Legislating through ordinances

President Pranab Mukherjee, in his address on the eve of the Republic Day, cautioned that the ordinance route should be adopted only to meet emergency situations. It was a reiteration of what he said a few days earlier while addressing teachers and students. He also added that stalling parliament is not desirable and that the minority must not try to browbeat the majority by lung power.

These words of caution came from the president in the wake of ordinances issued by the government immediately after the conclusion of the winter session of parliament. The Opposition went hammer and tong against the government for issuing ordinances.

The carping critics term it as an insult to parliament while the government defends that it was left with no option in the face of obstructionism by the Opposition in Rajya Sabha. The obstreperous Opposition in the House of Elders did not allow any business to be transacted, and thus, it could not deliberate on the bills passed by Lok Sabha relating to enhancing the FDI in the insurance sector and coal allocation.

Under Articles 123 of the Constitution, the president is empowered to promulgate ordinances during the recess of parliament. Article 213 bequeaths similar power to the governor, for the state. The ordinance-making power of the president is a unique feature of the Indian Constitution which does not find any place in any other Constitution of the Commonwealth. It is an atavistic hand-me-down from the Government of India Act, 1935.

Emergency power
However, this power to promulgate ordinances is a kind of emergency power which can be exercised when the president is satisfied that the circumstances exist which render it necessary for him to take immediate action.

Clause (4) was added to both Articles 123 and 213 that the satisfaction of the president and governor, respectively, shall be final and shall not be questioned in any court on any ground. But it was omitted by the Constitution (44th Amendment) Act, 1978, S. 16 with effect from 20 June 1979.

In A K Roy v Union (1981), the Supreme Court, which was asked to decide on the justiciability of the president’s satisfaction in the light of the 44th Amendment, held that judicial review is not totally excluded in regard to the question relating to the president’s satisfaction, but it declined to pronounce on the justiciability issue as the ordinance (challenged in the case) had been substituted by an act of parliament by then.

It added that the other reason it was not inclined to go into the question as regards the justiciability of the president’s satisfaction was that on the material which is placed before it, it is impossible for the court to arrive at a conclusion one way or the other.

The founding fathers of the Constitution vested this power in an authority who was least likely to abuse it. However, some members expressed apprehension even in the Constituent Assembly that the power might be misused. The fear has come true.

Since August 15, 1947, a total of 779 ordinances have been promulgated. Of them, 200 ordinances were issued during the period of Jawaharlal Nehru. Since he was in the chair of PM for 6,126 days, on an average, an ordinance was promulgated every 30th day.

Gross abuse
During the era of Indira Gandhi, who held office for 5,825 days, 208 ordinances were promulgated. Thus, an ordinance was issued every 28th day. During the government led by P V Narsimha Rao, an ordinance was issued every 16th day and every 39th day during the Vajpayee government. The minimum recourse to it was taken during the government headed by Lal Bahadur Shastri; only 9 ordinances were issued during his tenure of 581 days which makes it one ordinance every 65th day.

This power was put to utter abuse by the Bihar government which promulgated about 2,000 ordinances between 1971 and 1981. Not only that, the state government was being run by ordinances as the same ordinance was re-promulgated again and again immediately after its expiry. Since it is promulgated when the legislature is not in session to meet extraordinary situations, it has to be replaced by an Act within six weeks after the commencement of the session.

As the gap between two sessions of the House cannot be more than six months, the maximum life of an ordinance can be seven months and 12 days. However, Prof D C Wadhwa, who worked on agrarian reforms in Bihar, discovered that some ordinances were kept in force for as long as 14 years by a contrivance called re-promulgation.

Wadhwa challenged it in the Supreme Court terming it as a fraud on the constitution since the law-making power of the state legislature had been usurped by the executive through ordinances. The Court accepted the contention of the petitioner.

It is curious that every government takes recourse to ordinance-making power and every opposition party cries foul. The Congress’ animadversion is not convincing as it used this power frequently while being in power. However, there should be a larger debate whether the constitution should be amended to dispense with this provision.