Ordinance row: Modi government should remember what Ambedkar said

The Modi government’s decision to promulgate a number of ordinances after Parliament went into recess has put the ordinance-making power of the executive at the Centre of a controversy yet again.

With indications the Modi government had taken the ordinance route to beat the logjam in the Rajya Sabha, the NDA "ordinance factory" may have churned out good laws but not without violating the spirit of the Constitution. Lawmaking may be a difficult job when the government does not have a comfortable majority in both Houses of Parliament. But constitutional morality does not permit use of ordinances to make the task easier or to browbeat a tough Opposition. In view its utility in smooth governance, ordinance has always found favour with lawmakers even if it came at the cost of misuse. Despite abhorrence towards ordinance which was opposed as undemocratic during the colonial era, the Constitution-makers decided to continue with the power which, they believed would be used on behalf of the legislature.

Stalwarts like Jawaharlal Nehru, Sardar Patel and Dr BR Ambedkar decided to arm governments in independent India with the power despite Mahatma Gandhi voicing his opinion against ordinance when the Constitution was being framed. The Constitution-makers felt the situation would be different with a responsible government taking over. “So, any power that is likely to be exercised under this Section (read Article) by the president will have the tacit approval and consent of the Legislature,” a Constituent Assembly member said, echoing the majority view.

The founding fathers seem to have been proved wrong. With disruptions in House being cited as one of the reasons for taking the ordinance route to lawmaking, there is hardly any scope for presuming tacit approval by legislature in such circumstances. With ordinance being meant to deal with circumstances requiring "immediate action" when both the Houses of Parliament were not in session, it should not generally be used to clear pending legislative work even if disruptions affect working hours. It is unlikely that something which is urgent for the executive would not be considered so by Parliament as well.

With the Constitution leaving it to the executive to judge as to what required immediate action, misuse can be prevented only if governments learn to honour constitutional morality. "His Excellency the governor of the province was fully within his rights to enact an ordinance but it was against constitutional morality," the Calcutta High Court observed following a case of abuse by the colonial government. Even to this day constitutional morality continues to remain the only effective safeguard against misuse. The fact that ordinance has a short lifespan, unless approved by legislature, is no guarantee against ordinance raj. All acts done continue to remain valid even if it lapses for want of legislative approval.

There is no dearth of examples to show that ordinances continued to be used in a routine manner after independence. The Supreme Court judgement in the Bihar ordinance raj case records the abuse of the power. In a recent controversial decision, the UPA government had promulgated an ordinance to increase the salary of judges.

The Constitution-makers had not expected the change to happen overnight. Dr Ambedkar had stressed that constitutional morality was not a natural sentiment but it had to be cultivated. "We must realise that our people have yet to learn it," he said. Decades later, the situation on this count remains unchanged. But the utility of the ordinance-making power probably still overweighs the fallouts of misuse as was the case at the time of the framing of our Constitution.

Dr Ambedkar said ordinance was a necessary evil. “Yes. The word ‘ordinance’ is a bad word... I do not like the word ‘ordinance’, but I cannot find any other to substitute it”. The sentiment holds ground and is likely to continue to do so unless blatant misuse by autocratic governments makes ordinance more evil than necessary.