Re-Promulgating an Ordinance is a Fraud on the Constitution
Ordinances are the law-making power
given to the executive in our Constitution, and have been taken from the
colonial British legacy. Specifically, the ordinance-making power of the
President of India is taken from the Indian Councils Act of 1861. Under this
Act, the Governor-General could promulgate ordinances in case of emergency
which would remain in force for no more than six months.
The Government of India Act, 1935
provided for the promulgation of ordinances by the Governor-General at his
discretion, in exercise of his individual judgement. The Governor-General was,
however, required to obtain previous instructions from the Crown in certain
cases. The Governor-General also had the power to issue ordinances even when
the Legislature was in session. These provisions were adapted under Articles
123 and 213 of our Constitution.
Under Article 123, the President has
the power to promulgate an ordinance on the advice of the Council of Ministers,
except when Parliament is in session, if "the President is satisfied that
circumstances exist which render it necessary for him to take immediate
action". Article 213 gives Governors the equivalent power.
Just after the budget session
concluded last month, the Union government re- promulgated an ordinance which
had lapsed, calling it the Muslim Women (Protection of Rights on Marriage),
Second Ordinance, 2019.
This directly undermines the
sovereignty of Parliament and legislative functioning. In a parliamentary
democracy such as ours, the executive is accountable to the legislature. For a
government to re-promulgate any ordinance which has lapsed, and to go on doing
so repeatedly without submitting its actions to the scrutiny of Parliament,
affects the important checks and balances provided in the Constitution.
Several court judgments have
emphasised this. A seven-judge Constitution Bench led by former Chief Justice
of India T.S.Thakur held that the seven successive re-promulgations of the
Bihar Non- Government Sanskrit Schools (Taking Over of Management and Control)
Ordinance of 1989 were unconstitutional, as the same ordinance was
re-promulgated several times by the Bihar government without passing it by the
In 2017 the Supreme Court held that
this directly and indirectly violated Article 213 of the Constitution, as well
as the basic structure of the Constitution as enumerated in Kesavananda Bharti, 1973 and subsequent
Justice D.Y.Chandrachud, supported by
Chief Justice Thakur and others in a separate judgment, held that "re-promulgation of ordinances is a fraud on the Constitution and a subversion
of democratic legislative processes."
Re-promulgation defeats the
constitutional scheme under which a limited power to frame ordinances has been
given to the President and Governors. The present government re-promulgated the
Triple Talaq Ordinance, as it has come to be known, even while a Bill to the
same effect was pending in the Rajya Sabha or the Council of States. The Bill
lapsed after the conclusion of the budget session. This clearly indicates that
the legislature did not want to pass it.
Furthermore, what was the emergency
situation that required this ordinance to be promulgated? The Triple Talaq Bill
was not passed by Parliament, so parliamentary sanction was not there. It is a
well-established principle of constitutional law that the primary and essential
legislative function must be performed by the legislature itself. So the
government's action has directly affected the basic structure of the
Limitations on the government's powers
have been breached, violating the constitutional spirit.
Such tendencies of the executive are
also affecting constitutionalism. This word is defined by dictionaries as "a
belief in constitutional government" or "the belief that a government should be
based on a constitution". In the bedrock of our Constitution is the principle
of the separation of powers. The legislature cannot delegate its legislative
power, nor can the executive wrest legislative power from it.
But if the State or citizens do not
abide by constitutionalism, the Constitution itself becomes meaningless. To
take a recent example: Egypt's legislators clear the way for President Sisi to
rule until 2034, paving the way for a majoritarian state. Egypt has a
Constitution but not constitutionalism, or a constitutional ethos, which in a
broader sense means rule of law and checks and balances on State power.
The division of the State into three
parts - the executive, the legislature and the judiciary - is a fundamental
principle of democracy, meant to curb precisely this State power, and to
protect citizens and institutions from the State's arbitrary behaviour.
Let us remember that Dr Ambedkar
described ordinances as a necessary evil. To quote, "Yes. The word 'ordinance' is a bad word... I do not like the word 'ordinance', but I cannot find any
other to substitute it. So it should be used rarely not frequently."
Triple talaq is not the only issue on
which this government has repeatedly promulgated an ordinance which lapsed, or
has tried to do so. Executive overreach of this sort has undermined the basic
functioning of our democracy.