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Business News/ Opinion / Online Views/  The Constitution and its political misuse
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The Constitution and its political misuse

The ordinance to save disqualified legislators serves only partisan ends

Illustration by Jayachandran/Mint (Illustration by Jayachandran/Mint)Premium
Illustration by Jayachandran/Mint
(Illustration by Jayachandran/Mint)

On Tuesday, the Union government cleared an ordinance that throws a lifeline to convicted legislators. Once it becomes effective, convicted lawmakers will not face immediate disqualification.

There are two issues at hand. One, the immediate case in which the government has brazenly sought to defend convicted lawmakers and second the increasing abuse of ordinances by the Union government.

The ordinance nullifies a ruling issued by the Supreme Court on 10 July. The court had held that Section 8(4) of the Representation of the People (RP) Act, 1951 was unconstitutional. The section provides that if a legislator is disqualified, then this order will not come into force for three months. In addition, if an appeal is made by such a legislator during this period, then until the appeal is disposed off, the disqualification shall remain stayed. Once the President signs this ordinance, the original position under the RP Act shall be restored.

As a face-saving measure, the cabinet decided that affected legislators will not draw a salary and will not vote in legislatures. But they will have the right to participate in the proceedings of Parliament and/or state assemblies. In effect, the ordinance preserves a very important privilege of legislators, one that ought to end the day they are convicted.

What is not clear is the public purpose that will be served by saving convicted legislators.

The Constitutional provisions for issuing ordinances by the President are pretty clear. Article 123(1) clearly states that, “If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require."

Because the President acts on the recommendation of cabinet in this case, the government should have clearly explained the necessity in resorting to an ordinance. It has not done that. And the reason for not doing that is clear: it simply does not have a reasonable, let alone respectable, answer at hand.

The Hindu reported on Wednesday that Union law minister Kapil Sibal has said the government, while clearing the ordinance, had simultaneously written to the chairperson of the Rajya Sabha to send the ordinance to the standing committee of Parliament. A Bill—the Representation of the People (Second Amendment and Validation) Bill, 2013 on which the ordinance is based—is pending in Parliament. This makes the government’s position untenable: when a Bill meant to override the Supreme Court order is already pending in Parliament, what is the hurry to issue an ordinance? Surely, if the government is confident of its majority, this Bill will be passed in due course.

The answers lie elsewhere.

This year, excluding the two ordinances meant to overcome cases of disqualification of legislators, the Union government has issued eight ordinances. This is the highest number of ordinances issued in any year since 2009 when the United Progressive Alliance (UPA) government was voted back to power again. These numbers are, by historical standards of Indian legislatures, not very high. There is a history of abuse of this power in India: state legislatures in the past relied on what has been called an “ordinance raj". Ordinances would be routinely issued to overcome barriers in state assemblies. Once the assembly session ended, the same ordinance would be re-promulgated again, and again. The courts have decried this practice and the problem has abated somewhat. But what the Manmohan Singh government has done in the last two months is different: it has abused this power for the second time for political ends.

The National Food Security Ordinance (NFSO), issued in early July, fell in the same class. The government, in the NFSO case, was in a hurry to prove a political point and secure advantage in view of the general election next year. The NFSO would not have made, and has not, any material difference to nutritional outcomes in the lives of citizens.

Similarly, the ordinance issued on Tuesday does not meet any larger objective, except one. This needs elaboration.

In the next week or so, a decision by a Central Bureau of Investigation (CBI) court on a case pending against the former chief minister of Bihar, Lalu Prasad, is expected. It has been speculated, and speculation indeed it is, that he may face conviction. Had this government’s track record been different, this paper would have dismissed this line of reasoning as unwarranted. But this sort of speculation is no longer out of line but is very much in the realm of possibility. The truth of the matter will emerge in the coming days. But one thing is sure: this government has badly abused the Constitution for its political benefit.

Has the UPA government abused the ordinance making powers of the Constitution? Tell us at views@livemint.com

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Published: 25 Sep 2013, 06:46 PM IST
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