When not to use power

When not to use power

At least as far as promulgating ordinances is concerned, Prime Minister Narendra Modi is actually following in the footsteps of Jawaharlal Nehru. For instance, in 1956, about three weeks after the winter session of Parliament ended, and with less than a month to go for the budget session, an ordinance nationalising life insurance businesses was promulgated.

While Lok Sabha Speaker Sumitra Mahajan is unlikely to object to the string of ordinances that have been recently promulgated, Nehru was severely criticised by the first speaker, G. Mavalankar, who, in 1950, wrote:

“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.”

Further, in 1954, he wrote:

“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 [them].”

Members of the Constituent Assembly were apprehensive about giving the executive ordinance-making powers. Both H.N. Kunzru and K.T. Shah called for restricting these powers through greater legislative oversight. Neither the United States nor the United Kingdom confers such powers on the executive. In India, these powers are the legacy of the British Raj and Government of India Act, 1935.

Mavalankar’s prophetic observations came true. Between 1952 and 2014, as many as 668 ordinances were promulgated by the president in the name of emergency. With the sole exception of the demonetisation of Rs 1,000, Rs 5,000 and Rs 10,000 notes in 1978, every other ordinance could have easily waited for the next session of Parliament. The bank nationalisation ordinance, for instance, was promulgated just two days before the convening of Parliament.

The record of governors in promulgating ordinances is far more depressing. Take Bihar, for example, where between 1967 and 1981, the governor promulgated 256 ordinances, while the assembly enacted only 189 laws. Of them, many ordinances were re-promulgated several times — the sugarcane ordinance, for instance, was promulgated and re-promulgated for as many as 13 years. No other democracy can match Bihar’s record of promulgating 50 ordinances in one day.

The apex court rightly observed:

“The power to promulgate an ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be perverted to serve political ends.” Further, the court said, “If the executive were permitted to continue the provisions of an ordinance in force by adopting the methodology of re-promulgation without submitting to the voice of the legislature, it would be nothing short of usurpation by the executive of the law-making function of the legislature.”
Frequently passing ordinances violates the principle of separation of powers. The executive taking over legislative business is nothing but a subversion of the democratic process, the very core of constitutionalism, and the idea of limited government.

We have reached this stage because our judiciary has refused to see the difference between a legislative act and an ordinance. It treats both as law. Accordingly, it has been held that the executive’s motive for promulgating an ordinance is not open to judicial review, as courts cannot look into the motive for passing a legislative act. Thus, an ordinance cannot be invalidated on the grounds of either non-application of mind or ulterior motive.

In doing so, the courts have equated the legislature with the executive. But while ordinances have the same effect as laws, their promulgation is not preceded by debates and does not reflect the will of the nation. Legislative malice should certainly be beyond the pale of judicial review, but ordinances should be subject to close judicial scrutiny. The Constitution itself does not treat an ordinance at par with an act. The former is a temporary measure while the latter stands until it is repealed. An ordinance is certainly inferior to legislation and thus cannot have the same protection from judicial review.

The president’s “satisfaction” that an ordinance is warranted by an emergency should be reviewable. Indira Gandhi made sure it remained unquestionable by the 38th Amendment. But this was later undone by the 44th Amendment, passed during the Janata regime.

Prior to the Lok Sabha elections, when the UPA wanted to promulgate six anti-corruption ordinances, the BJP rightly opposed it. Today, it cannot talk in an entirely different voice. Constitutional experts were shocked when, shortly after taking charge, the NDA promulgated an ordinance so that a bureaucrat of Modi’s choice could be inducted into the PMO. Though the NDA’s ordinances are not in conflict with the text of the Constitution, they certainly go against its spirit. The Roman jurist, Julius Paulus, rightly observed that “One who contravenes the intention of a statute without disobeying its actual words, commits a fraud on it.”

Faizan Mustafa Vice chancellor, Nalsar University of Law, Hyderabad