Spotlight on “Ordinance Raj”
ARVIND P. DATAR
ENDANGERED CONSTITUTIONALISM — Documents of a Supreme Court Case: D.C. Wadhwa; Published by Gokhale Institute of Politics and Economics, Pune. Distributed by Aditya Books Pvt. Ltd., 119, Vinoba Puri, Lajpat Nagar II, New Delhi-110024. Rs. 795.
It is indeed ironical that one of the landmark judgments on constitutional law was the result of pioneering work by an economist, D. C. Wadhwa, a former Director of the Gokhale Institute of Politics and Economics, Pune, who accidentally stumbled on the fact that the constitutional provision for promulgating ordinances was being abused in Bihar. Article 213 of the Constitution empowers the Governor of a State to promulgate ordinances when the Legislative Assembly is not in session. The provision is to enable the executive to enact urgent laws through ordinances in situations where immediate action is considered necessary. Such a law will lapse six weeks after the Legislature re-assembled unless it is replaced by a legislative enactment. Law-making, under the theory of separation of powers, is the preserve of the legislature. The executive’s duty is to implement the laws.
From 1967, Bihar — and a few other States — started resorting to the pernicious practice of re-promulgating the lapsed ordinances several times over. As Wadhwa points out, a sugarcane ordinance was promulgated repeatedly and kept alive for almost 14 years! Statistics show that during 1950-66 the Bihar Legislature passed 444 Acts and the number of ordinances promulgated was 76. During 1967-81, while the number of Acts passed by the legislature dropped to 180, the tally of ordinances shot up to 2014! There are cases where as many as 50 ordinances were promulgated on a single day.
It was Wadhwa who, through his book titled “Re-promulgation of Ordinance: A fraud on the Constitution of India” (published by the Gokhale Institute of Politics and Economics, Pune), brought this deceitful practice into the spotlight. He followed it up, in 1984, with a writ petition in the Supreme Court. The Constitution Bench headed by Chief Justice Bhagwati, while allowing the petition, categorically declared that “Ordinance Raj” had no place in India and went on to make quite a few significant observations on the ordinance-making powers of Governors.
Compilation
The book under review, published by the Gokhale Institute as a sequel to Wadhwa’s earlier work, is basically a compilation of the affidavits, written submissions, and other documents that were filed in the Supreme Court in 1984. It sharply brings out, on the one hand, the meticulous attention Wadhwa had paid to detail in presenting his case and, on the other, the casualness that was apparent in the counter-affidavit filed by the Bihar government.
In a lengthy epilogue, Wadhwa criticises the Supreme Court for permitting re-promulgation “if there is too much legislative business in a particular session.” He rightly contends that the Constitution does not permit any such relaxation and the Supreme Court judgment is clearly contrary to the plain words of Article 213. If there is too much legislative business, the remedy lies in extending the number of days of the session and not in freely invoking the ordinance-making powers. Indeed, in recent times there has been a drastic fall in the number of days devoted to legislative business by Parliament and the State Assemblies. He also points out that even after the Supreme Court judgment, governments run by various political parties have resorted to promulgating ordinances in a clear violation of the apex court’s verdict and Article 213. The net result is that the legislature has quietly surrendered its paramount power in favour of the executive. Wadhwa goes on to suggest some amendments to the Constitution with a view to preventing the “Ordinance Raj.”
Upendra Baxi, who has provided an excellent introduction to the publication, laments that too much time is frittered away by the Indian legislatures on purposes other than making laws and public policies.
This book will be particularly useful to lawyers and students of constitutional law for the manner in which the case was prepared and presented before the Supreme Court. For non-lawyers, it provides shocking evidence as to how our legislatures have betrayed their constitutional duty and allowed the executive to encroach upon their law-making powers.
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