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NOIDA/DELHI

EDITORIAL

THE HINDU FRIDAY, JANUARY 27, 2017

Rolling back Ordinance Raj

The Supreme Courts verdict that ordinances are subject to judicial review, and do not automatically create
enduring effects, places a timely check on a power rampantly abused by governments
F R I D AY , J A N U A RY 2 7 , 2 0 1 7

Banking on
good faith

he arrests by the Central Bureau of Investigation of former IDBI officials are

worth noting for timing, intent and implications. The agency is investigating
these officials, who had been at the helm of the public sector banks affairs eight years ago, on charges
of facilitating a 900-crore loan to the now-defunct
Kingfisher Airlines without due diligence. Two
days after the arrests, a list that included former
IDBI Chairman Yogesh Aggarwal, the Securities
Exchange Board of India barred Kingfisher promoter Vijay Mallya and senior officials of group
firm United Spirits Ltd. from securities dealings,
and restrained them from holding directorial positions in listed companies. Mr. Mallya owes banks
close to 9,000 crore and has been in exile in the
U.K. for nearly a year, even as his lenders have
scrambled to recover their dues, with little success.
Last week, after a three-year-long trial, the Debt Recovery Tribunal allowed a consortium of 17 banks
to recover from Mr. Mallya and his companies outstanding dues of 6,200-odd crore plus interest related to the airlines operations. For the Central government, Mr. Mallyas flight to London has been a
source of much embarrassment, with Finance Minister Arun Jaitley terming the bad loans a legacy
from the UPA days.
Amidst the rising pile of non-performing assets
in government-owned banks, wilful defaulters
were said to be responsible for around 77,000
crore of bad debts by last July, but the Kingfisher
baron has emerged as the poster boy of the problem. Therefore the flurry of action on his bad loans,
however belated, could help counter perceptions of
a passive approach towards the well-heeled. Breaking the banker-borrower nexus is just as critical for
safeguarding public money as is acting against corrupt administrators, but a timely and transparent
system is needed to ensure that bankers dont turn
wary of extending credit at the slightest hint of risk.
The fear of investigative agencies and adverse audit
reports was blamed for the so-called policy paralysis in the UPAs second term. Prime Minister Narendra Modi had, early in his term, urged officers to
take bold decisions without fear of retribution and
promised to stand by them for decisions taken in
good earnest. That promise requires making some
necessary amendments to the Prevention of Corruption Act, particularly the much-too-broad and
subjective Section 13(1)(d) that has resulted in
many an honest officer being chargesheeted for the
corruption of others. If there is malfeasance involved in the IDBI loan, action must be swift and
exemplary but to ensure circulation of credit,
systems must also be put in place to reassure
bankers against random witch-hunts.

ives power to issue ordinances, therefore,

goes against this general grain of command;
for it acts neither as a check nor as a balance
on the authority exercised by the other
branches of government.

SUHRITH
PARTHASARATHY

On January 2, in one of many judgments delivered on its first working day of the year,
the Supreme Court, in Krishna Kumar Singh
v. State of Bihar, made a series of pronouncements with potentially huge implications for the future of democratic governance in the country. The case raised
intricate constitutional questions concerning the executives power to make law
through ordinance, but the majoritys opinion, authored by Justice D.Y. Chandrachud,
on behalf of five of the seven judges who
heard the case, is lucid both in its reasoning
and in its ultimate findings.
For far too long, the court recognised, the
power to make ordinances has been abused
to subvert the democratic process. A failure
of a legislature to confirm an ordinance,
therefore, in the courts ruling, was fatal both
to the validity of the law, and also, unless
public interest otherwise demanded, to the
rights and liabilities that may have accrued
from such a law. According to Justice
Chandrachud, the authority to issue ordinances is not an absolute entrustment, but is
conditional upon a satisfaction that circumstances exist rendering it necessary to take
immediate action. In other words, ordinances are not immune from judicial
challenge.
Ordinary idea of ordinance
The contest over the use of ordinances as a
tool to make laws stretches well beyond the
Constitutions adoption. Indeed, at the time
when the provisions incorporating these
powers were debated in the Constituent Assembly, B.R. Ambedkar suggested that any
concerns over the conferment of ordinancemaking powers on the executive were really
only a quibble over language. My own feeling is that a concrete reason for the sentiment of hostility, which has been expressed
by my honourable Friend, Mr. [H.V.] Kamath
as well as my honourable Friend, Mr. [H.N.]
Kunzru, really arises by the unfortunate
heading of [the] Chapter Legislative Powers
of the President, Ambedkar said. It ought
to be Power to legislate when Parliament is
not in session. I think if that sort of innocuous heading was given to the Chapter, much
of the resentment to this provision will die
down. Yes. The word Ordinance is a bad
word, but if Mr. Kamath with his fertile imagination can suggest a better word, I will be
the first person to accept it. I do not like the
word ordinance, but I cannot find any other

ILLUSTRATION: DEEPAK HARICHANDAN

A test of public interest could

prove somewhat problematic.
There may well be cases where
an ordinance creates outcomes
that are manifestly irreversible
to substitute it.
But had Ambedkar been around to witness
the systematic dismantling of the constitutional basis for the ordinance-making power
by recent governments at both the Central
and State levels, it is likely that he may have
renounced his earlier opinion. Its now apparent that the problem in the use of ordinances arcs far beyond mere semantics. It
goes, in fact, as Shubhankar Dam, a professor
of law, and an author of a recent book on ordinances, has argued, to the very root of the
powers conferment. This is because, in
many ways, the clauses allowing for the
power to make ordinances are an outlier in
our constitutional structure.
The founders aim was always to impose a
separation of power between the three recognised wings of government. In this arrangement, the legislature (Parliament at the
Centre, and the Assemblies and the Councils
in the States) is tasked with the primary job
of making laws; the executives role is to administer the country by enforcing these
laws; and the judiciary interprets the laws,
sees if they are being followed, and, where
required, reviews them to ensure that they
are constitutionally compliant. The execut-

Only an exceptional measure

Its equally clear even from the bare text of
the Constitution that the authority to issue
ordinances is to be used only to meet the
emergent demands of extraordinary situations. Article 123, which defines the ordinance-making power of the Union executive,
states that when both Houses of Parliament
are not in session, if the President is satisfied
that circumstances exist which render it necessary for him to take immediate action, he
may promulgate such Ordinance as the circumstances appear to him to require. It further provides that any ordinance shall have
the same force and effect as a statute of Parliament, provided it is laid before both
Houses. Whats more, the ordinance so made
will cease to operate at the expiration of six
weeks from the reassembly of Parliament,
or if Parliament at any time before the conclusion of the period passes resolutions disapproving of the ordinance. In nearly
identical terms, Article 213 of the Constitution places on the Governor, acting on the
advice of the Council of Ministers of his
State, the power to pass ordinances on subjects of State authority.
In practice, however, ordinances have
scarcely been used as a purely exceptional
measure. Most recently, the Central executive had issued an ordinance in 2014, which it
subsequently repromulgated three times
without approval, to overturn significant benefits guaranteed by the land acquisition law
enacted by Parliament in 2013. Their aim
clearly was to bypass the democratic requirements of argument and deliberation,
and to overcome numerical shortcomings
that they faced in the Rajya Sabha. What the
government was doing, therefore, was to use
its ordinance-making power as virtually an
alternative tool of legislation. It was a similar
abuse of power that had been placed before
the Supreme Court for its examination in
Krishna Kumar Singh.
A clear case of abuse
Here in question were a series of ordinances passed by the government of Bihar
through which the State sought to take over
some 429 Sanskrit schools, transferring in
the process the services of all the teachers
and other employees of the schools to the
State government. The first ordinance,
which was issued in 1989, was followed by a
succession of five ordinances, none of which
was placed before the State legislature. Ulti-

CARTOONSCAPE

Setback to climate
action plans

hat Donald Trumps scepticism about climate change will adversely impact
policies to address global warming became abundantly clear minutes after his
swearing-in as U.S. President. The White House
website quickly deleted all mention of climate
change. Turning its attention to other agencies, the
Trump administration instructed the U.S. Environmental Protection Agency to follow suit and scrub
all mention of climate change from its website as
well. But following a protest by scientists and others, the administration softened its stand and indicated that the agencys website was only being reviewed and that it had no immediate plans to
remove the content on climate change. Mr. Trump
has also resurrected the controversial Keystone XL,
that former President Barack Obama had blocked
after a protracted battle with policymakers, and
Dakota Access pipelines. The Trump administration had issued a gag order to scientists at the EPA
and the U.S. Department of Agriculture to stop
them from speaking to the media; it subsequently
changed its policy with respect to EPA but has mandated that even routine data and studies be reviewed before being released to the public. In line
with his thinking that global warming is an expensive hoax, Mr. Trump plans to re-energise the
fossil-fuel industry. The America First Energy Plan
listed on the White House website aims to increase
fossil fuel extraction in the name of creating more
jobs, and in the process eliminating, among other
things, Mr. Obamas climate action plan.
Even more alarming is Mr. Trumps intention to
reverse Americas involvement in the historic Paris
climate accord. Under the pact, 195 countries have
agreed to limit the increase in global temperature
since pre-industrial time to less than 2C in the 21st
century, and try to work towards reaching a
tougher target of 1.5C. In November 2014, Mr.
Obama announced a new target to cut greenhouse
gas emissions 26-28% below 2005 levels by 2025.
Among other measures taken in 2015, the U.S. had
finalised the clean power plan to reduce carbon dioxide emissions from the power sector to 32% below 2005 levels by 2030. With the average global
temperature already reaching 0.8C above pre-industrial levels, there are fears that further delay will
have long-term repercussions that would be near
impossible to mitigate. With the current and proposed policies by the U.S. already inadequate to
meet the Paris target, any negative deviation from
the plan will have implications for the entire world.
CM
YK

mately, the government failed to enact a statute confirming the terms of the ordinances,
and the last of them was allowed to lapse on
April 30, 1992. The employees of the schools,
who stood discharged from service, as a result of the termination of the ordinances, took
the State government to court.
When the case ultimately reached the
seven-judge bench for arguments there were
two fundamental questions to be answered:
whether the ordinances issued by the Bihar
government were constitutionally valid, and
whether the petitioners had derived any
legal right that survived the termination of
the ordinances. On the first, Justice
Chandrachud went beyond existing precedent to hold that not only repromulgated ordinances, but even ordinances issued at the
first instance, are subject to judicial review.
Here, he placed reliance on the celebrated
S.R. Bommai case (1994), where a nine-judge
bench of the court had ruled that the judiciary could strike down a proclamation of
emergency when the power had been exercised by the executive to secure an oblique
purpose.
Ordinances subject to scrutiny
Justice Chandrachud ruled that a similar
standard of review could be applied to ordinances too; the court, in these cases, he held,
will not enquire into the adequacy or sufficiency of the material before the President
or the Governor, but it can investigate to see
if there has been either a fraud or an abuse of
power committed by the executive.
But strong as the courts finding is on the
first question, on the second its verdict is potentially even more far-reaching. Here, the
court overruled two of its earlier judgments,
and binned what it described as a theory of
enduring rights. It ruled that an ordinance is
distinct from a temporary legislation, and it
therefore doesnt automatically create rights
and liabilities that go beyond its term of operation. While enacting a law, the legislature is entitled to define the period during
which the law is intended to operate, wrote
Justice Chandrachud. Hence, it lies perfectly within the realm and competence of
the legislature which enacts a temporary law
to provide that the rights or the liabilities
which are created during the tenure of the
law will subsist beyond the expiry of its
term. But an ordinance, unlike a temporary
statute, is not a creature of the legislature.
Therefore, the court held, these orders have
the same force and effect of a legislation only
so long as they are operational. In other
words, once the conditions imposed by Article 123 or Article 213, as the case may be, are
infracted, the question of what effects will
survive from the ordinance will have to be
independently assessed. In such circumstances, wrote Justice Chandrachud, the
court must examine whether the undoing of
acts performed under an ordinance would
run counter to public interest.
Now, while Justice Chandrachud is certainly correct in ruling that an ordinance
would not automatically create enduring effects, a test of public interest could prove
somewhat problematic in the future. There
may well be cases where an ordinance creates outcomes that are manifestly irreversible, despite public interest demanding its
reversing. However, that said, these issues
could well be ironed out when subsequent
benches are faced with such questions.
In the final analysis, the courts verdict has
to be seen as placing a vital check on what
has until now been a power rampantly abused by the executive. Inconvenient as legislative debate and deliberation can be, the legislature constitutes a critical foundation of
our democracy. When Parliament reconvenes next week, it must be seen by both the
ruling dispensation and the opposition as a
forum for debate, for making laws based on
critical reasoning. To await the completion
of the session, and to create laws then by circumventing this process through ordinance,
debases altogether the Constitution and its
finest ideals.
Suhrith Parthasarathy is an advocate practising at the
Madras High Court.

LETTERS TO THE EDITOR

Letters emailed to letters@thehindu.co.in must carry the full postal address and the full name or the name with initials.

A letter to the leader

While I can rationalise Gopalkrishna
Gandhis angst with the Prime
Minister, he appears to have looked
at our leader partially by wrapping
his style of functioning/personality
around fundamental precepts of
democracy (Heed this 67-year-old
tryst, Jan.26). I remember the
effects of the declaration of
Emergency. Shortly thereafter all
trains ran on time, DESU offices
opened on schedule and were fully
staffed. Our cook was delighted
because food was suddenly plentiful.
My factory-owner father was
astounded that he received all the
steel he had ordered in lieu of half.
Fear needs to be instilled in the
population over the enforcement of
laws. Narendra Modi is creating
such an atmosphere. Nothing
happens till someone does
something. Mr. Modi needs to be
given a chance to prove himself.
Dont forget that even Indira Gandhi
was voted out.
Naveen C. Kapur,
New Delhi

Though unflattering but regrettably

true, those watching the Prime
Ministers highly individualistic
style of functioning would perhaps
have very little to differ with Mr.

Gandhis diagnosis. Our leader

would be well-advised to rid himself
of his belief in his infallibility and
personal supermacism in the
conduct of the affairs of state. Not
respecting time-tested institutional
arrangements in the decisionmaking process of national
importance will only hasten the
crumbling of such institutions under
the weight of an overbearing leader
who exhibits the least tolerance for
well-meaning dissent. It does not
portend well for our democracy.
S.K. Choudhury,
Bengaluru

There is not even an iota of doubt

that the Prime Minister cares for the
country and he would go to any
extent to take it to a position of
pre-eminence in the comity of
nations. But in what can only be
construed as a case of missing the
wood for the trees, he remains
oblivious to the sufferings unleashed
on an unwitting public in the form of
half-baked measures such as
demonetisation with jargon about
cashless economy, making no
sense to more than half the
population. The overdrive and
enthusiasm of his team might even
turn out to be counterproductive.
C.V. Aravind,
Bengaluru

The article echoes the views of

many objective commentators about
the NDA government. The attempts
by the BJPs leaders to portray any
criticism of government policies as
akin to criticism of the nation will
not fetch dividends. With over half
of the governments term over, the
common man expects the
government to deliver on its
promises. The country is witnessing
crises on multiple fronts: the
economy is in a state of flux,
notwithstanding the tall claims by
the governments managers, there is
agrarian and rural distress, and
poorer sections have been hard hit
by skyrocketing prices of essential
commodities.
Where are the jobs for millions of
youth as promised? On the contrary,
jobs have vanished after the
demonetisation exercise. The
government is also not challenging
the laying off of workers in the
private sector. There is a gap
between rhetoric and performance.
J. Anantha Padmanabhan,
Tiruchi

The attrition of democratic values

under this regime is insidious. It is
happening so subtly and steadily and
there are hardly any voices that have
been raised against it. The balanced
observations are valuable and that

there is still space in the print media

for those who have not been blinded
by the dazzle of pseudo-nationalism
is laudable.
Thehseen Zakir,

Cleaning up poll funding

The article is a must-read for

everyone who hero-worships the
Prime Minister. This impartial
delivery of truth and a reality check
should be a lesson to all aspirants for
power and position.
R.K. Murthy,

The government should use the

findings of the Association for
Democratic Reforms as the catalyst
to make donations as well as
spending by political parties
cashless in order to bring in greater
transparency. A CAG audit of such a
system will also help people develop
greater trust in the political system
(Editorial Donations and
disclosures, Jan.26).
Vikalp Mathur,

Coimbatore

Navi Mumbai

West Asia outreach

Indias growing ties with the United
Arab Emirates are evidence that the
Emiratis are rethinking their
strategy following the fallout of
radical terrorism in the GCC
nations. The fact that a growing
band of countries is endorsing
Indias position on terrorism
vindicates Indias stand. Since most
players in the Gulf want to develop
strong relations with India, we are in
a unique position to play even
peacemaker. India must not delay
action on its projects in this part of
the world as these countries may
look towards China in case of delay.
Akshay Viswanathan,

All the glib talk and vacuous acts

such as demonetisation to tackle the
scourge of corruption will never
lead to the desired results till such
time as political funding becomes
transparent. The nexus between
political parties and business is an
open secret. It is this quid pro quo
which fuels corruption. Every
contributed penny in political
funding must be accounted for.
Moreover, the Election Commission
must be given more teeth to rein in
expenditure during an election. An
independent organisation needs to
scrutinise and audit accounts of all
political parties. The RTI Act must
extend to all parties.
Vijai Pant,

Thiruvananthapuram

Hempur, Uttarakhand

Kochi

ND-ND