Scope of Judicial Review of the Love-Jihad Ordinance

The executive's ordinance-making power is meant for emergency situations but the assessment of the urgency depends on the subjective satisfaction of the Governor. NAUSHEEN KHAN argues that while evidence often indicates the lack of an emergency, the assessment of the Governor's subjective satisfaction will be decided by the courts subjectively.

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The U.P Governor's recent promulgation of the Prohibition of Unlawful Religious Conversion Ordinance, or Vidhi Virudh Dharm Samparivartan Pratishad Adyadesh, is aimed at restricting religious conversions through marriage, or vice versa. Though not unconstitutional, the ordinance raises larger questions about the justiciability of the subjective satisfaction of the governor.

The legislative powers of the governor of a state under Article 213 are concededly wide, but not absolute. Besides restrictions present in the article itself, the Supreme Court has also laid down certain fetters to the power of promulgation of ordinances.

When can the Governor promulgate an Ordinance?

The power of the executive to legislate through ordinances traces its origin back to the Government of India Act, 1935, which, for the first time, devised an entirely new procedure allowing the viceroy to legislate on any matter without going through the usual parliamentary process.

In fact, India is one of the only three parliamentary democracies in the world that confer upon the executive the power to promulgate ordinances. Not surprisingly, the other two are Pakistan and Bangladesh, which were part of erstwhile India in 1935.

The decision to continue with the system post-independence was made to allow the executive to deal with urgent situations. Babasaheb Ambedkar in Constituent Assembly Debates is recorded to have given the following justification for it:

 "…it is not difficult to imagine cases where the powers conferred by the ordinary law existing at any particular moment may be deficient to deal with a situation which may suddenly and immediately arise. What is the executive to do? The executive has got a new situation arisen, which it must deal with ex hypothesi it has not got the power to deal with that in the existing code of law. The emergency must be dealt with, and it seems to me that the only solution is to confer upon the President the Power to promulgate a law which will enable the executive to deal with that particular situation because it cannot resort to the ordinary process of law because, again ex hypothesi, the legislature is not in session"

As a result, Articles 123 and 213 of the Constitution give power to the President and Governors of States, respectively, to promulgate ordinances when both houses of Parliament or Legislature are not in session and they are satisfied that existing circumstances necessitate immediate action. A strict interpretation of the 'subjective satisfaction of the President/Governor' led to speculation about the unrestricted legislative power of the Executive.

Judicial Review of Governor's Ordinance Making Power

For a long time, courts refused to inquire into the nature of circumstances forming the basis of subjective satisfaction.

In SKG Sugar Ltd. vs. State of Bihar, it was held that the satisfaction is purely subjective and is not a justiciable matter and cannot be questioned on the ground of error of judgement. However, in Cooper vs. Union of India, the Supreme Court deliberated upon the issue of subjective satisfaction, opening the doors or litigation challenging the justiciability of the President's satisfaction even though no decision was made upon the matter.

Further, in A.K. Roy v Union of India, the court stated that the question of subjective satisfaction is not totally excluded from judicial review. It also observed that the power to issue ordinances should not be used recklessly or under an imaginary state of affairs. The power to make an ordinance should be invoked only when it is absolutely necessary to do so.

Hence, as the law stands today, the subjective satisfaction of the Governor regarding the necessity of immediate action can be judicially reviewed.

Conspicuously, the situation of conversion for the purpose of marriage (and vice versa), also called Love Jihad, is not something that has come to light suddenly, or for that matter even as serious as the U.P. government would like to claim.

An SIT investigation in Kanpur revealed that of the 14 cases submitted by 22 police stations under the banner of Love Jihad, there were eight cases where the women were with Muslim men from their own free will. In this situation, one fails to understand what necessitated immediate action.

In D.C. Wadhwa vs State of Bihar the Supreme Court held that "the power conferred on the Governor to issue ordinances is in the nature of an emergency power which is vested in the Governor for taking immediate action where such action may become necessary at a time when the legislature is not in session." (Emphasis mine).

This was reiterated in Gurudevdatta VKSSS Maryadit vs State of Maharashtra which warned against the dangers of unrestricted legislative power to the Executive lest the power be abused. An article in The Print accurately locates this very threat. It states that such laws, although not unconstitutional has the potential to be used in an unconstitutional form.

It is now settled that the power to promulgate ordinance must be used sparingly, only when the situation requires immediate action, and when there are no other effective remedies. The bare text of Article 213 itself stresses the urgency of a situation warranting the issuance of an ordinance.

Is the Love-Jihad Ordinance Constitutional?

Based on precedents and a plain reading of Article 213, it is safe to conclude that the case for the promulgation of The Prohibition of Unlawful Conversion Ordinance, 2020 is not a strong one.

The subjective satisfaction of the Governor is to be based on circumstances that necessitate immediate action, and this subjective satisfaction remains open to judicial review.

While exercising its power of judicial review, if the court finds that the circumstances were not so pressing as to require immediate action, it may very well declare the Ordinance unconstitutional. However, at the present time, no judgement can be passed as to its constitutional validity, for the simple reason that there are no set judicial or constitutional standards defining what constitutes circumstances justifying the promulgation of an ordinance.

To decide on the matter, the court will have to make its own assessment of the situation in Uttar Pradesh and decide whether there is such an emergency. The satisfaction as to urgency, though now examined and decided by the judiciary, remains subjective nonetheless.

As to The Prohibition of Unlawful Conversion Ordinance, there is nothing in the plain text of the constitution describing what constitutes "circumstances necessitating immediate action", hence it would be futile to declare at this stage one way or another. A recent example of an emergent situation requiring immediate action would be the President's ordinance setting up a permanent commission to tackle air pollution in the NCR.

After all is said and done, the question that faces the judiciary is whether or not Love Jihad is an issue of such urgency as to necessitate immediate executive-legislative action.

The Prohibition of Unlawful Conversion Ordinance has been dubbed in popular media as the "Love Jihad Ordinance". The true effect of the Ordinance is yet to be seen, but on a deeper analysis, fears of targeting a particular religious community would not be completely unfounded.

How well it fares in the test of appropriate etymology depends on whether the ordinance is seen objectively as a single instance of legislative action by the executive, or measured against its subjective reception among both supporters and dissenters.

(Nausheen Khan, is studying law at the Campus Law Centre, University of Delhi. Views are personal.)