Food Security Ordinance: Constitutional Impropriety?

4 years ago, in its 2009 election manifesto, the Congress party promised a Food Security Act along the lines of employment guarantee or NREGA. When it came to power later that year, the President of India, in her address to Parliament on June 4, 2009, announced that a National Food Security Act will be enacted. 2 and a half years later, the National Food Security Bill was introduced in Lok Sabha on December 22, 2011. The next month- January 5, 2012- it was referred to the standing committee and one year later- January 11, 2013- the committee presented its draft report. Subsequently the government made an attempt to discuss the Bill but a non-functioning Parliament put paid to that. So this month the President of India promulgated the National Food Security ordinance.

THE PROMISE OF FOOD SECURITY!
Timeline
 
2009: Congress Election Manifesto
Jun, 2009:  President Patil’s address to Parliament
Dec, 2011: National Food Security Bill introduced in Lok Sabha
Jan, 2012: Bill referred to Standing Committee
Jan, 2013: Standing Committee draft report submitted
Jul, 2013: National Food Security Ordinance promulgated Article 123 of the Indian Constitution says ‘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.' ORDINANCE POLITICS!
Constitution of India
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 promulgate such Ordinances as the circumstances appear to him to require.
 
ORDINANCE POLITICS
Food Security
 
Subsidised food to 75% rural & 50% urban population
Will require 62 mn tonnes of grains a year
Cost estimates range from Rs 1.42 lakh cr/1year to Rs 6.8 lakh cr/3years
States to bear some cost & responsibility as well What circumstances then, would warrant that a law, as socially and financially important as food security, be passed hurriedly via an ordinance by a party that has been in power for 9 years! Does this amount to a Constitutional impropriety? To answer that I am joined by two veteran and renowned senior Supreme Court lawyers – Anil Divan and Arvind Datar. Doshi: I am going to focus on the wording of Article 123 and the first thing I want to question is what defines the circumstances that warrant immediate action? I suppose then this debate is not about what, because we all agree that food security is a Constitutional right, but it is about when. When do these circumstances warrant an immediate action, an immediate action such as an ordinance? What is your view on the timing of this move? Divan: I am speaking as a lawyer because there are so many issues on this food security ordinance. (1) there is criticism which maybe right or maybe wrong about- do we have storage (2) do we have the money (3) will it be effective or will it lead to a lot of mal-distribution in terms of black money (4) apart from anything else would the States agree because States have to implement. These are questions of policy. These are not questions of law. Doshi: That is right and we will focus simply on the process, not on the specific aspects of what the Bill intends to do. The process is what I am questioning here- does the Constitution or does the Supreme Court jurisprudence define the circumstances that are required or necessitated before an ordinance is passed. That is the question I would like to put to you? Divan: The Article says the President has to be satisfied- not you, not me nor the court- the President has to be satisfied, that’s one. Second, he must be satisfied as to the existence of circumstances which make it necessary for him to do so and if suppose he goes wrong then what the remedy is. The remedy is that within six weeks of Parliament reconvening, they will either adopt or throw out the ordinance. So, that is a normal remedy prescribed by the Constitution. How do the courts come in? The courts have in the past said if it is a fraud on the power, a fraud on the Constitution then they will intervene and the leading cases like the Wadhwa’s case, where what happened was the Bihar government went on promulgating ordinance after ordinance after ordinance without bringing the ordinance provisions before the legislative assembly and this the court says, this is not what the Constitution requires- you must go to the legislature, get it validated or invalidate or whatever it is within six weeks. So, that is the major case, fraud on the Constitution. Apart from that, it is a subjective satisfaction of the President; very difficult to be challenged in a court of law. Doshi: The circumstances surrounding the national food security ordinance are nowhere close to the Wadhwa case as pointed out by Anil Divan. I understand that this has to focus on the satisfaction of the President. But the satisfaction of the President, I understand is open to judicial review, isn’t it? So, it can be that the courts can question under what circumstances the President will be satisfied and that brings back the question of both timing and motive in this? Datar: As far as this particular ordinance is concerned, I think it is wholly inappropriate and improper for them to introduce this ordinance at this point of time. As you pointed out, the Articles says that the President should be satisfied, that he must take immediate action. Those are the two crucial words; immediate action. If he does not take action immediately, there could be some calamitous consequences on the country and therefore you cannot wait till the legislation assembles and passes the Bill. All the Bills pending, what is the need to pass the food security ordinance? For example few months ago they passed the Criminal Law ordinance after the Delhi gang rape case. One can understand, yes there was some emergency to have laws to check acid attacks and so on. But certainly in the case of food security, there was nothing in place and if you read all the clauses of the 52 sections of the food ordinance, it cannot be implemented immediately. There is so much of groundwork to be done. So, this is really – I am sorry to say-it looks more a political issue rather than an issue which was contemplated by Article 123. As far as your question is concerned whether courts can question it; unfortunately the law is not very clear. This has not happened for the first time. In the bank nationalization case, Mrs Gandhi passed the ordinance just two days before the Parliament convened but by the time the case came into the court, the Supreme Court said now the Act is there, so we leave the question open. One thing I must tell you that, in the emergency the first amendment made by Indira Gandhi was to make sure that the satisfaction of the President was final and conclusive and no court could question it. So, this was the amendment she made. And after Janta Party came to power, they deleted this clause. Therefore, in one Supreme Court judgment they say that the satisfaction of the President is not final conclusive; it can be questioned. Like Mr. Divan said in the Bihar case it is misused again and again; then you can do so. But later judgments have said that the satisfaction of the President cannot be questioned. So, the law is not very clear on this particular subject. It is perhaps a good reason why the matter should be taken up and decided at the earliest. Doshi: There is a PIL that has been filed but that is nothing to say whether this will be in fact looked at by the Supreme Court in urgency – can I borrow from some of the jurisprudence I came across when it came to Article 356 which also dealt with the President’s satisfaction and in those cases it is made quite clear that the President satisfaction is judicially reviewable but I could not find, like you pointed out, anything similar when it came to ordinances.
 
Datar: There is no case. Actually in the AK Roy case, when they introduced the national security ordinance in 1980 this was observed that this question has to be considered at some point of time but they left it open. But later in the case of Andhra Pradesh where they challenged the governor’s ordinance, the Supreme Court said that the satisfaction of the governor and President cannot be questioned. There are two conflicting judgments of five judges and I personally feel that if it has to be resolved then it will have to go through the bench of seven judges as to whether satisfaction of the President can be subject to judicial review. That is the law on the subject. Divan: There are two things which we must bear in mind as lawyers. When you say President’s satisfaction, the President normally acts as per the advice of the cabinet. That is our jurisprudence. President has no independent idea; he has to act according to the advice of the Counsel of Ministers. The President’s satisfaction here in this case is a legislative act. There are other acts which are executive acts. There is no question that the Supreme Court or the courts would have the power of judicial review. The question is would the power of judicial review be exercised in a particular case and are those circumstances there. If there is a perverse satisfaction which almost amounts to fraud in the Constitution- then alone in such a very rare case the court would intervene. Otherwise normally this is a political process - whether it is immediate or not it is a political decision by the political wing of the government. Suppose a PIL is taken out tomorrow, the first question is will it be heard within six weeks of the Parliament coming into session. The first thing the court will say that look here- Parliament you have got an option, Parliament can adopt or Parliament can throw out. The time factor will be such that suppose you have a session in August and in six weeks it will go before Parliament. So, the question is how is the satisfaction to be regarded as perverse or a fraud on the Constitution. Otherwise, by and large the courts will not interfere with Article 123 satisfaction. Doshi: Would you agree with that because all things given, our discomfort with this ordinance may exist, but the right to food is a Constitutional right and in that sense any law that provides for that, cannot be seen as a fraud upon the Constitution – so then what could be the faith of ordinance of this nature which is challenged in the Supreme Court? Datar: In terms of food security, it is a Constitutional right; the court may not interfere. As Mr Divan points out, this is going to happen again. This is the fourth or fifth time an ordinance is challenged and by the time the matter comes to court, it is replaced by an Act. So the court leaves the question open; this could happen well again. But the whole point is, this particular Bill which is lying pending from 2009, what was the need for it to be passed just now as an immediate action. I think it is certainly not what was intended in Article 123. If we read the process by which this Article was incorporated- in fact, the constituent assembly, was very much against this power. This ordinance making power should not be there in the democratic Constitution but despite that it prevailed. It was only for extraordinary emergency which could not wait when this power was introduced. Doshi: Many of us would share your discomfort with the timing and the motive of this ordinance but is there anything that requires the President to explain the motivation or explain why he saw that the circumstances existed for him to be satisfied that an ordinance was necessary and just to add to my question I want to quote to you from Reddy versus the State of Andhra Pradesh case where the Supreme Court said “While the courts can declare a statute unConstitutional when it transgresses Constitutional limits, they are precluded from inquiring into the propriety of the exercise of the legislative power”. Given this is the President’s use of legislative power, do you think the court can question his assessment? ORDINANCE POLITICS
Reddy v State of Andhra Pradesh
“While the courts can declare a statute unConstitutional when it transgresses Constitutional limits, they are precluded from inquiring into the propriety of the exercise of the legislative power.”
 
ORDINANCE POLITICS
Bommai v Union Of India
CJI Sabharwal on Art. 356 - ‘President’s satisfaction’
“can be challenged on the ground that it is mala fide or based on wholly extraneous and irrelevant grounds” Datar: Yes. I will give you one example were we succeeded in stopping an ordinance. In 2003, to be precise on October 16, 2003 they passed the National Taxation Tribunal ordinance, this was passed on October 16. There was no reason why we should suddenly pass this ordinance. It meant that overnight all the High Courts could not decide tax cases and they would be shifted to a national tax tribunal. At that time it was widely rumored that this was done just to help certain bureaucrats who are retiring on the October 31. We moved the Madras High Court overnight and the Madras High Court was able to effectively stop that ordinance. Later it became an Act and we got the Act stayed; it is still pending in the Supreme Court. There are cases where we could show to the court that this was clearly a fraud as Mr Divan puts it in the use of the power and there is no reason to put this ordinance into place. One can just overnight takeaway High Courts power without any discussion. The High Court has interfered but there is no Supreme Court decision on a similar ground. Doshi: The facts of this case are very different from what you just spoken about. Hence, the question I want to ask is that do you believe the facts of this case, especially when it comes to the process in which this food security ordinance was passed, given that it was a electoral promise from five years ago – do you think it will survive a challenge or there would be cause enough for the Supreme Court to dwell into the circumstances, the timing and the President satisfaction? Datar: In this case, I don’t think this challenge will survive because it is not so grave; it not any kind of fraud upon the Constitution. It is Constitutionally improper; it may not be illegal in that sense. So the courts may not entertain that challenge is my view. 
The other particular reason is that government can always turnaround and say look because of the opposition paralyzing Parliament again and again and what is the guarantee that monsoon session will not be paralyzed and therefore we had to bring in the ordinance. Divan: I entirely agree with Mr Datar, that it would be very difficult to persuade any court to strike down the ordinance on the grounds available. Datar: Just one thing, at least what the President could have done is at least send the thing back and ask the Cabinet what are the grounds for immediate action- that would be a better exercise of this Constitutional power rather than simply signing on the dotted line.