The push for ordinances was a reflection of poor floor management by the UPA. It was also unconstitutional.
The president reportedly refused to entertain the proposals for ordinances on a number of issues that the government now considers important. The main proposals related to important subjects like grievance redress, judicial accountability, etc. The president’s refusal to go the ordinance route was apparently motivated by the constitutional impropriety of promulgating ordinances when the government is going to face elections in a few weeks. This shelved the government’s flagship anti-graft measures, which it thought would bring substantial electoral dividends.
The above measures are no doubt essential to rid the administration of corruption. But these could have been brought before Parliament much earlier, after taking political parties in the opposition on board. If the Telangana bill could be passed by the present Parliament, there is no reason why these anti-graft bills could not have been passed. All that was required was deft floor management in both Houses. These could have been brought before Parliament and passed any time during the last two years as part of the normal legislative plan. If it wasn’t done, it was only because the government didn’t have a thought-out legislative plan.
There seems to have been some confusion in the public mind about how ordinances are promulgated. Article 123 of the Constitution empowers the president to promulgate an ordinance when: one, both Houses of Parliament are not in session; and two, circumstances exist that render it necessary for him to take immediate action. These circumstances can exist any time, but if they exist when both Houses of Parliament are in session, immediate legislation could meet the urgency of the situation. But if they arise when the Houses are not in session, the president can legislate temporarily, exercising his power under the above article. The necessity to take immediate action because of the circumstances is the ground on which an ordinance is promulgated. Using this power, ordinances have been promulgated even in respect of bills before Parliament. It has been justified on the ground that immediate action was necessary.
It seems, though, that the government was unable to show the existence of such circumstances when its ministers met the president. An ordinance is not and cannot be an answer to the lack of a proper legislative strategy. Anti-graft measures are necessary at all times and should have been in the statute books already. These were not to be brought before the nation after February 21 through ordinances, as if graft became serious and urgent only after the conclusion of the last session of the 15th Lok Sabha.
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The media debate on the ordinances has missed an important point that relates to the constitutionality of an ordinance when the current Lok Sabha has concluded its last session. Section 2(a) of Article 123 says that an ordinance shall cease to operate at the expiration of six weeks from the reassembly of Parliament. The word “reassembly” refers to only the next session of the House. The last session of the 15th Lok Sabha has been concluded and it can no longer reassemble. The first session of the 16th Lok Sabha will not be a “reassembly”, but a new Lok Sabha. Constitutionally, each Lok Sabha is independent and dissolution brings about the end of one Lok Sabha and the general elections bring into existence another Lok Sabha. Everything, including the bills originating in and pending before a Lok Sabha, lapses at the time of dissolution.
This means that an ordinance under Article 123 can be promulgated only when the Lok Sabha is capable of reassembly in the next session. In other words, an ordinance can come only between two sessions of the same House. Since the 16th Lok Sabha is not a “reassembly” of the 15th Lok Sabha, no ordinance can be promulgated after the end of the last session of the latter. Further, the marginal note of Article 123 makes it clear that an ordinance is promulgated when Parliament is in recess. Recess, according to the Oxford Dictionary, means a period of time when the proceedings of a parliament, committee, court of law, etc are suspended temporarily. In the context of Parliament, a recess means the intercession between the adjournment of one session and the assembly of the next session of the same House. It does not mean the period between the dissolution of one House and the constitution of the new House. So, the president can exercise the power to legislate under Article 123 only between two sessions of the same Lok Sabha.
That being so, is the government then helpless in taking action in the face of an emergency? The answer is no. An ordinance, after all, is a piece of legislation, and not the only action possible to deal with an emergency situation. Article 123 says that the executive power of the Union is co-extensive with that of Parliament in regard to matters on which laws can be made. The government in exercise of its executive powers can take any step, subject to the provisions of the Constitution, to create bodies and institutions and to meet urgent situations pending legislation by Parliament. But an ordinance should meet the requirements of Article 123 of the Constitution, or it may be tainted by perceptions of unconstitutionality and is liable to be challenged in a court of law.
It must be said that it is a pity that legislation meant to empower citizens and reduce administrative corruption could not be passed by the present Parliament. Attempts to take the ordinance route signified the failure of the normal legislative process, for which all political parties should share the blame. The message coming from the 15th Lok Sabha is that it failed the people of this country, a message that should be kept in mind at the polling booths in April and May.
The writer is a constitutional expert and former secretary general of the Lok Sabha.