Centre must take ordinance route to address ‘economic emergency’
The ordinance will have to eventually face parliamentary, and therefore, a very public scrutiny.
On April 6, the Union government announced its decision to amend the Salaries, Allowances and Pension of Members of Parliament Act, 1954 by an ordinance under article 123 of our Constitution. The amendments will reduce the salaries of all MPs by 30 per cent, and will suspend the MP-LAD scheme for next two financial years. It was also announced that the President, the Vice-President, the Governors, the Prime Minister and the entire Union cabinet, had voluntarily decided to take a 30 per cent salary cut for FY 2020-21. Consequently, Rs 7,900 crore of national money will now be available to be used to arrest, contain, and eliminate this 'social emergency', as the PM has called it, created by the spread of SARS-CoV-2, and the Covid-19 disease it causes.
A better path
Interestingly, in an interview published on the same day, a former governor of the RBI, speaking in the current context said that, "Economically speaking, India is faced today with perhaps its greatest emergency since independence." Strictly from the economic emergency context, the correctness of this statement cannot be contested. 'Financial stability' of our republic is certainly threatened, one of the two grounds on which an economic emergency under Article 360 can be invoked. On March 26, a PIL was also reportedly filed before the Supreme Court seeking a direction to the government to proclaim an economic emergency under Article 360. On April 1, the court agreed to hear the petition. Irrespective of how the court might eventually rule on this petition, this Article argues that so far as the Covid-19 public health emergency and the legal and constitutional means at our disposal to effectively deal with it are concerned, the April 6 ordinance is a far more desirable constitutional route to take as compared to proclamation of economic emergency under Article 360.
Factors for concern
Article 123 allows the Union government to advise the President to promulgate ordinances when Parliament is not in session. The ordinances do, however, have to be discussed in and voted on by Parliament when it meets next, or they automatically lapse. This decision of the Union government, currently taken by promulgating an ordinance, is completely capable of being taken by a purely executive decree that article 360 itself shields from any parliamentary oversight or voting.
By not invoking Article 360, the Union government seems to have shown great restraint, for there is every provocation to take recourse to emergency powers in this case. The ordinance will now have to eventually withstand parliamentary, and therefore political, scrutiny before it becomes binding law. No such scrutiny is possible if Article 360 is invoked. Let's assume that the Union cabinet has advised the President to proclaim a state of economic emergency under article 360(1), and the President's proclamation is published in the Gazette. Once this happens, the Union cabinet would be completely within its jurisdiction to further advise the President to take the exact same decisions (ie salary reduction and MP-LAD scheme suspension).
Article 360(3) authorises the President to issue such 'directions' pertaining to 'financial propriety' as 'the President may deem necessary and adequate for the purpose' for which the economic emergency was invoked. Under article 360(4)(a)(i), the President is specifically authorized to direct, amongst other things, the "... reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of the State". Article 360(2)(c) only provides that the original presidential proclamation made under article 360(1) shall 'cease to operate' after the expiry of a two-month period from the date of proclamation unless approved 'by resolutions of both Houses of Parliament'. Constitutionally, there is no need for the actual executive decisions taken under the authority of a presidential economic emergency proclamation before Parliament for any kind of debate. If the union cabinet were to advise to President to invoke emergency powers under article 360, there is not a single ground available on which the validity of this decision could be questioned before any court. Furthermore, in such a scenario there is not a single available constitutional mechanism that would enable Parliament to examine the actual decisions taken to contain and defeat this public-health emergency. But the ordinance will have to eventually face parliamentary, and therefore a very public, scrutiny.
Time for reflection
It is certainly the more desirable of the two constitutional routes, and demonstrates great restraint by the current government in face of every viable provocation to invoke emergency powers. However, these events also expose some limitations in our constitutional text that we all will be well advised to ponder and reflect over as we stay indoors in our fight to defeat this public health emergency.
(Courtesy of Mail Today)