An epic struggle

Print edition : December 04, 2009

RARELY would one expect the findings of an incidental research into a drab and dry subject to aid and inspire the campaign for the defence of the Constitution and what it stands for. This book is a demonstration of how such a thing actually happened.

The power conferred on the Governor/President to issue ordinances is an emergency power for taking immediate action at a time when the legislature/Parliament is not in session. The life of an ordinance cannot exceed seven and a half months unless it is replaced by an Act of the legislature/ Parliament or disapproved by a resolution of the legislature/Parliament before the expiry of that period.

The life of an ordinance is limited because it is contrary to all democratic norms that the executive should have the power to make a law. That is why the Constitution provides that the ordinance shall cease to operate on the expiration of six weeks from the date of assembling of the legislature. If the provisions of the ordinance are to be continued in force, this time should be sufficient for the legislature to pass the necessary Act. Re-promulgation of a similar ordinance, before the first one expires, in the event of failure to pass an Act to replace it by the legislature, therefore, is against the scheme of the Constitution.

The author of this book, Dr. D.C. Wadhwa, Emeritus Professor and formerly Professor and Director, Gokhale Institute of Politics and Economics, Pune, began his research into the re-promulgation of ordinances by State governments almost by accident. In 1979, he started working on a book on the agrarian structure in Bihar since 1793, when Permanent Settlement was introduced in the Presidency of Bengal, which included the present States of Bihar and Jharkhand as well.

As a part of that study, he began to research the Chota Nagpur Tenancy Act of 1908. He then found that an amendment to this Act was made three or four times in a year through ordinances. He collected all the amending ordinances and found to his dismay that they were all identical.

The deeper he delved into the subject, the more shocking the phenomenon appeared to him. He was convinced that the Governors of Bihar had been committing a fraud on the Constitution of India since 1967 when they started promulgating ordinances. He soon kept aside his work on agrarian structure in Bihar and began to write a book, which he completed in 1983, entitled Re-promulgation of Ordinances: A Fraud on the Constitution of India.

The book revealed that the Governor of Bihar promulgated 256 ordinances between 1967 and 1981 and all these were kept alive for periods ranging between one and 14 years by re-promulgation from time to time. Out of these, 69 were re-promulgated several times and kept alive with the prior permission of the President of India. The book, which was widely acclaimed for its contribution to the rule of law and legal awareness, soon convinced the author that he must file a writ petition in the Supreme Court challenging the practice of re-promulgation of ordinances. The book was part of his petition. The response of the State of Bihar to the petition was hardly convincing.

The result was the judgment, by the Supreme Courts five-Judge Constitution Bench, in Dr. D.C. Wadhwa v. State of Bihar, delivered by the then Chief Justice of India, P.N. Bhagwati, on December 20, 1986. The court disapproved of the ordinance raj, and struck down one such re-promulgated ordinance that was still in operation in Bihar.

The court declared the practice of re-promulgation of ordinances illegal, unconstitutional and a fraud on the Constitution, but carved out an exception to Article 213. This article imposes an absolute time limit (expiry of six weeks from the reassembly of the legislature) for an ordinance during which it must be replaced by an Act of the legislature. The court held that there might have been situations where the Governor would legitimately find it necessary to re-promulgate an ordinance, because the legislature would not have had sufficient time to replace it with an Act.

A demonstration with a symbolic jail against the passing of the Prevention of Terrorism (Second) Ordinance, in New Delhi in November 2001.-RAVEENDRAN/ AFP

The book, under review, is a sequel to Re-promulgation of Ordinances and enlightens the reader on several aspects of Wadhwas epic struggle, which is still not over, because of the Supreme Courts less-than-satisfactory judgment in 1986.

Much of what the book contains is legal history through meticulous documentation of the progress of the case in the Supreme Court right from Wadhwas writ petition, to counter-affidavits, rejoinders, written submissions and the judgment. A casual reader who has no inclination to go through these documents will, however, find Wadhwas Preface and the Epilogue useful to understand the huge obstacles he had to cross to fight this case.

Legal academic Upendra Baxis Introduction is a bonus. Those who are likely to complain that the data assembled in the book are not an easy read may well listen to Baxi: Whoever said that the archives of state lawlessness must remain a galloping, unputdownable-type narrative?

The sheer exasperation that a public interest litigation (PIL) petitioner would suffer to get the court to hear the petition is not easy to recount. Wadhwa filed his petition on January 16, 1984. The five-Judge Constitution Bench heard his petition only on November 19, 1986. The intervening period was full of suspense about the date when the case would be actually heard by the court, and marked by frequent adjournments, rather generously granted to counsel representing State governments by the court. That it necessitated frequent, and unavoidable, visits from Pune to the capital by Wadhwa, imposing on him undue financial burden, not to mention the trauma of an anxious litigant, was never a matter of concern for the court.

As Baxi explains: This work demonstrates that while the court has assumed powers by issuing open invitations to citizens to come before it to correct all the excesses of power threatening democratic values and rule of law, it has refused, over the years, to consistently assume a matching responsibility. A citizen activating the social action jurisdiction of the court soon learns how arduous and hapless the enterprise is or can become.

In particular, Baxi draws attention to page 64 of the book which documents the bizarre movement of the listing of the case, which can only be compared with the game of snakes and ladders. Wadhwas case was listed 37 times before it was actually heard by the Bench. Baxi asks: If a social action petitioner had to attend the court on each of the 37 (actually a lot more) occasions in this case coming from Pune to New Delhi you can imagine the sacrifice of talent, time and money expected by the Supreme Court of India of a citizen pursuing the constitutional adventure of restoring elementary norms of civilised legality in India!

The Supreme Court in this case directed the Bihar government to pay Rs.10,000 to Wadhwa towards the cost of his petition. Calling it a cruel constitutional joke, Baxi suggests that the court should have taken judicial notice of the costs of travel, residence and related expenses, apart from the mental agony involved in an altruistic constitutional pursuit. He exclaims that while the state attorneys are fully taken care of at the cost of public exchequer in deviously defending manifest illegalities, a social action petitioner is summoned to sacrifice a good deal in the pursuit of an uncertain constitutional result.

L.K. Advani, who as Union Home Minister, was the author of the first-ever re-promulgation of an ordinance on December 30, 2001 by the Central government.-AJIT KUMAR/AP

Baxi states that the Supreme Court remains too lenient concerning the timing of submission of affidavits by state counsel and the standards of argumentation therein offered. By doing so, the court endorses in effect the conversion of social action litigation into an adversarial mode, he cautions.

The Supreme Courts judgment in this case would doubtless find its place in the list of the courts many disappointing judgments. Baxi puts it succinctly: The decision in this case offers a symbolic victory for the citizen; but the victory remains only and merely such....The Supreme Court exercised a hortative or advisory jurisdiction. According to him, the court could have issued a directive explicitly prohibiting the practice of re-promulgation of ordinances after the period of six weeks from the reassembly of the legislature, as is mandatory under Article 213(2)(a), but it did not. In a context where a state has usurped unconstitutionally the power of the elected representatives of the people, the Supreme Court remains content to develop a jurisprudence of prayer...and with fervent appeals summoning an errant executive to the path of constitutional rectitude, he says.

Baxi warns the reader against entertaining any sense of complacency. One does not quite know, he says, pending further empirical studies whether ordinance raj-type practices of governance have abated; inveterate political habits die hard. Baxi suggests that the overall message of Wadhwas profound work remains much wider: Indian legislatures far too disproportionately dedicate their precious time to purposes other than making laws and public policies.

Wadhwa, in his epilogue, rightly disagrees with the court over its limited justification for the re-promulgation of an ordinance. He says that if the time at the disposal of the legislature in a particular session is short, the solution does not lie in the re-promulgation of an ordinance but it lies in extending the duration of a session of the legislature.

Wadhwas epilogue is also useful to record for posterity the hypocrisy of former Deputy Prime Minister L.K. Advani. On December 22, 1983, as the Leader of the Opposition, Advani initiated a debate in the Rajya Sabha through a calling attention motion on Wadhwas book. During this debate, Advani described re-promulgation of ordinances as politically immoral and as a fraud on the Constitution, and sought an assurance from the then Home Minister that in all cases thereafter the President would withhold his assent and refuse to give permission for re-promulgation of ordinances. He also led a walkout by his partymen because of the Ministers reluctance to give such an assurance to the House.

However, as the Union Home Minister, Advani was the author of the first-ever re-promulgation of an ordinance on December 30, 2001 by the Central government. On that day, the Prevention of Terrorism (Second) Ordinance, 2001 was promulgated to ensure the continuity of the earlier POTO, which was about to lapse, because of the inability of the government to secure the requisite support for its Bill to replace the ordinance in the Rajya Sabha.

Clearly, the then government made political use of its non-existent power to re-promulgate an ordinance a situation not contemplated by the Supreme Court in its judgment in the Wadhwa case. The author quotes from the judgment: The power to promulgate an ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be perverted to serve political ends.

It is high time the Supreme Court reviewed its own decision in this case so as to leave no ambiguities in the interpretation of its judgment. Parliament, in its turn, must heed Wadhwas specific proposals outlined in this book, to amend the Constitution in order to rule out re-promulgation of an ordinance in any situation.

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