The Ordinance Raj Revisited

More than a decade ago, the Supreme Court had observed that some state governments tended to promulgate and repromulgate ordinances for years without ever placing them in the legislature. The Bihar government had set a record in this style of making laws. At the end of each Assembly session, the secretaries of all departments were supposed to forward a list of ordinances to be repromulgated to the law department. The ordinances were repromulgated before their respective dates of expiry.

Last week, the Supreme Court found that the practice was continuing, at least in Bihar. The question was whether such ordinances, masquerading as laws, were invalid because of the fraud on the Constitution and misuse of the governors legislative powers. Unfortunately, the two judges who were considering the point could not agree and have therefore referred the issue to a larger bench.

The Constitution has invested the legislature with law-making powers. Article 213, however, gives the governor the legislative power to promulgate an ordinance when he is satisfied that immediate action is required when the legislature is not in session. Such an ordinance can last seven and a half months. The President can also issue ordinances. A constitution bench of the Supreme Court, in R K Garg vs Union of India (1982), had ruled that an ordinance is law and has the same force as an Act of Parliament. It could not be treated as an executive or administrative action.

This special power conferred on the executive has often been misused. Despite earlier Supreme Court rulings on the subject, new conundrums have come up, like the present one. In this case, the Bihar government repromulgated an ordinance six times since 1990. The object was to take over some 430 Sanskrit schools, including their management and staff.

One judge held that the promulgation of the original ordinance was unconstitutional and therefore all the subsequent repromulgations were invalid. But the other judge maintained that the first one was valid, not the subsequent ones.

Even if the first promulgation of the first ordinance is valid, it has serious consequences. The government might have taken irreversible or enduring steps following the promulgation. For instance, the takeover of an industry would entail heavy public expenditure. The workers would clamour for wages and social security benefits according to government rates.

The Constitution fathers themselves were not sure of the consequences of giving ordinance-making powers to the executive. When some of them expressed their doubts, Dr Ambedkar assured them that an ordinance would last only for a limited period and therefore there was no danger in it. But events have proved otherwise.

When the constitution bench of the Supreme Court last examined the ordinance-making powers of the governor (D C Wadhwa vs State of Bihar, 1987), it hoped that there would be no further misuse. Again, that hope was belied. The governor acts on the aid and advice of the state cabinet. Therefore, there is little scope for the governor to use his discretion against the advice of the cabinet.

As a result, short-lived coalition ministries can pass populist ordinances that impose heavy financial burdens on subsequent governments. Since they are accepted as laws, even the Election Commission might find itself helpless if the power is misused on the eve of a poll. Therefore, the Supreme Court must speedily answer the new questions thrown up by the continued liberal use of ordinance-making powers of the executive.