PUCL Bulletin, April 2002

Politics and Ordinance Making
By K.G. Kannabiran

Around two hundred years ago the Court of the Kings Bench held that when a manner of transaction was to gild over and conceal the truth, it was the duty of court of law to brush away the cobweb varnish and show the wicked deed in its true light. This was in the infancy of Rule of Law. As the system got under way and proper institutions evolved to shackle power, a new set of interpretative devices surfaced which were to help power to corrode institutions and to enthrone arbitrariness once again. This dialectic seems to be inevitable in societies and systems, which are not egalitarian. In unequal societies the tension between Rights and Power has been endemic

The Ordinance making power in the Constitution is one such area. of abuse. When employed in areas of law and order, public order and security of state. This power is temporary law making powers entrusted to the President, which was intended to be used when Parliament is not in session and there is an emergent necessity to make a law, or to amend an existing law. Similar powers were entrusted to the Governors of the States. This law making power entrusted to the President has a limited life and is hedged in by several limitations obviously with a view to preventing its tyrannical exercise by the President. To prevent its abuse by proroguing parliament for long periods it is stipulated that Parliament is to meet twice a year and the gap between two sessions cannot be longer than six months. An ordinance will cease to operate after the expiry of six weeks from the date of convening the Parliament. The ordinance will have to be placed before the Parliament within six weeks for its approval.

This law making power will survive for a total period of 71/2 months in all. The underlying presumption of this scheme is the absence of political skullduggery in the exercise of these powers. The exercise of these executive powers is not preceded by any debate. Passing of a statute is preceded by a bill containing all the provisions, which on passage becomes an Act. The provisions of the bill are debated both in the Lok Sabha and the Rajya Sabha. An ordinance can be sprung on an unsuspecting people, as did Mrs. Gandhi with her amendments to MISA. It has become the executive practice to unleash law and order and public order legislation by way of ordinance, not because of its urgent need but because it is contentious and the government may find its passage difficult. There has also been a gradual subversion of the power of the parliament into a body, which merely endorses its assent to the law passed by an ordinance, which then becomes an Act. This practice has, in crucial periods, reduced the parliament to a secondary body called upon to nod its head in approval of executive law making.

POTO perished because of strident opposition to its introduction in the winter session. Its draconian provisions were widely debated as soon as it was gazetted. The protest was almost universal. Though the government knew that there was going to be an attack on the parliament POTO was not effectively used. To demand, after the attack, full and unqualified support of the Bill smacks of a total lack of bonafides. One need not always start a Reichstag fire. If it is started it has its uses. So we have central ministers proclaiming from the platforms provided for them to say: "Look what we have said has come to pass. We did not do any thing about the attack, though we had intelligence report about it because we wanted you to experience terrorism in the raw" So saying the central government re-promulgated POTO by deleting provisions which entrusted powers to Competent Authority and these decision making powers were entrusted to special courts. The issue here raised is not about the amendments introduced now but about the Ordinance promulgating powers and the impropriety of it. Impropriety need not always be a legal expression. There is a moral, a constitutional dimension to that expression. Legality is not life. It is true that Law and legality have been the leit-motif of our country. After independence and the Constitution legality became a substitute for politics. It has sapped the vigour of the political system. Court decision was accorded a status of finality in politics, which is not available in law.

It was Mrs. Gandhi who converted the entire debate into an adversarial confrontation between the Parliament and the judiciary. She won in courts but politically she was defeated. Re-promulgation of POTO is a flagrant abuse of powers and does not satisfy the conditions that are insisted upon by the constitution. The promulgated ordinance could have been introduced as statute for consideration in the Parliament that was in session.. Barring banning a few organizations nothing further was done. Crucially, when on 13 December the parliament was attacked the government found itself helpless against the attack. The Home Minister disclosed that the government had Intelligence report that such an attack was planned and yet POTO was not used to take any preventive steps. In the absent of good reasons and strength in parliament the attack was sought to be pressed into service for a unanimous vote and when that failed the measure with some cosmetic changes was re-promulgated.

Dr. D.C. Wadhwa, while working in Gokhale Institute of Politics and Economics, on agrarian legislation, stumbled on the executive practice of re-promulgation of ordinances and thus dispensing with law making on the subject by legislatures more particularly by the government of the State of Bihar. His curiosity led him to research into the executive practices of law making without the intervention of the legislature. The work when published drew a lot of attention and Rajya Sabha was forced to take notice of this publication and was compelled to debate the subject matter of the book on 23 December 1983. The only way his research work could be enforced was to file a writ petition in the Supreme Court that he did in 1984 and the Supreme Court gave its verdict in 1986. The manner of exercising powers becomes the interpretive content of the ordinance making powers of the President and the Governor of the State respectively. In D.C. Wadhva's case (1987) the Supreme court pointed out that if reasons are not present in the provision as interpreted by the court it would amount to colorable exercise of power. "Such a stratagem would be repugnant to the constitutional scheme, as it would enable the executive to transgress its constitutional limitation in the matter of law making in an emergent situation and covertly and indirectly arrogate to itself and usurp the law making power of the legislature. That would be subverting democratic process which lies at the core of the constitutional scheme" The fact that it is the first act of re-promulgation and not the tenth is irrelevant. The first is the beginning of abuse and the tenth evidences the habit of abuse

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