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PRESIDENT Pranab Mukherjee showed statesmanship in signing a slew of ordinances though they were improper and then proceeded to give a stern warning on Jan 19 — no more.
A veteran Congressman, he did not want a clash with the BJP government. There were at least 10 of them on diverse matters like FDI limit in the insurance sector, auction of coal mines, land acquisition, Motor Vehicles Act and citizenship rights for India’s diaspora. None of any urgency.
The reasons cited were obstruction of proceedings by the opposition in the Lok Sabha and lack of majority in the Rajya Sabha. The ordinances must be ratified by parliament within six weeks after it reconvenes on Feb 23 or they lapse.
The president first summoned senior ministers of the Modi government to explain the urgency of the ordinances. This was necessary in order to impress on the government the fact that the president is not a rubberstamp. He next went public on this issue. Addressing the students and faculty of central universities and research institutes on ‘Parliament and Policymaking’ in New Delhi on Jan 19, he delivered two warnings.
First “the ordinance route cannot be taken, should not be taken for normal legislation”. It was an “extraordinary power”. Secondly “a noisy minority [in parliament] cannot be allowed to gag a patient majority”.
Involved are two basic issues. One concerns constitutional perversion; the other concerns constitutional obscenity. Article 123 of the constitution empowers the president to promulgate ordinances (Article 213 so empowers governors). It stipulates two conditions: “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.”
Recess of parliament is one condition. The other is the president’s (ie the government of India’s) belief that circumstances had arisen after parliament went into recess, “which render it necessary for him to take immediate action”.
Ordinances can lead to rule by decree.
On May 23, 1949, Dr Ambedkar explained the provision in the Constituent Assembly: “It is not difficult to imagine cases where the powers conferred by the ordinary law at any particular moment may be deficient to deal with a situation which may suddenly and immediately arise… The emergency must be dealt with”.
In 1969, the Supreme Court noted the limitations. “Exercise of the power is strictly conditioned” and pointedly remarked: “Determination by the president of the existence of circumstances and the necessity to take immediate action on which the satisfaction depends, is not declared final”. It is open to the court to strike it down if those circumstances do not exist.
In 1980, the court described ordinances as “emergent legislation” to deal with an “emergent situation”. The power is “hedged in by limitations and conditions”. The Supreme Court recalled Dr Ambedkar’s exposition in the Constituent Assembly and said: “That power was to be used to meet extraordinary situations and not perverted to serve political ends. The Constituent Assembly held forth, as it were, that an extraordinary power shall not be used in order to perpetrate a fraud on the constitution.” Two presidents refused to sign the ordinances. In 1979 president Sanjiva Reddy and in 1996 president Shankar Dayal Sharma, refused to do so.
Abuses can become rampant. Some state governments ruled by decree for years. Both parliament and the state assembly can be prorogued on the advice, respectively, of the prime minister or the chief minister. An ordinance is then promulgated. The legislature meets; if it refuses to ratify the ordinance it is prorogued again and the Ordinance re-promulgated.
A political scientist traced this abuse and documented it in a voluminous work. The Supreme Court disapproved of it only to leave a loophole of extreme circumstances. Re-promulgations have abated since the original vice continues.
This is a clear perversion of Article 123. It began no sooner than the constitution was enacted. The Speaker G. V. Mavalankar protested on Nov 23, 1950: “The procedure of the promulgation of ordinances is inherently undemocratic.”
This brings us to the aspect of constitutional obscenity. In no other democracy is the executive empowered to legislate even for a brief period. The US constitution enacted in the 18th century, the Canadian constitution enacted in the 19th century and the Australian constitution enacted in 1900 confer no such power on the executive, each is of sprawling size. Did the considerations mentioned by Ambedkar and the Supreme Court not exist then?
In Britain, as in these countries, the executive can legislate only under law promulgated by the legislature in what is called “delegated legislation”. It was introduced by the Government of India Acts 1919 and 1935, and is a relic of the Raj; an insult to democracy.
The writer is an author and a lawyer based in Mumbai.
Published in Dawn January 24th , 2015
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