The ordinances promulgated by Presidents and governors in South Asian countries are a constitutional obscenity. They find no place in any other democracy. Habits die hard, it is said; but bad habits take much longer to expire.
Thanks to President Pranab Mukherjee’s assertion of power, the Indian government was spared humiliation in court as it tried to secure the promulgation of ordinances which were Rahul Gandhi’s pet projects in order to burnish his image as a crusader against corruption.
There were six bills: the Judicial Standards and Accountability Bill, 2010; the Whistle Blowers’ Protection Bill, 2011; the Right of Citizens for Time Bound Delivery of Goods and Services and Redressal of their Grievances Bill, 2011; the Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations Bill, 2011; the Prevention of Corruption (Amendment) Bill, 2013; the Public Procurement Bill, 2012.
They could not be enacted by the Lok Sabha before it dispersed on the eve of elections. Soon thereafter, Rahul Gandhi had a brainwave — press the government to get the Indian President to promulgate all six as ordinances. Meetings of the Congress “core group” followed. Some members held meetings with the President to convince him of the urgency of the laws. He gave them no encouragement. By March 4, the government belatedly gave up its pursuit.
The obscenity that is the ordinance is nearly a century old. It first entered India under the Government of India Act, 1919 which set up legislatures independent of the executive, albeit with limited powers. Section 72 empowered the governor-general to promulgate ordinances only “in cases of emergency”. The Government of India Act, 1935 used a weaker formulation — “circumstances exist which render it necessary for (the governor-general) to take immediate action”. However, it imposed a curb “when the federal legislature is not in session”.
The framers of India’s Constitution adopted the 1935 formulation in Article 123 of the Constitution with regard to the President and Article 213 with regard to the governors.
The Supreme Court of India has ruled that speeches in the Constituent Assembly by the framers of the Constitution are relevant. On May 23, 1949, Dr B.R. Ambedkar, chairman of its drafting committee, said 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… the only solution is to confer upon the President the power to promulgate the law which will enable the executive to deal with the particular situation because it cannot resort to the ordinary process of law because the legislature is not in session”. In other democracies, Parliament is summoned to deal with the crisis. It was a poor excuse.
But this authoritative exposition alone should have sufficed to nip Mr Gandhi’s project in the bud. Nothing had arisen “suddenly and immediately” and there was surely no “emergency” to justify the ordinances.
The Supreme Court has indicated that the power to promulgate ordinances is open to judicial review and that the President’s subjective opinion as to its necessity is not decisive. In the banks nationalisation case (1970), the court pointed out that “exercise of the power is strictly conditioned” and “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”.
In 1981, the Supreme Court referred to ordinances as “emergent legislation” to deal with an “emergent situation”. The power is hedged by limitations and conditions. That very year, the court, while pronouncing on the validity of the National Security Ordinance, 1980, recalled
Dr Ambedkar’s exposition: “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, an assurance to the people that an extraordinary power shall not be used in order to perpetuate a fraud on the Constitution.”
It is hard to find a more accurate description for the ordinances that were being contemplated on those six bills. In 1996, President Shankar Dayal Sharma had refused to sign into law an ordinance for political ends on the eve of elections. The Indian government and the people owe deep gratitude to the President.
