Perverting the Constitution

By issuing the Prevention of Terrorism Ordinance, the Vajpayee government, which lacks the required parliamentary strength to get it approved, has acted against the principle of constitutional morality.

IN promulgating an ordinance, a government should have two prime considerations if it were to hold out an assurance to the people of its competence and capacity in the matter. The first of these is a Cabinet decision on any extraordinary situation that necessitates the use of the powers under the 'Legislative Power of the President' of Article 123 of the Constitution, and the second is the assured support of each House of Parliament for the promulgation of the ordinance and for the passage of any bill that would be introduced to replace it.

The first stage is a constitutional action, in which Parliament is not involved. The second stage arises when the ordinance is placed before Parliament, which has the power to control the action of the executive in issuing the ordinance and in enacting a law to replace it.

There has been wide discussion on the merits and demerits of the provisions of the Prevention of Terrorism Ordinance, or POTO. Those supporting it emphasise the need for such a stringent measure to deal with terrorism. Their fervour goes to the extent of branding all opposition to POTO as constituting deliberate support to terrorists and terrorism.

On the other hand, those opposing the Ordinance raise objections on the grounds that its provisions are so draconian as to scuttle the freedom of the press, human rights and the basic principles of criminal jurisprudence. It will provide wider cover for the failures and inefficiency of the administration, they say.

These charges against the provisions of POTO are mainly "legal". But, there is another aspect, namely, the "constitutional" base of the Ordinance. The Vajpayee government has committed a serious and outrageous act, in constitutional terms, in promulgating this Ordinance.

When Draft Article 102 - corresponding to the present Article 123 - came up for discussion in the Constituent Assembly, there was strong criticism against the very concept of giving legislative power to the executive. Most of the members of the Assembly had lived and struggled during the British regime under the highly oppressive measures taken by the Governor-General and the Governors under their ordinance-making powers. H.V. Kamath was forthright in saying: "This is an important chapter inasmuch as we are seeking to clothe or invest the President with certain powers against which the Congress and all patriots fought during the British regime against the ordinance-making powers of the Governor-General."

DR. B.R. AMBEDKAR explained the differences between the provision of the 1935 Act and the proposed provision of our Constitution. The Governor-General had the powers to issue an ordinance even when the legislature was in session; he was not responsible to the legislature and, in fact, had parallel legislative authority. Although an ordinance under our Constitution would be issued in the name of the President, Dr. Ambedkar contended that "there shall be a Council of Ministers to aid and advise the President in the exercise of his functions", and that "the President will be bound to accept the advice of his Ministers".

Kamath and others in the Constituent Assembly were more concerned with the possible delay - which may go up to seven and a half months - in the government seeking the approval of the legislature. At that time, the members viewed the entire question of ordinance promulgation under the normal assumption that the government would have a comfortable majority in both Houses of Parliament. Had Parliament been in session, the government would have had no need for an ordinance and it would have been able to introduce a bill and enact a law without any difficulty on the basis of its assured legislative strength. The question before the Constituent Assembly was how soon the government should be made to submit to the power of Parliament a matter of legislation. It is the legitimate authority and power of Parliament to approve or disapprove the use of the legislative power by the government. They were zealous that erosion of the legislative authority of Parliament should be restricted to as short an interval as possible.

The book Framing India's Constitution, edited by B. Shiva Rao and published in 1968, is a valuable collection of the relevant documents of the Constituent Assembly. Commenting on the trend of discussion in the Constituent Assembly about the ordinance-making powers of the government, it stated: "The Council of Ministers, which would in fact be responsible for making Ordinances under this power, would depend for its existence on the continued support and confidence of Parliament" (page 475).

Thus, the entire basis of Article 123 in bestowing legislative power to the executive rests on two factors: (i) Though the ordinance is issued in the name of the President, the responsibility for making the ordinance rests wholly with the Cabinet; and (ii) even if an ordinance is promulgated during the inter-session period, the Cabinet, while issuing the ordinance, should depend on the existence and the continued support and confidence of Parliament.

From this it should be clear that only a Cabinet that enjoys continued support in both Houses of Parliament has, constitutionally and morally, the competence and power to go in for an ordinance. If a government issues an ordinance when it lacks the legislative strength to have a bill containing the same provisions of the ordinance passed by Parliament, then it is an abominable misuse of the constitutional powers provided in Article 123.

In issuing the proclamation of POTO, the Vajpayee government relied on the words of Article 123 without following the spirit and morality of the Constitution. Unless the moral values of a Constitution are upheld at every stage, mere written words in it will not protect the freedom and democratic values of the people.

This aspect of constitutional morality was strongly insisted upon by Dr. Ambedkar in the Constituent Assembly itself. While moving the Draft Constitution in the Assembly on November 4, 1948, Dr. Ambedkar quoted Grote, the historian of Greece, who had said: "The constitutional morality, not merely among the majority of any community but throughout the whole, is an indispensable condition of government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable without being strong enough to conquer the ascendancy for themselves."

After quoting Grote, Dr. Ambedkar added: "While everybody recognised the necessity of diffusion of constitutional morality for the peaceful working of the democratic constitution, there are two things interconnected with it which are not, unfortunately, generally recognised. One is that the form of administration must be appropriate to and in the same sense as the form of the Constitution. The other, that it is perfectly possible to pervert the Constitution, without changing its form by merely changing its form of administration and to make it inconsistent and opposed to the spirit of the Constitution".

Dr. Ambedkar paused to ponder over the possible cultivation of constitutional morality in India. He observed: "The question is, can we presume such a diffusion of constitutional morality? Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic."

Thus, the Father of the Indian Constitution had a premonition that in the absence of constitutional morality, democracy may flounder in India.

It is quite possible to pervert the Constitution without changing its form. That is exactly what is taking place in India. That was exactly what Adolf Hitler did in Germany. Without altering the form of the Weimar Constitution, he destroyed the entire constitutional spirit and, in the end, the Constitution itself.

Where a government has sufficient majority in both Houses of the legislature, it has some legitimacy to go in for an ordinance; even there, the circumstances should be such that it cannot wait till the next session. This Government does not appear to have acted much on the basis of the powers of POTO, except to outlaw some organisations. That could have been done under the Unlawful Activities (Prevention) Act or under one or other of a plethora of sections of the criminal laws that we have.

THE bureaucrats would always prefer to have ordinances issued to have the power of law. They get tired of the tedious procedures of law-making by the legislature - in the form of notification, introduction, motions for circulation or reference to Select Committees, several stages of consideration, clause-by-clause discussion, division of the House, final reading, and so on. When a bill is passed in one House, it has to be referred to the other House for a similar time-consuming, nerve-racking work by the Minister concerned and the officials of the Ministry.

Instead of the rule of law, the bureaucracy would prefer to have rule by ordinances. Actually, the Bihar government indulged in such a rule of ordinances by promulgating and re-promulgating ordinances without having the need to approach the State legislature. At the expiry of an ordinance, it would promulgate another, reproducing the contents of the defunct ordinance. It re-promulgated as many as 256 ordinances between 1967 and 1981. One particular ordinance was re-promulgated continuously for 13 years without approaching the State legislature for a regular enactment.

Eventually, Dr. D.C. Wadhwa, an arduous research scholar from the Gokhale Institute of Politics and Economics, Pune, stumbled upon evidence of the manipulation of successive ordinances on identical subject matters in the Bihar government. He compiled the details with great care and published his findings in a book Re-promulgation of Ordinances: A Fraud on the Constitution of India. He filed a petition in the Supreme Court against the fraudulent use of the constitutional power. In its judgment in D.C. Wadhwa vs State of Bihar (AIR 1987 SC 579), the Constitution Bench headed by Chief Justice P.N. Bhagwati observed: "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 contrary to all democratic norms that the Executive should have the power to make a law."

In the concluding paragraph of this judgment, the court made a strong indictment: "It is a settled law that a constitutional authority cannot do indirectly what it is not permitted to do directly. If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge. This would clearly be a fraud on the constitutional provision."

The Vajpayee government has sought to do indirectly through an Ordinance what it has not been in a position to do directly through a bill containing the same provisions passed in Parliament. Had the government sufficient strength to pass such a bill, it need not go about seeking consensus, consideration of amendments, all-party meetings, and so on. Some of the National Democratic Alliance constituents themselves have expressed reservations about some of the provisions of POTO.

PROMULGATION of an ordinance by a government that does not enjoy sufficient strength in Parliament will have dangerous consequences. An ordinance has the force of law as soon it is promulgated and in case of disapproval by Parliament the ordinance may cease to exist. But a mere disapproval will not revive the completed transactions unless Parliament passes an act reversing the transactions of the Ordinance with retrospective effect, subject, of course, to constitutional limitations.

In Re-promulgation of Ordinances, Prof. Wadhwa gives a quotation from the Roman legalist Julius Paulus (B.C. 204): "One who does what a statute forbids transgresses the Statute; one who contravenes the intention of a Statute without disobeying its actual words, commits a fraud on it."

Half a century ago, Dr. Ambedkar warned the people of India about the possibility of subverting the Constitution without changing its form. Paulus said some 22 centuries ago that a fraud on a statute could be committed without disobeying its actual words.

The Union government has contravened the intention and morality of the Constitution. It has committed a blatant fraud on the Constitution.

Irrespective of the steps taken by government or those to be taken by Parliament in dealing with the disapproval resolutions and consideration of a bill, in whatever form they are presented and considered, high priority should be given to take up and call for the accountability of the government about the fraud committed on the Constitution by promulgating the Ordinance.

Era Sezhiyan is a Senior Fellow of the Institute of Social Sciences, New Delhi, and a former Member of Parliament.