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BRP Bhaskar: Lack of democratic sensibility
January 10, 2017
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When the Constitution of India was adopted its makers included in it, as an emergency measure, provisions to enact legislation through promulgation of an ordinance when Parliament or the state legislature is not in session. Governments at the Centre and in some states are now using these provisions to bypass legislative bodies.

The Constitution stipulates that the ordinance must be placed before Parliament or the state legislature, as the case maybe, when it reassembles. It lapses automatically if a law to replace it is not passed within six weeks of reassembling. There is no provision expressly prohibiting re-promulgation of a lapsed ordinance. The Centre and the states are taking advantage of this lacuna.

Bihar is the worst offender. Petitions challenging repeated re-promulgation of three ordinances in the state came up before the Supreme Court in the 1980s. It found that successive governments in the state had re-promulgated a total of 256 ordinances. One ordinance was kept alive through repeated re-promulgation for as long as 14 years and three others for more than 11 years.

Two of the three ordinances were enacted into law while the matter was before the court. Observing that courts could invalidate re-promulgated ordinances, it struck down the third.

The Supreme Court’s scathing remarks on Ordinance Raj had no effect on the Bihar government. Only two years after that judgment the state took over privately managed Sanskrit schools through an ordinance. Instead of regularising the takeover through a legislative enactment, the ordinance was kept alive for three years through re-promulgation. After the ordinance lapsed, the teachers of these schools approached the Patna high court seeking protection of their status and salaries as government teachers.

The high court held that re-promulgation of the ordinance was illegal and ruled that after the takeover the teachers are entitled to government pay scales.

The state appealed against the verdict. At the Supreme Court the appeal was first heard by a division bench in 1998. Since the two judges on the bench differed, it went to a five-judge bench, which wanted it to be heard by a still larger bench. The seven-judge constitution bench, which heard the matter eventually, last week declared that repeated re-promulgation of an ordinance was a fraud on the Constitution. For some reason, it left the question whether obligations and liabilities would survive on the lapse of an ordinance, which was pertinent to the issue raised by the school teachers, to be determined in a separate proceeding.

“The danger of re-promulgation lies in the threat which it poses to the sovereignty of Parliament and the state legislatures which have been constituted as primary law-givers under the Constitution,” the court said. “Open legislative debate and discussion provides sunshine which separates secrecy of ordinance-making from transparent and accountable governance through lawmaking.”

The majority judgment also ruled that it was mandatory for the government to place an ordinance before the legislature when it reassembled.

The Centre did not resort to re-promulgation of ordinances until 1986. But lately there has been an increasing tendency to do so. The first United Progressive Alliance government re-promulgated only one ordinance, but UPA II re-promulgated four. The present government, which is in its third year, has re-promulgated four ordinances already – two of them four times, one thrice and one twice.

While the court has condemned re-promulgation of ordinances in harsher language than before, it remains to be seen whether it will have a salutary effect on the governments at the Centre and in the states. If a government chooses to re-promulgate an ordinance instead of placing it before the appropriate legislative body, the only remedy open to an aggrieved citizen is to initiate contempt proceedings against it in the Supreme Court.

It is not an easy process. The first question that arises is who will be the opposite party. Customarily, the government is represented in legal proceedings by officers. It will be a travesty of justice to drag officers to court for failure to place an ordinance before the legislative body since they have no role in the process.

Contempt comes under both civil and criminal law. Action under the criminal law can be initiated only with the written consent of the Attorney General. There is no question of his granting permission for action against the Central government. If he grants permission for action against a state government, it can only be on political considerations.

In the final analysis, the issue is one of democratic sensibility, which is grossly lacking in the political system.
 
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