The Opposition is targeting the government for issuing ordinances immediately after the Winter Session. The critics term it as an insult to Parliament while the government’s defence is that it was left with no option in the face of obstructionism by the Opposition in the Rajya Sabha. The obstreperous Opposition in the House of Elders did not allow any business to be transacted.
Under Articles 123 of the Constitution, the President is empowered to promulgate ordinances during the recess of Parliament. Article 213 bequeaths similar power to governors in states. The ordinance-making power of the President is a unique feature of the Indian Constitution which does not find any place in any other Constitution of the Commonwealth. It is an atavistic hand-me-down from the Government of India Act, 1935. In fact, approximately 250 clauses of the act were directly incorporated into the Constitution.
However, this power to promulgate ordinances is a kind of emergency power which can be exercised when the President is satisfied that the circumstances exist which render it necessary for him to take immediate action. Clause (4) was added to both Articles 123 and 213 that the satisfaction of the President and governor respectively shall be final and shall not be questioned in any court on any ground. But it was omitted by the 44th Amendment Act, 1978, Section 16 with effect from June 20, 1979.
In A.K. Roy vs Union of India, the Supreme Court was asked to decide on the justiciability of the President’s satisfaction in the light of the 44th Amendment Act, the court held that “it is arguable that the 44th Constitution Amendment Act leaves no doubt that judicial review is not totally excluded in regard to the question relating to the President’s satisfaction”, but it declined to pronounce on the issue as the ordinance (challenged in the case) had been substituted by an act of Parliament by then.
The apprehension of some members of the Constituent Assembly that the power might be misused has come true. Since August 15, 1947, 779 ordinances have been promulgated. Two hundred ordinances were issued in Jawaharlal Nehru’s tenure. Since he was in the chair for 6,126 days, on an average, an ordinance was promulgated every 30th day. Some 208 ordinances were promulgated by Indira Gandhi, who held office for 5,825 days — making it an ordinance every 28th day. During Narasimha Rao’s term an ordinance was issued every 16th day and every 39th day during Vajpayee’s tenure. Shastri who held office for 581 days only issued nine ordinances — one ordinance every 65th day.
This power was put to utter abuse in Bihar, where about 2,000 ordinances were promulgated between 1971 and 1981. Not only that, Bihar was being run by ordinances as the same ordinance was re-promulgated again and again immediately after its expiry as an ordinance has a short life. Since it is promulgated when the legislature is not in session to meet extraordinary situations, it has to be replaced by an act within six weeks after the commencement of a session. The maximum life of an ordinance can be seven months and 12 days. However, Prof. D.C. Wadhwa, who worked on agrarian reforms in Bihar, discovered that some ordinances were kept in force for as long as 14 years by re-promulgation. He challenged it in the Supreme Court terming it as a fraud on the Constitution. The court accepted his contention.
It is curious that every government takes recourse to ordinances and the Opposition cries foul. The Congress’ version is not convincing as it used this power frequently. Political parties take a somersault with change of benches. Disruption of Parliament is a legitimate weapon for the Opposition but there is a volte face in its thinking when it shifts to the treasury bench. Similarly, ordinances are a legitimate weapon for the government if the Opposition is unruly, but it changes tack when eased out of the treasury bench. Political parties must learn to respect the national interest instead of scoring brownie points for which there are umpteen opportunities. The Opposition can put the government on mat in Parliament if it functions properly, but disruption makes news, and so that is the best way to make its presence felt. The media should also learn to give space to serious debates that will encourage our MPs to desist from disruption and participate in meaningful debate.
The writer is a senior TV journalist and author
