 "Shubhankar Dam")
Successive central governments - be it led by the Congress or non-Congress parties - have since 1950 promulgated 651 ordinances till 2010. Shubhankar Dam, a Hong Kong-based professor of law, and the author of Presidential Legislation in India: The Law and Practice of Ordinances, is not surprised by the National Democratic Alliance government's use of ordinances as a law-making mechanism. In an interaction with Sudipto Dey, Dam pitches for more checks and balances in the process of promulgation of ordinances, including a more active role by the President of India. Edited excerpts:
Could you take us through the history of the use of ordinance by various governments over the years?
Ordinances, in the form we practise today, were introduced in 1861. A provision in the Indian Council Act authorised the governor general to promulgate ordinances if certain conditions were met. That provision went through many changes over a 90-year period. Eventually it became Article 123 in the Constitution. For much of those 90 years, Congress leaders ferociously opposed British ordinances. They saw them as undemocratic, authoritarian, and not worth obeying. The Constitution came into effect on January 26, 1950. Three ordinances were promulgated that very day. It was an omen of sorts. Nehru frequently resorted to Article 123, and Indira Gandhi took the misuse of the provision to new heights. Compared to the 1950s and 1960s, the 1970s saw significantly more ordinances, a vast majority of which were penned by Indira Gandhi. Seen from this perspective, Prime Minister Narendra Modi is deeply Nehruvian; he isn't doing anything new. Unlike Modi, though Nehru had clear majorities in both Houses. He had little reason to take recourse to ordinances. G V Mavalankar, India's first speaker, repeatedly wrote to Nehru urging him to exercise restraint. By the time Nehru died in 1964, ordinances had become a well-established, if troublesome, feature of our Parliamentary democracy. His successors have diligently followed in his footsteps.
Were non-Congress governments any different?
Until 1977, Congress was the only party that ruled India nationally. Till then the government and the opposition had clear and stable views about ordinances. The opposition (almost) always opposed them. To them it was an undemocratic and an unaccountable form of law making. Interestingly, when the Janata Party coalition came to power in 1977, they made many changes to the Constitution. They undid many Emergency-related excesses. But one thing they did not change was the use of ordinances. Morarji Desai and Charan Singh used ordinances just the way the Congress party had done before. So when Indira Gandhi came back to power in 1980, a bi-partisan trend had been set. Both Congress and non-Congress parties had a record of (ab)using ordinances when in power.
The era of minority government began in 1989 with the V P Singh and Chandrashekhar governments, followed by the P V Narasimha Rao government. Rao turned to ordinances like none before. With insufficient numbers in Parliament, Article 123 became an alternative mechanism by which to make laws. The 1990s witnessed the most number of ordinances - 196 in all.
And that makes it an average of about 20 ordinances a year. While both Congress and non-Congress governments have taken to ordinances, there is I think a difference in their motives.
With Nehru, Shastri and Indira Gandhi, often ordinances were issued because they saw Parliament as an appendage to the lawmaking process. They had the requisite numbers and the formality of going through Parliament was unnecessary. With non-Congress and minority governments, it was different. They lacked the necessary numbers to make laws. Parliament in that sense was an obstacle to the lawmaking process, and Article 123 offered a way out through ordinances.
So in that sense, the Modi government has not been any different.
The Modi government, constitutionally speaking, is a minority government. It doesn't have the necessary numbers to make laws. In its current form, Parliament is an obstacle for Modi. The government took to the ordinance route I believe because of its numeric deficit and also because it did not want to negotiate with the opposition. Had this provision not been there, the government would have been compelled to talk to the opposition.The misuse of ordinances is one of India's most enduring Nehru-Gandhi legacies. If Mr Modi wants to turn a page from Nehruvian India, he should stop promulgating ordinances needlessly - and unconstitutionally. During the election campaign in 2014, Modi repeatedly said that the Constitution is his "only holy book". Giving up on unconstitutional ordinances would be an easy way to demonstrate that he meant what he said.
Should the president rubber stamp ordinances?
I believe he should not. Under the Constitution, an act of Parliament has to be approved by Lok Sabha, Rajya Sabha and then the President has to give an assent. When an ordinance is issued, the Lok Sabha and Rajya Sabha are not in the picture. The cabinet - a small group of men and women - write up a law and send it to President. When a bill is sent for Presidential assent after clearances from Lok Sabha and Rajya Sabha, the President can return it for re-consideration only once. In case of ordinances, the Lok Sabha and Rajya Sabha has no role in drafting or debating the legislation. They are essentially executive fiats. As such, should not the President have more say in deciding whether the ordinance is required or not?
An ordinance may be promulgated if it is immediately necessary. By refusing to rubber stamp ordinances, the president can compel the government to publicly defend why an ordinance is "necessary". We have rarely had a serious debate on this matter. Ordinance as a mechanism for law making isn't going to go away. At least we should have some checks and balances to see that the mechanism isn't misused.
