Bad precedent

Promulgating land ordinance for a third time is an unwise move

Over the weekend, the Union Cabinet decided to promulgate, for the third time, the ordinance amending the 2013 land acquisition Act. The amendments to the Act have run into heavy weather politically, with most opposition parties presenting a united front against it. Passage in the Rajya Sabha is, therefore, difficult to manage. However, the proposed amendments have been sent to a joint parliamentary committee, which met on Friday for the first time. Given that there is a parliamentary process underway, the Cabinet's decision to go ahead and re-promulgate the process is not prudent. This is not to say that the 2013 law should not be amended. The process as it stands may be too cumbersome, taking too much time and effort. The fine print of the 2013 law may mean that major projects will fail to take off. It is true that land acquisition is not, at the moment, the major constraint on investment revival - at least according to the finance ministry, quoting the CapEx database at the Centre for Monitoring the Indian Economy in response to a Right to Information query. But acquisition does not need to be the biggest immediate constraint in order for the government to take action to alter the 2013 law for the better. To the extent that such changes are needed to set up irrigation projects and for factories, it helps all Indians, not just the private sector.

That said, the purpose of ordinances is so that urgent or extraordinary situations can be dealt with even if Parliament is not in session. They are not a substitute for ordinary legislation - using them as such is a violation of the separation of powers that is the foundation of India's constitutional scheme. But the government seems to be using ordinances - at least, it has in this case - exactly as a substitute for the hard work of earning parliamentary consensus. This is a poor precedent. The Centre has rarely, if ever, done this; at most, history records some state governments using ordinances in this way in the distant past - Bihar, in particular, became famous for such misuse in the 1970s and early 1980s. On that state's behaviour, the Supreme Court said in 1986: "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. That would be clearly a fraud on the constitutional provision."

To avoid this, the government must simply wait for a few months, as the Constitution provides, and call for a joint session of Parliament. The prime minister himself has said he does not view the amendment as a "matter of life and death" - so not taking the time to do the right thing, constitutionally, is doubly puzzling. The sky will not fall if the 2013 law remains unaltered for a few months. In any case, ruling by ordinance is a British legacy of retaining control by the Crown. That's not exactly a good idea.