AN obscenity not repelled at the very moment of its occurrence gains willing acceptance if it is allowed to persist for long. Three democracies in South Asia — Pakistan, India and Bangladesh — are the only ones in the entire wide world whose executives enjoy legislative power equal to those of their legislatures.

It is a gross constitutional obscenity, unredeemed by the fact that this power lasts for a few months and is exercised when the legislature is not in session. That no other democracy felt such a need in the entire history of democratic governance alone suffices to condemn the power. It lends itself readily to abuse and the record of its exercise, unchecked by serious judicial review, is one of sheer abuse. British rulers of the subcontinent carved out power for London’s representative, the governor-general, when they set up legislatures. Leaders of the three South Asian states adopted the device.

British history itself reveals the obscenity. As far back as in 1611 in the historic Case of Proclamations, the great chief justice of the King’s Bench, Sir Edward Coke, ruled that “the king cannot change any part of the common law, nor create any offence by his proclamation, which was not an offence before, without parliament”, adding that “the king hath no prerogative but that which the law of the land allows him”.

When Britain granted independence to its colonies the constitutions enacted by its parliament conferred no power on their respective heads of state to make ordinances; to wit, the British North America Act, 1867 for Canada; the Commonwealth of Australia Constitution Act, 1900; and the Constitution of the Union of South Africa, 1909.

Seeds of the obscenity were planted in India alone and the plant changed its character as it grew from an emergency power to an alternative form of legislation. Section 72 of the Government of India Act, 1919 empowered the governor-general to promulgate ordinances “in cases of emergency”.

On March 15, 1933, after the roundtable conferences in London were over, the British government published their Proposals for Indian Constitutional Reform. They proposed that the power to promulgate ordinances when the legislature is not in session be conferred on both the governor-general and the governor if their respective ministers “are satisfied … that an emergency exists which renders such a course necessary”.

But this pre-condition of “an emergency” was dropped in the law as it was finally enacted. Section 42 of the Government of India Act, 1935 conferred on the governor-general a blanket power “if he is satisfied that circumstances exist which render it necessary for him to take immediate action”. A similar power was conferred on the governors of the provinces (Section 88). Article 123 of the Indian constitution adopted this very language and so did Article 89 of the Pakistani constitution. Both conferred like powers on the governors.

In glaring contrast the 1948 constitution of what was then Ceylon provided, in Section 15(5), for the recall of a dissolved parliament if the governor-general was “satisfied that an emergency has arisen of such a nature that an earlier meeting of parliament is necessary”. Article 70 (7) of the Sri Lankan constitution (1978) contains an identical provision. This is the standard practice followed by all democracies — recall parliament.

Explaining Article 123 in the Indian constituent assembly on May 23, 1949, Dr B.R. Ambedkar argued that “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.... 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 the law which will enable the executive to deal with that particular situation”. The obvious remedy is to recall parliament as is done in Britain, Canada, Australia and the United States, to name a few. However he did cite the test of an emergency.

As judge of the federal court, Sir Zafrullah Khan ruled in 1943 that the ordinance-making power is subject to a “limitation as to the circumstances in which it can be exercised”. In 1970 the Supreme Court of India held that “exercise of the power [to promulgate an ordinance] is strictly conditioned. The clause relating to ‘satisfaction’ is composite, the satisfaction relates to the existence of circumstances as well as to the necessity to take immediate action on account of these circumstances. 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”.

There was a protracted correspondence on the subject between the speaker of the Lok Sabha, G.V. Mavlankar, and the prime minister, Jawaharlal Nehru, in 1950. Mavlankar complained on Nov 25, 1950. “The procedure of the promulgation of ordinances is inherently undemocratic. Whether an ordinance is justifiable or not, the issue of a large number of ordinances has psychologically a bad effect. The people carry an impression that government is carried on by ordinances.”

Nehru replied on Dec 13, 1950: “I think all of my colleagues will agree with you that the issue of ordinances is normally not desirable and should be avoided except on special and urgent occasions. As to when such an occasion may or may not arise, it is a matter of judgment.”

Mavlankar retorted that: “The issue of an ordinance is undemocratic and cannot be justified except in cases of extreme urgency or emergency … We, as the first Lok Sabha, carry a responsibility of laying down a tradition. It is not a question of present personnel in the government but a question of precedents; and if this ordinance issuing is not limited by convention only to extreme and very urgent cases, the result may be that, in future, the government may go on issuing ordinances giving Lok Sabha no option but to rubber-stamp the ordinances.” That has since come to pass.

The writer is an author and lawyer based in Mumbai.

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Comments (8)

umesh bhagwat
January 11, 2013 10:48 pm
It is high time that we let go of past traditions and look confidently to the future! Our democratic model needs to be restructured. Democracy has to become more transparent and participatory!
January 12, 2013 2:03 am
To my little knowledge, in India Ordinance lapses, if it is not ratified by parliament within six months. There are very many examples where Acts have lapsed due to Parliament not ratifying/ amending them?
January 12, 2013 5:44 am
The government in power normally commands majority in Parliament. The Ordinance is issued when the Parliament is not in session and it would be ratified by Parliament when the session is convened. India, Pakistan, and Bangladesh share a common type of bureaucracy handed to us by the British. Since then the Bureaucrats (originally the ICS officers) later taken over by country-specific service, have indelible impression in their minds that only they can run the government, not the legislators who may not be qualified or trained. This scenario does not exist anywhere else in the world. Where Bureaucracy is heavy, politicians do not have much say in the governance of the country.
January 12, 2013 6:16 am
The author fails to mention an important safeguard - that parliament has to subsequently ratify an ordinance, either as is or in an amended form, or it lapses automatically in six month. This is true of India at least, I do not have any information about the two other countries being critiqued. But in any case, I am sure that other parliaments too have the option of striking down any obnoxious ordinance when they do subsequently convene. While certainly not the most desirable instrument of legislation, it has rarely been abused from what I can tell. In one case, the law was amended for a river water sharing formula - clearly, thirsty people in acute distress cannot wait for parliament to meet!
January 12, 2013 6:25 am
Since when is Pakistan a democracy?
Cyrus Howell
January 12, 2013 11:56 am
Pakistan is not a democracy. It is an imperial system. Democracy is merely the default when dictators are temporarily out of power.
January 12, 2013 5:50 pm
Pak...a democracy...???...stop comparing ur selves to india which is decades ahead of u ...or even Bangladesh which is doin better....pak is the odd one out in the entire region.
Ijaz Ali Chishit
January 12, 2013 6:01 pm
This is very informative, rather reformatory article. This issue need to be debated more in order to find out any domocrative norm to be applied in case of emergancy which is being countered through ordinances being promulgated by the Executive.
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