Colonial hangover

Ordinance making power of the president and that of governor is a colonial legacy and is not found in any other Commonwealth constitution.

Congress vice-president Rahul Gandhi pitched in at the last moment to lambast the ordinance to save the convicted MPs and MLAs as “complete nonsense.” President Pranab Mukherjee has already embarrassed the government by asking what was the hurry to push the ordinance. Prime minister Manmohan Singh reacted immediately from the USA that he had received the letter of Rahul Gandhi and the cabinet would discuss it once he returned from abroad.

Rahul has arraigned the government led by his own party. This is people’s power and the moral whip which leaders like Mahatma Gandhi and Jayaprakash Narayan (JP) espoused so passionately. Gandhi suggested to disband the Congress and form Lok Sevak Sangh for serving the society as the Congress had achieved its objective of attaining the independence. JP kept himself scrupulously away from power as he fervently felt that the best cadres of the party should stay away from electoral politics to act as the moral whip on the government. The Opposition has slammed Rahul’s move as belated and an exercise in damage control as the popular sentiment is against any move to protect tainted leaders. Even if it be so, it is still laudable that Rahul felt the people’s pulse and respected their feelings. This is what democracy means.

It is now almost certain that the government will withdraw the ordinance. The question is, as the president has raised, what was the urgency to push it through. Many political parties openly charged the government of giving a return gift to Lalu Prasad who supported the JMM-Congress government in Jharkhand and has been supporting the UPA government at the Centre. Whatever be the politics behind it, Manmohan Singh has time and again talked about the compulsions of coalition politics. In this case, however, the government definitely miscalculated by pushing the ordinance.

Issuing ordinances is the constitutional power of the government. Articles 123 and 213 authorise the president and the governors of states respectively to issue ordinances when the House is not in session to meet any exigency. An ordinance has all the powers of an Act but it has to be laid before the House in the immediate next session and cease to operate at the expiration of six weeks from the reassembly of the House. Clause (4) was added to Articles 123 and 213 by the 38th Constitutional amendment that the satisfaction of the president (Art. 123) and the governor (Art. 213) shall be final and conclusive and shall not be questioned in any court on any ground. However, the 44th amendment deleted it. The Supreme Court was asked to adjudicate on the issue of judicial review of the ordinance in respect of the passing of the National Security Ordinance, 1980. The court held that the judicial review of the president’s satisfaction was not totally beyond the pale.

Abundantly clear

The ordinance making power of the president and that of governor is a colonial legacy inherited from the Government of India Act, 1935, and is not found in any other Commonwealth Constitution. This makes it abundantly clear that the government can meet any exigencies even without the ordiance making power. However, in support of the ordinance-making power, B R Ambedkar said in the Constituent Assembly, “…it is difficult to imagine cases where the power conferred by the ordinary law existing at any particular moment may be deficient to deal with a situation which may suddenly and immediately arise. What is the executive to do? The executive has got a new situation which it must deal with ex hypothesi. It has not got the power to deal with that in the existing code of law.”

However, it is now well-settled that the ordinance-making power has to be used sparingly only to meet emergent situations. It is difficult to find any justification for the hurry to upturn the judgment of the Supreme Court in Lily Thomas v. Union of India, delivered on July 10 last which declared Section 8(4) of the Representation of People Act. 1951, ultra vires of Articles 102 and 191 of the Constitution. These two article deal respectively with the disqualification of MPs and MLAs. The government also filed a review petition against it which was heard in the open court though it seldom happens and was dismissed.

Then the government introduced the Representation of People (Second Amendment and Validation) Bill, 2013, in Rajya Sabha which sought to negate the apex court verdict on immediate disqualification. The chairman of Rajya Sabha referred it to the standing committee. The Opposition has objected to the ordinance on this ground that when the standing committee is seized of the matter, the government should not rush it through. This is a constitutional power that has to be used with circumspection.
But this power has been grossly abused in the past. In D C Wadhwa v. State of Bihar, the Supreme Court found that the government was run by ordinances as the same ordinance was re-promulgated again and again. In fact, during his research on agrarian reforms in Bihar, Prof D C Wadhwa found that an ordinance had a life of up to 14 years as the same ordinance was re-promulgated again and again after expiry.

In 1993, 34 ordinances were repeatedly issued by the Union government. Many a time, ordinances have lapsed as they were not approved by Parliament.  In 2004, a week after the winter session ended, the government issued an ordinance to give the Pension Fund Regulatory Authority statutory powers as a regulator. Due to political opposition, the ordinance lapsed, and subsequently, the bill lapsed at the end of the 14th Lok Sabha. The government re-introduced the bill in 2011, which is currently pending.

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