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.