CUTTING CORNERS / TRANSPARENT DISHONESTY 

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By BY ASHOK MITRA
  • Published 4.01.02
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The unsinkable Molly Brown, please move over. You have competition, the defence minister of India has proved himself equally unsinkable. He said boo to Tehelka and got himself re-inducted in the Union cabinet. Even the comptroller and auditor general's report could not capsize him; the incident of December 13 has come as a godsend. Those whom the gods do not want to destroy are supplied with wonderful modalities of survival. So we can, for the present, leave aside the redoubtable George Fernandes. A question mark nonetheless hangs around the prevention of terrorism ordinance which is yet to be legislated. The government apparently is in a cheerful frame of mind. How does it matter if the proposed act fails to make it in Parliament? Now that the Parliament is adjourned sine die, the ordinance already promulgated for the purpose, it has been hinted, can be conveniently reissued. This is of course in line with the hoary tradition built in the great democratic republic of India. There is such an animal as Article 123 of the Constitution. Clause (1) of the article reads as follows: "If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require." In terms of clause (2) of the article, an ordinance so promulgated "shall cease to operate at the expiration of six weeks from the re-assembly of Parliament". In the present instance, Parliament re-assembled on November 23 last; therefore the prevention of terrorism ordinance is supposed to lapse by early January. But now that Parliament is not in session, the government may well venture to re-issue the ordinance and thus feel to be at the top of the world, at least till Parliament reconvenes and once again six weeks go by. The stratagem appears to be so enchanting that a government, which does not like the legislative body, could continue to rule indefinitely through promulgation of ordinances ad nauseam while Parliament is in recess. In fact, during the halycon days of overwhelming Congress supremacy and Indira Gandhi's national dominance, ordinances were as common as crocuses in springtime both at the Centre and in several states. Thereby hangs an eerie story. No representative government existed in the country during British days; our masters, operating from several thousands of miles away, would rule through ordinances. Nationalist politicians would fulminate against such "lawless" ordinances and promise the people a legislature-validated rule of law in free India. That promise was soon conveniently forgotten in the aftermath of independence. The Congress oligarchs gradually got habituated to bypass the legislature and rely on ordinances, a custom which went well with the arbitrariness that featured the establishment mindset. In the first flush of post-Emergency pro-democracy fervour, some idle talk ensued over the desirability of putting a stop to governance by ordinance. That was more easily said than done. Ordinances, you see, are so convenient. Those who are in administration have to take measures from time to time in a hurry, laws have to be enacted pronto, those in charge cannot afford the luxury of waiting for Parliament to meet at its sweet will and endorse the proposed legislative measures only after an agonizingly long wait. Extraordinary situations call for extra ordinary arrangements, such as ordinances. Should these ordinances not be to the liking of members of Parliament, why, one can play hide and seek with Parliament and re-promulgate them as soon as Parliament adjourns. This game has gone on for nearly half a century and no sense of outrage has disturbed the air. Several jurists were worried; the systematic re-promulgation of ordinances with the obvious objective of by-passing democratic procedures, they were of the view, is a scandal of the first order. But they failed to halt the process. Feeble attempts at seeking the intervention of the judiciary for thwarting such debunking of representative government have been made every now and then - to no avail. The ordinance-lovers have fallen back on clause (3) of Article 123, namely, that, in the matter of issuance of ordinance, the satisfaction of the president "shall be final and conclusive and shall not be questioned in any court on any ground". That apart, Article 74 is also quite categorical: the satisfaction of the Union council of ministers has to be equated with the satisfaction of the president. However, there is suddenly a glimmer of hope. In case a determined effort is made afresh to raise the issue with the highest judiciary of the land, a positive response might now perhaps be looked forward to. The reason for this optimism is a recent judicial development. A provision exists under Article 75 of the Constitution that a minister can continue to hold office for a period of six consecutive months without being a member of either house of Parliament. This provision has been exploited to the hilt in both New Delhi and the states for enabling an individual to continue in the office of minister through a transparently dishonest sleight of hand. The person inducted, as minister, without being an elected member of the legislature, has continued to hold office for six months, would vacate office on the expiry of the period, but be sworn in again with a gap of one day or one week; the pastime would continue for ever. Never mind if it is formally a representative form of government, a minister would continue to be one without obtaining the endorsement of the electorate. At long last, the celebrated J. Jayalalithaa case has succeeded in extracting a clear-out verdict from the Madras high court in this matter. It has ruled that a particular individual could continue as a minister without being elected to the legislature, only for one period of six month; he or she is not entitled to re-appointment for any further period without election to the legislature. This verdict has actually been the source of the recent travails of the formidable southern lady. Should not an analogy hold here? If, as per Article 75, an individual can continue to be a minister without being a member of the legislature only for one count of six months, should not Article 123 be similarly interpreted: an ordinance is to be permitted to be promulgated only for one occasion and must under no circumstances be re-promulgated? The highest judiciary may not in all seasons necessarily prefer to assume an activist role in the dispensation of justice. But this is a most crucial issue which should attract its attention. We call ourselves a democracy. We have not declared an emergency and kept in suspension the fundamental provisions of the Constitution. And yet, we condone an arrangement which, on the face of it, winks at the effectual enactment, over and over again, of legislative measures without the sanction of the elected representatives of the people. Is this constitutional? A one-time promulgation of an ordinance on an emergent issue of vital importance could be gone along with. But when the whole thing is reduced to a grotesque parody of democracy, the judiciary must step in. There have been instances of late when the Supreme Court of India has taken the initiative to pronounce a judicial decision on a matter on the basis of a newspaper report or even a postcard addressed to it. No flippancy is involved if, while closing this column, a hope is expressed that the honourable judges would reach the conclusion that enough was enough, and that it was time they put a stop to this hocus-pocus of continuous re-promulgation, till the cows come home, of the same ordinance.