Presidential promulgation undermines the judiciary

More than a decade ago, the Supreme Court had pulled up the Bihar Government for promulgating one ordinance too many. At that time, the court had been concerned about the undermining of the legislature, because promulgations were being revalidated every six months instead of being moved as Bills in the legislature. This time round, however, the court itself is at the receiving end because the ordinance on housing is directed against its own ruling. The housing issue is more complicated than it looks, and some of the 1,800 people on the hit list were being evicted for no fault of theirs. They had been allotted housing under an earlier dispensation, which the court ruling overturned. But in apparently safeguarding the interests of a few genuine allottees, the government has undermined the authority of the apex court. Anyway, it was a political decision, and it was touching the way all parties came together on the issue and discovered that they had no differences whatsoever. In reality, the political class as a whole safeguarded its own interest.

The ordinance amounts to simple contempt of court. The three wings of the government form part of a system of checks and balances, but going by precedent, the judiciary has always enjoyed the moral high ground. It is entrusted with the function of interpreting — and thereby safeguarding — the Constitution. It enjoys the right to declare a legislation unconstitutional. The legislature, on the other hand, cannot overturn a particular court ruling except in extraordinary situations. Protecting the interests of those who jumped the queue for government housing cannot certainly be one of them. Ordinarily, it can control only the manner in which the judiciary functions. Recently, it also subverted a ruling on aquaculture by reclassifying the industry and bringing it under the head of agriculture. But this time, by openly challenging the validity of a court ruling, it has set a particularly dangerous precedent.

In recent times, the government has again come to rely on promulgations, and they are being timed so as to prevent the discussion of issues, one of the basic precepts of the democratic system. The eligibility criteria for a presidential candidate were reworked just before nominations were to be filed for the election. If there was indeed concern about keeping frivolous candidates out, it could have been ironed out long ago, in the five years since the last election. By promulgating an ordinance at the eleventh hour, the government conveyed the unseemly impression that it was keen on keeping certain candidates out of the running. Now, scant days before the court’s deadline on evictions is to run out, the government has come up with another ordinance. In the months since Sheila Kaul and P.K. Thungon were pulled up for being rather too discretionary with their powers, surely the government could have piloted a Bill in Parliament and ironed out the issue once and for all. It has failed to do that. It is almost like governing on borrowed time.