Even the MPs of the ruling BJP have expressed their resentment, particularly those who represent rural constituencies. At the first meeting of the joint committee some BJP members, worried about the political fallout of the proposed changes, expressed their concern. Even the BJP’s NDA allies—Shiromani Akali Dal and the Shiv Sena—have raised questions about the wisdom of persisting with such an unpopular legislation.

The Constitution is hazy over the provision for promulgation of an ordinance. It is not clear how many times as ordinance can be re-promulgated. In a case relating to Bihar, which issued 256 ordinances between 1967 and 1981, the Supreme Court described the practice as unconstitutional and dubbed it “a fraud on the Constitution”. The apex court justified an ordinance in cases where there is excessive legislative work pending and the legislature concerned has too short a time at its disposal to pass the regular bill. In the case of land ordinance these conditions did not exit.

The Supreme Court held in D C Wadha vs state of Bihar that it is unconstitutional to re-promulgate ordinances, unless in exceptional circumstances. Ordinances themselves are an exception, the court observed. The primary responsibility to enact legislation is that of the legislature. It is only to tide over a temporary urgency that the executive resorts to an ordinance. But to re-promulgate it is to circumvent the legislature’s primacy is not justified.

In a book, Wadha documented how the Bihar Assembly had effectively stopped functioning. The executive had taken over, and ordinances were being systematically promulgated to keep them in effect, at times, for as long as 15 years. Concerned at misuse of power, five judges hurriedly declared promulgation unconstitutional.

This was in 1986, before which, the central government had never promulgated ordinances. The practice began only in 1992 when Narasimha Rao government restored to it, thus starting a trend. In 1990, 196 ordinances were promulgated in all; almost 53 ordinances were re-promulgated. How could a practice that had already been declared unconstitutional, a fraud, be so common?

This was because the general rule in the Wadhwa verdict came with an exception. It was stated that the government may, occasionally, be unable “to introduce and push through” a bill to convert an ordinance either because “the legislature has too much legislative business” or at the time at its disposal is short. In such a case, the verdict stated, the President may “legitimately find that it is necessary to promulgate the ordinance”. Any such re-promulgation of the Ordinance, the court observed, may not be open to attack.

This makes little sense. In India’s system of government, the executive have complete control over parliamentary sessions, its duration, and the business agenda. Ministers, occasionally in consultation with the Speaker, decide which legislative matters to list and when. If there are important matters to be dealt with, surely the proper response is to lengthen the Parliament session and not resort to Ordinances.

Because of Wadhwa exception, the executive today may justify promulgating an ordinance before the two houses, and keep the session short. Apparently, a “fraud on the Constitution” may alchemize into lawful action through sheer inaction. The Wadhwa verdict has encouraged, rather than prohibited re-promulgation of ordinances. After P V Narasimha Rao, Deve Gowda, I K Gujral and Atal Behari Vajpayee ran minority coalition governments. Unable to enact legislation properly, given lack of numbers, these governments took the Ordinance route. Political expediency, not legislative urgency, motivated these Ordinances.

The Wadhwa exception must be reconsidered, an opportunity for which is in hand. A petition challenging the constitutionality of the Land Ordinance 2015 is pending before the Supreme Court. The petitioners argue that the Ordinance was promulgated in April simply because government did not have the numbers to properly enact it. The apex court must settle this issue and lay the controversy to rest for all time. (IPA Service)