In any democracy, institutions perform a multitude of functions like facilitating economic growth, adjudicating claims in a just and fair manner and maintain minimal political order. However, the entire system of party politics, much like legal systems, acknowledges precedents (albeit informally) which set limits for future actions. One such precedent regarding delimiting executive and judicial power was set by Indira Gandhi during the emergency and it has not only caused institutional decay in a more pervasive sense but also served as a reminder to the opposition of its past shortcomings, which is then used as justification for excessive delegation, abrogation of the power to review (by the judiciary) and executive overreach in general.
This article will review a recent ordinance passed by the Governor of Uttar Pradesh, Anandiben Patel called the U.P. Recovery of Damage to Public and Private Property Ordinance, 2020, which has been disputed in public interest litigation filed by Adv. Shashank Tripathi. He alleged that the government is trying to distract the public attention from the unconstitutional and ‘immoral’ display of hoardings which displayed names of persons accused of damaging property during the recent anti-CAA protests which endanger their life and limb. The impugned Ordinance has been given clearance by the Yogi-led government and a ‘Claims Tribunal’ has been established under it to address the claims brought by affected persons and officials (in the case of public property) and has the power to assess damages and award compensation for all such acts of violence in public places perpetrated during riots, communal violence, public protests, etc.
The main issue of contention for this article deals with Rule 22 and 24.
Rule 22 is:
“Every order or award made by the tribunal is final and no appeal is maintainable against such order before any court”
“Where any Claims Tribunal has been constituted for any area, no civil court shall have the jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area and no injunction… relating to such a claim shall be granted by the Civil Courts”.
While the former ousts the jurisdiction of the courts to entertain appeals, the latter ousts any jurisdiction the civil courts in that area might be presumed to have, regarding matters of injunctions, petitions, appeals etc. This complete exclusion of any recourse to the judiciary goes against the separation of powers principle enshrined in our constitution. Some of the quasi-judicial functions are performed by administrative bodies like tribunals, boards, and commissions, over which the courts under the rule of law have inherent supervisory jurisdiction, as an overseer of the principles of natural justice of sorts.
The right to appeal and to file writ petitions under art. 133 and 226 of the Constitution of India as well as SLP’s under art. 136 have been time and again stressed upon by the court, and though it exists primarily for substantive claims and administrative disputes or matters (to delineate domains of knowledge and influence), due to expediency purposes, specialised knowledge and separation of power cannot substantially fall under the scope of judicial review (other than a basic reasonableness test). Still, we must ensure procedural fairness in terms of elimination of biases, the rightful exercise of authority and adequate opportunity to be heard, and the power of the judiciary to conduct such preliminary inquiry at the behest of aggrieved citizens shouldn’t be usurped.
Another argument to support this proposition is that provision of immunity from judicial review to administrative bodies is averse to democratic processes is the derogation from the doctrine of Separation of Power. Through countless decisions and law commission reports, it can be reasonably said that the doctrine isn’t construed in the strictest sense (as in the U.S.) and keeping in mind the size and diversity of our country, convergence of the functions of adjudication, legislation and administration is not only inevitable but desirable, to a certain extent.
As Justice Mukherjee puts it in Ram Jawaiya v. the State of Punjab, “the functions are differentiated…but interfere with each other whenever necessary”.
In Dr D.C. Wadhwa versus State of Bihar case, the constitutional bench of the Supreme Court held that the Executive had no arbitrary right to promulgate ordinances. The apex court held that it is the right of every citizen to insist that he should be governed by laws made in accordance with the Constitution and not law made by the executive in violation of the constitutional provisions.
The U.P. Ordinance has been passed under Art 213(1) of the Constitution of India which enumerates the power of the Governor to pass ordinances when either house of Parliament is not in session. Since the power of law-making is delegated to the executive by the legislature, it needs to stem from a well debated and represented piece of legislation or statute drafted by the various houses of the legislature. However, in circumstances that require immediate action and when the legislative assembly and/or the legislative council aren’t in session, the executive takes charge. This power to pass ordinances is a drastic one since this power isn’t delegated. It is limited by a parent statute but exists independently of it. There are certain safeguards to the passage of an ordinance like an ordinance under Art 123 of the Constitution ceasing to operate six weeks post reconvening of the Parliament or State legislatures, are also subject to approval, can only be passed when immediate action is required and this power only operates when neither of the Houses of Parliament (Lok Sabha and Rajya Sabha) or State Legislatures (Legislative assembly and council) are in session.
Concerns have been expressed by the Constitutional bench in the Krishna Kumar Singh v. State of Bihar case, regarding the re-promulgation of the Enemy Property (Amendment and Validity) Ordinance (prevents reversion of properties worth crores to legal heirs).
A parallel can be drawn between the Enemy property ordinance and the U.P ordinance regarding the extension of the administrative domain and exclusion of judicial review of any kind. Section 22 of the former ensures ‘continuity’ despite the legislatures reopening and Section 8(1) empowers the government official (custodian of the properties) to dispose them of notwithstanding any order, decree or judgement by adjudicating authority. The power of subordinate legislation granted to the executive can be criticised on several grounds but before delving into the age-long debate, the reason for its existence needs to be examined. In times of genuine emergency, wherein the national sovereignty, democracy and human rights are under fire by rebellion groups, other nations etc, and poses an imminent threat to the life and limb of the citizens and the existence of the nation itself, this power has been instituted as a shortcut to the passage of a law which would otherwise be subject to scrutiny and debate in the parliament as well as approval of the majority of elected representatives.
This ordinance deals with all such acts of violence perpetrated in public places like riots, communal violence, public protests, etc and provide for recovery of damages to private and public property by constituting a claims tribunal to investigate the damage caused and award compensation. However, the abrogation of the power of courts to review legislative and administrative action so completely is reminiscent of the emergency. A clear distinction needs to be made regarding the powers of the court and the scope of judicial review in different cases.
Judicial powers wherein the government are involved is limited by a variety of factors. The principles of a representative democracy necessitate that the law-making be done by the elected representatives and the forebearers of the rule of law (or constitution) must ensure adherence to the constitution i.e. the judiciary. A history of this tussle between the executive and judicial regarding subordinate legislation and its scope is useful for understanding the evolution of jurisprudence. Certain tests have been laid out for differentiating between legitimate use of this power. According to RC Cooper v. Union of India (1970), the Banking Companies (Acquisition of Undertakings) Ordinance 1969 which sought to nationalise 14 banks, in pursuance of the socialist project under Indira Gandhi, was disputed. However, the limiting of this power of the President to promulgate ordinances under Art 123 was conceptualised to be immediacy (as mentioned above) and no such urgency or requirement for immediate action was found.
There is no need to recount the various constitutional amendments made but one, the 38th Amendment Act passed in 1975 that said the President’s satisfaction for passing the ordinance cannot be questioned on any ground by the courts. This new section is another self-evident instance of executive overreach, which is the statutory exclusion of judicial review much like the UP ordinance, though it goes a step further by incorporating this requirement in the constitution itself and not just to a single ordinance. An important development in this push and pull between the two organs was the decision in A.K Roy v. Union of India (1980) on the impugned National Security Ordinance, 1980 in which the court stated that the President’s ordinance-making power is under the scope of judicial review.
But this supervisory function isn’t of foremost importance or even the reason for a judiciary’s existence. The conception of law enforcement was done to ensure compliance with the law, not to question the law itself. Hence, a very fine line needs to be drawn between judicial activism and judicial overreach. Another reason being expediency of law-making and enforcement, practical concerns of governance etc which can’t be appropriated by the judiciary under the garb of review. This problem arises out of indiscriminate intervention in governance, especially in matters under the various lists which required specialised knowledge of the regions and peoples, etc. Excessive intervention in this scenario could result in halting or obstruction of the government itself. The case of T Venkata Reddy vs. State of Andhra Pradesh (1985) which examined Andhra Pradesh Abolition of Posts of Part-time Village Officers Ordinance, 1984 is an example of the judiciary’s realization of the perils of excessive intervention in governance and stated that the executive’s law-making power is equivalent to that of the legislature and the motives behind them cannot be questioned.
The UP Ordinance does not, according to the various tests laid out and the precedents examined, pass the test. While we cannot deliberate upon the political question and the disproportionate effect such an ordinance will have on the marginalised sections of society, as well as the dubious actions by the state government (displaying the pictures of the persons suspected of destroying property at a bus stand), as it is beyond the limits of our current inquiry, we can analyse the ordinance and the procedure it envisages. Therefore, such a blatant exclusion of all applications, appeals and the absence of any appellate body, is an attempt to surpass the right of the judiciary to examine whether natural justice is being carried out or not.
 Sumit Ganguly & William R. Thompson, Democratic Institutions, Ascending India and Its State Capacity (2017).
 Fasken, Administrative tribunals and judicial review Lexology (2008), https://www.lexology.com/library/detail.aspx?g=f59b0866-8483-44ba-8bd6-16276f886c15 (last visited Jun 13, 2020).
 Shreeja Sen, Supreme Court declines to limit its power to hear appeals against any court Livemint (2016)
 Ordinance making powers of the Executive in India, PRS India (2017), https://www.prsindia.org/theprsblog/ordinance-making-powers-executive-india (last visited Jun 14, 2020).
 Aadil Boparai, The ordinance overreach The Indian Express (2017), https://indianexpress.com/article/opinion/columns/the-ordinance-overreach-4469891/ (last visited Jun 14, 2020).