Rewind
New Delhi, 23 December 2021
Hacking Blows at the
System
By Inder Jit
(Released on 17
January 1984)
Words. Words. And still more words. Hardly a
day has passed during the past fortnight and more when Mrs. Gandhi has not
emphasized the need to ensure national unity and integrity --- and cautioned
the country against destablisation. India’s unity and integrity today undoubtedly
face an unprecedented challenge. Ironically, however, the threat comes from
within and is mainly of the government’s own making. Assam and Punjab are but
two cases in point. Alas, few have cared to ponder over the question: Who is
destablising whom? Over the decades, unity and integrity of a country have come
to be symbolized by its national flag and its Constitution. The two represent a
country’s basic values and shared ideals. Outwardly, both have been extended
honour and respect in India. But inwardly the traditions they represent and the
basic structure the Constitution provides are under attack. We seem to be busy
hacking the verysystem which holds us together. Protests have been ignored
invariably and facetious explanations offered as, for instance, on the last day
of the winter session of Parliament.
On that day --- December 22 --- the BJP
leaders, Mr. L.K. Advani, did what was needed to be done ever since Dr. D.C.
Wadhwa of the Gokhale Institute of Politics and Economics at Pune came out with
his admirable book: Re-promulgation of Ordinances --- a Fraud on the Constitution.
He brought forward in the Rajya Sabha a notice calling attention to “the
promulgation of substantially the same ordinance again and again in the same
States without replacing them by acts of legislature.” Mr Advani and other
speakers after him, including Mr Dinesh Goswami and MrLadli Mohan Nigam,
forcefully made the point that successive Governments in Bihar belonging to
various political parties had since 1967 brazenly usurped the power of the
legislature to frame laws. In some cases, ordinances promulgated in 1967 had
continued to be in force for as long as 14 years --- until 1981. The ordinances
were promulgated and re-promulgated as a matter of routine. Between 1971 and
1981, the Bihar legislature enacted an average of 15 Acts per year. In
scandalous contrast, the State Government promulgated 178 ordinances per year!
Legislation is basically and exclusively the
privilege of the people’s representatives, namely the legislature. The
Constitutions of all democracies usually make this abundantly clear.
Nevertheless, the founding fathers of India’s Constitution took a leaf out of
the Government of India Act of 1935 and empowered the President or Governor of
a State to promulgate ordinances during the period when Parliament or the State
legislature was not in session. Mercifully, however, the Constitution limits
the life of such ordinances: an ordinance ceases to be law if Parliament or the
State legislature disapproves it by a resolution or replaces it by passing a
law on the subject. In case neither step is taken, the ordinance lapses
automatically at the end of six weeks from the date on which Parliament or the
Legislature meets. Since the Constitution provides that the interval between
two sessions shall not be more than six months, the ordinance can continue to
be in force for a maximum period of seven and a half months.
Successive governments in Bihar followed a
simple procedure for perpetrating the re-promulgation fraud. An ordinance was
promulgated during the inter-session period. The legislature was then convened
at convenience. The legislature was next prorogued before completion of six
weeks so that the ordinance promulgated before the session began did not lapse while
the legislature was in session. Immediately after the legislature was prorogued
and a day or two before the ordinance was due to lapse, the Governor
promulgated another ordinance by which the earlier ordinance was repealed and
exactly the same provisions of the repealed ordinance were incorporated in the
new ordinance. Prior consent of the President wherever required was
expeditiously obtained. This went on and for as long as 14 years. Tragically,
no questions were put either by the President or by the Governor and, worse
still, by the legislature even when it was clear for all to see that this was
nothing but re-promulgation or extending the life of the old ordinance.
Several leading members of the Constituent
Assembly, including Dr. H.N. Kunzru, a veteran Parliamentarian, and Mr. H.V.
Kamath, strongly opposed the provision for promulgating ordinances in a free
country. They argued as follows: “True, the Government of India Act of 1935
empowered the Governor-General to promulgate ordinances and to rule by them. But
the Government of India Act was not meant to confer full responsible government
on us. We have now a responsible government. There should be no ordinance and
no negation of the rule of law. Yet we are doing one worse. Under the British regime,
an ordinance had a maximum life of six months. This was wrong and the power of
promulgating an ordinance should, therefore, be much more limited.” In fact,
Dr. Kunzru proposed that an ordinance should automatically cease to operate
within 30 days of its promulgation by the President and 14 days of its
promulgation by the Governor. Mr. Kamath wanted every ordinance laid before the
two Houses of Parliament within four weeks of its promulgation.
Unfortunately, Dr. B.R. Ambedkar, Chairman of
the Drafting Committee, did not accept the suggestions. Instead, he offered
three arguments in support of his own proposal. First, he clarified that the
President, unlike the Governor-General, had no ordinance-making power. The Governor-General
was a parallel legislative authority under Section 43 of the Government of
India Act and could promulgate an ordinance even when the Assembly was in
session. The President’s power related only to the period when the legislature
was in recess. Further, the President had “no individual discretion or
judgement.” Second, under the British Emergency Powers Act 1920, the King was
entitled to issue a proclamation when Parliament was not in session --- to meet
an emergency. The Constitution, therefore, proposed “to confer on the President
the power to promulgate a law which would enable the executive to deal with
that particular situation because it could not resort to the ordinary
process of law --- again ex hypothesis --- when the legislature is not in
session.” (emphasis mine)
Third, Dr. Ambedkar did not think that six
months would elapse between two sessions of Parliament (or State legislatures)
as feared by Dr. Kunzru, --- and give the ordinance a life of seven and a half
months. On the other hand, he expected Parliament (and the State legislatures)
to have “more frequent sessions” having regard to the “exigencies of business
and having regard to the necessity of the Government of the day to maintain the
confidence of Parliament.” In fact, Dr. Ambedkar added: “I do not think that
any dilatory process will be permitted by the Executive of the day as to permit
an ordinance to remain in operation for a period unduly long.” When Mr. Kamath
again protested and asked: “Is it not repugnant to our ideas or conceptions of
freedom and democracy not to lay down a maximum life for an ordinance,” Dr.
Ambedkar significantly replied: “A concrete reason for the sentiment of
hostility arises by the unfortunate heading of the chapter: ‘Legislative Powers
of the President’. It ought to be ‘Power to legislate when Parliament is not in
session.”
The Government’s response to Mr. Advani’s
calling attention notice was disappointing, to put it politely, and shocking,
to put it bluntly. For one thing, the importance of the subject required the
personal attention of Mrs. Gandhi as Prime Minister and her presence in the
House --- or at least that of the Home Minister, Mr. P.C. Sethi. Instead, the
matter was left to be handled by the Minister of State for Home, Mr. Venkatasubbiah.
For the other, what Mr. Venkatasubbiah had to say was an insult to
intelligence, the House and, above all, to Dr. Ambedkar and other founding
fathers of the Constitution. An otherwise experienced politician and a balanced
MP, Mr. Venkatasubbiahdismissed the whole issue as “an aberration” and not an
established practice. He glibly rejected the charge of “fraud” on the plea that
the Constitution did not lay down any limit on the number of the times the same
ordinance could be issued by the Governor. He also made the point that the Centre
could not encroach on the State’s power to issue ordinance. Any action by New
Delhi would be tantamount to “encroaching upon the autonomy of the State.”
There can be no two opinions that the
founding fathers of the Constitution was clear about their intentions. Dr.
Ambedkar was on the defensive as he piloted the provision in the Constituent
Assembly in the face of strong opposition from Dr. Kunzru and others. But he
made it clear that the power given to the President to promulgate ordinances
was to be used only in an emergency --- “to deal with a particular situation”
at a time when the Executive could not “resort to the ordinary process of law.”
Further, he was equally clear that no Government of the day would allow an
ordinance to remain in operation “unduly long.” If one goes by Mr. Venkatasubbiah’sargument,
Mrs. Gandhi could appoint a non-MP as Minister for six months and keep him
going indefinitely by reappointing him again and again with a break in his
tenure of a day. After all, there is no provision against such reappointment.
But the Centre and the State Governments, in promulgating ordinances, would do
well to remember what Julius Paulus, according to Dr. Wadhwa, said in 240 BC:
One who does what a statute forbids transgresses the statute; one who
contravenes a statute without disobeying its actual words, commits a fraud on
it. ---INFA
(Copyright, India
News & Feature Alliance)
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