Come to the House
Government must avoid the temptation to bypass the legislature.
In the case of ‘D.C. Wadhwa vs State of Bihar’, 1987, the Supreme Court stated that the power conferred on the president or governor to issue ordinances is in the nature of an emergency power.
A new session of Parliament has started, with a slew of ordinances to pass. Nine ordinances were recently promulgated by the NDA government and, for the first time since the Constitution came into force in 1950, the president spoke out on the government’s habit of passing them indiscriminately. President Pranab Mukherjee doubted if such measures were justified — at one point, he even called three senior ministers to explain the need for an ordinance. Later, in his address to the Central universities, he voiced concern on laws being enacted as ordinances, without going through the due process in Parliament. In his presidential address on the eve of Republic Day, he again stressed the same point: “Enacting laws without discussion impacts on the law-making role of Parliament. It breaches the trust reposed by the people in it.”
The ordinances issued by the government after the prorogation of Parliament include: the Mines and Minerals (Development and Regulation) Amendment Ordinance, 2015, the Motor Vehicles (Amendment) Ordinance, 2015, the Citizenship (Amendment) Ordinance, 2015, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2014, the Insurance Laws (Amendment), Ordinance, 2014, the Coal Mines (Special Provisions) Second Ordinance, 2014, the Securities Laws (Amendment) Ordinance, 2014, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Ordinance, 2014, and the Textile Undertakings (Nationalisation) Laws (Amendment and Validation) Ordinance, 2014.
Even before this lot, the present government began its term with an ordinance to amend the Telecom Regulatory Authority of India (Trai) Act, which prohibited its former chairman, Nripendra Misra, from being appointed as principal secretary to Prime Minister Narendra Modi. The Trai (Amendment) Ordinance, 2014, removed the prohibitions on the chairperson from being employed by government. The ordinance was for purely personal convenience and no public purpose was served by it.
In routinely issuing ordinances, the present government is merely continuing with the practice of its predecessors. Under Article 123 of the Constitution, an ordinance can only be promulgated if the president is satisfied that there are circumstances which render it necessary for him to take immediate action, at a time when neither House of Parliament is in session. The ordinance so promulgated would have the same effect as an act of Parliament but would cease to operate six weeks after Parliament reassembled. In 1954, G.V. Mavalankar, India’s first speaker, cautioned Nehru about the precedent of issuing ordinances. He said “If ordinances were not limited by convention only to extreme and urgent cases, the result would be that in future the government may go on issuing ordinances giving the Lok Sabha no option but to rubber stamp.” Mavalankar’s concerns have been ignored by all governments. Since 1952, there have been 646 ordinances issued by different governments, disregarding the provision that an emergency was required to promulgate an ordinance.
In the case of D.C. Wadhwa vs State of Bihar, 1987, the Supreme Court stated that the power conferred on the president or governor to issue ordinances is in the nature of an emergency power. It is meant for taking immediate action, where such action may become necessary, at a time when the legislature is not in session. The court stressed that it is only because the government cannot take immediate action, and the public interest may suffer because of the legislature’s inability to pass a law to deal with an emergent situation, that the president is vested with the power to promulgate ordinances. The court also stated that once Parliament had reassembled and the ordinance had expired, an ordinance passed by the president or governor could not be reissued. Except the Coal Mines (Special Provision) Second Ordinance, 2014, none of the ordinances issued by the government have been necessitated by an urgent situation. So the president has rightly expressed his dissatisfaction with the impropriety of the nine ordinances recently issued. Because of the reservations voiced by him, another proposed ordinance, to amend the Arbitration and Conciliation Act, was dropped.
The present government feels unable to pass bills because the BJP has only 45 MPs in the Rajya Sabha and because of the disruption of the House’s proceedings by the Opposition. Fearing roadblocks in the Rajya Sabha, the government resorted to ordinances. Now that Parliament has reassembled, bills embodying the legislative content of the nine ordinances may not have a smooth passage in the Rajya Sabha and the ordinances will come to an end in six weeks. In the meantime, the ordinances promulgated by the executive have the same effect as laws enacted by Parliament. Such a situation, in which the executive makes the law, subverts the basis of parliamentary legislation.
The government, which is aware of this situation, has stated that it would call for a joint session of the Lok Sabha and Rajya Sabha under Section 108 of the Constitution. Needless to say, the present government would command a majority in such a session. But there have only ever been three joint sessions of Parliament. Moreover, under the Constitution, several ordinances cannot be the subject of a joint session of Parliament. Rather than take recourse to such a desperate step, the government should take heed of the apprehensions voiced by President Mukherjee, and put its hastily declared ordinances through the paces of a regular legislative process.
The writer is senior advocate at the Supreme Court, former solicitor general of India and advocate general of Maharashtra.
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