On May 30th 2015, the then Union Cabinet had recommended re-promulgation of the controversial land acquisition ordinance for the third time in six months.
The decision had immediately drawn a sharp response from the Congress and the CPI (M), who along with other Opposition parties, have been stalling the Bill’s passage in the Rajya Sabha. Opposition leaders stressed that it was improper to recommend re-promulgation of the ordinance as a 30-member Joint Committee of Parliament was currently deliberating on changes sought to be made in the Land Acquisition Act, 2013. As per the ruling coalition, the Cabinet had recommended re-promulgation of the ordinance “to ensure continuity” so that “farmers don’t face hardships on compensation”.
The Cabinet’s recommendation was sent to President Pranab Mukherjee — who had expressed his disapproval of the ordinance route publicly and privately — for his approval. However, it appears unlikely that Mr. Mukherjee will withhold his approval.
In this background let us first analyse the ordinance making power of the president, then accordingly we will be discussing about the difference in views expressed by the first Prime Minister of India and the first speaker of Lok Sabha of India about the nature and necessity of Ordinance and the view of Supreme Court of India on Re-promulgation of Ordinance.
THE ORDINANCE MAKING POWER OF THE PRESIDENT
Article 123 of the Constitution of India confers the power of promulgation of ordinance on the President. The article states:
1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require
2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance
- shall be laid before both House of Parliament and shall cease to operate at the expiration of six weeks from the reassemble of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and
- may be withdrawn at any time by the President Explanation Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause
3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.
Hence, article 123 of the Constitution authorises the President to promulgate ordinances if a law is “immediately necessary” and at any time, except when both Houses of Parliament are in session. But ordinances aren’t permanent. They lapse unless they are converted into Acts within a specified duration.
As per the broader reading of the provisions, an ordinance can be promulgated only in case of a situation, where the two houses of the Parliament are not in session and the situation demands an immediate legislative action to deal with it. It can also be taken as a means of last resort.
DEBATE BETWEEN NEHRU AND MAVALANKAR ON THE NATURE OF ORDINANCE
A series of correspondence between the first Lok Sabha Speaker G. V. Mavalankar and Prime Minister Jawaharlal Nehru discusses the dangers and necessities of a government taking the ordinance route.
In his letter on November 25, 1950, addressed to the then Prime Minister, the then Speaker of Lok Sabha, Sri G. V. Mavalankar said that, promulgation of ordinances is “inherently undemocratic.” “Whether an ordinance is justifiable or not, the issue of a large number of ordinances has psychologically, a bad effect. The people carry an impression that government is carried on by ordinances.”
In his reply, Prime Minister Jawaharlal Nehru on December 13, 1950, said: “I think all of my colleagues will agree with you that the issue of ordinances is normally not desirable and should be avoided except on special and urgent occasions.”
“As to when such an occasion may or may not arise, it is a matter of judgment,” the Prime Minister wrote.
“Parliamentary procedure is sufficient to give the fullest opportunities for consideration and debate and to check errors and mistakes creeping in. That is obviously desirable. But, all this involves considerable delay. The result is that important legislation is held up,” Nehru wrote.
On July 17, 1954, Speaker Mavalankar again wrote to the Prime Minister: “The issue of an ordinance is undemocratic and cannot be justified except in case of extreme urgency or emergency. We, as the 1st Lok Sabha, carry a responsibility of laying down traditions.”
He said unless the ordinance was limited to “extreme and very urgent cases”, “the result may be, in future, the government may go on issuing ordinances giving the Lok Sabha no option, but to rubber-stamp the ordinances.”
To this letter, Prime Minister Nehru said his government issued ordinances compelled by circumstances. “We have issued in the past a very limited number of ordinances and we have always placed before the Parliament the reason for having issued each one of them,” Mr. Nehru wrote back.
Speaker Mavalankar’s warning is reiterated in the 1986 Supreme Court judgment in D.C. Wadhwa versus State of Bihar case, when it said that “Ordinance Raj” cannot be permitted.
SUPREME COURT OF INDIA ON RE-PROMULGATION OF ORDINANCE
The Supreme Court addressed the issue in D. C. Wadhwa v. State of Bihar (1986), when it held that it is unconstitutional to re-promulgate ordinances, unless in exceptional circumstances. Ordinances themselves are an exception, the Court noted. The primary authority to enact legislation is the legislature. It is only to tide over a temporary urgency that the executive resorts to an ordinance. But to re-promulgate it, is to circumvent the legislature’s primacy; it is an underhanded way of prolonging the life of an ordinance.
In a book, authored by the petitioner about the verdict, D.C. Wadhwa documented how the Bihar Assembly had effectively stopped functioning. The executive had taken over, and ordinances were being systematically repromulgated to keep them in effect, at times, for as long as 15 years. Aghast at this misuse of power, five judges constitution bench, hurriedly declared re-promulgation unconstitutional or a “fraud on the Constitution”.
This was in 1986, before which, interestingly, the Central government had never re-promulgated ordinances. The practice began only in 1992 when the Narasimha Rao Cabinet resorted to it, thus starting a trend. During the 1990s, 196 ordinances were promulgated in all; almost 25 per cent of them (53 ordinances) were re-promulgated.
How could a practice that had already been declared unconstitutional by the Supreme Court at once, be so common?
THE WADHWA EXCEPTION
This was because the general rule in the Wadhwa verdict came with an exception. It was stated that the government may, occasionally, be unable “to introduce and push through” a Bill to convert an ordinance either because “the Legislature [has] too much legislative business” or the time at its disposal is short. In such a case, the verdict stated, the President may “legitimately find that it is necessary to re-promulgate the Ordinance”. And such “re-promulgation of the Ordinance”, the Court said, “may not be open to attack”.
As it has been mentioned time and again by the first Prime Minister of India, the Ordinance route should be the last resort for dealing with a situation. Especially in a democratic system, true to the fears expressed by the first Speaker of Lok Sabha, the government of the day may seem from time to time to be autocratic or dictatorship in nature if it resorts to this route for often.
Then again, one has to accept the situation enumerated by the Supreme Court where due to any valid reason the Government of the Day may not prove able to get an ordinance passed by the Parliament and resorts to promulgating or re-promulgating ordinances.
Henceforth, in conjunction with the verdict of the Supreme Court, one has to admit that while Ordinances themselves are exceptions and the re-promulgation of them are unconstitutional but looking at the situation if the President feels that it is the necessity of the hour he may allow promulgation or re-promulgation of an ordinance.