Guest post by APURV MISHRA
The Roman legalist Julius Paulus once said that, “One who contravenes the intention of a statute without disobeying its actual words, commits a fraud on it.” With the model code of conduct declared on Wednesday, the country was spared the possibility of a fresh round of ordinances that would have amounted to yet another fraud on the constitution by the UPA government. Believers in constitutionalism, for whom a constitutional impropriety is as disturbing as a blatantly unconstitutional act, can now breathe a temporary sigh of relief.
The phrase “fraud on the constitution” is not of my own making. It was used by the Supreme Court in a case that at once represents the best and worst of Indian polity. Between 1967 and 1981, the governor of Bihar promulgated an astonishing 256 ordinances which were kept alive for up to 14 years, including a fateful day on which 50 ordinances were passed at one go. The state assembly meanwhile, passed only 189 Acts in the same period. This was a brazen disregard for the basic structure of our constitution of which “separation of power” is an essential component- a simple and intuitive scheme where the legislature makes laws after careful deliberations and the executive branch of the government implements them.
It required two extraordinary individuals to put an end to this “complete nonsense”- Dr D C Wadhwa, who meticulously collected data on the systematic abuse of power by the Bihar government at grave personal cost and then-Chief Justice of India P N Bhagwati, who delivered an outstanding judgment (on the PIL filed by Dr Wadhwa ) which stated in no uncertain terms that the power to promulgate an ordinance is essentially an emergency power to be used to meet an extraordinary situation and “it cannot be allowed to be perverted to serve political ends.”
The power to make an ordinance rests on a simple premise that since the executive enjoys the confidence of the legislature, it should be allowed to pass temporary laws which address unforeseen emergencies that may arise when the parliament is not in session.
The six proposed anti-corruption ordinances failed both the “emergency test” and the “confidence test”. All of them were based on a pending bill, over which considerable public debate has happened both inside and outside the parliament in the last few years. The very fact that these bills have been drafted, analysed and revised over a long period of time takes away the justification for an ordinance- a tool to be used precisely when such discourse is impossible i.e. an emergency. This was further complicated by the fact that the budget session was the last session of the 15th Lok Sabha and there were no further sessions in which the present legislature (whose confidence this executive enjoyed) could decide the validity of these ordinances.
Of course, these concerns were minor irritants for the Congress party which works on the principle that what Rahul wants, Rahul shall get. It needed an extraordinarily vigilant President and the possibility of a political backlash this election season to stop the plan from consummating.
This disturbing precedent of using ordinances as a tool of administrative efficiency and convenience was established in 1954 during Nehru’s tenure, when his cabinet came out with an ordinance to nationalise life insurance business in India just three weeks after the winter session had ended and the budget session was less than a month away.
The first speaker of Lok Sabha, Ganesh Mavalankar, who was in office then, made some prescient remarks on that development which are worth repeating: “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… 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 the ordinances.”
Between 1952 and 2013, the central government promulgated 659 ordinances under Article 123 of the constitution (including 11 in 2013, the highest since 2001), which means that ideally there should have been 659 unforeseen emergencies. In his book Presidential Legislation in India, Shubhankar Dam studied 614 ordinances issued by Parliament between 1952 and 2006. He concluded that with a single exception (the demonetization of Rs 1000, Rs 5000 and Rs 10,000 notes by the Janta government in 1978) every other law could have waited for the next session of the Parliament.
The primary reason why Articles 123 and 213 (under which the Governor issues ordinances) have been and will continue to be misused by future governments is that there no legal restraints on its application. The necessity of immediate action is contingent only on the President’s satisfaction, which is purely subjective and not a justiciable matter; whatever the executive decides is final. So, if the President is willing to play ball (which thankfully did not happen in the present case), there is nothing to stop the party in power to continue issuing ordinances ad infinitum.
The condition of “subjective satisfaction of the President” was responsible for a similar perversion of Article 356 of our constitution by earlier Congress governments, especially during Indira Gandhi’s reign. Between 1966-77, Indira Gandhi dismissed state governments and declared state emergency 39 times under the pretext of “failure of constitutional machinery”. On February 18, 1980, when she came back to power in the aftermath of the failed Janta experiment, 9 state governments of the opposition parties were dismissed on a single day without even waiting for the governor’s report- the reason given was that since opposition had lost the national elections, they did not enjoy the people’s confidence to continue even in the states. Clearly, Rule of Law had taken a day off.
This flagrant abuse of Article 356 finally stopped in 1994 after the S R Bommai case, in which the Supreme Court declared that the President’s power to declare a state emergency is justiciable and subject to judicial review to the extent of evaluating whether sufficient conditions existed for the dismissal of state governments. We will need a similar judgment from the Supreme Court that allows a judicial challenge to the claim of urgency by the executive, if we want to permanently end the misuse of ordinance-making power.
None of the other mature democracies including USA, Canada, Britain (which gave us the idea in Government of India Act, 1935) have a provision for ordinance in their constitution. Instead, the parliament is reconvened for an emergency session if the need arises because legislative accountability is a non-negotiable virtue.
Dr Ambedkar, while introducing the draft constitution in the Constituent Assembly, spoke about constitutional morality and remarked “…it is perfectly possible to pervert the Constitution, without changing its form by merely changing its form of administration and to make it inconsistent and opposed to the spirit of the Constitution.”
659 ordinances in 60 years is a constitutional obscenity which has been allowed to be normalised by a surprisingly quiet judiciary. Courts perform a legitimating function in a democracy by assuring its citizens that the government is acting within constitutional limits. They should judge institutional innovations by a strict interpretation of the original intent of the Constituent Assembly. If our constitutional fabric is allowed to be tailored to the politics of the day, let’s stop pretending that the constitution acts as a check against arbitrary power.
Apurv Mishra is Young India Fellow at Ashoka University