The Supreme Court ruling on July10, 2013 striking down Section 8(4) of the Representation of People Act that gave impunity to the convicted legislatures is a great step forward. The fitting judgement of the Supreme Court cleared doubts as to why there is a different law for an ordinary citizen and an MP and MLA in respect of conviction.
The political class on the other hand were swift enough not to implement the ruling but to nullify the judgement. The ordinance brought in by the executive class was to make the convict retain membership if he/she files an appeal in the court of law within 90 days or if his/her appeal is stayed by the court.
At this juncture it is important to look through the provisions of the executive to promulgate an ordinance as law making is a tool that must be used by the legislature as per the division of powers envisaged in our constitution.
Our constitution through the separation of powers designates certain legislative powers upon the President through Article 123 and to the Governor through Article 123. Though the President promulgates the ordinance it's all done as per the advice of the council of Ministers. The President in his own wisdom as per the rules and regulation laid can examine if the situation demands an immediate action. However, such executive powers were given to prevent the stalemate in decision making when the legislature is not in session. Even if an ordinance is passed, it must be approved by the Parliament within six weeks of reassembly otherwise which it becomes invalid.
In this light it becomes apparent to have a look at the ordinances passed over the years. There are cases where an immediate action was required and also cases where the judiciary has shown its prudence and sent a stern warning for the improper legislation mooted through ordinance.
The R C Cooper vs. Union of India (1970) where the ordinance was to nationalise the 14 banks, the judiciary took a different view by stating that an immediate action was not warranted in this case and the intention of the executive was to clearly by pass the Parliamentary procedures. It clearly seemed to be a case of judicial overreach which led the Government to enact a Clause (4) in Article 123 by the 38th Constitutional Amendment in 1975, thus preventing any judicial interference. But that couldn't stay long and led to the subsequent revocation of the above clause by 44th Constitutional Amendment Act, 1975.
In A.K.Roy vs. Union of India, 1980 and T.Venkata Reddy vs. Union of India, 1985 the court held a different opinion and said that the ordinance cannot be questioned as the President and the Governor enjoyed the same legislative making powers as that of the Central and State legislatures.
In the above two cases, the court has definitely upheld the constitutional powers of the executive but it must be kept in mind that the executive power needs to be used very sparingly.
The statistics from 1990 till 2013 on the ordinances passed, shows that there has been a gradual increase in the ordinance issued in 2013 when compared to the previous year. Nine ordinances have been promulgated this year, out of which 3 of them were re-promulgated.
Re-promulgation of ordinances takes us to 1987 where the court took a serious note of it in D.C.Wadha vs. State of Bihar.
Deliberating about the Cabinet nod for the ordinance on September 24, it did set a very bad precedent as it clearly meant by passing the legislature. With elections in sight, the differences between the old guards and the new within the UPA, lead to the nullification of the ordinance. This resulted in de baring Lalu Prasad Yadav and Rashid Masood from politics. Though it was done without unanimity and at the behest of Congress Vice President, it pointed that principles may not be compromised for political gain.
There have been some apprehensions by certain people on the SC verdict as the judiciary tries to make laws for which it has no authority. However, when executive fails in its duty and keeping in mind the larger national interest the legislature has to step in.
This episode points that it's high time that our political masters do not make such ordinances just for political gains. Ordinance is a tool that must be used very sparingly when situation demands.
Praveen Ebenezer Paul. E