Clamping down on ordinance raj
Both superior courts and constitutional
functionaries have routinely deprecated the propensity of governments
to take the ordinance route for mere political expediency. The
temptation to use the power vested in the President and the Governors
under Articles 123 and 213 of the Constitution is generally a result of
one of the following three reasons: reluctance to face the legislature
on particular issues, fear of defeat in the Upper House where the
government may lack the required numbers, and the need to overcome an
impasse in the legislature caused by repeated and wilful disruption by a
vociferous section of the Opposition. The verdict of a seven-member Bench of the Supreme Court breaks
new ground in highlighting the constitutional limitations on the
cavalier resort to ordinances. The Supreme Court had already declared in
1986, in D.C. Wadhwa, that repeated re-promulgation of ordinances was unconstitutional. Now, in Krishna Kumar Singh v. State of Bihar,
it goes deeper and concludes that the failure to place an ordinance
before the legislature constitutes abuse of power and a fraud on the
Constitution. It noted in this case that a 1989 ordinance by which the
State government took over 429 Sanskrit schools in Bihar was promulgated
several times until 1992, but not once tabled in the State Assembly.
The
judgment widens the scope of judicial review of ordinances. The court
can go into whether the President or Governor had any material to arrive
at the satisfaction that an ordinance was necessary and to examine
whether there was any oblique motive. The judgment will be welcomed by
those who believe in constitutional propriety, legislative control over
lawmaking and the larger ethical basis for the exercise of power in any
circumstance. However, it is not always that the ordinance route can be
neatly explained as a cynical move to privilege political expediency
over parliamentary accountability. While contending that ordinances
should be issued only to meet certain exigencies and under compelling
circumstances, it is equally important to understand that disruption as a
parliamentary tactic plays a significant role. A dysfunctional House
sometimes constitutes a compelling circumstance in itself. Generally, it
is the combination of Opposition obstructionism and government
obstinacy in not making any concessions to those across the aisle that
derails legislative business and leads to ordinances. The courts can
only define the boundaries between the use and abuse of power, but it is
up to parties in the legislature to observe the limits of
constitutional propriety and show that they have both the time and the
will to enact laws.
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