Whether Fundamental Rights can be restricted by an Ordinance?

The author in this article discusses whether Fundamental rights can be restricted by an ordinance or not and the related provisions. It further discusses that Fundamental rights are characterized as the basic human freedom every citizen of India should have.

Fundamental Rights guaranteed by the Indian Constitution are not absolute. The state has imposed certain restrictions according to the procedure established by law. Nevertheless, these restrictions must be reasonable and not arbitrary. These rights have been ascertained under Part III of the Indian Constitution from Article 12-35. The fundamental rights bestowed by our Constitution have been borrowed from the Constitution of The United States of America. The Constitution grants equal rights to all its people without prejudice. They uphold the equality of all individuals, broader public interest along with the unity of the country. Fundamental rights are characterized as the basic human freedom every citizen of India should have. These shall be enforceable by the judiciary, subject to other limitations.

Reasonable Restrictions

Article 19, clause 2 was amended through the First (Constitutional) Amendment Act, 1951. In addition to adding three new grounds, including public order, friendly ties with foreign states and incitement to an offence, the amendment also added the term “reasonable” before the limitations provided for in Article 19(2). These restrictions were placed to strike a balance between the freedoms guaranteed under Article 19 (1) along with the social control which is permitted by the other clauses of the Article. The term “reasonable” precedes the word restriction in the clause (2) to (6) have not only restricted the meaning of the statutory abbreviation but also made the reasonableness justifiable. This is uncontroversial that the word ‘fair’ was meant and is currently used by the courts to exercise power to review the statutes limiting freedoms granted under the Constitution. The courts must agree on the specific nature of such a study, or in other words, it should be argued that the Constitution is vague on the issue of what is and what is not a reasonable restriction? It has therefore been left to the courts to determine the standard of reasonableness to be adopted while examining the validity of any impugned legislation. In the case of V.G. Row v. State of Madras[1], it was stated that “It is not possible to think only in the abstract. Several circumstances must be taken into consideration i.e. (i) The purpose of the Act, (ii) The conditions prevailing in the country at that time, (Hi) The duration of the restrictions, and (iv) its nature and the extent.”

The Apex court for the first time considered the scope of the reasonableness of the restrictions in the case of Dr N.B Khare v. State of Delhi[2], where the petitioner has challenged the restrictions imposed upon the rights under Article 19(1) (d) to move freely throughout the country by an interim order passed against the petitioner under the East Punjab Public Safety Act, 1949. Kania, C.J. has observed a majority opinion on “thelaw providing reasonable restrictions on the exercise of the right conferred by Article 19 may contain substantive as well as procedural provisions. While the reasonableness of restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the court the question of the reasonableness of the procedural part of the law.” It is also notable that both the majority and the minority opinion of the court held that the reasonableness of the restrictions implied that certain parts of the restrictions were fair and that both the substantive and the procedural elements of the restrictions were justiciable. The difference between the substantive and procedural aspects can be justified through the following words;

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“We may view substantive due process as referring to the content or subject-matter of law, an ordinance, whereas due process refers to the manner in which law, an ordinance or administrative practice, or a judicial task is carried out.”

Ordinance

The term Ordinance is been listed under Article 123 and Article 213 which provide for the Power of President to promulgate Ordinances during recess of Parliament and Power of Governor to promulgate Ordinances during recess of Legislature respectively. They enable the Government of India to take timely regulatory action.

Ordinance shall cease to function if it is not enforced within a given period of time after the reassembly of the two Houses.

The Supreme Court may review the ordinance if it is challenged by writs because there are only 3 grounds, to check it, that are:

  1. Whether there exists any material behind the proclamation?
  2. Whether the material is relevant?
  3. Whether there was any mala fide use of power?

Such 3 premises have been set out and their validity has been reviewed in the case of A.K Roy v. Union of India,[3] that claimed that the legislative powers are subject only to the limitations laid down in the Constitution and not to any other limitations. Along with the above mentioned, if any such law is approved by the legislature which is not furnished to be passed as well as which violated the provisions of Part III of the Indian Constitution, then it is insufficient. In addition, the Ordinance promulgated in accordance with Art. 123 is a law in compliance with Art. 13(3)  may be challenged as other laws on grounds of impropriety, unconstitutionality, infringement of fundamental rights, etc. The Supreme Court will only test the legality of the ordinance and not being able to decide whether or not such an ordinance will be turned into statute at a later date.

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It could well be that, in the view of Article 123 and Article 213 of the Indian Constitution, the legislation rendering office a legislative force is not an official operation or an authoritative decision. Therefore, it is presumed by the Courts that legislative power is duly exercised and that the propriety, expediency and purpose of a statutory act ought to be decided by the constitutional body and the courts; thus, to leave the executive’s intentions beyond judicial command. In this way, authority may be assumed to be entire and there are no limitations on such authority as that of the legislature other than that upon which the constitutional power of the legislature rests.

Clearly, under the statutory framework, the Ordinances were intended to be a transitional remedy, to be implemented only in new circumstances when there was an immediate need, and Parliament was not available.

It was generally held that the promulgation of the Laws was not open to judicial scrutiny unless, of course, they violated human rights or there was a matter of statutory competence: this was the situation in pre-Independence Indian rule under the various Indian Government Acts, and it remained so after independence.Nevertheless, as the 1960s and 1970s saw a gradual decrease in the legislative efficiency of the Parliament (as well as state legislative assemblies) and the number and amount of ordinances started to increase. Ordinances have essentially become a parallel form of regulation (a condition that still prevails today). Matters eventually came to the front of the Supreme Court in D.C. Wadhwa v. State of Bihar.[4]

The state of Bihar has been governed through the Ordinances for a decade and a half.The State Executive will indeed promulgate an ordinance, allow it to lapse when the Assembly comes into session, and then, when the session is over, re-produce the same Ordinance – again and again.

 In D.C. Wadhwa, the Court stated this as a fraud on the Constitution, and held that, “barring exceptional circumstances, re-promulgated ordinances would be void. This marked the first significant intervention to regulate the Ordinance-making power through judicial review.”

Fundamental Rights can be Reasonable Restricted by an Ordinance

Article 13 of the Indian Constitution States the Laws inconsistent with or in derogation of the Fundamental Rights:

  1. “All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void
  2. The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void
  3.  In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas
  4. Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality”

It is very clear from Article 13 of the Indian Constitution which states that law includes any kind of Ordinance. Also, reasonable restrictions can be placed on ordinances as they are part of both Substantive and Procedural elements of law. 

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As stated by Mukherjee, J; “reasonableness of restrictions meant reasonable- ness of all the aspects of restrictions, and therefore, both the substantive and procedural aspects of the restrictions were justiciable.” Also mentioned by Abraham in H.J: Freedom and the Court that “substantive due process as referring to the content or subject-matter of a law, an ordinance, whereas due process refers to the manner in which a law, an ordinance or an administrative practice, or a judicial task is carried out.”[5]

Conclusion

It can be concluded that an ordinance cannot completely restrict the Fundamental Rights of the citizen. However, they can place reasonable restrictions as ordinances are also laws as stated under Article 13(3) of the Indian Constitution. As stated by Mukherjee, J, the question of reasonableness will arise from the substantive part of that law as much from its procedural portion. Hence, as Ordinance do fall under the substantive as well as procedural parts of the law, there comes the question of reasonableness also. Therefore, restrictions are reasonable on both the aspects of law.

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[1]V.G Row v. State of Madras, AIR 1952 Mad 147.

[2]Dr N.B Khare v. State of Delhi, 1950 AIR 211

[3]A.K Roy v. Union of India, (1982) 1 SCC 271.

[4]D.C Wadhwa v. State of Bihar, 1987 AIR 579.

[5]Abraham, H.J: Freedom and Court, p. 110