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Why the President Should Have Returned Modi’s Land Ordinance

President Pranab Mukherjee at Jawaharlal Nehru's memorial, 27 May 2015, New Delhi. Photo: PTI

President Pranab Mukherjee at Jawaharlal Nehru’s memorial, 27 May 2015, New Delhi. Photo: PTI

The Union Cabinet’s decision to re-promulgate the  controversial land acquisition ordinance for the third time raises interesting questions about its validity.

When the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2015 was last re-promulgated on April 3, it was immediately challenged in the Supreme Court by four farmers’ organisations. The lead petitioner in the case is Delhi Grameen Samaj, and their lead counsel is Indira Jaising, senior advocate. When the case was heard on April 13, the Bench of Justice Jagdish Singh Khehar and Justice S.A. Bobde, showed no urgency in hearing the matter, and adjourned it after issuing notices to the respondents, (Union of India and others) with the hope that the petition might become infructuous with the two Houses of Parliament passing the necessary legislation to replace the ordinance in the mean time.

However, this did not happen, and the next hearing of the case is listed for July 6. In their petitions, the four farmers’ organisations have questioned the perceived reason for promulgating the ordinance, namely, the lack of legislative majority in the Rajya Sabha, even though the government may come up with certain legitimate grounds for promulgation, for the sake of public consumption.

The decision to re-promulgate the ordinance for the third time only vindicates the petitioners, and suggests that the optimism of the SC bench, though well-intended, was not consistent with the reality.

As and when the Supreme Court takes up the matter, it is likely to examine the relevance of the court’s previous judgment in D.C. Wadhwa vs State of Bihar (1987).

Between 1967 and 1981, the State of Bihar promulgated 256 ordinances that ‘were kept alive for periods ranging between one and 14 years by re-promulgation from time to time’. In this case, the Supreme Court held that the practice of re-promulgation of ordinances was unconstitutional.

However, Article 123 of the Constitution, which deals with the power of the President to promulgate ordinances during a recess of Parliament, is silent on whether an ordinance can be re-promulgated, and if so, how many times.

Strangely, the Supreme Court, while condemning the practice of re-promulgation of ordinances as a ‘fraud on the Constitution’ in D.C. Wadhwa, did not follow it up with effective remedies in its order. Instead, it hoped and trusted that such a practice shall not be continued in the future.

Again, while holding that re-promulgation of ordinances is unconstitutional, the Supreme Court in D.C. Wadhwa listed the circumstances in which such re-promulgation may be in order. Two such grounds were envisaged: first, the legislature may have too much legislative business; second, the time at the disposal of the legislature to secure the passage of the bill to replace the ordinance may be short.

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The cover.

In other words, as academic, Shubhankar Dam remarks in his excellent recent book, Presidential Legislation in India: The Law and Practice of Ordinances, (Cambridge, 2014), the court merely invalidated mechanical re-promulgation of ordinances, not re-promulgation per se. Thus, he says, if emergent conditions persist alongside adequate reasons for failing to legislate an ordinance into law, re-promulgation may be valid. These emergent conditions and reasons must point out why an ordinance was not transacted in the intervening legislative session, he asserts.

But Dam also points to the apparent inconsistency between the emergent conditions and the reasons. If a legislative emergency truly persists, with a make-do ordinance brought in to tide it over, why should such a matter be treated with low priority, he asks. If Parliament does not prioritise ordinance-related matters for reasons of volume or duration, that alone may be a ground to doubt the existence of emergent conditions, he suggests.

Nor surprisingly, the judgment in D.C. Wadhwa failed to satisfy Wadhwa, the petitioner, whose book, Endangered Constitutionalism: Documents from a Supreme Court Case, was published by the Gokhale Institute of Politics and Economics, Pune, in 2008.

Wadhwa’s solution to the twin exceptions carved out by the Supreme Court was to extend the duration of the session of the legislature, if the time at the disposal of the legislature in a particular session is short.

Dam also draws attention to another problem in D.C. Wadhwa. According to him, there is nothing to show that the Supreme Court, in D.C. Wadhwa, had not approved lack of legislative support as evidence of ‘adequate reasons’ to re-promulgate an ordinance, as it is unclear if the then Chief Justice P.N. Bhagwati’s two exceptions, which he laid down in the judgment, should be read as a closed category.

A related issue is whether the President can refuse to sign an ordinance, so re-promulgated. Dam says that when the President assents to a Bill, he or she exercises legislative power. A Bill, at least in theory, reflects certain representative, numeric and deliberative qualities. And it is the presence of those qualities that partly explains why the President cannot formally return it for a second time under Article 111, he says.

But when the President promulgates an ordinance, he or she exercises intermediate legislative power. Such an ordinance, by definition, lacks the qualities that give a Bill its elevated status. And for that reason, the President must treat ordinances differently from Acts, and if he or she sends it back to the Cabinet repeatedly for reconsideration, this may even be justified, he argues.

Despite lack of clarity on the constitutionality of re-promulgating ordinances, President Pranab Mukherjee has chosen not to return the Land ordinance; on Saturday, according to official sources, he signed it into law for the third time.

Had he chosen to send it back for reconsideration by the Union Cabinet even once, it would have sent a strong message to the political class. Having expressed his dissatisfaction with the Modi Government’s ordinance raj publicly, Pranab Mukherjee would have been justified in exploring his options when asked to sign the ordinance the third time within six months.

Until the 1990s, Central ordinances had never been re-promulgated. Of the 196 ordinances promulgated in the 1990s, as many as 53 (27 per cent) were re-promulgated, including some that were promulgated twice or more. This number came down to six during 2000-2009. The Modi government may well break the previous records in re-promulgation, if the Supreme Court and the President fail to restrain it in time.