‘Arrogance
of alternatives’- How Ordinance route
Interview
with Shubhankar Dam, author of Presidential Legislation in India: The Law and
Practice of Ordinances.
By V. VENKATESAN
SHUBHANKAR
DAM, Assistant Professor of Law at Singapore Management University School of
Law, is the author of Presidential Legislation
in India: The Law and Practice of Ordinances (Cambridge
University Press, 2014), which has received wide acclaim among scholars of
constitutional law. Against the backdrop of his insightful critique on the
necessity of ordinances in a democracy, Professor Dam discusses in this
interview the recent controversy triggered by the Bharatiya Janata Party (BJP)
government’s decision to promulgate ordinances in order to facilitate the
auction of coal blocks and raise the foreign direct investment (FDI) cap in
insurance.
In your book, you call the promulgation of ordinances by the Central government under Article 123(1) of the Constitution of India and by State
governments under Article 213(1) “institutionalised surrogacy that reduces the legislative
process to a private affair”. How do you think such an aberration has obtained
constitutional sanction?
By the time
the provision on ordinances came up for debate in the Constituent Assembly, it
had been part of India’s legislative architecture for nearly 90 years. The
mechanism was introduced in 1861. Until 1947, about 400 ordinances were
promulgated. Initially,
they were few
and far between; no more than 19 were promulgated in the first 50 years.
Thereafter, they increased exponentially. And that legacy
cast its spell on the Constituent Assembly. In fact, the
Assembly hardly debated the provision. [Jawaharlal] Nehru, [B.R.] Ambedkar,
B.N. Rau, among others, insisted on a provision of
this kind, and most members agreed. It was a “necessary evil” they said; and
“trust us”, they added, “it wouldn’t be
misused”.
Even the voices against ordinances did not oppose it completely; they only
sought greater safeguards. Ironically, the same people had
argued against ordinances when the British resorted to them. Nehru, for
example, once called them a “charter of slavery”.
But suddenly
his views changed. What was immoral, undemocratic and dictatorial, overnight
became “necessary”. After more
than 60 years, it is obvious that the founding trust was misplaced. “Give us
more powers; we promise not to misuse them” is a bad
argument for doing anything, and the abuse of the ordinance mechanism amply
demonstrates that.
You have claimed in your book that ordinances have become the
preferred method even in situations when legislation is entirely possible.
I should
clarify that by “preferred method” I do not suggest that there are more
ordinances compared with Acts. It is not a “numeric” preference.
Rather, I mean a methodological preference: opting for ordinances even though
the parliamentary route is available. Nehru’s
three terms
between 1952 and 1964 are the best examples of this. He had brutal majorities in both Houses of Parliament. Any law he wanted, he
could have achieved through the normal procedure. Yet he authored as many as 66
ordinances in those 12 years. G.V.
Mavalankar,
India’s first Speaker of the Lok Sabha, counselled against this indiscriminate
use. “It would set a poor precedent for Parliaments
in future,” he wrote to Nehru, but his advice went unheeded. Nehru died in
1964, and by then the ordinance script had been
etched in
stone. It would take a Herculean effort to undo it. Fifty years and 14 Prime
Ministers later, we still await that constitutional Hercules. Thus far on
ordinances, the Modi government is not saffron; rather, it wears a Nehruvian
shade and its justifications for the recent ordinances
are not new. Indira Gandhi as far back as 1969 and minority Cabinets since have
relied on this alibi of “legislation not being possible”.
Often, this is a code. It may mean many things. First, it may mean that the
government does not have a majority in the two Houses of Parliament but wants a
particular piece of legislation anyway. Therefore, the ordinance. Many of the
ordinances V.P. Singh, Chandra
Shekhar, [H.D.] Deve Gowda, and Inder Gujral authored are good examples of
this. Second, it
may mean that the government must negotiate with the opposition to secure a
majority— something it is unwilling to do.
Therefore,
the ordinance. Many of the ordinances of Morarji Desai, [P.V.] Narasimha Rao,
A.B. Vajpayee and Manmohan Singh are good examples of
this. Third, it may
mean that the government first wants to have the law put in place and only then
debate it in Parliament as an afterthought.
Many of the ordinances of Nehru, Indira Gandhi since 1971, and Rajiv Gandhi are
good examples of this. Rarely does the justification
mean what it says.
What I find
interesting about these coded versions of “legislation not being possible”
argument is that they turn the justification for ordinances on
its head. Article 123 was meant to redress legislative urgencies that could not
await parliamentary resolution. Now
governments time ordinances; they salivate at the prospect of the Houses being
prorogued or dissolved—or do so purposefully — such that
legislative “urgencies” come about. It is almost as if Parliament is an
obstacle to the lawmaking process.
The recent ordinances have apparently been promulgated to send strong
signals that the government is committed to accelerating the pace of economic
activity—an extraneous ground, unrelated to the commonly expressed justifications
for ordinances. Would this stand legal scrutiny?
Article 123
says that an ordinance may be promulgated if the President is “satisfied that
circumstances exist that render it necessary… to take
immediate action”. In 1970, the Supreme Court held that governments are the
sole judge of “necessity”; the courts will not get into this
question. It is outside the scope of judicial review. In other words, when a
government says that an ordinance is necessary, legally
speaking, that is the end of the matter.
The ordinance on coal appears to have been necessitated by the Supreme
Court’s verdict in September resulting in cessation of mining in some coal
blocks by the end of the financial year. In your book, you have been rightly
critical of the constitutional scholar H.M. Seervai’s defence of ordinances
because of judicial review and B.R. Ambedkar’s misplaced optimism about the
unlikely misuse of the ordinance power by the governments.
I don’t agree
with the first part of the question. The Supreme Court’s verdict did not
necessitate an ordinance; the verdict only required that the law be changed or
a new law be put in place. How to bring about that change was up to the government;
it could have legislated through Parliament or could resort to an ordinance—as
it has done.
Seervai did have
these sorts of situations (the coal blocks verdict and the subsequent ordinance)
in mind when he argued that a mechanism for ordinances is necessary. He said:
If a legal system makes provision for judicial review of parliamentary
legislation—as
India does—then
there must be a mechanism for ordinances. Why? If judicial review exists, then
courts may occasionally invalidate legislation;
they may declare laws unconstitutional. Some of these decisions may come at a
time when Parliament is not in session. And
the executive
would be compelled to introduce stopgap measures to fill the void when a law is
invalidated. For that reason he felt that judicial
review and ordinances must go together; if a legal system has the former, it
must provide for the latter. The argument
fails, and for obvious reasons. There are many legal systems, the United States
being the most notable, which provide for judicial
review but make no provision for ordinances like we have in India. In these
countries, if a piece of legislation is urgently needed, only the
relevant legislature can fill that void.
So what
should change in India?
Ideally, Articles 123 and 213 should be deleted from
the Constitution. But politicians are unlikely to take this route.
If the provision cannot be deleted, at least the interpretations surrounding
the provision should change. And that’s doable; the Supreme Court
needs to revisit its judgments. Let me give
you a brief overview of how the provision was meant to function. Two conditions
must be met before an ordinance may be promulgated.
At least one House of Parliament should not be in session, and the President
must be satisfied that circumstances are such that an
ordinance is immediately necessary. Once both Houses come back to session, the
ordinance must be presented in Parliament as a Bill. If it
is ratified and receives presidential assent, it becomes an Act, and the
controversy ends there. If an ordinance is not presented before
Parliament, or Parliament votes it down, then the ordinance “ceases to operate”.
Supreme Court interpretations
The Supreme
Court’s interpretations, however, have turned the provision into a monstrosity.
Take the first two conditions. If both Houses are in
session, can the government simply prorogue one House to make an ordinance technically
possible? The Supreme Court has said yes.
Consequently, the executive is also the sole judge of when the Houses of
Parliament are in session or when they should be in session. The
court will not review this matter. So what happens when Parliament resumes? Let
us say that an ordinance is presented before
Parliament and it is voted down. Can the executive repromulgate the same
ordinance that was voted down? In 1987, the Supreme Court
said yes. While repromulgation is generally invalid, it may be constitutional
under certain—mostly unspecified— circumstances.
That judgment effectively makes a parliamentary vote on ordinances redundant.
Irrespective of whether Parliament wants that
law or not, the executive can keep the ordinance in force simply by repromulgating
it. Finally, what
happens if the government stops repromulgating a failed ordinance, and allows
it to die? Under Article 123, the ordinance “ceases to
operate”. But what does that really mean? Imagine a situation where an
ordinance was in effect for, say, six months. During that period many official
actions would have been taken under the ordinance. What happens to all those
actions? Do they also “cease to operate”? Do
they get wiped out because the ordinance itself is dead? The Supreme Court has
said no; the actions do not get wiped out. All actions
initiated or completed during the time an ordinance is validly in force will
remain permanently valid, the court explained. Think about
the implications. What this means is that even if an ordinance fails, it can
produce permanent legal effects. The recent Insurance
Laws Amendment Ordinance, for example, increases the threshold for FDI in the
insurance sector from 26 per cent to 49 per cent. As the
law currently stands, even if this ordinance fails—that is, it does not become
an Act of Parliament—this change in the law will remain
permanently valid. Why do we need Parliament then? I believe the
court should reconsider these decisions. Article 123 should be read in a way
that makes it difficult—legally costly—for the executive to resort to
ordinances.
President’s
role
Could
the President have refused assent to the ordinances?
The
President’s authority to assent to parliamentary legislation is provided for in
Article 111 of the Constitution. It says: “When a Bill has been passed
by the Houses of Parliament, it shall be presented to the President, and the
President shall declare either that he assents to
the Bill, or
that he withholds assent therefrom.” What happens if the President refuses assent? Article 111 further says that if the President
refuses assent, he must return the Bill to the Houses of Parliament “as soon as
possible”, stating his objections to the Bill. The Houses have
three options. First, they may consider the President’s objections and say: “We
agree with the President, this Bill is flawed, not
necessary, etc. and, therefore, we will not pursue it any more. Let the Bill
lapse.” Second, the two Houses may consider the President’s
objections and reject them. The Bill then goes back to the President’s desk.
Third, the two Houses may consider the objections
and partly agree with the President. Here too the Bill goes back to the
President. If the two
Houses return the same or amended Bill, what can the President do? Article 111
says: “The President shall not withhold assent
therefrom.” Article 123 says that ordinances are similar to Acts of
Parliament—they have “the same force and standing”. The rules that
apply to Bills and Acts with respect to presidential assent also apply to
ordinances. The President may return an ordinance to the
government once. If the Council of Ministers sends it back a second time,
assent must be given. President [Pranab] Mukherjee could
have returned
the coal and insurance ordinances once. If the [Narendra] Modi government
insisted on them for a second time,
Mukherjee
would have been bound to give his assent. This is the conventional view.
I disagree
with it. I am of the opinion that different rules apply to parliamentary Bills
and ordinances. While the President is bound to
give assent
to a Bill if it is returned by the two Houses, he or she is under no such
obligation with respect to ordinances. In other words,
[in my
opinion] a President may return a Bill to the Houses only once; he or she may
return an ordinance to the government as many
times he or
she wishes. What explains the difference in treatment?
The President
is an integral part of Parliament. India’s Parliament has three organs: The
President, the Upper House and the Lower
House.
When the two
Houses pass a Bill, it acquires some properties. At least in theory, it would
have been publicly debated by a large number
of elected
officials and publicly voted upon. And so if the two Houses reiterate their
legislative preference for a second time, there are good reasons
why that collective preference should prevail over the President’s original
objections. There are good reasons why the President
should “stand down”. But
ordinances do not have those features. Usually, they are written up in private
(that is, in secret) by a small group of men and women
(that is, the
Cabinet), and by definition are never voted upon publicly. If Bills reflect the
“will of the two Houses of Parliament”, ordinances at
best reflect the “will of the government”. In fact, an ordinance may be the whim
of just one person, the Prime Minister. Some of
Indira Gandhi’s ordinances never went before the Cabinet. They went from the
PMO [Prime Minister’s Office] straight to the President’s
desk. When the President’s views on a proposed ordinance clash against the
government’s, there are no good reasons why the President
should give way. As the only nationally elected public official in the country,
the President has enough “representative width” to
stand his ground—to volley an ordinance back on to the government’s court.
Indeed, he or she may do so endlessly.
Your view that ordinances make legislative intransigence more likely
and that they render parliamentary opposition to legislation ineffective
appears very convincing. Within the current system, how do you think we can create incentives to negotiate on legislative issues among parties in
legislatures?
Ordinances
obstruct parliamentary negotiations. Look at the current controversy. Reports
indicate that the Congress Party had already pledged its
support on the coal and insurance laws; it voted for the Bills in the Standing
Committees. The government had the numbers
in the Rajya
Sabha to get the Bills passed. But then “side issues” appeared: first, Sadhvi
Niranjan Jyoti and her … comment, then Sakshi Maharaj and
his paeans to Godse, and finally the controversy about conversions and “ghar
wapsi”. The opposition ganged up, and the Congress
joined in. Together, they wanted Prime Minister Modi to make a statement. He
obliged; he condemned Jyoti’s comments in Parliament.
But on conversions, he didn’t budge; he kept his silence while the opposition
stalled proceedings in the Rajya Sabha and
precious time
was lost. Prime
Minister Modi wanted some laws. A clarification on the reconversion controversy
(most likely) would have placated the opposition and he could
have had the laws he wanted. But he knew. He could maintain his silence and
still have his laws—the ordinance route was open. Without
this possibility, I suspect Modi would have immediately clarified his position
on reconversion, obliged the opposition, and moved on with
his economic and governance agenda. Finance Minister Arun Jaitley charged the
opposition in the Rajya Sabha of demonstrating
an arrogance of numbers. But ordinances, one may say, reflect the arrogance of
alternatives.
Ordinances since the 1970s
Ordinances
exponentially increased during Indira Gandhi’s decade: the 1970s. One hundred
and thirty-five ordinances were promulgated
then; she was responsible for 107 of those. Then came the late 1980s: the age
of minority governments. Thus far, India has had 12
minority governments; 10 of them since the late 1980s. In fact,
since 1989, India only had minority governments until the Modi government broke
that trend. Ordinances now reached new heights, even
surpassing Indira Gandhi’s egregious numbers. Narasimha Rao alone promulgated
106; Deve Gowda and Inder Gujral of the United
Front added 23 each during their short tenures as Prime Ministers. In fact, a
close analysis of two United Front governments would show
that they were practically dysfunctional. Ordinances kept them going; it helped
mask their legislative incompetence. Governance
mattered little; minority governments then were judged on the length of their
office rather than the strength of their
performance.
Of course, India has matured since. Now one can
see why minority governments are particularly vulnerable to ordinances. By
definition, they are small in the Lower House. Often, they
are small in both Houses. That makes lawmaking effectively impossible. They
have two options: negotiate with the opposition or
take the ordinance route. The latter is simpler. Narasimha Rao, in fact, added
a further twist. The disease of
repromulgation
hadn’t infected Central governments till 1991. It stayed quarantined in the
State capitals. Narasimha Rao, however, brought it to
New Delhi. He normalised repromulgations at the Centre and rendered
parliamentary negotiations even more redundant. Every Prime
Minister since has followed him. In practice,
haggling with the opposition to enact legislation should not be difficult in
India. Principled differences among our political parties are rare, if any.
Most have malleable—or if you will, convenient —policies; they can swim with
the prevailing political currents. But one also mustn’t romanticise
negotiations; they don’t always produce healthy outcomes. Negotiations in India
are often of the petty kind. The greatest
disincentive to parliamentary negotiations on legislative matters is the law on
Article 123 and the interpretations courts have offered. If the latter change,
governments will be compelled to negotiate. Ordinances must trigger political
pain. Otherwise, habits won’t change. In the Constituent Assembly a proposal
was offered: if an ordinance is promulgated, it must immediately initiate a
parliamentary session so that the law may be properly debated. The proposal
wasn’t accepted. In hindsight, it should have been.
(Published in Frontline.in)
