CENTRE for POLICY ANALYSIS

CENTRE for POLICY ANALYSIS

“Social progress can be measured by the social position of the female sex” - Karl Marx

OPINION


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 legislature.  

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 judgments.  

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 Constitution.  

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.  

 

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