A sure sign of poor governance in a democracy is reliance on measures that undermine the Constitution. The repeated re-promulgation of Ordinances does that as it means usurpation of the legislature's powers by the executive. Prof DC Wadhwa's war against governance by Ordinance began in 1979 when, working on a book on Bihar's agrarian structure since 1793, the year of the Permanent Settlement, he found that an Ordinance effecting the same amendment to the Chota Nagpur Tenancy Act of 1908 repeated three or four times every year. On inquiry, he learnt that this was to keep the amendment alive. Convinced that this was unconstitutional, he jettisoned his book project and, instead, began collecting material on Ordinances. The result was his 1983 book, Re-Promulgation of Ordinances: A Fraud on the Constitution of India. This was followed by the filing, in January, 1984, of a writ petition in the Supreme Court under Article 32 of the Constitution, challenging the re-promulgation of Ordinances.
Mr Wadha's new book Endangered Constitutionalism: Documents of a Supreme Court Case, published, like his earlier work, by the Gokhale Institute of Politics and Economics, has that writ petition as its subject. It presents, systematically and meticulously, the details of the proceedings, including written submissions, representations, arguments, the evidence presented, the judgement itself and, finally, an epilogue where he presents his critique of the judgement.
Two of the three Ordinances, challenged in the writ petition by Mr Wadhwa and three others, had their provisions incorporated in Acts of the legislature by time the Constitution bench of the Supreme Court, delivered its judgement on December 20, 1986. These were the Bihar Forest Produce (Regulation of Trade) Third Ordinance of 1983 and Bihar Bricks and Supply (Control) Third Ordinance of 1983. The third Ordinance challenged, the Bihar Intermediate Education Council Third Ordinance, which was in the legislature for enactment as law, was struck down.
The Supreme Court made it clear that the power to promulgate an Ordinance was essentially for use to meet an extraordinary situation and could not be allowed to be "perverted to serve political ends". It "was contrary to all democratic norms that the executive should have the power to make a law, but in order to meet an emergent situation, this power is conferred on the Governor and an Ordinance issued by the Governor in exercise of this power must, therefore, of necessity be limited in point of time. That is why it is provided that the Ordinance shall cease to operate on the expiration of six weeks from the date of assembling of the legislature."
The judgement, however, did not put an absolute end to the re-promulgation of Ordinances. It said, "Of course, there may be a situation where it may not be possible for the Government to introduce and push through the legislature a Bill containing the same provisions as in the Ordinance because the legislature may have too much legislative business in a particular session or the time at the disposal of the legislature in particular session may be short, and in that event, the Governor may legitimately find that it is necessary to re-promulgate the Ordinance. Where such is the case, re-promulgation of the Ordinance may not be open to attack. But, otherwise, it would be colourable exercise of power on the part of the executive to continue an Ordinance with substantially the same provisions beyond the period limited by the Constitution, by adopting the methodology or re-promulgation."
Mr Wadhwa points out in the last chapter, entitled Epilogue, that Article 213 of the Constitution does not provide for the kind of exception that the judgement writes into it. The Ordinance must lapse unless replaced by an Act of the legislature. He cites several judgements by the Supreme Court of India and the Privy Council and the House of Lords in the United Kingdom to argue that "courts cannot add words to a statute if the language of the statute is clear and unambiguous. The language of Article 213 of the Constitution is very clear and unambiguous." He spells out in detail a constitutional amendment completely banning repeated re-promulgation of Ordinances. His has been a remarkably tireless and painstaking effort which merits the respect of even those who might differ.
