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