A slippery route

President Pranab Mukherjee showed statesmanship in signing ordinances though they were improper and then proceeded to give a stern warning on January 19 no more.

A veteran Congress-man, 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, MV Act and citizenship rights for India’s diaspora.

The reasons cited were obstruction of proceedings by the Opposition in the LS and lack of majority in the RS. The ordinances must be ratified by Parliament within six weeks 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 January 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 empowers the President to promulgate ordinances.

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 ordinances.”

The recess of Parliament is one condition. The other is the President’s (i.e. the Centre’s) belief that circumstances had arisen after Parliament went into recess, “which render it necessary for him to take action”.

On May 23, 1949, B.R. Ambedkar explained the provision in the Constituent Assembly: “It is not difficult to imagine cases where the powers conferred by the ordinary law may be deficient to deal with a situation which may suddenly arise.”

In 1969, the SC noted the limitations. “Exercise of the power is strictly conditioned” and 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 court to strike it down if circumstances do not exist.

In 1980, the court described ordinances as “emergent legislation.” The power is “hedged in by limitations. The SC recalled Ambedkar’s words 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 ordinances. In 1979 President Sanjiva Reddy and in 1996 President Shankar Dayal Sharma, refused to do so.

Abuses can become rampant. Some states ruled by decree for years. Both Parliament and the state Assembly can be prorogued on the advice, respectively, of the PM or the CM. An ordinance is then promulgated.

The legislature meets; if it refuses to ratify the ordinance it is prorogued again and the ordinance re-promulgated.

This is a clear perversion of Article 123. It began no sooner than the Constitution was enacted. Speaker G.V. Mavalankar protested on November 23, 1950: “The procedure for promulgation of ordinances is undemocratic.”

This brings us to the aspect of constitutional obscenity. In no other democracy is the executive empowered to legislate.

The US Constitution enacted in the 18th century, the Canadian Constitution enacted in the 19th century and the Australian Constitution confer no such power on the executive.

Did the considerations mentioned by Ambedkar and the SC not exist then? In Britain 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 lawyer based in Mumbai

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