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.” Continue reading A Temporary Respite from Ordinance Raj: Apurv Mishra