have the same force and effect as an Act of Parliament. Like before, the equivalence is a myth; Article 123 cannot mean what it says.

4. The Remaining : Why Ordinances Are Like Legislation In contrast to the two ways in which Acts and ordinances are absolutely different, in this section I will describe three ways in which Acts and ordinances are similar. The similarities, however, come with qualifications. That is to say, while Acts and ordinances are similar in these respects, the scope of their similarity is different. And these differences will help further fortify the general argument that the same force and effect clause is a myth.

(a) Differences in similarity: Retrospective effect

92

Ibid, at para 32. Ibid, at para 34.

93

21

With certain limits, Acts can have retrospective effect.94 That much is beyond argument. But despite its common use, defining retrospectivity is not easy.95 Nor is it any easier to justify why it should be allowed; arguments grounded in necessary evil, efficiency or even rule of law are not sufficient to account for its various uses.96 Judicial decisions in India havent overtly relied on any of these reasons; they ground it in the idea that such legislation are a necessary incidence of Parliaments original legislative power. Legislative power conferred on a Sovereign Legislature, the Supreme Court has said, carries with it authority to enact a law either prospectively or retrospectively, unless there can be found in the Constitution itself a limitation on that power.97 Does it, therefore, follow that the president too may promulgate ordinances with retrospective effect? In Prabhakar Kondaji Bhapkar v Emperor,98 Chief Justice Beaumont had no doubt about it. A simple syllogism, he felt, was sufficient. Because an Ordinance is to have the like force of law as an Act passed by the Indian Legislature, and the Indian Legislature can pass a retrospective Act, it followed that an ordinance could be retrospective.99 Echoing this, Chagla J. clarified that the power to promulgate ordinances was subject to two limitations only, namely, that there be an emergency and secondly, that an ordinance be effective only for a period of six months.100 This was reiterated in Jnan Prosanna v Province of West Bengal;101 to Chief Justice Harries if the Governor has a right to legislate then inherent in that right is the right to
94

For an introduction to the theory and practice of retrospective legislation, see Charles Sampford Retrospectivity and the Rule of Law (Oxford: Oxford University Press, 2006).
95

For analytical efforts at defining retrospective legislation, see Elmer A. Driedger, Statutes: Retroactive Retrospective Reflections (1978) 56 Canadian Bar Review 268; Stephen Munzer, A Theory of Retroactive Legislation (1983) 61 Texas Law Review 425; Michael J. Graetz, Retroactivity Revisited (1985) 98 Harvard Law Review 1820; Jill E. Fisch, Retroactivity and Legal Change: An Equilibrium Approach (1997) 110 Harvard Law Review 1056.
96

Stamford, above n. 94, at 229- 256.

97

M.P.V. Sundararamier & Co. v State of Andhra Pradesh [1958] S.C.R. 1422, 1460. See also J.K. Jute Mills Co. v State of Uttar Pradesh AIR 1961 SC 1534 (The power of a legislature to enact a law with reference to a topic entrusted to it, is unqualified subject only to any limitation imposed by the Constitution. In the exercise of such a power, it will be competent for the legislature to enact a law, which is either prospective or retrospective.)
98

A.I.R. 1944 Bom. 119. Ibid. at 119. Ibid. at 120. See also Emperor v Sreekant Pandurang Ketkar A.I.R. 1943 Bom. 169. 53 C. W. N. 55.

99

100

101

22

legislate retrospectively 102 Though correct on the basic point, these decisions, I will argue, are too sweeping with respect to the scope of retrospectivity. And that is because temporally speaking, an ordinance contrary to an Act of Parliament can go only so far back in time. The point is best made using our hypothetical Kite Flying Ordinance discussed earlier. Assume that the Ordinance was promulgated on January 1, 2011. Also, assume that the preceding session of Parliament concluded on November 30, 2010 having lasted for six weeks. If the Ordinance is given retrospective effect from say October 20, 2010, it would imply that the Ordinance effectively came into force at a time when Parliament was in session. This appears to go against Article 123: If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may The president could not have promulgated the Ordinance on October 20, 2010; Parliament was in session. For that reason, this retrospective commencement seems to indirectly achieve that which could not be directly achieved.103 Should that be allowed?

(i)

Ordinances, how far back in time?

In Jnan Prosanna, Chief Justice Harries said yes. When pointed out that some retrospective commencement as in the facts of that case, or in our hypothetical example would tantamount to legislating when the legislature was in session, he remained unimpressed.104 If the Governor has power to legislate retrospectively, then it is immaterial, he said, whether the legislation is made to take effect from a time when the legislature was in session.105 The important point of time, he added, is the date of the promulgation of the Ordinance. If the legislature was not then in session then the Ordinance [is] valid, no matter what retrospective effect it had.106 In other words, once retrospectivity in ordinances is allowed, there

102

Ibid at 71. See also The United Provinces v Atiqa Begum 1940 F.C.R. 110 (F.B.); King-Emperor v Benoari Lal 72 Ind. App. 57; Hirji Laxmidas v Fernendez (1945) F.L.J. 119; Ahmed Khan v Emperor AIR 1948 Lah. 120; In re Velayudm 1950 (1) M.L.J. 508.
103

Ibid. Ibid at 72. Ibid. Ibid.

104

105

106

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are no further limits. An Act can go back in time 5 years, 7 years, or indeed any number of years. Therefore, ordinances too can do that. This view is incorrect. Syllogistic references to the nature of Parliaments legislative power are insufficient in deciding the scope of retrospective effect in ordinances. While Parliaments legislative power is a good starting point, the scope of presidents promulgative powers must ultimately rest on or be in sync with Article 123. And thats where these decisions fall short.107 Two competing considerations must be borne in mind while deciding the appropriate scope of retrospective effect. On one hand, there is the challenge of legislative exceptionality. The presidents legislative powers in Article 123 are not parallel; they are exceptional. This is particularly in the sense that ordinances may originate only at moments when Acts are impossible. But as the hypothetical example indicates, indefinite retrospectivity undermines this exceptionality; it validates ordinances even at points in time when Acts were possible. Or, as I suggested earlier, it seems to indirectly achieve that which could not be directly achieved. But on the other hand, there is the concern about legislative flexibility. Presidents legislative power will lose relevance if burdened with stringent temporal limits. For it to work, that power must have sufficient prospective and retrospective jurisdiction. To summarize, retrospectivity, widely interpreted, undermines Article 123 in the first sense. But narrowly interpreted, it undermines Article 123 in the second sense. How then should it be read? A proposal: the known cause test, its logic and limits

(ii)

I would argue that these competing demands are best resolved by what I will refer to as the known cause test. In my view, two questions make up the test. First, was Parliament ever in session from the date on which an ordinance is deemed to have come into effect? If no, then retrospective operation is valid without further review. That is so because it suggests that, by definition, Parliament has had no opportunity to consider the matter. However, if Parliament was in session on the date on which the ordinance is deemed to have come into effect or at any time since that date then the second question become relevant. Did Parliament know about the cause of action the so-called legislative emergency while it was in session? If no, then

107

While many of the decisions referred to here are pre-1950, the Constitutions textual similarity with previous legislation from where from ordinances were important make these decisions a relevant starting point.

24

retrospectivity in ordinances even from a date on which Parliament was in session is constitutional: it suggests that Parliament had no opportunity to consider the matter. To disallow retrospectivity in these circumstances would undermine legislative flexibility. However, if Parliament had knowledge of the cause of action, retrospective operation of an ordinance is unconstitutional: it suggests that Parliament, despite its knowledge regarding the emergency, opted not to act. To allow retrospectivity in this circumstance would undermine legislative exceptionality. In other words, if Parliament was never in session at any point from the date on which an ordinance was deemed to have come into effect, or Parliament, despite being in session, did not know about the legislative emergency on which the president purports to rely on, retrospective operation is valid. However, if Parliament was in session at any point from that date and had knowledge of that emergency, retrospective operation must be invalid. This way of doing things upholds both exceptionality and flexibility. Bhupendra Bose is a classic example. The High Court invalidated election results on procedural infirmities. Concerned that the decision may set a precedent for other electoral challenges, the Governor promulgated a validating ordinance, retrospectively amending the election regulations, thereby, negating the High Courts decision. Even if this Ordinance was deemed to have come into effect at a point in time when the State Legislature was in session or had been in session since that date the retrospective operation is valid. The State Legislature did not know the cause of action the High Courts invalidation of electoral results and could not possibly have known it. Similarly, consider the retrospective validity of our hypothetical Kite-Flying Ordinance. The Ordinance was deemed to have come into effect at a point in time when Parliament was in session. Therefore, its validity would depend on the novelty of the dangers of kite flying. Was that something Parliament knew or could have known while it was in session? If so, retrospective effect would be unconstitutional; it undermines legislative exceptionality. Apart from explaining how the test works, the two examples also point its weakness. The proposed test appears to work well with episodic causes. That is to say, it works well with purported causes that occur on identifiable dates like in Bhupendra Bose. Its utility with our hypothetical Kite-Flying Ordinance is, however, suspect. And that is so because law and public policy, or indeed human experiences in general, are rarely categorically episodic. Many transactions extend over time; require careful planning and a sustained set of actions to bring it
25

into effect.108 As with life, this is also true of legislation. A legislative cause of action is rarely the product of a single episodic event; it is often the culmination of a series of socio-political or economic moments such that it may be difficult to identify that one precise point at which something became known. And in such circumstances, the proposed known cause test may be less than useful. But two things must be said in reply. The non-episodic nature of human transactions is a general problem for all retrospective legislation; it is not peculiar to our discussion here. A rather strong understanding of non-episodic nature of human transactions will inevitably lead to the conclusion that all or at least a significant number of legislation are retrospective by definition. And secondly, how the test should be applied will depend in part on the standard of proof demanded in judicial review proceedings. In the event that judges prefer a relatively non-intrusive standard of review, that some aspects of the legislative cause of action whether facts or policy arguments were known at a point in time when Parliament was in session would not be fatal to the legality of an ordinance. Therefore, the test, despite some difficulties, I would argue, is useful in separating cases of retrospective ordinances that are valid from the ones that are not. To summarize then, while both Acts and ordinances may enact retrospective legislation, different limits apply to them. Parliament may go indefinitely back in time; ordinance, however, may go only so far back as the previous session of Parliament subject, of course, to the known cause test. (b) Differences in similarity: prospective commencement

Acts and ordinances are similarly different in another respect. The 1897 Act, in 5, makes it clear that Parliament may determine the date on which an Act is to commence. In deciding that date, Parliament has complete legislative flexibility. It may authorize an Act to come into effect, for example, 5weeks or 5 months later or indeed any number of weeks, months and years later. Presumably, ordinances too may provide for their prospective commencement. But like with retrospective operation, the scope of prospective commencement, I would argue, should be limited. The two concerns identified earlier legislative exceptionality and legislative flexibility apply here as well. First, authorizing an ordinance to come into effect say 10 months into the future would, in normal circumstances, undermine legislative
108

Pierre Schlag Normativity and the Politics of Form (1991) 139 University of Pennsylvania Law Review 801, 931.

26

exceptionality. By then, Parliament would have been in session for a period of time, or at that very moment may be in session. And secondly, with prospective effect, there is also the need to additionally account for Article 123. According to Article 123(2) (a), every Ordinance shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions So, if an ordinance provides for prospective effect so as to come into effect 6 months after a session of Parliament is over, it would fall foul of the limits prescribed in Article 123(2). In other words, while both Acts and ordinances may have prospective effect, there are differences in how that effect may be put into practice. With Acts, there are no limits; Parliament may provide that they will come into effect at any point of time in future. But ordinances have limits; their prospectivity is limited to periods prior to the commencement of legislative sessions. Once again, then, Acts and ordinances are similarly different.

(c) Differences in similarity: Sunset clause

Finally, Acts and ordinances are similarly different in a third way. And this has to do with sunset clauses. This difference is the opposite of prospective effect. While prospective effect determines when Acts come into existence, sunset clauses determine when they cease to exist.109 Without any sunset provision, Acts remain in force for an indefinite duration, or at least till a point in time they are amended or repealed.110 But Acts may also be self-expiring in nature, in the sense that Parliament may define their tenure. By its own provisions, an Act may cease to exist after 3 years or 5 years or any period that Parliament likes. Arguments for sunset provisions, both in constitutions and legislation, are often grounded in concerns that have to do with intergenerational consent, legislative oversight or regulatory efficiency.111 Frequently employed by
109

For references to various kinds of sunset clauses see, Robert Baldwin, Better Regulation ... Is it Better for Business? 25 (2004), available at http:// www.fsb.org.uk/policy/assets/0952BetterRegulation.pdf; Chris Mooney, A Short History of Sunsets, Legal Afairs, Jan. 2004, available at http://www.legalaffairs.org/issues/January-February2004/story_ mooney_janfeb04.msp.
110

See generally Jacob E. Gersen Temporary Legislation (2007) 74 University of Chicago Law Review 247.

111

See e.g. Jefferson to Madison, Sept. 6, 1789, reprinted in The Papers of Thomas Jefferson XV, 396 (Julian P. Boyd et al., eds., 1958).The Federalist No. 26 (Alexander Hamilton), available at http:// thomas.loc.gov/home/histdox/fed_26.html.

27

legislatures, sunset provisions, some argue, force legislative and executive bodies to periodically engage in public conversation and reexamine the basis for its authority.112 And this is said to be particularly beneficial in policy contexts where information deficits exist or has the effect of distributing political power, costs and risks across branches of government.113 Whatever its benefits in the case of Acts, ordinances, I would argue, should have a limited capacity for sunset provisions. The concerns here are same as before; balancing legislative exceptionality and flexibility and, at the same time, remaining sufficiently grounded in Article 123(2) (a). As with prospective effect, ordinances may provide for sunset clauses only for a period of time in future that is prior to the commencement of the next legislative session. In other words, sunset clauses cannot extend beyond the term of a forthcoming session of Parliament; a contrary view would be opposed to the requirement in Article 123(2) that such an ordinance cease to operate at the expiration of six weeks from the reassembly of Parliament , unless properly enacted into law. Therefore, once an ordinance lapses that is, Parliament refuses to enact it into law its provisions, including the sunset clause, must cease to operate. A lapsed ordinances has no legal effect, and a sunset clause extending into the future, cannot undo that invalidity. And this effectively takes us back to the discussion on the effect of failed ordinances. Let me explain the practical import of the argument with the provisions of the now repealed Prevention of Terrorism Ordinance, 2001. Promulgated in October 2001, in the aftermath of the September 11 attacks in New York City, the 2001 Ordinance, in 1 (6) provided that it shall come into force at once and shall remain in force for a period of five years from the date of its commencement, Here then is an ordinance with a sunset clause that claims to have a self-defined life of 5 years. But this, I would argue, is unconstitutional; despite what it says, it cannot operate beyond six weeks from the date of reassembly of Parliament. Its self-defined tenure of 5 years may be permissible only in the highly exceptional situation that

112

See e.g. Peter Margulies Judging Terror in the Zone of Twilight: Exigency, Institutional Equity, and Procedure after September 11 (2004) 84 Boston University Law Review 383. For a comparative study of sunset clauses in terrorism legislation in the common law world, see John E. Finn Sunset Clauses and Democratic Deliberation: Assessing the Significance of Sunset Provisions in Antiterrorism Legislation (2010) 48 Columbia Journal of Transnational Law 442.
113

Gersen, above n. 109, pp 248 280.

28

Parliament does not convene for that period.114 Short of that, the sunset clause, and indeed the entire ordinance, must cease to operate immediately on its lapse, i.e. on the expiry of six weeks from Parliaments reassembly at any point. To summarize then, Acts and ordinances are similar in three respects, but the scope of that similarity is different. In this sense, its only a myth. And because they can actualize their similarities in different ways, Acts and ordinance, despite language to the contrary in Article 123(2), cannot have the same force and effect.

5. Conclusion Three things must be pointed out in conclusion. First, the Supreme Court's simplistic view of ordinances is wrong. Even though Acts and ordinances are products of original legislative power, that feature by itself cannot determine the full scope and effect of ordinances. What ordinance can or cannot achieve must in part be grounded in Article 123, its architecture and ways in which they interact with associated provisions in the Constitution and (currently accepted) principles of public law. For that reason, despite language to the contrary, Acts and ordinances cannot have the same force and effect; an ordinance cannot be clothed with all the attributes of an Act of legislature.115 Secondly, these differences between Acts and ordinances, in part, exemplify my argument elsewhere that the president's power to promulgate ordinances is best understood as an intermediate legislative power; one that is neither fully legislative nor fully executive, but with important attributes of both. Therefore, the arguments presented here are best read in association with the more general argument made elsewhere that the process of promulgating ordinances - as opposed to the process of legislating Acts - is subject to judicial review.116 And finally, the challenges pointed out here cannot be corrected by simple amendments to the 1897 Act. Because arguments limiting the scope of ordinances are embedded in the Constitutions text, its principles and architecture, statutory amendments reversing them would themselves be unconstitutional. For example, amending the 1897 Act to provide for indefinite retrospectivity or prospectivity, or conferring permanent effect on failed ordinances
114

For an argument that that is possible in some situations, see Dam, above n. 2, pp n. 9 above. n. 10 above.

115

116

29

would contravene Article 123. The limits are constitutional, and if properly applied, may drastically reduce the number of ordinances in India to begin with.

30